WA LEGAL firms and mining companies have reacted to the imminent introduction of the Aboriginal Cultural Heritage Act (2023) by staging their own information sessions and creating online resources to inform farmers, pastoralists and mining interests about the impact of the new legislation on their activities.
The act comes into effect on July 1 and has far-reaching implications for farmers and pastoralists, including the likelihood of higher penalties for breaches.
A series of State government education workshops is underway this month to support the implementation of the new legislation.
The workshops are providing an overview of the act, its guidelines and recommendations, details of the commencement process and an opportunity to ask questions.
Several of the workshops were fully subscribed by the middle of last week.
The act replaces the 50-year-old Aboriginal Heritage Act (1972) and was drafted partly in response to the damaging of Juukan Gorge rock shelters by Rio Tinto in 2020.
It passed through Parliament in December 2021 and is described as a new way to protect Aboriginal cultural heritage.
Some aspects of the 1972 act will stay in place for six months.
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The State government says the new act provides a modern framework for the recognition, protection, conservation and preservation of Aboriginal cultural heritage.
Throughout 2022, the Department of Planning, Lands and Heritage developed a set of guidelines to support the act and the government said the department conducted "comprehensive consultation with stakeholders across WA".
It is these guidelines that WA farm lobby groups say will cost WA's farmers and pastoralists millions of dollars and time in getting approval for everyday farming activities, which may then be delayed for months.
These activities include all disturbance of freehold and pastoral land - to a depth of 50 millimetres - on an area of more than 1100 square metres.
Depending on the level and type of ground disturbance, the activity is classed as tier one, two or three.
The Pastoralists and Graziers' Association of WA and WAFarmers oppose the new act and say it will be costly and time-consuming for farmers.
Lawyer Phil Brunner, Bailiwick Legal managing director, said nothing could be done now to stop the act from coming into force on July 1.
His firm has prepared short videos and written resources to advise clients of the changes and what impact these may have on businesses.
Mr Brunner said there could be scope to challenge the guidelines when these came into effect.
"There is a great deal of ambiguity in this act," Mr Brunner said.
He said under the act, a due diligence assessment involves the proponent (farmer or pastoralist) notifying each Local Aboriginal Cultural Heritage Service (LACHS) for the area, or alternatively each native title holder or knowledge holder for the area, of the proposed activity on the land.
For a tier two or three activity, the proponent must give each of the persons notified the opportunity to submit a statement of their views about the risk of harm being caused to Aboriginal cultural heritage from the proposed activity, and then make an application to the LACHS to gain a permit to carry out a the activity.
"The application to the LACHS must outline the details of the proposed activity, the characteristics of Aboriginal cultural heritage of which the proponent is aware of and any risk of harm to Aboriginal cultural heritage identified in the due diligence assessment," Mr Brunner said.
"The LACHS can either grant or refuse a permit for the proposed activity.
"If refused, the proponent can object in writing to the minister, who can either confirm the decision of the LACHS or make another decision."
For a tier three activity, a proponent is required to have an approved or authorised management plan with interested Aboriginal parties, including local LACHS and native title parties and consult with those parties before the commencement of the activity
Aboriginal parties are required to give informed consent to a management plan before a plan can be approved by the LACHS or authorised by the minister.
Once approved or authorised, a proponent can carry out their proposed activities in accordance with their management plan.
But if new information about Aboriginal cultural heritage emerges in relation to an area to which an LACHS permit or approved or authorised LACHS management plan relates, then the minister has the discretion to issue a stop activity order, prohibition order and remediation order to prevent harm to Aboriginal cultural heritage.
Mr Brunner said if no protected area order was declared and there is no knowledge of Aboriginal cultural heritage in the area, then a landholder is free to carry out activities on their land without having to comply with the provisions of the proposed act.
The main concern was the compliance measures that have been introduced.
Under part 10, Aboriginal and non-Aboriginal inspectors are given broad powers to enter Aboriginal places, obtain information and conduct inspections for the purpose of ascertaining whether the act or any instrument has been contravened.
Inspectors will have the power to enter places, take samples or specimens, survey and mark out land and make reasonable use of any equipment, facilities or services on or in a place or vehicle to carry out an inspection.
Mr Brunner said it was unclear, how often inspectors will be used to carry out inspections, as the purpose for inspections is worded very broadly.
But he said it appears that Aboriginal and non-Aboriginal inspectors will be given much broader powers of inspection, entry and seizure than what is in the current act.
