DUE to the State's farmers ongoing concerns about their obligations under the State Government's controversial new Aboriginal Cultural Heritage (ACH) Act, Farm Weekly journalist BREE SWIFT conducted a question and answer session with the Department of Planning, Lands and Heritage (DPLH).
The DPLH's responses are below.
QUESTION: Where can farmers find a map/register of the State's Aboriginal cultural heritage sites and protected areas?
Answer: Comprehensive information about all aspects of the Aboriginal Cultural Heritage Act 2021 and its application for all land users, including farmers, is available online at wa.gov.au/ach-ac
This includes the ACH directory where people can check for existing surveys and any registered sites.
Q: Under the new Act, will these protected areas be subject to change?
And if so, how can a property owner who has already completed their due diligence assessment (DDA) ensure they are protected and still working within their obligations under the Act?
A: The ACH directory provides information that farmers can easily check when they are planning new activities that aren't already exempt or covered by like-for-like exemptions.
The requirement to protect Aboriginal cultural heritage does not change under the new Act - property owners have always been required to seek approval for activities that may cause harm to Aboriginal cultural heritage.
The new Act provides greater clarity for property owners on what, if any, action may be required, through four categories of activity.
It also provides - for the first time - an extensive range of exemptions for certain land users.
These were not previously included under the old Act.
A DDA is undertaken at a point in time for the activity or activities in question and provides a defence to the charge of an offence that an activity harmed Aboriginal cultural heritage [s. 98].
If a survey is required, this can be carried out in accordance with the Aboriginal cultural heritage survey report guidelines and can be able to be relied on for the area of the proposed activities.
A DDA could include a survey for the whole of a property.
There is also an obligation to take all reasonable steps possible to avoid or minimise the risk of harm to Aboriginal cultural heritage.
Q: If the map/ACH register itself is also subject to change as more ACH sites are identified across the State, how can a property owner who has already done their due diligence ensure they are still protected and working within their obligations under the Act?
A: As above, a DDA is undertaken at a point in time for the activity or activities in question and provides a defence to the charge of an offence that an activity harmed ACH [s. 98].
Q: A DDA is required to be undertaken to assess the risk of harm to Aboriginal cultural heritage to enable a proponent to determine how to proceed in relation to a proposed activity. Is the landowner responsible for undertaking a DDA on a property?
A:Yes.
Q: Does a landowner need to keep records/provide proof of a DDA of a property to protect themselves under the Act?
A: Property owners are advised to keep records of all assessments.
Q: If a property owner undertakes a DDA in accordance with the code, does this protect them from being charged if a Aboriginal cultural heritage site is later found to have been damaged on their property?
A: As above, a DDA is undertaken at a point in time for the activity or activities in question and provides a defence to the charge of an offence that an activity harmed Aboriginal cultural heritage [s. 98].
There is also an obligation to take all reasonable steps possible to avoid or minimise the risk of harm to Aboriginal cultural heritage.
Q: Due to demand, will more education sessions be scheduled around the State after July 1?
A: Future education sessions are being scheduled around WA to support the transition to the new system.
People are asked to register their interest by contacting aboriginalheritage@dplh.wa.gov.au
Additional workshops will be advertised on the department's website.
A recording of an educational workshop is available at wa.gov.au/ach-act.
Q: Are there prescribed timeframes for the approval processes under the Act?
A: Yes.
In developing the new legislation, the State Government listened to concerns that securing approvals takes too long under the current system.
For that reason, we've included statutory timeframes that must be complied with by all involved parties - creating a streamlined system that will result in swifter approvals.
Q: Will there be capacity to seek approvals online?
If so, when is the system expected to be up and running?
A: Yes, July 1, 2023.
Q: In order to be successful, what process will an Aboriginal corporation have to undertake to become a LACHS?
A: The application process and requirements to be designated a LACHS are set out in part 2 of the Act.
The ACH council is responsible for designating LACHS.
Q: Do the traditional owners need to be part of a corporation to become a LACHS?
A: The Act sets out which Aboriginal corporations are able to be designated a LACHS [s. 40]
Q: What support will the LACHS receive from the department to ensure their staff are appropriately resourced, governed and trained across the State?
A: The State Government has committed $77 million through the 2023-24 Budget to support the implementation of a new system and ensure the sustainability of Local Aboriginal Cultural Heritage Services (LACHS).
When a LACHS is established it will receive a one-off grant of $200,000 and will be funded up to $300,000 each year to ensure adequate levels of resourcing and capacity to meet the anticipated service level requirements from proponents and Aboriginal people.
In addition to this, DPLH and the Department of Training and Workforce Development (DTWD), through South Regional TAFE, are developing training products that support introduction of the ACH Act to build capability and capacity for LACHS as well as other stakeholders.
Q: How many of the 30 Aboriginal organisations which have applied for grants (as a first step to supporting their readiness and designation as a LACHS) are anticipated to become operational within the next six months?
A: Eligible Aboriginal organisations are being supported to become designated LACHS as soon as possible.
Proponents can engage with the relevant native title organisation, as they have been to date, in the interim.
Q: Where LACHS don't exist, Native Title bodies will support the operation of the Act.
What is the process for a property owner who initially engages with and receives advice from a native title body, but then a LACHS forms in their area?
Will they be required to re-engage with the LACHS on issues already covered with the native title body?
A: A property owner who engages with a native title organisation (eg through the DDA process or entering into a management plan) will not have to re-engage if a LACHS is subsequently established in their area.
It is anticipated that most instances it will be the prescribed body corporate or regional corporation that will become a LACHS so in effect it will likely be the same organisation.
Q: Under the new Act, are there prescribed timeframes for the LACHS to complete activities, such as a land survey, to help protect the State's landowners from having to outlay large amounts of money?
A: There are a range of prescribed timeframes that apply to LACHS set out in the ACH regulations and consultation guidelines.
There is no prescribed timeframe in relation to the DDA process or surveys as this may vary considerably depending on the geographical area and location.
There is a legal obligation on a LACHS to undertake its functions in a timely manner, including in relation to agreement on a management plan.
Q: In the absence of LACHS being set up, the Department of Planning, Lands and Heritage has been tasked with answering landowners' questions about their obligations under the new Act. How many staff are there within the Department to fulfill this role?
A: The role of the department is separate to that of LACHS.
The existing Aboriginal heritage team, currently responsible for the Aboriginal Heritage Act 1972, is being combined with the team established for the development and implementation of the new Act.
This includes an additional two staff in each of the Kimberley, Pilbara, Mid West, Goldfields and South West to support implementation of the ACH Act.
Regional, as well as Perth-based officers, will be available to provide support to the Wheatbelt, Mid West and Murchison regions.
These staff are available to provide online or over-the-phone support.
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Q: Is there a specific funding allocation?
A: The State Government has provided additional funding in the 2023-24 budget which includes funding for additional officers within the department.
Q: Under the new Act, what are the maximum penalties for individuals and businesses who harm Aboriginal cultural heritage on a property?
A: Under the new Aboriginal Cultural Heritage Act 2021, fines can apply for any person or organisation prosecuted for harming Aboriginal cultural heritage.
If serious harm is caused to Aboriginal cultural heritage, the new Act provides for penalties of up to a $10m fine and daily penalties for a body corporate or a fine of up to $1m and/or five years' imprisonment and daily penalties for individuals.
The new Act also includes powers to allow the minister to issue a stop activity order and a prohibition order in circumstances where Aboriginal cultural heritage is being unlawfully harmed.
Under section 98 of the Act, completing a due diligence assessment may be used as a defence to a charge if Aboriginal cultural heritage is harmed by an activity.
Q: Under the new Act, newly created inspectors will have the power to enter a property or stop a vehicle and seize an open package while conducting an inspection. In what types of scenarios will inspectors be given this authority?
A: The Act outlines the purposes for which inspection and related powers can be exercised.
For example, an inspector may stop and enter a vehicle, other than a mobile home, for the inspection purposes set out in section 230 of the Act.
The department already has an investigation team that undertakes this role under the 1972 Act and will continue to do so under the new Act.
Q: Will landowners be notified before an inspection?
A: Inspection of dwellings requires the consent of the occupier, unless entry is in accordance with an entry warrant.
Q: Any activity that may result in harm to Aboriginal cultural heritage requires Section 18 consent. What does this process involve?
A: A section 18 consent was the approval process under the 1972 Act which, other than a limited number of provisions, will cease to have effect from July 1, 2023.
Q: For Tier 1 activities, landowners are required to undertake all reasonable steps possible to avoid or minimise harm to Aboriginal cultural heritage.
What steps must farmers take to do this, to ensure they won't be subject to penalties later on?
A: This would depend on the activity being carried out.
The code states that reasonable steps may include, for example, choosing an alternative location or feasible alternative method to carry out the activity that will avoid or minimise harm.
Q: What are some practical examples of Tier 1, Tier 2 and Tier 3 activities on a farm?
A: Extensive information about the activity tiers is publicly available online: ACH-Act-2021-Activity-tier-and-table.pdf (wa.gov.au).
Q: For Tier 3 activities, the proponent will be required to develop an Aboriginal cultural heritage management plan, which will have to be negotiated with the relevant Aboriginal parties.
Who do farmers consult to ensure they are dealing with the correct Aboriginal parties for their area?
A: A management plan will only be required where the proponent determines that there is a risk of harm to Aboriginal cultural heritage.
The first point of contact is either the LACHS or, if there isn't a LACHS, the relevant Native Title organisation.
Contact aboriginalheritage@dplh.wa.gov.au or the DPLH on 6551 8002 for more information.
Q: Is there a limit to how many Aboriginal parties a landowner will need to consult with to develop an Aboriginal cultural heritage management plan?
A: The processes are outlined in the consultation guidelines and depend on the relevant circumstances.
Guidelines can be found at: wa.gov.au/government/document-collections/aboriginal-cultural-heritage-fact-sheets-and-guidelines
Q: What is the process if disagreements occur between the relevant Aboriginal parties involved in developing an Aboriginal cultural heritage plan for a proponent?
A: A management plan only needs to be negotiated and agreed with the LACHS, if there is one, or otherwise with the relevant native title organisation.
A proponent may apply to the Aboriginal Cultural Heritage Council for the Aboriginal Affairs Minister to authorise a management plan if the proponent and the Aboriginal party cannot reach agreement.
Q: Is there a prescribed timeframe for developing an Aboriginal Cultural Heritage plan for an Aboriginal cultural heritage site on a property?
A: Yes, the prescribed time periods are set out in the regulations.
