Analysis of the Aboriginal Cultural Heritage Act 2021 and the approval process for exploration.

As everyone knows, unless you turn off the news when McGowan shows his face, the government has introduced the Aboriginal Cultural Heritage Act 2021 (Act); 280 pages of legalise. In this article we have attempted to condense this to a couple of pages while providing an assessment of the effect on the mining industry. One thing that is patently clear is that any construction or exploration will be high risk without following the processes as laid out in the Act, and these processes will be time-consuming and expensive.

The full details of the Act will become clear when the Regulations are released after the 12 month Co-Design process that aims to involve Aboriginal people, mining companies, government and other stakeholders. Since the Act’s royal assent on 22 December 2021, the 3 phase Co-Designed process has commenced. The first phase was completed end of May 2022. Phase 2 will run 18 July-6 August 2022. The Regulations and guidelines are expected to be written by mid 2023.

We can gain an indication of how the Act will affect the mining industry by an analysis of the Act, the Co-design Fact sheets, the published responses of the participating applicants, and by the past volume of exploration in WA.

When the Act is fully functioning, undertaking exploration or mining becomes a higher risk enterprise with the potential for substantial fines. The fines commence at $20,000 for moving or selling Aboriginal Cultural Heritage (ACH) Objects, while seriously harming ACH is $10 million for a corporation and $1M for individuals, or imprisonment, or both. See the Penalty Tables at the end of the article for more information.

These increased penalties should discourage companies from having employees and bulldozers aimlessly careering around the bush, accidentally destroying Aboriginal sites or protected areas.

ACH Meaning

One of the changes the Act has made is the definition of Aboriginal cultural heritage. Section 12 of the Act states:

“Aboriginal Cultural Heritage

1. a) means the tangible and intangible elements that are important to the Aboriginal people of the State, and are recognised through social, spiritual, historical, scientific or aesthetic values, as part of Aboriginal tradition; and
2. b) includes the following —
3. i) an area (an Aboriginal place) in which tangible elements of Aboriginal cultural heritage are present;
4. ii) an object (an Aboriginal object) that is a tangible element of Aboriginal cultural heritage; iii) a group of areas (a cultural landscape) interconnected through tangible or intangible elements of Aboriginal cultural heritage;
5. iv) the bodily remains of a deceased Aboriginal person” …[except those buried in a cemetery]

This wider definition than the previous Aboriginal Heritage Act 1972, combined with the Act not allowing for existing use exemptions over an area means that companies may need to review their current operations to determine if they comply with the Act. For example, an Aboriginal survey undertaken before 21 December 2021 may have not considered the intangible elements important to Aboriginal people. This consideration may change the outcome of many past decisions.

Ground Disturbing Activity

Activities under the Act have been graded into the following, which require different types of management:

• Exempt activities
• Tier 1 activities
• Tier 2 activities
• Tier 3 activities

The Act roughly defines the activities in the different Tiers, but until the consultation process is finalized, and the Regulations written, those activities will not be defined. Following is a brief outline of each Tier, the following listed activities, though not complete nor definitive, are suggested in the Draft Activity categories Fact Sheet.

Exempt Activities

Exempt Activities are defined in s100 of Act. They include walking, emergency purposes, travel on existing roads or tracks, recreational activities in public waters, preventative burning and bush fire control by a public authority. Building houses is permitted on lots defined in the Planning and Development Act 2005.

Tier 1 Activities

Tier 1 activities involve no, or a minimal level of, ground disturbance.

Suggested Activities: Aerial and remote sensing surveys, ground surveying, metal detecting, feral animal and pest control, sampling flora and rocks and soil up to 20kg by hand, erecting signs, maintaining existing facilities, establishing temporary camps, pegging Prospecting Licences and Mining Leases.

No approval is required for Tier 1 activities, though a person may inquire with the Department of Planning, Lands and Heritage (DLPH) if the proposed activity falls within a Tier 1 activity.

Tier 2 Activities

Tier 2 activities are activities involving a low level of ground disturbance.

Suggested Activities: Revegetating of degraded areas using ground disturbance and fencing, seismic surveys along roads and tracks; erosion control along existing roads and tracks; vehicle mounted auger sampling; archaeological materials analyses both surface and subsurface; installing water bores; tree removal; jetty and boat maintenance; backfilling historic mine features.

To undertake a Tier 2 activity that is not in a protected area, you need either a Permit or an ACH Management Plan (Management Plan).

Tier 3 Activities

Tier 3 activities involve a moderate to high level of ground disturbance.

Suggested Activities: any ground disturbance including, subdivisions, mining and exploration activities including tracks and drill pads, drilling for any purpose, construction of anything at all earthen or steel.

To undertake a Tier 3 activity that is not in a Protected Area, you need a Management Plan.

Due Diligence

A person is required to undertake a Due Diligence pursuant to s102 of the Act for activities of any Tier.

The ACH Management Code sets out the Due Diligence assessment process so one becomes aware of whether ACH is present in the area, and whether there is a risk of harm to the ACH should the proposed activity be undertaken. The Due Diligence is required contain:

“(a)whether the area where it is intended that the proposed activity be carried out includes any area that is part of a protected area;

(b) whether the proposed activity is a —

• a tier 1 activity; or
• a tier 2 activity; or
• a tier 3 activity;

(c) whether Aboriginal cultural heritage is located in the area where it is intended that the proposed activity be carried out;

(d) whether there is a risk of harm being caused to Aboriginal cultural heritage by the proposed activity;

(e) in relation to a proposed activity that has been assessed as a tier 2 activity or a tier 3 activity — the identity of the persons to be notified or the persons to be consulted about the proposed activity”

It is obvious that the only way a person can determine “whether Aboriginal cultural heritage is located in the area…” is to undertake a heritage survey of the area with the Traditional Owners responsible for the area. This will be a defence according to s98 of the Act by taking all reasonable steps to avoid or minimise the risk to the ACH. This is important to determine the work load the Local Aboriginal Cultural Heritage Services (LACHS) and the ACH Council (Council) will be undertaking.

ACH Permits

Tier 2 activities require a Permit issued by the Council.

An application for the Permit must:

1. be made on the approved form;
2. contain the details of the activity;
3. identify any designated LACHS, in their absence the Native Title Party, in those parties’ absence the knowledge holder, in all these parties’ absence the native title representative body;
4. identify if there is a risk to the ACH in the area;
5. include the notice to the Aboriginal parties;
6. include a proposal on how to mitigate any damage to the ACH;
7. include any submission made to the proponent; and
8. include any related documentation.

The Council may request additional information, they must send written notice and the Permit Application to the identified parties in the Application, and consider their responses.

The Council makes a decision and can grant a Permit for a period up to 4 years.

DPLH Suggested Timelines for Permit

ACH Management Plan

An approved or authorised Management Plan is required before the commencement of a Tier 3 activities. Though not required by the Act, these Management Plans may also be submitted for Tier 2 activities. The Management Plans, s137 of the Act, replaces the previous s18 Aboriginal Heritage Act 1972.

The proponent, and each interested Aboriginal party, must use best endeavours to reach agreement on the Management Plan.

The process for developing a Management Plan:

• The Proponent undertakes due diligence assessment and confirmation that the activity is Tier 3 or Tier 2 activity that may harm ACH.
• The Proponent consults with the interested Aboriginal parties.
• The Proponent undertakes ACH investigations to identify and obtain understanding of ACH characteristics.
• The Proponent gives written notice to each interested Aboriginal party and the Council about its intention to reach agreement and enter into Management Plan.

Matters to be contained in the Management Plan:

• The relevant parties
• The activity to occur in a defined area
• The ACH identified in the Due Diligence
• Impact statement on the ACH
• Process to be followed including if new information comes to light
• How damage can be minimized or avoided
• The extent of the harm to the ACH
• Any conditions on the activities
• The period of the Management Plan

If the Plan cannot be agreed upon in a specified time, it can be referred to the Council, who can mediate a settlement. If this is not possible it will be referred to the Minister. Any decision by the Minister cannot be appealed; this is a strong incentive for both parties to reach agreement.

The Council on receiving a Management Plan can:

• Request further information
• Consider whether Aboriginal parties gave informed consent, [which I suggest will need the presence of a lawyer paid by the exploration company];
• Refuse the application if not made in accordance with the Act
• Recommend to the Minister to approve the Management Plan.

DPLH Suggested Management Plan Timelines

To place the timeline in context of exploration, once an area is defined for drilling, the company will undertake a due diligence. This will require notifying the relevant parties, contacting the local anthropologist to undertake a heritage survey, and writing a report. This would require a minimum of 6 months. If an ACH site is identified, an application is made for a Management Plan, and it takes 4 months (optimistic assumption) to negotiate and write.

Heritage sites on current maps are oversized, hiding the exact ACH locations, so a Management Plan will most likely be needed for Tier 2 activities. Once the plan is submitted to the Council, approval will take another month. If everything is straight forward, that’s nearly 12 months before you can start drilling. Any complications could stretch out the process by a minimum of 6 months.

The Act does not allow for existing use exemptions over an area. The Port Headland port is an example of an Aboriginal heritage area under the 1972 Act that was allowed to be developed. The Act’s widened reach may require the holders to negotiate a Management Plan.

Protected Areas

Protected Areas provide the highest level of protection to an area of outstanding significance, they are addressed in Part 4 of the Act. A Permit or Management Plan cannot be applied for over the Protected Area and there are currently 70 protected areas in WA.

Processes required to consider an application for a Protected Area include the Council seeking views of Aboriginal people as well as the wider community.

To repeal a Protected Area can only take place after a thorough engagement process with the relevant Aboriginal people, and it requires approval by both Houses of Parliament. This is the same for mining on National Parks – a total impossibility.

The Co-design process is seeking views on what will determine a Protected Area. Will they take the current areas on their data base and declare them as protected? DPLH states that all Protected Areas will be declared on a case-by-case basis.

Section 213 of the Act requires an ACH database to be available to the public. This should list all Protected Areas and ACH sites with relevant details, including descriptions. The directory will also contain documents including all the Permits and Management Plans.

Transition Period

Throughout Western Australia, there are thousands of valid section 18 consents for projects in varying stages of progress; from completed projects, to those that are not yet commenced due to a range of factors including stages of forward planning, economic circumstances and changes in priorities and operational needs.

Section 18 consents (granted prior to 22 December 2022) will expire at the end of 10 years from transition day with two exceptions:

1. if the Section 18 consent is no longer in force s319 of the Act; or
2. if the Minister decides that they will not expire [s325(2) of the Act].

The Minister may only extend a consent if they form the opinion that the purpose specified in the consent has been substantially commenced (s325(3) of the Act). Substantially commenced will be defined in the CO-design process.

LACHS and Councils’ Work requirements

To analyse the amount of work that the Councils and the LACHS would be asked to undertake, we have conducted an analysis of data on Mineral Titles Online (MTO), using LandTrack Systems’ software. The data lacks the necessary granularity to obtain accurate analysis, but enough to obtain a broad overview.

The expenditure reporting in MTO provides the following: in 2021 – $19M was spent on Aboriginal Heritage Surveys over 1, 214 tenements (not including miscellaneous licences). For the 6 months ending June 2022 – $10.4M was spent on Aboriginal Heritage Surveys on 535 tenements.

If the average heritage survey costs $40,000, that is approximately 498 surveys. Extrapolating those numbers into the requirements of the Act, the surveys would more than likely be required to support Tier 3 activities and require the equivalent number of Management Plans.

Considering there are six Native Title Representative Bodies in WA, who are more than likely to become LACHS, that would require each Native Title Body to negotiate 83 Management Plans per year. The Council will have to review 498 Management Plans.

In 2021, 12,000 tenements were undertaking substantial exploration which could be classed as a Tier 2 Activity, requiring a Permit at the very least. A mining company, to reduce culpability under the Act, would be seeking a Permit for most exploration.  One estimates at least 12,000 Permits or Management Plans would be required initially. To support these projections, the State government just released that there were 450 POWs applications in March 2022, causing an approval backlog.

The workload on the LACHS and the Council would be significant and would require significant funding to the meet the requirements of the mining industry. These numbers do not include all the other demands that would be placed on the LACHS or the Council.

The $11M the government is spending in 2022 to assist the LACHS is a drop in the ocean for what is required.

Summary

In the first phase of consultation to date, there have been 72 submissions by various parties. They are worth reading considering what is suggested to be included in the separate Tiers.

Many pastoralists are suggesting, understandably, to include all pastoral activities in the exempt section. On the opposite end, some environmentalists suggest everything be in the Tier 3 category. Then you have The Kimberly Land Council doubting the whole process, claiming the co-design process “forces Aboriginal people to attempt to fix an already broken piece of legislation without any decision-making power.”  I recommend the reading of the well-considered AMEC response.

It has been incorrectly suggested that all the current Aboriginal Heritage Agreements (AHA) will roll over and be the equivalent to a Management Plan. As we have seen above, the Act requires the Management Plan Act to contain, among other things:

• the activity to occur in a defined area;
• the ACH identified in the Due Diligence; and
• the impact statement on the ACH.

None of these requirements are contained in most AHA for exploration because they only outline the requirements for a heritage survey. Effectively, just outlining the requirements for a Due Diligence under the Act.

A subsequent amendment deed containing those requirements stipulated will be required for AHA to become Management Plans, further burdening the LACHS and the Council.

I suggest, to reduce liability, mining companies will need to enter a Management Plan for all Tier 2 and Tier 3 activities. However, this needs to be balanced against the time of achieving such.  Furthermore, if mining companies are risk adverse they will, at the very least, require Permits for all Tier 1 activities to reduce liability.

The largest problem is not the funding of the LACHS as most suggest. The prominent issue is the sheer volume of work that the Council will suffer processing Permits and approving Management Plans. This will be a log jam and ultimately affect the amount of exploration and mining taking place in WA.

There are still a number of questions to be answered:

Will DMIRS, NNTT and the Aboriginal Land Councils still require a Regional State Heritage Agreement to be executed by exploration companies before granting an exploration licence?

Will all ACH areas be included in the DPLH heritage data base, considering the reluctance of Aboriginals to disclose heritage sites? Will the $10,000 fine for non-disclosure persuade them?

Will the EPA step back from the reviewing the Aboriginal heritage so it is not required to be addressed in Mining Proposals?

In conclusion, if you want to undertake exploration or mining in WA give yourself a long lead time to wade through the bureaucracy created by the Act, which is not catered for by the government.

To learn more, LandTrack Systems offers several Training Courses:

Practical Tenement Management

Advanced Tenement Management

Understanding Tenement Expenditure

Environmental Essentials

Navigating Exploration Agreements

Penalties