I missed the brief that the Aboriginal Cultural Heritage Act (ACHA) and the Department of Planning, Lands and Heritage (DPLH) is a new episode for Yes Minister, with Hon Minister Buti and Anthony Kannis, Director General for DPLH, acting out a satirical nightmare.  For those younger than 40 this skit may bridge the age gap, and provide insight as to the processes and guidelines for the ACHA.

On one hand, DMIRS are introducing processes to expedite exploration in WA by hastening approvals for Programme of Works (POWs). This will be achieved by legislating Eligible Mining Activities that don’t require approval.

On the other hand, the Labour party is bringing exploration to a halt with the new ACHA by underfunding the Local Aboriginal Cultural Heritage Services (LACHS), because they have no idea of the workload they face and Hon Buti’s $77M announced on Sunday barely scratches surface on what will be required.

Collecting data from numerous disparate locations, a back of the envelope analysis can be undertaken to estimate the LACHS and the ACH Councils workload for undertaking Due Diligences (DD), issuing of Permits, and approvals of ACH Management Plans.

The processes of the ACHA require an initial Due Diligence on “Activities”, further elaborated below, and the issuing of Permits or ACH Management Plans.

In financial year 2021-2022, there were 3500 POWs lodged.  Should the trend of 10% increase continue, ad demonstrated in the graph below, we can expect 3850 POWs to be lodged in 2023. As they are ground disturbing events, we can expect a Heritage Survey, a Permit, or an ACH Management Plan application.

Add DWERS applications for the same time period, which saw 298 native vegetation clearing applications.

DWERS also received 63 development proposals, 141 referred mining related schemes, and 314 proposals consisting of assessments of environmental management plans, amendments to conditions and proposals in Ministerial Statements, as well as significant development proposals undergoing formal assessment.

The Local Government Areas (LGAs) received approximately 3240 applications for future developments in 2022, which would need assessment under ACHA. These consisted of: approvals applications for subdivision on land zoned rural residential, special rural, rural living; and application for non-residential approvals.

One can expect that LGA’s, to reduce their liability, will ensure the owners of lots larger than 1100 sqm, farms and pastoral leases would confirm no Aboriginal Cultural Heritage sites exist on the area of proposed development and have a document stating such, or have executed an ACH Management Plan. Parties involved would want to establish there is no ACH site.

Considering the same economic conditions in the coming years, using the rather crude calculations, more than 7300 due diligences will be required annually, which will require Heritage Surveys, and possibly Permits or ACH Management Plan applications.

This does not consider road works, pastoral activities, farming, or waterway activities.

As of April 2023, there are 81 Registered Native Title Body Corporates (RNTBCs) in WA. They will likely apply to become LACHS. This is not to say that other organisations cannot apply to become LACHS.

If we assume each disturbance will need to be assessed across all LACHS, and we spread the number equally (for simplicity, as we know they will not be equally divided), each of the LACHS would need to assess 129 disturbances each year. This will involve a heritage survey, with the accompanying contract, and possibly issuing a Permit or entering an ACH Management Plan.

The prospective workload on the LACHS is enormous.

The government has only given a PBC that applies to become a LACHS an initial $60,000 to set up, and another $200,000 to become operational. The government announced on 23 May 2023 that they were assisting the LACHS with another $300,000 each year, for 4 years.  This is barely sufficient to set up an administrator in an office with a photocopier, let alone the lawyers and GIS specialists that are required.

So, the LACHS will be under-funded, under-resourced and understaffed. Currently, the DPLH has a complete lack of process and only 2 months left before the Act comes into effect. This will inevitably create a backlog of approvals in the mining industry.

There is a confused logic about the recent guidelines. They state that a due diligence is required before undertaking any activity; to do such, a Heritage Survey is required. It is not a matter of referring to the DPLH’s online heritage site, as all current Regional State Heritage Agreements and Indigenous Land Use Agreements have a confidentiality clause that states that information about an Aboriginal Cultural Heritage site will not be disclosed.

Since DPLH’s first consultation, the guidelines categorizing the disturbance for each Tier have changed significantly. They are summarised below, but see full guidelines here.

Tier 1 Activities

The Guidelines state that a Tier 1 activity does not require a Permit. Due to the onerous penalties involved and to reduce liability for the proponent, it would be wise to seek a Permit for Tier 1 activities, as some tread a fine line before becoming Tier 2.

Tier 1 activities are classified as low disturbance, and approval to proceed is not required from the LACHS, subject to the completion of a due diligence but, as mentioned in our previous blog, to undertake a due diligence will require a heritage survey.  None of the 7300+ disturbing activities listed above are Tier 1 activities, and it is difficult to quantify the number of Tier 1 activities that would occur in the State.

We will not list all Tier 1 activities, but those predominantly relevant to exploration are:

1. Existing mining that takes place on the existing footprint, “in a way that that does not involve an increase in the area of ground disturbance”.
2. Temporarily placing a structure on existing ground disturbance
3. Maintain infrastructure with minimal disturbance
4. Installing a fence without clearing
5. Driving a vehicle across country without creating a track
6. Drilling a water bore limited to 1 sqm, of ground for a total of 10sqm
7. Stockpiling on an established stockpile
8. Fire hazard reduction
9. Revegetation with handheld equipment
10. Rehabilitation of drill holes
11. Clearing tracks, flora and fauna control, field sampling, impacting waterways, rehabilitation or any other activity that disturbance/removal of 4 kg of material, clearing 1 sqm of ground for a total of 10sqm, excavating to a depth of ½ m.

Point one is of particular concern, considering that the footprint of a mine can be inadvertently enlarged- e.g. a dozer fractionally extending dump ($10M fine thankyou). If I was operating an existing mine, I would be seeking an ACH Management Plan to avoid potential liability.

You need to be cautious about point 11, as soon as you undertake a sampling programme you will be moved to a Tier 2 activity that requires a Permit. If the samples are over 20kg it is Tier 3 Activity.

Tier 2 Activities

Tier 2 Activities are minimal disturbance and require a Permit issued by the Council.

1. Building on lots bigger than 1100 sqm (or lots in WA that are not classed residential)
   1. Managing flora, weeds, exploration, rehabilitation, or other activities that disturbance/removal of 20 kg of material, clearing 10 sqm of ground for a total of 200sqm, excavating to a depth of 1 m
2. Erecting or installing new agricultural infrastructure e.g., stock yard
3. BLEG sampling

Tier 3 Activities

Tier 3 activities are major disturbance and require an ACH Management Plan, they are:

1. Subdivision of land, including track building
2. Scrape and detect activities using non-handheld equipment.
3. Activities involved with establishing a new, or expanding an existing, mine or mine site.
4. Rehabilitation

The Released Regulations

The Regulations were released for review on 19 April 2023. They appeared to be more about the correction of the Act, adding clauses as they don’t add clarity in line with the consultation comments received.  It does add clarifications of the transitional provisions of s18 Consents under the old Act.

The regulations follow the trend of the ACHA in that they are very time specific about the occurrence of specific processes. They set out the Councils notification periods after various decisions as well as setting out notification periods for 48 different sections of the Act.

This has a couple of implications for all parties. If you are processing an activity under the ACHA, you will need to be cognisant of the timeframe you are subject to. For underfunded and under-resourced LACHS, these timeframes will be added pressure and like flogging a dead horse- not going to happen.

The Regulations also state that the Minister or Council may request statutory declarations for the following sections of the Act:

• To be a LACHS
• For a Protected Area – or repealing a protected area
• Application for a Permit, or extension of time
• Request to the Council to revoke a condition
• Application for approval, amendment, or authorisation of an ACH Management Plan

Notes about the ACHA Database

We reviewed the DPLHs online heritage site viewer recently, to assess its compliance with Part 9 of the ACHA.

Part 9 requires the Council provide a public database that supplies heritage site information to everyone, including location and description of Aboriginal Cultural Heritage Sites, ACH Permits, Management Plans, and the relevant parties including the knowledge holders.

The site sadly appears to be lacking. There have been no announcements of anything to be developed.  The ACHA is to be fully functioning by 30 June 2023

Having this site available to the LACHS and PBCs is essential for them to undertake their functions. Its incompleteness is another impediment for all parties operating under the ACHA.

Toodyay Alleged Infraction

The mining industry is highly aware of aboriginal heritage, but the following case is an example of lack of public awareness of the heritage laws in WA.

A recent case besetting a real estate agent in Toodyay, Tony Maddox, who dammed a tributary of the Avon River on an Aboriginal Cultural heritage listed site.  He is alleging he was unaware of the site. He is currently facing a fine of $25,000 and a criminal charge, if convicted, he will lose his real estate licence and livelihood.

This highlights several issues:

• Should the LGAs and DMIRS be responsible for assessing and approving developments in the light of ACHA, so people or corporations are not breaching the ACHA? Currently, DWERS takes on this responsibility for developments crossing their desk.
• It is imperative DPLHs’ online heritage site viewer be operational with complete information.
• A quick perusal shows the inherent inaccuracy of the data on the DPLHs online heritage site viewer as it mislocates the heritage sites on the Avon’s tributaries.
• The unawareness of the general population to the ACHA and its coverage, thinking it only applies to the hieroglyphics on the Burrup Peninsular and not in their back yard. The government is compounding the problem by not making the public aware.

This incident is only a microcosm of the issues of the ACHA that are lying dormant, waiting to appear out from under the cover.

Conclusion

It is just not the public that are unaware. I attended a conference recently where the Director General of the DPLH gave a presentation on the introduction of the ACHA, and he demonstrated his total ignorance of the tidal wave of bureaucracy that is going to hit the mining industry, the LACHS, the Council and the DPLH. One can only assume, this is why the LACHs and the Council are so underfunded, and thus unprepared. This issue is going to be a bottleneck to development in Western Australia for years unless the Government starts paying attention to what is happening in the State, instead of swanning around in China.

Capturing timelines, procedures, and processes under the ACHA and Regulations is not a task for the faint of heart. Companies will need robust tools to ensure their assets are secure, LandTracker is designed to adapt to new process.  As prospective LACHS have already approached LandTrack Systems for assistance, we are continuously working to ensure systems are in place to support the changes in the industry.

To learn more, LandTrack Systems offers several Training Courses:

Navigating Exploration Agreements

Practical Tenement Management

Advanced Tenement Management

Understanding Tenement Expenditure

Environmental Essentials