With the 1 July 2023 commencement of the Aboriginal Cultural Heritage Act 2021 (WA) (ACH Act) – and an entirely new framework for the regulation of Aboriginal cultural heritage (ACH) in WA – quickly approaching, a number of key underlying Guidelines for the framework have finally been released.
The changed layout and text of many of the final documents, when compared to the versions released for phase 3 of the co-design consultation process, make a simple cross-comparison more difficult. Based on our preliminary review, many of the substantive principles set out in the guidelines remain consistent. However, there are some key differences, and we discuss some of these below.
Perhaps most significant, are the regulatory instruments that are missing from this release, and the important actions that have not yet been taken in the lead up to commencement. For example, we are still waiting to see a number of key regulatory instruments, including further Regulations, the referenced ACH Investigations Guidelines, ACH Survey Report Guidelines and ACH Identification Guidelines, and possibly, further guidance on the interaction between this new framework and the Environmental Protection Authority's (EPA) assessment under the Environmental Protection Act 1986 (WA) (EP Act). The Regulations were, we understood, supposed to be released before the end of February but this did not occur. The new system cannot commence without the Regulations in place, so we expect to see them soon if commencement is not to be delayed.
Some important linchpins of the new framework are also yet to be confirmed, with no Local Aboriginal Cultural Heritage Services (LACHS) appointed to date and the status of transition to the new ACH Directory unclear. In addition to providing an important local voice to the heritage approvals process, the LACHS are intended to provide greater certainty for proponents by presenting a clear indication of the relevant people to consult. Without any appointments to date, proponents will need to rely on the much less clear or efficient process of identifying all knowledge holders and native title parties. As noted below, there are a number of steps to this process. There are also significant concerns from all parties about resourcing for LACHS and their readiness for the new system, even if they are appointed in time. Given the importance of their role in the framework, these issues could give rise to significant delays in the heritage approvals process and may have implications for the workability of the new framework, at least in the short term.
The guidelines that were released in final form on 6 April are:
- ACH Management Code;
- ACH Management Plan Template and Guiding Notes;
- Activity Tiers;
- Consultation Guidelines;
- Determining Substantially Commenced Guidelines;
- Knowledge Holder Guidelines;
- LACHS Fees Guidelines;
- Prescribed Timeframes Guidelines;
- Protected Area Order Guidelines; and
- State Significant Guidelines.
While the Protected Area Order Guidelines, State Significant Guidelines and Determining Substantially Commenced Guidelines do not appear to have any material changes, there are some key differences between these final versions of the guidelines and the previously released phase 3 consultation drafts which we explore below.
ACH Management Code: Important information still missing
One of the most important guidance documents is the ACH Management Code. The Code sets out how a due diligence assessment (DDA) is to be undertaken for an activity that may harm ACH, to assess the risk of harm and determine how to proceed. Three key changes/issues relate to matters that are not included in the final version of the Code.
A key concern for many proponents is the interaction between the new ACH Act regulatory framework and the EPA's consideration of Aboriginal heritage as part of the 'Social Surroundings' environmental factor in the EP Act's Part IV approval process. The overlap of these two decision-making processes creates uncertainty and duplication. The phase 3 version of the Management Code included an appendix on the system's interaction with the EPA's Social Surroundings Environmental Factor. This appendix 3 has been removed from the final released version of the Management Code. It is unclear whether there is an intent to include this information elsewhere.
We also note in this context, the concerns raised in the EPA's phase 3 co-design submission about its ability to take the new ACH regulatory framework into account as an "other statutory decision-making process" for the purposes of section 44(2AA) of the EP Act, based on the current ACH instruments. That submission states "The current ACH instruments, in particular the ACH Management Code, Activity Tiers and ACH Management Plan template, may limit the EPA's ability to have confidence in the ACH process to deal with cultural heritage impacts to meet the EPA's objective for social surroundings". This view presents a significant risk to industry, of regulatory uncertainty and continued duplication of approval processes. Clear guidance on how the two systems are to complement each other, and how proponents can ensure that work undertaken for one system helps satisfy the requirements of the other, is vital.
Both the phase 3 and final versions of the Code refer to (and rely on) "ACH Identification Guidelines", "ACH Survey Report Guidelines" and "ACH Investigation Guidelines" as sources of guidance on how ACH is to be identified (including in a visual inspection), when ACH Reports can be relied on and the investigations that are required to confirm and evaluate ACH for a DDA. The latter in particular is an important step for tier 3 activities where neither existing ACH reports nor the Department can confirm whether ACH is located in the activity area. We have not seen a draft or final version of any of these Guidelines.
Similarly, each of the DDA processes set out in the Code include a search of the ACH Directory as the very first step. Whilst it is assumed that the information in the current Aboriginal heritage inquiry system is to be transitioned across to the new Directory, the progress of this presumably time-consuming endeavour and the impact of gaps in that information remains unclear.
Consultation Guidelines: Reduced contact requirements and increased detail
The layout of the information in the Consultation Guidelines has changed, making a direct comparison more difficult. Many substantive requirements appear similar or the same but there are some differences:
- Section 101 of the ACH Act deals with consultation and (amongst other things) requires a proponent to take "reasonable steps to follow up" and make "genuine attempt[s] to contact and consult, in a timely manner". The Consultation Guidelines provide guidance on what is required to satisfy section 101 where a proponent has attempted to contact a person for consultation but received no response. The requirements of the final guidelines in these circumstances are somewhat less onerous than what was required by the phase 3 consultation draft. The total time period for, and frequency of, initial and follow up contact has been reduced and there is no longer a requirement to seek the advice of the Department where no response is received. Once the steps set out in the guideline are satisfied, the proponent is taken to have complied with the obligation in section 101(a) and (e).
- Where contact is made, the Guidelines provide greater specificity (and certainty) around timeframes for responses, as well as how the consultation is to occur.There is an additional requirement that a minimum of three meetings must be held, at specified intervals (unless otherwise agreed). A consultation framework provides greater detail around the content of those meetings.
- If no LACHS has been appointed for the area, then native title parties and knowledge holders must be consulted. The final Consultation Guidelines provide additional guidance on how knowledge holders must be contacted where the proponent does not have their contact details, and how consultation can occur where there are large numbers (more than five or more than 20) of knowledge holders.
Activity tiers: A number of changes but subject to Regulations
The new ACH regulatory framework is constructed around the classification of activities into three tiers, depending on the level of ground disturbance. Each tier has a corresponding authorisation pathway that becomes more onerous for an activity in a higher tier. Under this approach, the classification of activities into tier 3, tier 2, tier 1 or exempt activities becomes very important. The definitions of the tiers in section 100 of the ACH Act rely on prescriptions in the Regulations, which we have not yet seen. Until those Regulations are released, there remains uncertainty about the activity classifications. However, the Activity Tiers document provides guidance as to the current state of thinking in this respect. Again, the structure of this guidance document has changed (previously a table format, now numbered activity categories), making it difficult to undertake a direct comparison. On the whole, many of the classifications seem similar in substance but there are some differences:
- Provision has been made for how to approach an "overlapping" activity that fits into multiple activity categories (only the most specific activity category will apply).
- The final Activity Tiers document continues to group activities into categories and most of those categories remain broadly the same. The key exception is the "General activities" category which has replaced the "Infrastructure and land development activities" category.
- The General activities category includes most of the activities relevant to the property development industry. The list of activities in this category is much longer and more specific than was included in the phase 3 version. In many cases the listed activities represent the individual specification of exemptions that apply under the Planning and Development Act 2005 (WA) (eg. for internal building work), replacing the general references that were in the phase 3 draft.
- A number of new, more general activities have been included (in various categories and tiers) that are defined by the amount of material that will be removed, disturbed or excavated, with the tier increasing as the amount of material increases (eg. maintaining existing infrastructure: that does not involve additional disturbance (exempt); that involves removing 4kg of material or less (tier 1); that involves removing 20kg of material or less (tier 2); or in any other circumstances (tier 3)). In many cases this general description of the activity by amount of material has replaced a number of more specific activities included in the phase 3 draft.
- The approach taken in the "Other activities" category has changed. Most of the activities previously included in this category are now in the "General activities" category. The Other activities category in the final guideline does not include any exempt activities. Activities that are not defined anywhere else will fall into the Other activities category and will be classified into tiers by reference to the amount of material removed, disturbed or excavated.
Identifying Knowledge Holders: A three-step process
The Knowledge Holder Guidelines set out the reasonable steps that a proponent or the ACH Council must take to identify knowledge holders for an area, where there is no LACHS. A proponent (or the Council) is only required to notify or consult with knowledge holders identified during the three step process set out in the guidelines.
In addition to searching the Directory and seeking the advice of any native title party (step 1), a proponent must now also contact the Department for advice in all circumstances (step 2). In the previous version, this was simply an option where there is doubt about additional knowledge holders. Step 2 is required to confirm that the proponent/Council has the identity and contact details of all knowledge holders for the area. If the Department is unable to provide this information, then step 3 must also be followed – that is, a public notice must be published requesting knowledge holders to provide their contact details.
Process timeframes: No material changes
Like the activity categories, process timeframes are matters that must be prescribed in the Regulations. The ACH Timeframes document sets out timeframes for notification and consultation undertaken under the ACH Act for tier 2 and tier 3 activities. These may change once the Regulations are finalised. The timeframes set out in the final document remain largely the same as the previous consultation draft. The key difference is that the timeframes are provided in days rather than business days now, but the overall timeframe provided is generally the same. The exceptions to this are two of the timeframes provided for ACH Council (for the section 162 recommendation in relation to a plan and the section 176 decision as to State significance) which have been extended by 1-2 weeks.
Local ACH Service Fees: Some amendments
For the finalised Local ACH Service (Fees) Guideline, new provision is made for exceptional circumstances requiring services to be undertaken urgently (where an additional 20% can be charged) and some of the service provider roles have changed (eg. provision for CEO and COO services and Elders and knowledge holders removed from the list of expert service providers). Some of the descriptions of the services that can be charged for have also been amended. The level of fees provided for are similar, although ranges are now provided in some instances, rather than a single maximum figure.