Explained: How the WA Government’s new cultural heritage laws work and what is required of farmers

With just a month to go until the WA Government’s new Aboriginal Cultural Heritage Act takes effect, farmers are still trying to understand how the legislation works and what is required of them. The Act, which gives Aboriginal people more say in managing their cultural heritage, includes a new three-tiered system to categorise activities that could potentially cause harm. Aboriginal cultural heritage could be anything from an area or interconnected group of areas, to an object or ancestral remains. Before proceeding with any activity, farmers must follow a “due diligence assessment”, which starts by determining which tier the activity falls under. THE TIER SYSTEM Tier one activities are those that cause low ground disturbance, including maintaining existing infrastructure, or carrying out minor feral animal and weed control. They involve removing no more than 4kg of material from the ground, or disturbing up to 10sqm of land. Tier two activities cause moderate ground disturbance and involve removing up to 20kg of material, or disturbing up to 200sqm. Examples could include delving, deep ripping or installation of new fences. Tier three activities cause moderate to high ground disturbance — typically involving excavations — and could include construction of new stock watering points and yards, or clearing and cultivating new land. Bailiwick Legal solicitor Matilda Lloyd said Tier three was a very broad category generally covering agricultural activities on land not previously used for that purpose. “If you want to establish a new farm, new pastoral, or you want to do any land clearing or tree planting, then this is your tier three activity,” she explained. Exempt activities under the tier system include walking, taking photos and going on to country in an emergency. WHAT NEXT? Once the landholder has determined which tier an activity falls under, they must search the Government’s online Aboriginal Cultural Heritage Directory to determine whether cultural heritage exists on the site. The directory includes information about Aboriginal cultural heritage sites and protected areas Statewide, as well as contact details for Local Aboriginal Cultural Heritage Services (LACHS), knowledge holders and native title parties. If the activity falls under Tier 1 and no cultural heritage is indicated on the directory, Ms Lloyd said the next step was to do a visual inspection. “If you can’t see any sort of objects, any landscape that would be of significance and therefore fall into the definition of Aboriginal cultural heritage . . . then you have authorisation to progress with that activity,” she said. “If there is Aboriginal cultural heritage on the land, then it’s a case of . . . contacting your LACHS . . . and confirming whether your activity would cause any risk of harm to Aboriginal cultural heritage.” Tier one activities do not require a permit but steps must be taken to “avoid or minimise harm”. Tier two activities, if deemed potentially harmful, require a permit from the Aboriginal Cultural Heritage Council (ACHC). Before applying for a permit, the landowner must notify LACHS, who will make an assessment and advise the ACHC on whether to issue a permit. Tier three activities, if potentially harmful, require the negotiation of a management plan with LACHS. If an agreement is reached, the management plan — which must detail what will happen if new cultural heritage is found, or if new information about the importance of existing cultural heritage comes to light — is submitted to the ACHC for approval. If an agreement cannot be reached, the landowner submits the management plan anyway and the ACHC liaises with LACHS to try to facilitate an agreement. If this fails, the final decision rests with WA’s Aboriginal Affairs Minister. “If there is no LACHS, then it’s a case of contacting local knowledge holders (or) local native title holders,” Ms Lloyd said. “If you are undertaking a tier three activity (and) you’ve looked on the directory (but) you can’t find any Aboriginal cultural heritage — you’ve looked through surveys, you’ve contacted your LACHS, and again, no results — then you need to undertake an investigation . . . to determine whether there is Aboriginal cultural heritage on your property. “That will involve an investigation with the LACHS.” THE COST To conduct a survey, assist in developing a management plan, or engage in general consultation, LACHS consultants and heritage officers can charge between $80 and $120 an hour. Senior Aboriginal consultants and senior heritage officers can charge up to $160, while an anthropologist will cost $1000 per day and a solicitor $496 an hour. The landowner can also be charged extra fees for administration, travel and accommodation. With much of WA yet to have been surveyed for Aboriginal Cultural Heritage, it appears likely that in many cases a survey will have to be undertaken before approval can be granted for a tier three activity. Ms Lloyd said the introduction of LACHS was one of the key changes under the new Act. LACHS offices will be located in Broome, Karratha, Geraldton, Kalgoorlie and Albany.