Aboriginal Cultural Heritage (WA): the new DDA process applies to exploration and mining activities from 1 July 2023

_NEWSFLASH – On 8 August 2023, the Western Australian (WA) State Government formally announced that the new Aboriginal Cultural Heritage Act 2021 (WA) will be repealed, just over a month after it commenced.

The Aboriginal Cultural Heritage Act 2021_ (WA) (ACH Act) became operational on 1 July 2023.

Various materials from the co-design process for the Regulations and guiding documents, including the Management Code (Code) and some but not all the key Guidelines, were published in April 2023. Keenly awaited following that were the guidance materials on the transition to the new regime, including guidance on whether existing survey reports could still be relied on post 1 July 2023.

The release of the Survey Report Guidelines and Investigation Guidelines on 22 June 2023 made these transitional arrangements, and in particular the due diligence assessment procedure required under the Code, much clearer. Unfortunately, not everyone was happy with these new arrangements commencing just one week later, including many in the mining and pastoralist industries. On 29 June 2023, the Government made eleventh hour concessions to the ACH Act. These included less stringent rules around reliance on existing survey reports or survey reports obtained in the transitional period to 1 July 2024.

The ACH Act establishes a 4 tiered system with activities categorised according to the potential level of harm to Aboriginal cultural heritage (ACH). Under the new regime, it is the responsibility of a party which proposes to conduct an activity, other than an exempt activity, to first undertake a due diligence assessment (DDA). While companies with mining projects in development or production will be well advanced in the establishment of their DDA and compliance procedures, exploration companies should be aware that the obligation to undertake a DDA also applies to their exploration and mining activities from 1 July 2023 (other than for exempt activities).

The following is an overview of the framework of the DDA process and is targeted at exploration companies.

Activity Tables for mineral exploration and mining activities

  1. The ACH Act establishes 4 categories of activity: exempt activities, Tier 1 (no or minimal ground disturbance), Tier 2 (low ground disturbance) and Tier 3 (moderate to high ground disturbance) activities.
  2. A corresponding DDA and authorisation process applies for each Tier.
  3. The full list of activities which fall into each category is set out in Appendix 1 to the Code. AMEC has also developed a useful Activity Table that clearly identifies which mineral exploration and mining activities fall into each category. Notably, it lists aerial surveys, magnetic and radiometric geophysical surveys and electromagnetic surveys as Tier 1 activities. The AMEC table has been checked and endorsed by the Department of Planning, Lands and Heritage and, together with other helpful materials, can be found on the AMEC ACH Resources Hub

DDA process

  1. The first step for each proposed exploration or mining activity is to search the ACH Directory established under the new ACH Act. If this shows that the activity area is within a protected area, the activity cannot be undertaken unless permitted by the conditions or regulations associated with that protected area.
  2. Subject to paragraph 4 above, a DDA is not required for exempt activities. For Tier 1, 2 and 3 activities, a DDA must be undertaken in accordance with the procedure for the relevant Tier set out in the Code. The steps to complete the DDA for Tier 1, 2 and 3 activities are clearly set out in Tables 3, 4, and 5 respectively at the end of the Code.
    There are helpful Flowcharts in the Code which show the DDA steps in diagrammatic form for each Tier. The steps are not described in detail in this article but should be followed carefully.
  3. For a Tier 1 activity, if the first step of searching the ACH Directory and considering whether you are otherwise aware of the location of activity in the activity area (Step 1A) does not show that ACH is listed or located for the whole of the activity area, the subsequent step (Step 1 B) is to visually inspect the area using the ACH Identification Guidelines (to be published). A survey report will generally not be required.
  4. For Tier 2 and 3 activities, subsequent steps include reviewing any ACH Reports relevant to the activity area. These are reports of investigations associated with the identification of ACH that may be present in a defined area. They include reports that are not on the Directory, such as existing survey/heritage/clearance reports. To be relied on, an ACH Report must be consistent with the Survey Report Guidelines (discussed below).
  5. Tier 3 activities may require the further step of conducting an ACH Investigation to determine if ACH is present for that area. This must be consistent with the ACH Investigation Guidelines (discussed below).
  6. Records should be kept of all the steps undertaken in the DDA process, including the basis for any decision that there is no risk of harm to ACH. Undertaking a DDA in accordance with the Code may be used as a defence to the charge of an offence that an activity harmed ACH. Establishing a DDA procedure/documentation system to be followed for each proposed activity can be seen to be essential.

Survey Report Guidelines

  1. The purpose of the Survey Report Guidelines is to specify in what circumstances an ACH Report, such as an existing survey report, can be relied on for DDA purposes. Different criteria apply depending on whether the ACH Report is dated prior to 1 July 2024 or dated on or after that date. This is to allow stakeholders time to transition to the best practice standards applying after 1 July 2024.
  2. Existing ACH Reports dated prior to 1 July 2024 or reports obtained in that period may be relied on provided they satisfy the criteria in Section 2 of these Guidelines. ACH Reports dated on or after 1 July 2024 will need to satisfy the specific best practice requirements in Section 3 of these Guidelines (not described in this article).
  3. Can all existing survey reports be relied on in the transition period for DDA purposes? Not necessarily. If the report has been agreed to or endorsed by the Aboriginal party on or after 1 July 2023 the answer is yes. Otherwise, all 7 criteria in Section 2 must be satisfied including (for the first criterion):
    • for ACH Reports less than 10 years old (dated 1 January 2013 or later), the persons who informed the ACH Report were nominated by the Aboriginal body or were knowledge holders OR, if that is not the case, the ACH Report has been subsequently endorsed or agreed to by the Aboriginal party
    • for ACH Reports more than 10 years old (dated prior to 1 January 2013), the persons who informed the ACH Report were nominated by the Aboriginal body or were knowledge holders and the ACH Report has been subsequently endorsed or agreed to by the Aboriginal party after 1 January 2013 OR the ACH Report has been informed, agreed to or endorsed by the Aboriginal party (provided it is still the Aboriginal party as at 1 July 2023).
  4. Companies should carefully assess their existing reports and any obtained prior to 1 July 2024 against the criteria in Section 2 if they want to rely on them. Records of the assessment of the ACH Report relied on against these criteria must also be kept, including documenting how the ACH Report was determined to be consistent.

ACH Investigation Guidelines

  1. If the DDA for a proposed Tier 3 activity is unable to determine if ACH is present for the entire activity area by searching the ACH Directory and reviewing existing ACH Reports etc (Steps 1A and 1B of Table 5 of the Code), the Code requires an ACH Investigation to be conducted to determine if ACH is present for that area (Step 1C).
  2. An ACH Investigation may also be helpful, although not required, in evaluating the risk of harm to ACH or the level of impact of proposed activities or in identifying alternative ways to undertake the activity.
  3. These Guidelines set out 3 types of investigation that can be undertaken for DDA purposes to satisfy the Code:
    • ACH investigation meeting
    • ACH work area clearance – more appropriate for activities with smaller ground disturbance footprints and with a degree of flexibility over where the activity can occur
    • ACH avoidance survey – more appropriate for activities that need to be carried out in specific locations but have a degree of flexibility to avoid any identified ACH
  4. The agreement of the Aboriginal party is required in relation to the type of investigation that is to be conducted. Early engagement with the Aboriginal party is recommended.
  5. If the ACH Investigation comprises an ACH work area clearance survey or an ACH avoidance survey (dot points 2 and 3 in paragraph 16 above), an ACH Report that satisfies the Survey Guidelines will need to be produced.

Outcome of DDA

A completed DDA is not itself an approval to harm ACH. Authorisations may be required.

Where the DDA undertaken for a proposed activity in accordance with the Code identifies that:

  • no ACH is present in the activity area and there is no risk of harm; or
  • ACH is present, but the proposed activity can be carried out so as to avoid the ACH, or if the views of all persons to be consulted confirm the activity will not harm the ACH,

the activity may be carried out without obtaining authorisation provided that all reasonable steps possible are taken to avoid or mitigate the risk of harm to ACH by the activity, including harm to ACH which becomes apparent after undertaking the DDA.

Where the DDA identifies that ACH is present and that there is a risk of harm to ACH, the authorisation pathway corresponding to the relevant activity Tier is as follows:

  • Tier 1 – all reasonable steps possible must be taken to avoid or minimise the risk of harm
  • Tier 2 – a Permit or a Management Plan (under Part 6 of the ACH Act)
  • Tier 3 – a Management Plan.

For a detailed description of the procedure to be followed in the DDA process, the Management Code and Guidelines provide a useful and clear reference and, together with other relevant materials, can be found here.

The above news items are provided as general information in summary form of legislation and are not intended as legal advice.

Please contact us at McGuinnLegal if you would like further information or need specific advice in relation to any of these matters.