A key issue in the discussions surrounding the implementation of the Aboriginal Cultural Heritage Act 2021 (WA) (ACH Act) is the lack of local Aboriginal cultural heritage service providers (LACHS). The ACH Act has been designed to empower Aboriginal people with a statutory role in managing and preserving Aboriginal cultural heritage (ACH) and to devolve decision making in relation to the identification and protection of ACH to Aboriginal people at a local level. LACHS are intended to be the primary interface between proponents and the ACH Act in this regard. So, what happens when there are not yet any LACHS? This blog post provides general guidance on who to consult.
For more information on the commencement of the ACH Act, see our previous blog post.
Lack of LACHS
LACHS are intended to be locally based organisations who will play an important role under the ACH Act. LACHS will be the primary interface for proponents in relation to the identification, management and protection of ACH, and will be the go between for proponents and knowledge holders. However, no LACHS have been formally appointed yet in Western Australia.
The State Government has committed funding and grants to assist with the establishment of LACHS (generally by way of a cost recovery system to be generated by the fees payable for ACH Permits and ACH Management Plans). Both the Minister for Aboriginal Affairs and the Department of Planning, Lands and Heritage (DPLH) have advised that in the interim period, prior to LACHS being formally appointed, proponents should continue to engage with native title prescribed bodies corporate (PBCs) and/or native title representative bodies (NTRBs). This approach mirrors what is widely accepted as current standard practice for ACH engagement in Western Australia.
How to consult
Where a LACHS has been appointed, the LACHS for an area will be the first point of contact for all proponents proposing to conduct activities in that area. However, where no LACHS have been appointed, proponents must contact each native title party or NTRB and each knowledge holder for that area.
Determining who the relevant PBC, native title party or NTRB can be done through consultation with DPLH, the Department of Mines, Industry Regulation and Safety, and/or the National Native Title Tribunal.
Who are the knowledge holders?
Knowledge Holder Guidelines have been released, which set out the steps for identifying knowledge holders for an area. Aboriginal persons can register with DPLH to be recognised as a knowledge holder for an area and information on registered knowledge holders will be publicly available on the DPLH Directory. DPLH has previously advised that there is no verification process for Aboriginal persons registering to be recognised as a knowledge holder for an area, but that there are penalties under the ACH Act for making misrepresentations to DPLH or the ACH Council.
The steps to identify relevant knowledge holders for an area are as follows:
- Search the DPLH Directory to determine if there is a knowledge holder listed for the area.
- Seek the advice of the PBC or each native title party or (alternatively, if there is no native title party) each NTRB.
- Contact DPLH to confirm the results of such inquiries and to confirm whether DPLH is aware of any further knowledge holders for the area.
- In some cases, where DPLH cannot confirm, in its opinion, the identity and contact details of all knowledge holders in the area, a proponent may be required by DPLH to give public notice on the DPLH or ACH Council website requesting knowledge holders for the area to identify themselves. DPLH will coordinate publication of this notice.
Moving forward
Establishing and maintaining positive, long-term relationships with native title parties and NTRBs will be very important to the practical implementation of the ACH Act. Consultation will generally not be a point in time exercise and engagement with these groups will be required throughout the life of a project or activity.
In the short term, there will be situations where a LACHS has not been appointed or where there are multiple overlapping native title claims, which could lead to difficulties in identifying who the knowledge holders are. If that is the case, we recommend early engagement with DPLH.
If you are unsure of your compliance requirements and how to engage with the native title parties or NTRBs in respect of your current and/or future activities, please contact Melanie Debenham, Naomi Hutchings or Amelia Arndt for further advice.
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The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
