Standard Heritage Agreements in Settlement Areas

For proponents operating in the Government settlement areas (ie. South West and Yamatji etc), yesterday afternoon, AMEC received the following advice from the Minister for Aboriginal Affairs.

With the imminent implementation of the new Aboriginal Cultural Heritage Act 2021, the State Government is reviewing the relationship between existing Standard Heritage Agreements and the requirements under the Aboriginal Cultural Heritage 
Act 2021 (the Act).

Consultations have commenced with individual Prescribed Bodies Corporate (PBC) and Indigenous Land Use Agreements (ILUA) groups to consider proposed consequential amendments to the Standard Heritage Agreement templates. This includes changes that would arise because of section 335 of the Act, or the interpretation provisions of the agreements that reference a statute, ordinance, code, legislation or other law and regulations, in addition to any other instruments under it and amendments,
re-enactments, consolidations or replacements.

These amendments are currently being drafted and will be ready within the next four weeks. Subject to agreement with ILUA and PBC groups, the template changes willbe made available for circulation to proponents to consider how they may incorporate those amendments into their individual Aboriginal heritage agreements with the ILUA or PBC groups.

Existing and future proponent heritage agreements are negotiated between two third parties being the proponent and the ILUA or PBC group. The parties are encouraged to consider the contents of their individual Aboriginal heritage agreement and the amendments proposed and, if necessary, renegotiate in accordance with any variation clauses.

All standard heritage agreement templates provide that nothing in the agreements purport to authorise any act that would be in breach of the Aboriginal Heritage Act 1972. Further, the agreements do not provide an approval to impact Aboriginal heritage. The same provisions will apply under the new Act.

The templates provide a framework for proponents to advise the ILUA or PBC group of proposed activities (through Activity Notices), agree on whether a survey is required or not, and for the conduct of that survey including timelines and costs. These provisions will continue under the new Act.

All Proponents that are a party to an Aboriginal heritage agreement will need to continue to abide by its terms unless the parties mutually agree to amend the agreement. Proponents will, of course, also need to comply with the requirements under the ACH Act when it comes into effect on 1 July 2023.