How is Aboriginal cultural heritage defined in the Guidelines?

Aboriginal cultural heritage can be an area, an object or a group of areas (a cultural landscape) interconnected through tangible or intangible elements of Aboriginal cultural heritage. Think of it being anything, anywhere.

Cultural heritage

Are there any records we can search to identify heritage sites?

Yes, the Aboriginal Heritage Inquiry System (AHIS) run by DataWA is the mapping site for heritage locations. Only problem is it has deliberately left an error factor of up to 4 kilometres, which makes the fact you can use your smart phone to geo locate on the map down to metres pretty pointless.

Obvious sites like Yealering Lake or Wave Rock are marked but for some bizarre reason you have to submit an application to the Department of Planning; Lands and Heritage to narrow down the location to any specific map reference and they reserve the right to not give you any details.  Which means you are forced to deal with your local elders via the Local Aboriginal Cultural Heritage Services (LACHS) which will charge on an hourly rate to confirm if your site is or is not a heritage site.

Why aren’t there more heritage sites marked on a map?

The Guidelines tell us: ‘The tangible manifestations of this living culture are widespread throughout the State, large sections of which have not yet been surveyed, or not surveyed comprehensively, by Aboriginal people. As such, there may be no record on the Directory of the Aboriginal Cultural Heritage that exists in these areas.’

Aren’t new sites being listed all the time?

Yes, but it mostly driven by the interest shown by proponents wanting to disturb the earth.

For example the Ashburton River is being listed now, no doubt prompted by the proposal by Andrew Forrest to build some weirs across the river as cattle watering points. 

His request has been rejected as the river is where the water serpent Warnamankura lives.

Interestingly, just a decade ago a weir was built across the river and that was signed off by the same group which now opposes the latest proposal.

What is a Heritage Due Diligence Assessment?

It is the process that anyone anywhere in the State who now wants to disturb ground on a block bigger than 1100m2 has to go through before they can swing a shovel.

What is an exempt activity?

Driving down a road, taking photos, fire management, going onto sacred country in an emergency, building on a small lot.

What are Tier 1,2 and 3 activities?

Tier 1; no or minimal ground disturbance, a footpath or undertaking an aerial survey, Tier 2; low ground disturbance, a farm road or fence, Tier 3; moderate to high ground disturbance, clearing trees or building a dam.

What can I do if it’s a Tier 1 disturbance and it’s in a recognised cultural heritage area?

Not much without a permit and plan but you can manage feral animals and weeds so long as you aren’t: removing more than 4 kg of material (not counting the weeds or flora), disturbing more than 10 m2 of ground in total,  disturbing more than 1 m2 of contiguous ground and excavating to a depth of more than 0.5m. 

What can I do if it’s not in a protected area on Tier 1?

You are free to proceed without authorisation once you have completed a visual inspection, (and  found nothing of sacred value), but you must keep written records of your efforts. 

What if the Activity is a Tier 2 and Tier 3 in a known heritage area of interest like the Avon Valley or is in an existing protected area like Wave Rock?

No activity can proceed in an existing protected area, but if it’s a known area of interest but not yet protected you will need to engage with the local aboriginal LACHS and out of that you may get permission to proceed with a Tier 2 activity requiring a permit or if Tier 3 with a full management plan.

Whose opinion do I seek as local knowledge holders?

The persons to be notified are either the local LACHS if it exists or the local knowledge holders (where known); or failing that the native title representative bodies.

What happens if the knowledge holders don’t respond?

Where there is no response to the initial contact, further attempts must be undertaken once per week for a minimum period of a further three weeks.

Where there is still no response further attempts still must be undertaken across a further 10 weeks, once a fortnight for the first eight weeks; then once per week for the remaining two weeks, plus, you need to make time allowances for cultural conventions and commitments.

What happens if there is still no response?

You need to contact the Department for assistance.

If I do get a response how long then do I have to wait?

Once contact has been established, a proponent must provide the opportunity for the right indigenous persons to be consulted and for them to advise of any constraints they may have and then to respond, particularly in relation to the timing and location of the consultation.

What happens when there is more than one knowledge holder, but I can only find one?

Where there is one or more knowledge holders then a proponent must publish a public notice.

What’s the process for meetings?

The first of the two meeting dates is to be organised at least two weeks from the date of the invitation / public notice.

The second meeting date is to be held at least one week later. At least one of these two meetings must, where practicable, be held in the area of the proposed activity, unless otherwise agreed by all those to be consulted that this is not required.

The third meeting is for the proponent to discuss how the views provided in the second meeting have been addressed as part of the preferred method for carrying out the activity.

If I need a permit or plan what are the timelines?

Timeframe Permits in relation to a notice of intention to carry out a Tier 2 activity total 70 days starting after the knowledge holders have responded, 28 days for the knowledge holders to respond to the proponent with their views, 28 days for the prescribed person to make a decision and then 14 days for the council to make a decision. 

For a plan the total time frame can be up to a year.

The prescribed period in relation to the proponent and each Aboriginal party using their best endeavours to reach agreement about the terms of a Plan is 140 days commencing 5 days after the proponent gives written notice about the Plan for the Council to make a decision.

Plus 28 days after the parties advise the Council of their agreement or otherwise to make a recommendation to the Minister as to whether to authorise a Plan. Plus 90 days after the day on which the Council determines there is ACH of State significance. Plus 28 days after the day on which the notice is given of the prescribed period for the Council to make a determination as to whether ACH is of State significance. Plus 35 days for the final decision.

Can’t I just pay to get a fast-track approval?

Each of the 10 or so LACHS that are expected to emerge across the South West of the State will all operate at different levels of professionalism, as do the Native Title body corporates.

Some will be efficient and reasonable, others difficult and slow, a lot will depend on the people in the office.

How do I know if what they find really is culturally important?

That’s a culturally insensitive question. Aboriginal people are not required to disclose culturally sensitive information.  If they say it’s important, it’s important.

How do I know that the site has not very recently become culturally significant?

Another culturally insensitive question. It does not matter if it has, cultural heritage can change over time. 

What happens if all the knowledge holders don’t agree?

You have a problem.  It can be escalated up to the Council but it’s more time and money.

Who gets paid and at what rates?

Chief Operating Officer $160 – $240/hr, Chief Executive Officer $240 – $280/hr, Aboriginal Consultant $80 – $120/hr, Senior Aboriginal Consultant $120 – $160/hr, Heritage Officer $80 – $120/hr, Senior Heritage Officer $120 – $160/hr, Anthropologist as per survey $1000 per day, Solicitors $496 hr, Plus office admin charge 15 per cent, plus travel, plus accommodation, plus an exceptional circumstances levy of 20 per cent. 

What will it cost to do a survey?

Depends, but if it’s a simple survey and nothing is found then the explorers have worked on $5000 as a minimum, but it can quickly rise to tens of thousands as it gets more complicated, or you are not suitably respectful.

Just ask Twiggy how expensive it was to attempt to put a couple of concrete blocks in a dry river bed and still get rejected.

Isn’t there a better way?

If the government was serious about Aboriginal Heritage it would have taken the advice I detailed in a former article and funded a State wide heritage survey to map and capture all the sites, stories and songlines for prosperity on a user friendly web site.  

Why wait as the last of the knowledge holders pass away leaving the next generation guessing or worse making it up?

We should be protecting these sites, but they need to be the real sites not what’s coming, which is sites located just where someone wants to build a new farm road or set of yards.

What are the fines for destroying a heritage site?

Up to $10m for a company or $1m for an individual and imprisonment of 5 years for serious harm down to $25,000 and $250,000 for minor harm to a site. 

For failing to report a site the fine is $20,000 for individuals and $100,000 for companies.

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