Key findings from Agreement Hub’s first client survey series of 2023

In just over three months, Western Australia will get to know its new Aboriginal Cultural Heritage Act 2021 (WA), which re-works how Aboriginal cultural heritage is protected in Western Australia.  It seemed like an obvious choice to use this is the basis for Agreement Hub’s first client survey series of 2023. 

Will the new Act do a better job of protecting Aboriginal cultural heritage?  Are we prepared for the significant changes in an operating environment where Aboriginal Corporations are already stretched and are not keeping up with industry’s insatiable appetite for land access?  Given the significant staff shortages and the frequent changes of key staff at some Aboriginal Corporations, how will the balance between land access for a booming mining and renewables industry and the protection of Aboriginal cultural heritage be met? 

We put these questions to 50 of our mining, renewables and Aboriginal Corporation clients and colleagues and this is what they had to say. 

 1.       Almost everyone we spoke to, both Aboriginal Corporations and industry, is taking a ‘wait and see’ approach as they brace for the uncertainty ahead.   If the House of Stark family motto is “winter is coming”, for most in the industry the motto is “the new Act is coming.”  Interestingly, we noticed that the most experienced are the most cautious.  An anthropologist/archaeologist with more than 20 years-experience explained that it was the “unintended consequences” that would catch both Aboriginal Corporations and the mining industry off guard and that he was “interested to see how this plays out”. 

2.       Not one person we talked to suggested that the old Act should not be replaced.  Everyone we spoke to agreed that it was clunky, was easily gamed and failed to protect Aboriginal cultural heritage. 

3.       Many view the shift of responsibility from government to the Local Aboriginal Cultural Heritage service providers (LACHs) as the most meaningful change. It empowers local Aboriginal communities to better control their heritage – a rightful return of agency that will ensure local communities are the ones deciding what is important to them.

4.       One of our ASX 50 clients said that they are viewing the new Act as merely formalising existing procedures and processes and that they are not overly concerned.  They did go on to say though that they were nervous about capacity at Aboriginal Corporation’s –  who will likely become the LACHs.

5.       The smaller end of town – explorers, juniors and mid-caps, however, are more apprehensive.  These groups are already facing significant delays to land access due to constant staff changes at some Aboriginal Corporations, shortages in heritage consultants, as well as not enough Traditional Owners to actually attend the surveys.  These companies are concerned that if you add any further change, or give Aboriginal Corporations any further responsibility, that there is a very real risk of collapse. 

6.       Aboriginal Corporations and their legal representatives have told Agreement Hub that they only have a cursory understanding of the implications of becoming Local Aboriginal Cultural Heritage Services.  Indeed, one of our contacts told Agreement Hub today that the Department of Planning, Land and Heritage is still finalising these arrangements – three months out from the new Act! 

7.       There is an acute sense of urgency in these last few months leading up to the implementation.  Of active concern is the pressure to deliver processes and build new systems that achieve the stated aims of the new Act.  Agreement Hub is seeing companies urgently submitting “transitional” section 18 applications now so that they have land access covered while the new regime settles. 

The tide has been turning for some time now on how companies and Aboriginal Corporations engage. While some may still be merely going through the motions and awarding themselves gold ESG stars, the lion’s share of companies that we deal with have a genuine desire to do right thing and preserve heritage.  Likewise, the vast majority of Aboriginal Corporations we work with want strong relationships with industry stakeholders, while protecting important cultural heritage.  Let’s hope that the new Act allows them to do that.