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The Aboriginal Heritage Act 1972 provides for the preservation, on behalf of the community, of places and objects customarily used by or traditional to the Aboriginal people of Western Australia.
Under section 17 of the Act, a person who excavates, destroys, damages or conceals or in any way alters any Aboriginal site commits an offence. Unless he or she acts with the authorization of the Registrar of Aboriginal Sites (Registrar) under section 16 or the consent of the Minister of Indigenous Affairs (Minister) under Section 18.
The Act establishes the Aboriginal Cultural Material Committee (ACMC). Its functions include considering applications under section 18 of the Act by owners of land to use land on which Aboriginal sites or objects are located and make a recommendation to the Minister for Indigenous Affairs.
The Minister considers the recommendation and makes the decision whether or not to consent to the disturbance or destruction of the site. If consent is granted, the Minister can also impose conditions.
The Purpose of the Section 18 Notice
By giving notice to the ACMC under section 18, an applicant initiates the section 18 process.
- A notice also:
- • Acts as a referral document for Department of Indigenous Affairs (DIA) to offer advice to applicants to facilitate the consideration of their Notice through the s18 process
- • Should describe the key elements of the proposed project; the consultation undertaken with key stakeholders particularly the relevant Aboriginal people and/or groups
- • Alerts the ACMC proposed actions to minimise impacts and address key issues in relation to Aboriginal heritage values within the Land; and
- • Enables DIA to assess the adequacy of information provided by applicants so that the information before the ACMC is sufficient to enable it to make an informed assessment under the Aboriginal Heritage Act 1972.
- • Talk to DIA first
- • Follow the Section 18 Guidelines
- • Draft the Notice using a DIA template, which provides a list of headings for information to be included in the Notice.
PREPARING A NOTICE – RECOMMENDED STEPS
These headings include information about :
- • Details of the applicant and the proposal
- • Matters which help identify issues relevant to ACMC
Notification to the ACMC under section 18 of the AHA must include the following:
- • Cover letter addressing the application and supporting documentation
- • Section 18 application form completed and signed by the owner of the land and/or applicant.
- • A list of attachments/inclusions eg Certificate of Titles, photographs, maps
- • Final coloured versions of Aboriginal heritage survey report
- • DIA Aboriginal Site Recording forms must be submitted for all newly recorded sites and all previously registered sites that have new information recorded as part of the s18 application process. All photographs, diagrams and maps must be in colour
- • 15 copies of all documents are required. All maps/diagrams must be in colour for each copy
- • A digital copy of the application package, inclusive of all attachments, maps, spatial data on CD or other digital media.
If a registered site search has confirmed the existence of a “closed” site it essentially means that the Aboriginal people who have provided information relating to this culturally significant site (as well as the actual location) have requested, due to cultural sensitivities, that the information and specific location of the site is restricted from the general public.
When DIA receives a request to ‘close’ a site two things happen. The first is that all information held in relation to that site is restricted from the general public. In order to view this information written permission must be obtained from the site informants (ie the Aboriginal people(s) who provided the cultural information relating to the site).
The second is that DIA’s mapping system automatically (and randomly) generates what is known as a dithered boundary which is designed to mask the location of the heritage site. It is possible to be able to undertake development within the dithered (or closed) boundaries of a heritage site as long as the development does not occur within the actual boundaries of a heritage site.
Aboriginal Heritage Survey Report
Applicant can either request a heritage survey to ensure work avoids a heritage site or request a section 18 survey if a heritage site cannot be avoided.
- • Site Avoidance Survey request (archaeology and ethnography) submitted to Traditional Owners
- • Traditional Owners confirm whether survey is required and submits budget
- • Mining Company reviews and approves budget
- • Survey proceeds within 28 days of approval of budget
- • Preliminary Advice Report provided in draft to Mining Company (within 7 days of conclusion of survey)
Site Avoidance Survey Process
Section 18 Survey Process (if sites indicated in site avoidance report cannot be avoided)
- • Section 18 survey request (archaeology and ethnography) submitted to Traditional Owners
- • Traditional Owners submit budget and confirm survey schedule (within 14 days of submission of survey request)
- • Company reviews and approved budget
- • Survey proceed (as soon as is reasonably practicable but within 28 days of approval of budget estimate)
- • Section 18 survey report provided in draft to Company (as soon as reasonably practicable but in any event within 28 days of conclusion of survey)
- • Company confirms findings of draft section 18 survey report; requests corrections if necessary. Should there be any changes required, the final Survey Report shall be provided to the Company as soon as reasonably practicable after the comments are received, but in any event within 7 days after the date of submission of the draft report.
- • Submit report to DIA with supporting documentation