If you are involved in a native title PBC, RNTBC, CATSI Act corporation or a native title representative body that carries out heritage services or related functions, or intends to do so, you should consider whether your organisation should apply for designation as a “LACHS” under the new Aboriginal Cultural Heritage Act 2021 (WA) (ACH Act), given the availability of grants from the state government for eligible applicants.
We have outlined what you need to know about LACHS designation and key issues to be considered by Indigenous organisations before applying for designation.
The ACH Act is anticipated to come into full force and effect on 1 July 2023. The ACH Act introduces a new body called the “LACHS” (local Aboriginal cultural heritage service) which is intended to be the first point of contact for proponents in relation to Aboriginal cultural heritage matters in respect of a geographical area (for example a native title determination area).
The LACHS is the body which proponents will get in touch with first to notify and consult with before carrying out proposed Tier 2 or 3 activities which may harm Aboriginal cultural heritage and subsequently obtain the necessary Aboriginal cultural heritage permit (for Tier 2 activities) or agreeing to an Aboriginal cultural heritage management plan (for Tier 2 or 3 activities) under the ACH Act.
The LACHS is intended to provide heritage functions and services under the ACH Act for a particular area, including engaging and negotiating with proponents regarding heritage activities, providing heritage services to identify, protect, preserve, conserve and manage sites and cultural heritage and making Aboriginal cultural heritage management plans, among other things.
The question on the minds of Indigenous organisations across the State seems to be whether to apply for designation as a “LACHS” under the ACH Act.
There are a number of parties which can become the LACHS (although there is a priority of designation for such areas and certain requirements that need to be met):
- determined holders of native title
- native title claimants
- native title representative bodies.
A contentious issue among parties seeking to be designated as a LACHS is what will happen to previously agreed rates under pre-existing heritage agreements with proponents if they become designated as the LACHS for that area and whether they should become designated.
The LACHS will be able to charge reasonable fees for services that fall within their functions under the ACH Act, under a fee structure that complies with the Local ACH Service (Fees) Guidelines. It is a pre-requisite of designation as a LACHS that it has a compliant fee structure. Services provided by the LACHS will be charged according to that fee structure, and any variations must be approved by the ACH Council.
Whether previously agreed rates can be charged by a PBC/RNTBC will depend on firstly, whether the PBC/RNTBC is designated as a LACHS. If the PBC/RNTBC is designated as a LACHS, then pre-existing rates schedules will be replaced by the LACHS approved fee structure. However, if there is no LACHS for the area, then previously agreed rates can continue to be charged for heritage functions in accordance with pre-existing heritage agreements.
Whether PBCs and RNTBCs should opt in to be designated as a LACHS will depend on the organisations' needs and in particular:
- whether PBCs/RNTBCs wish to continue to provide heritage services (or if it better suits the organisation for heritage functions to be provided by, for example, the native title representative body for the relevant area, which may depend on the PBC/RNTBC’s internal resources);
- whether pre-existing agreed rates in their heritage agreements (which may differ between proponents) would lead to better financial outcomes for the PBC/RNTBC, and its members;
- an Indigenous organisation’s desire for capacity building to become a LACHS and the availability of grant funding from the State to support capacity building.
Availability of grant funding
In order to assist native title parties, the State Government announced three grants available to eligible incorporated Indigenous organisations that intend to apply to become a LACHS to assist with one-off establishment, administration and capacity-building funding, as set out below:
Stage One – The first grant of $80,000 will assist Aboriginal organisations that intend to apply to become a LACHS to engage legal and consultancy services and/or use internal staff to prepare a Readiness Report which will outline the organisation’s existing capabilities for being appointed as a LACHS and identify any organisational capability or capacity building needs.
As the LACHS will need:
- sufficient knowledge, skills and resources to fulfil the functions under the ACH Act to engage and negotiate with proponents, as well as native title parties and knowledge holders where required; and
- sound governance and administrative arrangements to effectively manage Aboriginal cultural heritage,
the first grant is expected to assist Indigenous organisations applying for designation as a LACHS to identify gaps in their capabilities and to assist with organisational capacity building by preparing a Readiness Report.
Stage Two – The second grant of $200,000 is expected to be available to the LACHS, on appointment, to assist with additional capacity building needs.
Stage Three – A third grant of up to $300,000 each year (up to $77 million to support new LACHS) is expected to be available to the LACHS to ensure adequate resourcing and capacity to meet the anticipated service needs of proponents, Traditional Owners and Indigenous communities.
For more information, please contact HopgoodGanim’s Resources and Energy team.