Government Standard Heritage Agreement (GSHA):
Questions and Answers
20 October 2015
Version 1
(This Q&A document corresponds with the GSHA template dated - October 2014 – Draft 7)
What is the purpose of the GSHA?
· The Government Standard Heritage Agreement (GSHA) is a template heritage agreement intended to facilitate the conduct of government business activities where there may be some likelihood of impacting Aboriginal sites,[1] while aiding compliance with the Aboriginal Heritage Act 1972.
· The GSHA encourages good working relationships between Government Proponents and the relevant Aboriginal people (i.e. native title parties). In the event that heritage surveys are required the GSHA provides both parties with a clear, timetabled framework outlining their various obligations.
Who can use the GSHA?
· The GSHA is to be used by WA Government agencies and instrumentalities as the default template heritage agreement guiding ground-disturbing activities proposed by the State.
· The GSHA may also be customised for large-scale or project-specific activities. Government agencies intending to use the GSHA in this way should first contact the Land, Approval and Native Title Unit (LANTU) for advice.[2]
· For non-government parties a ‘Proponent Standard Heritage Agreement’ (PSHA) template is available online and can be adapted to suit particular circumstances.
Who can be a party to the GSHA?
The parties to a GSHA are typically the:
1. Prescribed Body Corporate (PBC) – the entity that holds native title rights and interests on trust, or is the agent, for the determined native title holders[3]; and the
2. Government Proponent – the State, a Government Party or any other agency or instrumentality of the State and whom the State at any time notifies the PBC is to be regarded as falling within this definition.
In which areas of the State does the GSHA apply?
· The GSHA typically applies to entire areas of determined native title (Determination Area[4]), defined in the GSHA as the ‘Aboriginal Heritage Area’. The Aboriginal Heritage Area encompasses the entire area of land within external determination boundaries, and will include areas where native title may have been determined to not exist or is otherwise extinguished.
· In contrast, if a project-specific version of the GSHA (Project-Specific GHSA) template is applied for discrete one-off activities, such as the widening of a freeway, then the Aboriginal Heritage Area will delimit a smaller area by describing the boundaries for where the project is to be conducted.
Is a heritage survey necessary for all planned activities?
· No, if there is an emergency, for example a bushfire, then activities in response to the emergency will occur without the need for surveys. There is no requirement for a GSHA to be entered into, or conditions met in relation to activities urgently required to secure life, health or property or to prevent or address an imminent hazard to life, health or property of any person.
· If the planned activities consist of ‘Minor Impact Activities’[5] then a survey is not required.
· When undertaking a specific ‘Low Ground Disturbance Activity’[6] that the PBC has notified in writing does not need be the subject of an ‘Activity Notice’, no survey may be necessary.
· A Government Proponent is free to conduct any Activity (in the Aboriginal Heritage Area) without conducting a survey where the PBC either agrees in writing that a survey is not required or waives its right under the GSHA to require a survey by reason of failure to respond to an Activity within the time limits set out in the GSHA.
· If the Government Proponent applies the ‘Aboriginal Heritage Due Diligence Guidelines’[7] and considers that there is no risk posed to an Aboriginal site, an assumption may be made that notification is not required. If the Government Proponent has a reasonable doubt about potential risk to an Aboriginal site then the Government Proponent should issue an Activity Notice.
What is the purpose of an Activity Notice?
· The main purpose of the Activity Notice is to determine whether a survey is required and, if so, to provide information relevant to the conduct of the survey.
· If a Government Proponent considers a survey may be necessary because there is a potential risk to an Aboriginal site then it must issue a notice in writing (Activity Notice) to the PBC.
Giving an Activity Notice
· Mandatory information to be included in the Activity Notice is set out in the schedule ‘Contents of Activity Notice’ contained in the GSHA.
· The date the PBC receives the Activity Notice is the ‘Activity Notice Date’ and it is from this date that certain timed obligations commence.
· The PBC can also request additional information after receiving an Activity Notice. The Government Proponent can provide the supplementary information and/or make modifications to the Activity Notice if plans change. The PBC can also exercise its right to request a new Activity Notice (Fresh Activity Notice) if modifications have been made to the original Activity Notice. This will have the effect of resetting the Activity Notice Date.
Activity Notice Response
· The PBC has up to 15 business days to consider and respond, in writing, to the Activity Notice (Activity Notice Response). When considering the notice the PBC shall take into account factors set out in the GSHA[8]. It is only in highly unusual circumstances that a survey would be requested in response to a Low Ground Disturbance activity, after being justified by the PBC.
· The Activity Notice Response will communicate whether the PBC considers that a survey is necessary or not. If a survey is required the PBC should indicate survey type, projected commencement dates, an estimate of costs and nominate the potential Aboriginal Heritage Service Provider or the Principal Aboriginal Heritage Consultant, as relevant.
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What if the PBC does not respond to the Activity Notice?
· If the Government Proponent does not receive a response from the PBC about the Activity Notice, then (subject to further notices regarding non-compliance in the GHSA) it may notify the PBC that it is no longer bound by specific clauses within the GSHA. Acting reasonably, the Government Proponent may choose to:
o not proceed with the planned Activity;
o proceed with the Activity[9]; and/or
o arrange for a survey to be carried out by qualified professionals (archaeologist, anthropologist etc.). If the Government Proponent proceeds with this option it must inform the PBC of the alternate arrangements.
What happens if the PBC and Government Proponent do not agree that a survey is necessary, or about the arrangements for the survey?
· The Parties have 20 business days after receipt of the Activity Notice Response to agree or resolve matters about the need for a survey, or related survey matters not already agreed to. The date when agreement is reached about these matters is the ‘Survey Agreement Date’.
· The Government Proponent has the ability to modify the proposed activities to avoid the need for a survey (i.e. may change the type of activity or the footprint of the activity).
· The PBC is usually responsible for choosing the Aboriginal Heritage Service Provider. If the Government Proponent has reasonable concerns about the PBC’s choice it may request consideration of an alternative, and nominate a suitably qualified Aboriginal Heritage Service Provider. The PBC will respond to this request accordingly.
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The Aboriginal Heritage Survey
Who conducts the survey?
As soon as possible after the Survey Agreement Date, the Aboriginal Heritage Service Provider, in conjunction with the Principal Aboriginal Heritage Consultant (if appointed) will organise a survey team, comprising of:
· up to 6 paid Aboriginal Consultants who in the opinion of the PBC hold appropriate experience and knowledge; and
· if justified and agreed to by the Government Proponent, the following supplementary team members:
o an Aboriginal Liaison Officer;
o an additional anthropologist of specific gender;
o an archaeologist (or two archaeologists); and
o 1 or 2 Nominees of the Government Proponent.
Additional members of the Native Title Group may accompany the survey team, but the Government Proponent is not responsible for any of their costs.
When will the survey take place?
· The survey must commence within 30 business days from the Survey Agreement Date or as otherwise agreed between the parties.
What must the Government Proponent do to assist the survey?
· The Government Proponent must provide details about safety and other procedures in relation to the area being surveyed. The Government Proponent will also provide protective clothing and equipment if reasonably necessary. Insurance for survey team members is not provided by the Government Proponent.
Can the survey results be used to support a section 16 or section 18 Aboriginal Heritage Act 1972 (WA) (AHA) application?
· Yes.
· Heritage surveys are usually undertaken as a form of due diligence by Government Proponents to identify and avoid or reduce impacts to Aboriginal sites. There is no requirement under the AHA for an Aboriginal heritage survey to accompany a section 16 or 18 application.
What are the survey costs?
· The GSHA sets out the rates to be paid for the various components of the survey. Rates are indexed to the Consumer Price Index for Perth.[10]
· A budget estimate of costs must be agreed to by the parties before the Survey Agreement Date and the Government Proponent is required to pay 50% of the estimated administration fee before the survey commences.
· If 50% of the estimated administration fee is not paid within 20 business days after the Survey Agreement Date, the PBC may notify the Government Proponent that the survey cannot commence until payment is received, or that the survey will be delayed.
· The balance of remaining costs must be paid within 21 business days after receipt of the survey report. The PBC must provide a tax invoice and any disputes about costs may give rise to the GSHA’s dispute resolution mechanisms.
Does the GSHA allow for increased consultant rates over time?
· Yes. The rates for Aboriginal Consultants, Anthropologists and Archaeologists are indexed to the Consumer Price Index for Perth and the GSHA also provides for regional-specific allowances (District Allowance Rate).[11]
How soon after the survey will survey reports be received?
· Timeframes for the receipt of survey reports will depend on what has been requested:
o preliminary advice – within 7 business days after the last fieldwork day;
o draft survey report - within 20 business days after the last fieldwork day; and
o final survey report - within 35 business days after the last fieldwork day.
Can the information contained in the survey report be shared with other agencies?
· Yes. Under the GHSA the PBC grants a licence to the Government Proponent to use the survey reports for limited purposes;[12] however the intellectual property rights in the survey report remain with the Native Title Party (i.e. either PBC or registered claimant group).
How are new Aboriginal sites reported to the Department of Aboriginal Affairs (DAA)?
· Maintaining an accurate Register of Aboriginal Sites is the most effective way of identifying and avoiding damage to Aboriginal sites. Under the GSHA, it is the responsibility of the Aboriginal Heritage Service Provider to record and report possible Aboriginal sites discovered during the Aboriginal heritage survey.
· Possible Aboriginal sites must be recorded using the DAA’s ‘Aboriginal Heritage Submission Form’ (www.daa.wa.gov.au) and a copy of the survey report must also be submitted to the Aboriginal Heritage Act Registrar. Regardless of the type of survey conducted, or the result, the report must be submitted to the Registrar.
Does the PBC need to be consulted about a section 16 or section 18 AHA Application?
· Yes. The GSHA requires that Government Proponents provide written notification (Notice of Application) to the PBC within set timeframes before any proposed lodgement of a section 16 or section 18 AHA applications. The Government Proponent must also provide the PBC with an opportunity for consultation before any proposed lodgement of a section 16 or section 18 AHA applications.
· If the PBC wishes to consult it must respond to this notice within 15 business days and provide the Government Proponent with a written ‘Notice to Consult’.
· If consultation is agreed to then the parties have a minimum 30 business days after receipt of the Notice to consult about remedies to avoid risk to Aboriginal sites or lodgement of an application.
What happens if skeletal remains, or Aboriginal objects or sites (as defined by the AHA) are uncovered?
· Work will stop immediately and the relevant authorities will be contacted. The GSHA sets out who should be contacted in these circumstances. (In the case of Aboriginal objects, work only needs to cease if the place is believed to constitute an Aboriginal site and no prior AHA approval has been obtained.)
Can the GSHA be reviewed?
· Yes, as part of a broader review conducted through the provisions of the Indigenous Land Use Agreement. There is also the ability to vary the GSHA with the consent and written agreement of all parties.
· Project-specific GSHAs may also be entered into, in which case their duration is typically the life of the project (as defined). This type of agreement may also be amended with the agreement of both parties.
Contact us
Contact the Land, Approvals and Native Unit (LANTU).
· Telephone: 08 6552 5333
· Website: www.dpc.wa.gov.au
Further information
Other relevant documents on the LANTU website:
· Guide to the Government Indigenous Land Use Agreement and Standard Heritage Agreements – Version 1.3 – 17 October 2014
· Government Standard Heritage Agreement Draft 7 – 17 October 2014
· Proponent Standard Heritage Agreement – Draft 7 – 17 October 2014
· Government Indigenous Land Use Agreement Draft 7 – 17 October 2014
· Aboriginal Heritage: Due Diligence Guidelines – Issued by the Department of Premier and Cabinet and Department of Aboriginal Affairs
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[1] Aboriginal site means a place to which the Aboriginal Heritage Act 1972 applies by the operation of section 5.
[2] Government agencies planning large-scale development should be aware of the ‘State Strategic Lands Development Advisory Group’ – Information about the group can be found on the LANTU website https://www.dpc.wa.gov.au/lantu/Pages/Default.aspx
[3] A GSHA may also be entered into by a Native Title Representative Body on behalf of a registered native title claim group in some instances, usually as a project-specific agreement, subject to confirmation by the LANTU.