Noongar Standard Heritage Agreement - South West Native Title Settlement

Operation of the NSHA

From 8 June 2015 (Execution of the ILUAs) the NSHA must be entered into by WA Government land users when an Aboriginal heritage survey is required in the Settlement Area and a pre-existing heritage agreement does not already exist.

The NSHA defines an Aboriginal heritage survey as a:

"survey conducted to assess the potential impacts of Activities on Aboriginal Heritage, whether or not conducted under this NSHA and may include anthropological, ethnographic or archaeological investigations as appropriate".

An Aboriginal heritage survey may be required because of a planned ground-disturbing activity, development or other land use activity that may impact Aboriginal heritage.

Noongar people can contact the South West Aboriginal Land and Sea Council for further information and involvement with the NSHA and Aboriginal heritage surveys.

Aboriginal Heritage Act 1972 and the Noongar Standard Heritage Agreement

The WA Aboriginal Heritage Act 1972 (AHA) and Aboriginal Heritage Regulations 1974 (AHR) were enacted to protect and preserve Aboriginal sites. Anyone who excavates, destroys, damages, conceals or in any way alters any Aboriginal site commits an offence under Section 17 of the AHA, unless he or she acts with the authorisation of the Registrar of Aboriginal Sites (Registrar) under Section 16 or the consent of the Minister of Aboriginal Affairs (Minister) under Section 18.

The Noongar Standard Heritage Agreement  (Annexure C of the ILUAs) was negotiated by South West Aboriginal Land and Sea Council, the Noongar Agreements Groups and the WA Government to ensure compliance with the Aboriginal Heritage Act and Regulations.

The NSHA was primarily developed for use by the WA Government and industry, however other land users are encouraged to consider using the NSHA if their planned activity is within the Settlement Area and presents a potential impact to Aboriginal heritage. All land users who wish to use land for a purpose which might constitute an offence under section 17 of the AHA must exercise due diligence in trying to establish if their proposed activity on a specified area may damage or destroy an Aboriginal site.

Aboriginal Heritage due diligence

Land users planning activities within the Settlement area that may require an Aboriginal heritage survey can in the first instance contact the Department and should be familiar with the Aboriginal Heritage Due Diligence Guidelines.

The NSHA’s definition for a survey is as follow, however a survey can be conducted without any prompt linked to land use and a survey can be for identification purposes only e.g. identifying Aboriginal sites along a waterway.

"survey conducted to assess the potential impacts of Activities on Aboriginal Heritage, whether or not conducted under this NSHA and may include anthropological, ethnographic or archaeological investigations as appropriate".

Leaving Aboriginal Heritage matters until late in the planning process can lead to unnecessary delays and costs. The Department’s Aboriginal Heritage Inquiry System (AHIS) can identify Aboriginal sites and the six ILUA Areas (Settlement Area) have been incorporated into the AHIS.

Search the AHIS for ‘Registered sites’ or ‘other heritage places’ using the drop-down category ‘Native Title SW Settlement ILUA’ - AHIS incorporates the Register of Aboriginal Sites.

• Aboriginal Heritage Inquiry System
• Contact the Department's South West Settlement Heritage Director

WA Government land users

Prior to the commencement of the Settlement all WA Government land users including Department's, agencies and instrumentalities who wish to conduct an Aboriginal heritage survey within the South West Settlement Area, are required to enter into a NSHA with the South West Aboriginal Land and Sea Council (SWALSC) on behalf of the relevant Indigenous Land Use Agreement (ILUA) Group, unless they have a pre-existing heritage agreement and wish to continue it. Any NSHAs signed during this interim period will automatically transfer to the relevant Noongar Regional Corporation(s). The relevant Noongar Regional Corporations will then, once established, be the signatories to all new NSHAs.

Contact the South West Settlement Heritage team for guidance.

Local Government authorities

Local Government Authorities are not a party to the Indigenous Land Use Agreements (ILUAs) and not bound to follow the NSHA. However, both the WA Local Government Association (WALGA) and the South West Aboriginal Land and Sea Council (SWALSC) recognise that a consistent approach to Aboriginal heritage in the Settlement Area is important.

WALGA, SWALSC and DPLH have collaborated and have finalised a Noongar Heritage Agreement template tailored to local government regulations. This will be known as the Noongar Heritage Agreement for Local Government (NHALG) template.

However due to resourcing issues SWALSC is currently not in a position to enter NHALGs with Local Government Authorities, or in a position to respond to Local Government Authorities in relation to Aboriginal heritage site enquiries. Instead SWALSC has requested that until advised further Local Government Authorities should direct their queries directly to DPLH for advice.

Contact the South West Settlement Heritage team for guidance.

NSHA Working Group

The NSHA Working Group comprises of relevant staff from the South West Aboriginal Land and Sea Council and WA Government agencies that have signed onto the NSHA and have ongoing NSHA responsibilities. The Working Group:

• considers all matters arising from the implementation of the NSHA from both the perspectives of the WA Government and the SWALSC, and in time from the position of the six Noongar Regional Corporations
• provides statistics, updates and communications related to the use of the NSHA
• contributes to the development of resources and templates to complement the NSHA.

Get involved with the NSHA Working Group by contacting the Department’s South West Settlement Heritage team.

From 8 June 2015, the Department of Mines, Industry Regulation and Safety (DMIRS) is bound to apply the heritage condition prescribed at Clause 18 of Schedule 10 of each South West Native Title Settlement Indigenous Land Use Agreement (ILUA) area, upon grant of mining or petroleum tenure. The condition requires that tenure holders must enter into an Aboriginal Heritage Agreement or a NSHA with the relevant Native Title Agreement Group before any rights can be exercised. The registered title holder must provide a Proponent Statutory Declaration (as per Annexure U to the ILUAs) as evidence of compliance of that condition.

The condition provides that if the tenure holder and the relevant Native Title Agreement Group (currently represented by the South West Aboriginal Land and Sea Council) fail to reach agreement on an alternative Aboriginal Heritage Agreement within 20 business days of the commencement of negotiations, the tenure holder must execute and enter into a NSHA subject only to any necessary modifications in terminology required for the tenure (ie Entering a NSHA form).

Access the TENGRAPH spatial enquiry system to see the position of WA mining tenements and petroleum titles in relation to other land information. DMIRS Tengraph system has been updated to show each of the six ILUA areas.

Further information is available at DMIRS website.

Schedule 5 of the NSHA sets out the costs usually involved in an Aboriginal heritage survey including:

• Aboriginal Heritage Service Providers
• archaeologists
• Aboriginal consultants
• conduct of fieldwork
• travel expenses.

See Schedule 5 of the Noongar Standard Heritage Agreement for the rates which include reference to the Consumer Price Indexation (CPI). CPI is varied annually; see the Australian Bureau of Statistics for the CPI for the relevant year.

The rate for Aboriginal Heritage Consultants was originally specified to be $500 per day plus CPI. From 31 August 2022 the total sum including CPI increases is calculated at $589.29 per day

Noongar Standard Heritage Agreement Resources and templates