Information for land users

Information regarding the NSHA for WA Government, planners, developers and private land users, LGAs and mineral and petroleum titles.

WA Government

From 8 June 2015, WA Government land users, including departments, agencies and instrumentalities, have been required to enter into a Noongar Standard Heritage Agreement (NSHA) with the relevant Noongar Agreement Group when conducting an Aboriginal Heritage Survey in an ILUA area, unless they have a pre-existing heritage agreement.

If a WA Government land user has a pre-existing heritage agreement that it wishes to continue to operate, it need not enter into a NSHA. Alternatively, a pre-existing heritage agreement can be replaced by the NSHA (to the extent they cover the same subject matter) by listing the existing agreement in 'Schedule 2' of the NSHA.
It is recommended a NSHA is entered into, and an 'Activity Notice' issued under the NSHA, if there is a risk that an activity will unlawfully 'impact' (i.e. by excavating, damaging, destroying or altering in any way) an Aboriginal site. The WA Government Aboriginal Heritage Due Diligence Guidelines are referenced by the NSHA and provide guidance on how to assess potential risk to Aboriginal heritage.

Planners, developers and private land users

The WA Government encourages all land users to consider using the NSHA when their planned land-use activity occurs within the Settlement Area and an Aboriginal Heritage Survey is required. Other land users are not legally bound to use the NSHA, but may find it offers an efficient and Aboriginal Heritage Act compliant alternative.

Where land users do not elect to follow the NSHA, it is recommended that heritage surveys be conducted following key elements in the NSHA to ensure a consistent approach across the South West.

This approach would include:

  • following the Aboriginal Heritage Due Diligence Guidelines to determine whether an activity may pose a risk to Aboriginal heritage and may require a survey
  • seeking the names of suitable Aboriginal Consultants through South West Aboriginal Land And Sea Council (or the Noongar Regional Corporations, once established)
  • consulting with SWALSC (or the Noongar Regional Corporations, once established) prior to making an application for consent to impact a site under section 18 of the AHA
  • following the NSHA’s prescribed schedule of fees, as and where appropriate.
     
Local government

The South West Aboriginal Land and Sea Council (SWALSC) and the WA Local Government Association (WALGA) have worked together to develop a suitable local government-specific Noongar Heritage Agreement template (LG NHA) that aligns the NSHA with local government regulations and policies. Local government is not a party to the Indigenous Land Use Agreements (ILUAs) so is not bound to follow the NSHA. However WALGA and SWALSC both recognise that a consistent approach to Aboriginal heritage in the Settlement Area is important for all.

Prior to the LG NHA being developed, local government is encouraged to:

  • follow the Aboriginal Heritage Due Diligence Guidelines to determine whether an activity poses a risk to Aboriginal heritage and may require a survey
  • seek the names of suitable Aboriginal Consultants through South West Aboriginal Land And Sea Council (or the Noongar Regional Corporations, once established)
  • consult with SWALSC (or the Noongar Regional Corporations, once established) prior to making an application for consent to impact a site under Section 18 of the AHA
  • follow the NSHA’s prescribed schedule of fees, as required.

Mineral and petroleum titles

Registered Native Title claimants and determined Native Title holders have certain rights under the provisions of the Native Title Act 1993 (Cth) (NTA) future act regime. The future act provisions of the NTA will continue to apply over the Settlement Area until the ILUAs are conclusively registered and native title is surrendered. Only when native title has been surrendered that the NTA will cease to operate and future act obligations will be removed.

The Department of Mines, Industry Regulation and Safety's (DMIRS) Tengraph system has been updated to show each of the six ILUA areas as File Notation Areas (FNA) until such time as the ILUAs are registered

Grant of mining tenure within the Settlement Area

From 8 June 2015, DMIRS has been required to apply the heritage condition prescribed at Clause 18 of Schedule 10 of each ILUA, upon grant of mining tenure. The condition requires that tenure holders must enter into a heritage agreement or a NSHA with the relevant ILUA group before any rights can be exercised. The registered title holder must provide DMIRS a Proponent Statutory Declaration (as per Annexure U to the ILUAs) as evidence of compliance of that condition.

Visit the DMIRS website to learn more.

Grant of petroleum tenure within the Settlement Area

From 8 June 2015, DMIRS has been required to apply the singular ILUA area or multiple ILUA areas heritage condition prescribed at Clause 18 of Schedule 10 of the ILUAs, upon a grant of petroleum tenure. The condition requires that tenure holders must enter into a heritage agreement or a Noongar Standard Heritage Agreement with the relevant ILUA group (Noongar Agreement Group) before any rights can be exercised. The registered title holder must provide DMIRS a Proponent Statutory Declaration (as per Annexure U to the ILUAs) as evidence of compliance of that condition'.

Visit the DMIRS website to learn more.

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.

Prior to the commencement of the Settlement

Prior to the commencement of the Settlement, the South West Aboriginal Land and Sea Council (SWALSC) must sign up to NSHAs on behalf of the relevant ILUA Group. 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.

 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 Director.

NSHA resources

Page last reviewed 24 November 2018
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