Noongar Standard Heritage Agreement

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 there is no pre-existing heritage agreement.

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 a planned ground-disturbing activity, development or other land-use activity may impact Aboriginal heritage.

WA Government land users

WA Government land users, including departments, agencies and instrumentalities, are required to enter into a 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 with, it need not enter into a NSHA. Alternatively, if desired, a pre-existing heritage agreement can be replaced by the NSHA (to the extent that 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' (for example, by excavating, damaging, destroying or altering in any way) an Aboriginal site. The WA Government Aboriginal Heritage Due Diligence Guidelines, incorporated into the NSHA, provide guidance on how to assess potential risk to Aboriginal heritage. 

Signing of NSHAs 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 Noongar Agreement Group.  Any NSHAs signed during this interim period will automatically transfer to the relevant Noongar Regional Corporation(s) once the Settlement commences and the Noongar corporations are established.

Aboriginal heritage due diligence

WA Government land users planning activities within the Settlement area that may require an Aboriginal Heritage Survey can in the first instance contact the Department of Planning, Lands and Heritage's South West Settlement Director but they should also become familiar with the Aboriginal Heritage Due Diligence Guidelines.

Leaving Aboriginal Heritage matters until late in the planning process can lead to unnecessary delays and costs. The AHIS is a key preliminary tool for identifying Aboriginal Sites, incorporating the six ILUA areas (Settlement Area). 

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 and Objects.

NSHA working group

The NSHA Working Group comprises relevant staff from the SWALSC and WA Government agencies who have entered NSHAs and have ongoing responsibilities. It:

• 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 and updates on the use of the NSHA to the SWSIU and other stakeholders as appropriate
• contributes to the development of resources and templates to complement the NSHA.

Find all NSHA technical documents and a range of resources developed to assist with the efficient use of the NSHA on the Department of Planning, Lands and Heritage website.

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.

Unlike WA Government land users, other land users are not legally bound to use the NSHA, but may find it offers an efficient way to comply with the Aboriginal Heritage Act.

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 the 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.

The WA Local Government Association (WALGA) and the South West Aboriginal Land and Sea Council (SWALSC) are working together to develop a suitable local government-specific Noongar Heritage Agreement template that will tailor the NSHA to align with local government regulations and policies.

Local government authorities are not a party to the Indigenous Land Use Agreements (ILUAs) and therefore are not bound to follow the NSHA.

However, both WALGA and SWALSC recognise that a consistent approach to Aboriginal heritage in the Settlement Area is important for all.

Prior to the template being developed, local governments are encouraged to follow the key heritage elements of the NSHA, including:

• 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 the 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.

Grant of ​mining tenure within the Settlement Area

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 ILUA, upon a grant of mining tenure. The condition requires that tenure holders must enter into a heritage agreement or a NSHA with the relevant Noongar Agreement Group before any rights can be exercised. The registered title holder must provide a Proponent Statutory Declaration (see Annexure U in South West Native Title Indigenous Land Use Agreements - schedules and annexures) as evidence of compliance with that condition.

Grant of petroleum tenure within the Settlement Area

DMIRS is bound to apply the heritage condition prescribed at Clause 18 of Schedule 10 of each ILUA, upon a grant of petroleum tenure. The condition requires that tenure holders must enter into a heritage agreement or a NSHA with the relevant Noongar Agreement Group before any rights can be exercised.

The registered title holder must provide a Proponent Statutory Declaration (see Annexure U of the ILUAs) as evidence of compliance with that condition'.
Visit the DMIRS website to learn more.

TENGRAPH gives a current and accurate picture of land under mining activity and is used to determine ground that is available for mineral exploration.

The TENGRAPH system has been updated to show the six ILUA areas.

Schedule 5 of the Noongar Standard Heritage Agreement sets out the costs usually involved in an Aboriginal heritage survey. This includes fee rates for:

• 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 on 31 August - see the Department of Treasury publication of the CPI for the relevant year. The rate for Aboriginal Heritage Consultants is specified to be $500 (maximum) plus CPI. The current total sum, including CPI, can be found on the Department of Planning, Lands and Heritage website.

Further information

Questions about Aboriginal heritage in the Settlement Area including the use of the NSHA should in the first instance be directed to the DPLH:

Department of Planning, Lands and Heritage's South West Settlement Director
Jeremy Elliott, Director - South West Settlement
61 8 6551 8070

South West Aboriginal Land and Sea Council 
Peter Nettleton, Senior Legal Officer
61 8 9358 7400
 
Department of Mines, Industry Regulation and Safety
Tony Bullen, General Manager Tenure and Native Title Branch
61 8 9222 3333
 
WA Local Government Association (WALGA)
Local Government Authorities should contact WALGA in the first instance for general advice about their particular circumstances and the potential use of the NSHA.
Joanne Burges, Executive Manager - Planning and Place
61 8 9213 2018