Aboriginal Cultural Heritage Amendment Regulations (No. 2) 2023 (WA)

No judgment structure available for this case.

19 May 2023 GOVERNMENT GAZETTE, WA 1105
HERITAGE
HR301
Aboriginal Cultural Heritage Act 2021

Aboriginal Cultural Heritage Amendment
Regulations (No. 2) 2023

SL 2023/41

Made by the Governor in Executive Council.
1. Citation
These regulations are the Aboriginal Cultural Heritage
Amendment Regulations (No. 2) 2023.
2. Commencement
These regulations come into operation as follows —

(a)

regulations 1 and 2 — on the day on which these regulations are published in the Gazette;
(b) the rest of the regulations — on 1 July 2023.

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3. Regulations amended

These regulations amend the Aboriginal Cultural Heritage
Regulations 2022.
4. Regulation 3 amended

(1) In regulation 3 insert in alphabetical order:
Aboriginalparty has the meaning given in section 100
of the Act;
ACH management system means a system for the
management of applications, information and processes
under the Act, accessed through the ACH Council's
website;
ancillary dwelling has the meaning given in the
Planning and Development (Local Planning Schemes)
Regulations 2015 Schedule 2 clause 1;
application area has the meaning given in section 69
of the Act;
boat means a vessel, craft or floating platform of any
description that is capable of use in or on water,
whether floating or submersible;
coastal waters means the coastal waters of the State as
defined in the Off-shore (Application of Laws)
Act 1982 section 2;
common property means

(a)
in relation to a strata titles scheme as defined in common property as defined in that section; or

(b)

in relation to a tier 1 scheme, tier 2 scheme or tier 3 scheme as defined in the Community Titles Act 2018 section 3(1) common

property as defined in that section;

emergency management has the meaning given in the
Emergency Management Act 2005 section 3;
grouped dwelling has the meaning given in the
Planning and Development (Local Planning Schemes)
Regulations 2015 Schedule 2 clause 1;
informed consent has a meaning affected by
section 146 of the Act;
interested Aboriginal party has the meaning given in
section 135(1) of the Act;
litter has a meaning affected by the Litter Act 1979
section 5(1);

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Planning and Development (Local Planning Schemes)
Regulations 2015 Schedule 2 clause 1;
organisation has the meaning given in section 53 of
the Act;
planning and development lot means a lot as defined
in the Planning and Development Act 2005
section 4(1);
public road means a road as defined in the Road

multiple dwelling has the meaning given in the residential building means a building occupied, or intended for occupation, as a place of residence; strata or community titles lot means

(a)

a lot in a strata scheme or lot in a survey-strata scheme as defined in the Strata Titles Act 1985 section 3(1); or

(b)

a lot as defined in the Community Titles Act 2018 section 3(1);

strata or community titles scheme means

(a)

a strata titles scheme as defined in the Strata Titles Act 1985 section 3(1); or

(b)

a tier 1 scheme, tier 2 scheme or tier 3 scheme as defined in the Community Titles Act 2018 section 3(1);
tracks includes walking tracks, horse tracks and access
tracks;
waterway includes the following

(a)

a river, creek, brook or other naturally flowing stream of water, whether or not it flows permanently;

(b) a lake, salt lake, claypan, lagoon, marsh or
swamp;
(c) a floodplain, estuary or inlet;
(d) an artificial waterway as defined in the Planning and Development Act 2005 section 4(1).

(2) In regulation 3 in the definition of committee delete "Act." and
insert:
Act;

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5. Regulation 30 inserted
At the end of Part 2 Division 4 insert:
30. Other notices in relation to local ACH services
In a circumstance set out in the Table, the ACH Council must give written notice to the person referred to in the description of the circumstance within the period set out for the circumstance.

Table

Item Circumstances of notice Period for giving
notice

The ACH Council decides to 14 days after the
designate a person as the local decision is made

ACH service for an area under section 37(1) of the Act

2. The ACH Council decides to 14 days after the
cancel the designation of a decision is made
person who is designated as the
local ACH service for an area
under section 43(1) of the Act
3. The ACH Council decides to 14 days after the
amend the area for which a decision is made

person is designated as the local ACH service under section 44(1) of the Act at the request of the
person
4. The ACH Council amends As soon as
details or information of a practicable after

person designated as a local the details or
ACH service under section 45(1) information are
of the Act at the request of the amended
person

5. A person designated as a local As soon as
ACH service requests the ACH practicable after
Council to amend the person's the decision is
details or information under made
section 45(1) of the Act and the
ACH Council decides not to
amend the details or information

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Item Circumstances of notice Period for giving
notice

6. The ACH Council decides to 14 days after the
approve a variation of a fee decision is made
structure in response to a request
by a person under section 50(1)
of the Act
6. Parts 3 and 4 replaced
Delete Parts 3 and 4 and insert:
Part 3 - Protected areas

31. Notice of Minister's direction to give public notice

(1)

This regulation applies if the Minister gives a direction to the ACH Council under section 78(4)(b) of the Act.
(2) The ACH Council must give written notice of the
direction to

(a) the applicant under section 72(1) of the Act; and
(b) each person notified under section 75(1) of the Act.
32. Conditions for protected area orders

For the purposes of sections 79(3)(c), 81(4)(c)
and 83(3)(d)(iii) of the Act, the other matters to which
a condition may relate are

(a) the activities, or classes of activities, that may

be carried out in the protected area; or

(b)
the recognition, protection, conservation or located in the protected area.

33. Activities in protected areas
The following activities may be carried out in a protected area

(a) driving on a public road;

(b)

in relation to part of a protected area that is Crown land burning carried out by a public authority for fire prevention or control purposes or other fire management works;

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(c)
measures to control declared pests under the Act 2007;

(d) activities carried out in accordance with a remediation order;
(e) a burial authorised under the Cemeteries Act 1986 section 12 of an Aboriginal person;
(f) activities carried out in accordance with the Coroners Act 1996 in the course of determining whether human remains are Aboriginal ancestral remains;
(g) activities carried out in an emergency situation for the purpose of preventing, or minimising, loss of life, prejudice to the safety, or harm to the health, of people or animals;
(h) activities undertaken by a public authority in an emergency situation for the purpose of preventing or minimising irreversible damage to a significant part of the environment;
(i) installing, inspecting, maintaining, repairing or replacing road infrastructure or associated ancillary infrastructure in relation to public roads, carried out by or on behalf of the Commissioner of Main Roads.
34. Notices or signs for protected areas

(1)

If the Governor makes an order under section 82(1) of the Act declaring an area as a protected area, the ACH Council may authorise a person to erect or place signs or notices

(a) identifying the area as a protected area; and
(b) providing any information about the matters

referred to in section 289(c)(i) to (iii) of the Act

that the ACH Council considers appropriate.

A person who destroys, removes or otherwise
interferes with a sign or notice erected or placed under
subregulation (1) commits an offence.
Penalty for this subregulation: a fine of $10 000.

(2)

(3) The Criminal Code section 39 (which provides for the
criminal liability of officers of a body corporate)
applies to an offence under subregulation (2).

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Part 4— Managing activities that may harm
Aboriginal cultural heritage

Division 1 - Terms used in Part 6 of Act
35. ACH impact statements
For the purposes of the definition of ACH impact statement in section 100 of the Act, an ACH impact statement must include

(a)

details of the proposed activity, including the proposed duration of the activity and the extent of the ground disturbance caused by the activity; and

(b)

details of the impact (whether beneficial or detrimental) that the proposed activity may have on Aboriginal cultural heritage located in
the area in which the activity is intended to be
carried out, including

(i)
cultural heritage has for Aboriginal
persons, including the impact on social,
the impact on the value the Aboriginal aesthetic values; and
(ii) the extent to which the Aboriginal cultural heritage may be impacted; and
(iii) the cumulative impact on the Aboriginal cultural heritage that the activity may have in combination with the impact of past activities carried out in the area.

36. Exempt activities

(1) Subject to regulation 40, for the purposes of

paragraph (b) of the definition of exempt activity in
section 100 of the Act, the types of development are
those described by Schedule 1 item 1.

(2) Subject to regulation 40, for the purposes of
paragraph (h) of the definition of exempt activity in
section 100 of the Act, the activities are those
described by the items in Schedule 1 under the
Subdivision headings referring to exempt activities
(other than item 1).
Example for this subregulation:
An item under the heading to Schedule 1 Division 1
Subdivision 1, "Exempt general activities".

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37. Tier 1 activities
Subject to regulation 40, for the purposes of the definition of tier 1 activity in section 100 of the Act, the activities are those described by the items in Schedule 1 under the Subdivision headings referring to tier 1 activities.
Example for this regulation:
An item under the heading to Schedule 1 Division 2
Subdivision 2, "Tier 1 emergency activities".

38. Tier 2 activities
Subject to regulation 40, for the purposes of the definition of tier 2 activity in section 100 of the Act, the activities are those described by the items in Schedule 1 under the Subdivision headings referring to tier 2 activities.
Example for this regulation:
An item under the heading to Schedule 1 Division 3 investigation activities".

39. Tier 3 activities
Subject to regulation 40, for the purposes of the definition of tier 3 activity in section 100 of the Act, the activities are those described by the items in Schedule 1 under the Subdivision headings referring to tier 3 activities.
Example for this regulation:
An item under the heading to Schedule 1 Division 4 coastal waters".

40. Most specific description of activity applies

(1) This regulation applies if an activity is described by
more than 1 item in Schedule 1.
(2) The activity is taken to be described by the most
specific item, and not by any other item, in Schedule 1.
(3) The most specific item is

(a) unless paragraph (b) applies the item in
Schedule 1 that most specifically describes the activity; or

(b)

if 1 or more of the items set out in Schedule 1 that describe the activity are under a Subdivision heading referring to exempt

activities the item in Schedule 1 under a
Subdivision heading referring to exempt
activities that most specifically describes the
activity.

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Division 2 ACH permits

41. Notice of opportunity to submit views regarding
tier 2 activity or extension of ACH permit

(1) A written notice given by a proponent under
section 113(a) of the Act must set out an explanation of
the opportunity to submit views under section 113(b)
of the Act.
(2) A written notice given by a permit holder under
section 122(3)(a) of the Act must set out an explanation
of the opportunity to submit views under
section 122(3)(b) of the Act.

42. Additional documents and information
accompanying application for ACH permit
For the purposes of section 115(2)(h) of the Act, an application for an ACH permit must be accompanied by

(a) a copy of—
(i) each notice given under section 113(a) of the Act; and

(ii)
any notification referred to in satisfaction of the notice requirements in section 113 of the Act;

and

(b) details of how the notice or notification was
provided.

43. Additional documents and information
accompanying application for extension of ACH
permit

An application for the extension of an ACH permit
under section 122 of the Act must be accompanied
by

(a)

a copy of each notice given under section 122(3)(a) of the Act; and
(b) details of how the notice was provided.

44. Minister may request further information when
standing in for ACH Council

(1)

This regulation applies if the Minister stands in the place of the ACH Council to decide an application under section 119(6) or 126(6) of the Act.

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(2) The Minister may make a written request to the
applicant to do any of the following

(a) provide the Minister with further information relevant to the application that the Minister requires to assess the application;
(b) verify any further information by statutory declaration.
45. Applications to revoke condition on ACH permit

(1) An application made under section 128(7)(b) of the Act
for revocation of a condition must

(a)

set out why the condition should be revoked; and
(b) be made in the approved form.

(2) The ACH Council may make a written request to an
applicant under section 128(7)(b) of the Act to do any
of the following

(a)

provide the Council with further information relevant to the application that the Council requires to assess the application;

(b)

verify any further information by statutory declaration.
Division 3 - ACH management plans
46. Additional matters in ACH management plan

(1) In this regulation
AHAct section 18 consent has the meaning given in
section 313 of the Act.

(2)

For the purposes of section 137(2)(i) of the Act, an ACH management plan must set out the following

(a)

details of the consultation about the carrying out of the activity that has been conducted with each of the persons to be consulted, including a summary of the outcomes of the consultation;

(b) evidence of the informed consent of each Aboriginal party (if any) to the plan, including
(i) a summary of the information disclosed in accordance with section 146(1)(a) of the Act; and
(ii) evidence of the matters set out in section 146(1)(b) of the Act;

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(c) the contact details of
(i) each party to the plan; and
(ii) each interested Aboriginal party for the plan;

(d) in relation to the area to which the plan
relates
(i) a description of the ownership or tenure interest in the area held by the proponent; and
(ii) the details of each registered native title body corporate for the area or part of the area and any claim in relation to the area that is registered on the Register of

Native Title Claims as defined in the
Native Title Act section 253;

(e) details of the steps taken to identify and obtain
an understanding of—
(i) the Aboriginal cultural heritage located in the area; and
(ii) the characteristics of that Aboriginal cultural heritage;

(f) details of the impact (whether beneficial or
detrimental) that the activity may have on
Aboriginal cultural heritage located in the area;
(g) details of any rehabilitation and remediation
measures for Aboriginal cultural heritage that
will be impacted by the activity;
(h) details of how any disputes between the parties in relation to new information about Aboriginal cultural heritage located in the area are to be
resolved;

(i) any measures that the parties must take to
ensure compliance with the plan, including schedules for monitoring and reporting and roles and responsibilities regarding compliance;
(j) the manner in which any Aboriginal party will
be notified if the proponent changes;
(k) if any Aboriginal party will be able to access
Aboriginal cultural heritage located in the area
while approval or authorisation of the plan is of
effect details of how the Aboriginal party
will be able to access the Aboriginal cultural
heritage;
(1) details of any other ACH management plan
(i) in which the proponent is identified under section 137(2)(a)(i) of the Act; and

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(ii)

section 150(1)(b)(i) of the Act or
authorised under section 165(1)(b)(i) of

that has been approved under approval or authorisation has ceased to be of effect; and

(iii)

that is relevant to the area or activity to which the plan relates;

(m) details of any AH Act section 18 consent
(i) granted to the proponent, regardless of whether the AH Act section 18 consent is no longer in force; and
(ii) that is relevant to the area or activity to which the plan relates.

Notes for this subregulation:
1. In relation to paragraph (l)(ii), see section 152 and 166 of the Act.
2. In relation to paragraph (m)(i), see section 319 of the Act.

47. Additional documents and information
accompanying application for ACH management
plan
For the purposes of sections 147(2)(g) and 157(2)(g) of the Act, an application for the approval or authorisation of an ACH management plan must be accompanied
by

(a)

evidence of the consultation about the carrying out of the activity that has been conducted with each of the persons to be consulted; and

(b)

a copy of any report prepared by or for the applicant arising out of an investigation into 1 or more of the following

(i) whether Aboriginal cultural heritage is present in the area to which the plan relates;
(ii) the characteristics of Aboriginal cultural heritage located in the area to which the plan relates.

48. ACH Council must be satisfied in relation to
compliance with Act s. 141
For the purposes of sections 15 1(f) and 163(1)(e) of the proponent has complied with section 141 of the Act.

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49. Minister may request further information when
standing in for ACH Council

(1)

This regulation applies if the Minister stands in the place of the ACH Council to decide an application under section 150(6) of the Act.
(2) The Minister may make a written request to the
applicant to do any of the following

(a)

provide the Minister with further information relevant to the application that the Minister requires to assess the application;

(b)

verify any further information by statutory declaration.

50. Requests from ACH Council in relation to ACH
management plan
A request by the ACH Council under section 160(4)(a) or (b) of the Act must be in writing.

51. Applications to revoke condition on authorisation of
ACH management plan

(1) An application made under section 167(7)(b) of the Act
for revocation of a condition must

(a)

set out why the condition should be revoked; and
(b) be made in the approved form.

(2) The Minister may make a written request to an
applicant under section 167(7)(b) of the Act to do any
of the following

(a)

provide the Minister with further information relevant to the application that the Minister

requires to assess the application;

(b) verify any further information by statutory declaration.
52. Notice of amendment to exclude protected area

(1) This regulation applies if the ACH Council approves
an amendment to an approved or authorised ACH
management plan under section 169(3) of the Act.
(2) The ACH Council must give the parties to the plan
written notice of the amendment within 14 days after
the amendment is made.
53. Notice of determination about State significance

(1)

This regulation applies if the ACH Council, or the Minister standing in place of the Council, makes a determination under section 176(1 )(b) of the Act.

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(2) The ACH Council or the Minister must, as soon as
practicable after making the determination

(a) give public notice of the determination; and
(b) give written notice of the determination to

(i)
determination is an application for
approval or authorisation of an
amendment to an approved or
authorised ACH management plan
if the application that gave rise to the ACH management plan; or

details of the Aboriginal cultural heritage to which the notice relates; otherwise the proponent and each management plan.
(ii)

(3) Notice given under subregulation (2)(a) must set out
the following
(a)

(b) details of the area in which the Aboriginal cultural heritage is located;
(c)
the day on which the determination was made.

Notice given under subregulation (2)(b) must set out
the following

(4)

(a)

details of the Aboriginal cultural heritage to which the notice relates;

(b)

details of the area in which the Aboriginal cultural heritage is located;
(c) the day on which the determination was made;

(d)

an explanation of how section 177 of the Act applies in relation to the application that gave

rise to the determination.

(5) The ACH Council must notify the persons who were
notified under section 175(4) of the Act that public
notice has been given under subregulation (2)(a).

Part 5— Prohibition orders

54. Notice of decision not to extend duration of
prohibition order

(1) This regulation applies if—

(a)

the Minister has given written notice under section 191(3)(a) of the Act of a proposal to extend the duration of a prohibition order; and

(b)

the Minister decides not to extend the duration of the order.

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(2) The Minister must give to the persons to whom notice
was given under section 191(3)(a) of the Act written
notice of the decision not to extend the duration of the
order as soon as practicable after the decision is made.

55. Notice of decision not to amend or cancel
prohibition order

(1) This regulation applies if—

(a)

the Minister has given written notice under section 203(2)(a) of the Act of a proposal to amend or cancel a prohibition order; and

(b)

the Minister decides not to amend or cancel the order.

(2) The Minister must give to the persons to whom notice
was given under section 203(2)(a) of the Act written
notice of the decision not to amend or cancel the order
as soon as practicable after the decision is made.
Part 6— Aboriginal Cultural Heritage
Directory

56. Prescribed information and documents on ACH
Directory

(1)

For the purposes of section 213(l) and (2)(b)(i) of the Act, the ACH Directory must contain the information and documents set out in Schedule 2.
(2) A document on the ACH Directory may be the original
document (in electronic, paper or another form) or a
copy.

57. Requests to place information and documents on
ACH Directory

A request by a local ACH service or another person
that information or a document be placed on the ACH made in writing.
58. Applications for access to ACH Directory

(1) A person or other entity seeking access to information
or a document on the ACH Directory under
section 217, 219 or 220 of the Act must make an
application to the ACH Council.
(2) An application under subregulation (1) must

(a)

be in a form approved by the ACH Council; and

(b)

describe the information or document in a way that is sufficient to identify it; and

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(c) set out why the applicant requires access to the
information or document.
59. Conditions on access to ACH Directory

(1)

The ACH Council may make a person's access to information or a document under section 217, 219 or 220 of the Act subject to conditions relating to

(a) the use or disclosure of the information or document; or
(b) the storage of the information or document.
The ACH Council must give to the person written notice of any condition to which access is subject at the time at which access is granted.
A person given access to information or a document under section 217, 219 or 220 of the Act must not contravene a condition to which the access is subject. Penalty for this subregulation: a fine of $10 000.

(4) The Criminal Code section 39 (which provides for the
criminal liability of officers of a body corporate)
applies to an offence under subregulation (3).
60. Information or documents excluded from Act s. 219
For the purposes of section 219(2) of the Act, information or a document is excluded from the operation of section 219 of the Act if it is of a commercially sensitive nature.

Part 7— Securing compliance

61. Information provided with application for entry
warrant

(1) In this regulation
inspection purposes has the meaning given in
section 221 of the Act.
(2) For the purposes of section 244(3) of the Act, the
following information must be included with an
application for an entry warrant authorising the entry of
a place or vehicle under section 244(1) of the Act

(a) the applicant's full name;

(b)

details of the place or vehicle sufficient to identify it;

(c)

details of the inspection purposes for which entry to the place or vehicle is required;

(d)

why it is necessary to enter the place or vehicle for the inspection purposes;

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(e)

the period, not exceeding 30 days, during which the entry warrant is proposed to be executed;

(f)

if section 245(3)(a) or (b) of the Act apply details of why that section applies.

62. CEO may require inspectors and Aboriginal
inspectors to give report

(1) The CEO may by notice require an inspector or
Aboriginal inspector to provide to the CEO a written
report about specified matters related to the exercise of
the inspector or Aboriginal inspector's powers or
performance of the inspector or Aboriginal inspector's
functions.
(2) A notice under subregulation (1) must

(a) be in writing; and
(b) specify the day by which the report must be provided, which must not be less than 14 days after the day on which the notice is given.
Part 8 - Miscellaneous

63. Prescribed periods

(1) For the purposes of a provision of the Act listed in
Schedule 3, the period set out in Schedule 3 opposite
the provision is prescribed.
(2) Despite subregulation (1), the period for the purposes
of section 76(1) or 79(1) of the Act does not include
any period commencing on the day on which a request
is made under section 73(1) of the Act in respect of the
application and ending on the day on which the first of
the following occurs

(a) the request is complied with;
(b) the period for complying with the request expires.

(3)

Despite subregulation (1), the period for the purposes of section 76(1), 79(1), 81(1), 119(2), 126(2), 150(2) or 162(2) of the Act does not include any period

commencing on the day on which a request is made under regulation 67 and ending on the day on which the first of the following occurs

(a) the request is complied with;
(b) the period for complying with the request expires.
64. Other means of giving notice

(1)

For the purposes of section 283(1)(f) of the Act, notice of a document required or permitted to be given under

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the Act to a person may be given to the person by
making the notice accessible to the person through the
ACH management system.

(2) The time when notice of a document is taken to have
been given to a person if the notice is given under
subregulation (1) is when the notice becomes capable
of being retrieved by the person through the ACH
management system.

65. Giving certain notices to landholders, occupiers of
land or knowledge holders

(1) For the purposes of section 285(1) of the Act, the
notice may be given by publishing a copy of the
document

(a) for a period of not less than 14 days on
(i) the ACH Council's website; or
(ii) another website that the ACH Council considers appropriate, taking into account the likelihood that the person to whom the notice is given will access that website;

or

(b) in a newspaper circulating
(i) generally throughout the State; or
(ii) in the area, or areas, to which the document relates.

(2) The time when the notice is taken to have been given to
a person is

(a) if the notice is given under
the Pt day of the period

subregulation (1)(a)
during which the document is published on the

website; or

(b)
if the notice is given under document is published in the newspaper.

66. ACH Council must give notice if refusing to
consider application or submission

(1) This regulation applies if the ACH Council decides

(a)

under section 74, 117, 124, 149 or 159 of the Act to refuse to consider, or consider further, an application by a person; or

(b)

under section 209 of the Act to refuse to consider, or consider further, a submission by a person.

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(2) The ACH Council must, as soon as practicable after the
decision is made, give to the person written notice of
the decision setting out why the decision was made.
67. Requirement for statutory declaration

(1) The ACH Council may make a written request to an
applicant under section 38, 72(1), 83, 115(1), 122(1),
128(7)(b), 147(1), 157(1), 169 or 170 of the Act to
verify by statutory declaration any information
provided with the application.
(2) The Minister may make a written request to an
applicant under section 167(7)(b) of the Act to verify
by statutory declaration any information provided with
the application.

(3)

The ACH Council may make a written request to a person who makes a request under section 44(2)(a) or 50(1) of the Act to verify by statutory declaration
any information provided with the request.
(4) The ACH Council may make a written request to a
local ACH service that provides a report under
regulation 28 or 29 to verify by statutory declaration
any information provided in the report.
(5) If the Minister requests further information under
section 80 or 164 of the Act, the Minister may make a
written request to the person to whom the request is
made to verify the further information by statutory
declaration.
(6) A request under subregulation (1), (2), (3), (4) or (5)
must

(a) be in writing; and
(b) specify the period within which the request

must be complied with.
68. Disclosure of relevant information

(1) In this regulation
authorised officer has the meaning given in
section 303(1) of the Act;
prescribed entity has the meaning given in
section 303(1) of the Act.

(2)

For the purposes of paragraph (b) of the definition of prescribed entity in section 303(1) of the Act, a local ACH service is prescribed.
(3) Information may only be disclosed by an authorised
officer to an officer of a prescribed entity under
section 3 03(4) of the Act on the written request of the
prescribed entity.

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(4) A written request under subregulation (3) must

(a)

set out a description of the information sought to be disclosed sufficient to identify the information; and

(b)

set out why the information is relevant to the performance by the prescribed entity of a function of the prescribed entity under a written law.

(5) An authorised officer may, when disclosing
information to an officer of a prescribed entity under
section 3 03(4) of the Act, make the disclosure subject
to conditions relating to

(a) the use or disclosure of the information; or
(b) the storage of the information.

(6) The authorised officer must give to the officer of the
prescribed entity written notice of any condition to
which the disclosure is subject at the time at which the
disclosure is given.
(7) The prescribed entity must not contravene a condition
to which the disclosure is subject.
Penalty for this subregulation: a fine of $10 000.
69. How requests to CEO must be made
A request under section 108(1) or 136(1) of the Act must be made

(a) through the ACH management system; or
(b) by any other means approved by the CEO.

70. How applications and requests to ACH Council
must be made

(1) This regulation applies to the following

(a) an application under section 38, 72(1), 83, 115(1), 122(1), 147(1), 157(1), 169 or 170 of the Act;
(b) an application under regulation 58;
(c) a request under section 44(2)(a), 45(1) or 50(1) of the Act;
(d)
a submission under section 207(1) of the Act.

The application, request or submission must be
made

(2)

(a) through the ACH management system; or

(b)

by any other means approved by the ACH Council.

19 May 2023 GOVERNMENT GAZETTE, WA 1125
Part 9 - Transitional provisions

Division 1 - Preliminary
71. Terms used

In this Part
historical AH Act section 18 consent has the meaning
given in section 313 of the Act;
transitional AHAct section 18 consent has the
meaning given in section 313 of the Act.

Division 2 - Historical AH Act section 18 consents

72. Application to avoid expiry of historical AH Act
section 18 consent
An application under section 325(2)(a) of the Act in relation to an historical AH Act section 18 consent must

(a) provide evidence that the purpose for which the land the subject of the consent may be used, as specified in the consent, has been substantially commenced; and
(b) be made in the approved form: and
(c) be made
(i) through the ACH management system; or
(ii) by any other means approved by the Minister.

73. Further information in support of application
The Minister may make a written request to an

applicant under section 325(2)(a) of the Act to do any
of the following

(a) provide the Minister with further information relevant to the application that the Minister requires to assess the application;
(b)
verify information provided with the under paragraph (a), by statutory declaration.

74. Criteria for determining whether purpose has been
substantially commenced
For the purposes of section 325(3) of the Act, the criteria to apply include the following

(a) whether the land is being used for the purpose
specified in the consent;

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(b) whether relevant licences, permits and
approvals have been obtained to use the land
for the purpose specified in the consent;
(c) whether any of the following activities have
been undertaken on or in relation to the land in
preparation for the purpose specified in the
consent
(i) clearing or other site works to support the construction of key infrastructure;
(ii) construction of new roads, tracks, trails, pathways or parking areas to service key infrastructure;

(iii)

power, water, sewer or

installation of new services including key infrastructure;

(d) whether activities referred to in paragraph (c) have been undertaken on or in relation to any other land in connection with a larger project of
which the purpose specified in the consent
forms a part.
75. Notice of Minister's decision under Act s. 325
If the Minister makes a decision under section 325 of the Act regarding an application in relation to an historical AH Act section 18 consent, the Minister must give written notice of the decision to the applicant within 14 days after the decision is made.

Division 3 - Transitional AH Act section 18 consents
76. Application to extend duration of transitional AH Act section 18 consent

An application under section 326(2)(a) of the Act in relation to a transitional AH Act section 18 consent
must

(a) provide evidence that the purpose for which the land the subject of the consent may be used, as specified in the consent, is a State significant
project; and

(b) be made in the approved form; and
(c) be made
(i) through the ACH management system; or
(ii) by any other means approved by the Minister.

19 May 2023 GOVERNMENT GAZETTE, WA 1127
77. Further information in support of application
The Minister may make a written request to an applicant under section 326(2)(a) of the Act to do any of the following

(a) provide the Minister with further information relevant to the application that the Minister requires to assess the application;
(b)
verify information provided with the under paragraph (a), by statutory declaration.

78. Criteria for determining whether purpose is State
significant project
For the purposes of section 326(3) of the Act, the criterion to apply is whether the purpose is of critical strategic importance to the State.
79. Notice of Minister's decision under Act s. 326
If the Minister makes a decision under section 326 of the Act regarding an application in relation to a transitional AH Act section 18 consent, the Minister must give written notice of the decision to the applicant within 14 days after the decision is made.

Division 4 Other transitional matters
80. Consultation under Act s. 329(2)

(1) If the consultation guidelines have not been made when
the Minister begins to consult under section 329(2) of
the Act, the consultation is not required to be carried
out in accordance with the consultation guidelines.
(2) If the knowledge holder guidelines have not been made

when the Minister begins to consult under
section 329(2) of the Act then, for the purposes of sections 107(1)(b)(ii) and 329(2)(b) of the Act, the knowledge holders for the specified area are

(a)
the members of Banjima Native Title Corporation Number 7971); and

(b)

the members of Wintawari Guruma Aboriginal Corporation RNTBC (Indigenous Corporation Number 4730).

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7. Schedule 1 replaced
Delete Schedule 1 and insert:
Schedule 1 - Exempt activities and tier 1, 2 and 3

activities

[r. 36, 37, 38, 39 and 40]

Division 1 - General activities

Subdivision 1 - Exempt general activities

1. The following types of development

(a) development set out in the Planning and Development (Local Planning Schemes) Regulations 2015 Schedule 2 clause 61 (1) the Table
item 1, 2, 3, 4, 7, 8 or 13 column 1, other than in
relation to a building that is Aboriginal cultural
heritage about which information is contained on
the ACH Directory;
(b) the demolition of a multiple dwelling or grouped dwelling, other than in relation to a multiple dwelling or grouped dwelling that is Aboriginal cultural heritage about which information is contained on the ACH Directory;
(c) internal building work, other than in relation to a building that is Aboriginal cultural heritage about which information is contained on the ACH
Directory;

(d) the erection or installation of, or alterations or additions to, any of the following on the same planning and development lot or strata or
community titles lot as a multiple dwelling
(i) an ancillary dwelling;

(ii) an outbuilding;
(iii) an external fixture;
(iv) a boundary wall or fence;
(v) a patio;
(vi) a pergola;
(vii) a verandah;
(viii)      a deck;
(ix)      a garage;
(x)      a carport;
(xi)      a swimming pool;
(xii)      shade sails;

19 May 2023 GOVERNMENT GAZETTE, WA 1129

(e) the installation of a water tank that complies with the Planning and Development (Local Planning Schemes) Regulations 2015 Schedule 2 clause 61(1) the Table item 12 column 2 conditions (b) and (c);
(f) the erection or installation of a flagpole that complies with the Planning and Development (Local Planning Schemes) Regulations 2015 Schedule 2 clause 61(1) the Table item 14 column 2 conditions (a) to (d);
(g) development carried out on a subdivided parcel of land if—
(i)      a residential building is located on the land, or will be constructed on the land; and
(ii)      the subdivision was the subject of an approved or authorised ACH management plan; and
(iii)      the development is consistent with the subdivision.

Note for this item:
See regulation 36(1) and paragraph (b) of the definition of exempt activity in section 100 of the Act.

2. Construction, renovation or demolition of a residential
building on a strata or community titles lot that is less than
1 100 M2.

3. Installing or maintaining reticulated electricity, gas, water,
sewerage, drainage or telecommunications services if the
works are located between

(a) the boundary of a planning and development lot, a
strata or community titles lot in a strata or
community titles scheme, or common property in
the strata or community titles scheme if
(i) a residential building is located on the lot, or will be constructed on the lot; and
(ii) the lot is less than 1100 m2;

and

(b) 1 of the following
(i)      the residential building;
(ii)      a building ancillary to the residential building;
(iii)      where the residential building or an ancillary building will be constructed.

4. Installing a driveway or crossover on a planning and
development lot, a strata or community titles lot in a strata
or community titles scheme, or common property in the
strata or community titles scheme if

(a)

a residential building is located on the lot, or will be constructed on the lot; and
(b) the lot is less than 1100 m2.

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5. Subdivision of land that results in the creation of no more
than 5 planning and development lots or strata or
community titles lots, each of which is less than 1100 m2.
6. Maintaining existing infrastructure in a way that does not
involve disturbance to ground beyond that which was
disturbed during the construction of, or earlier works in
relation to, the infrastructure.
7. The demolition of a structure, other than a building, in a way
that does not involve disturbance to ground beyond that
which was disturbed during the construction of, or earlier
works in relation to, the structure.
8. Undertaking an activity in an area that results in land use or
development that

(a) is no greater in surface area or height than existing land use or development in the area; and
(b) is either
(i) no greater in depth than existing land use or development in the area; or
(ii) only greater in depth than existing land use or development in the area in a part of the area in which the depth of the existing land use or development extends 10 m or lower below natural ground level.

9. Temporarily placing equipment on an existing area of
ground disturbance.
10. Visually inspecting an area as part of undertaking a due
diligence assessment.
11. Lifestyle and general maintenance activities associated with
a residential building, including gardening, repairs and
carrying out minor development (for example installing a
chicken coop or play equipment).
12. Driving a vehicle on an existing area of ground disturbance.

13.

Setting up and using a temporary camp

(a)

in a way that does not involve clearing the camp site; and

(b)

that involves only 1 or more of the following forms of accommodation
(i) swags;
(ii) tents;
(iii) camper trailers;

(iv) caravans.

14. Aerial transportation that does not involve clearing at the
landing site.
15. A burial authorised under the Cemeteries Act 1986
section 12 of an Aboriginal person.
16. A burial under the Cemeteries Act 1986 section 11, other
than a burial authorised under section 12 of that Act.

19 May 2023 GOVERNMENT GAZETTE, WA 1131

17. Caring for, controlling or managing a cemetery declared
under the Cemeteries Act 1986 section 4(1).
Subdivision 2 - General tier 1 activities

18. Temporarily placing a structure on an existing area of
ground disturbance.
19. Removing plant and equipment.

20. Maintaining existing infrastructure in a way that does not,
over the course of 1 calendar year, involve any of the
following

(a) removing more than 4 kg of material;
(b) disturbing more than 10 m2 of ground in total;
(c) disturbing more than 1 m2 of contiguous ground;
(d) excavating to a depth of more than 0.5 m.
21. The demolition of a structure, other than a building, in a way that does not, over the course of 1 calendar year, involve any of the following

(a) removing more than 4 kg of material;
(b) disturbing more than 10 m2 of ground in total;
(c) disturbing more than 1 m2 of contiguous ground;
(d) excavating to a depth of more than 0.5 m.

22. Erecting or installing a fence in a way that does not involve
clearing.
23. Driving a vehicle in a way that does not result in a new track
being formed.
24. Clearing for tracks in a way that does not, over the course of
1 calendar year, involve any of the following

(a) removing more than 4 kg of material;
(b) disturbing more than 10 m2 of ground in total;
(c) disturbing more than 1 m2 of contiguous ground;
(d) excavating to a depth of more than 0.5 m.

25. Drilling, carried out as part of bore construction, in a way
that does not involve any of the following

(a) disturbing more than 10 m2 of ground in total;
(b)
disturbing more than 1 m2 of contiguous ground. Stockpiling on an established stockpile.

26.
27.           Stockpile sampling.
28.           Removing a stockpile.
Subdivision 3 - General tier 2 activities
29.           Construction or renovation of—

(a) a residential building on a planning and
development lot, or strata or community titles lot in
a strata or community titles scheme, that is 1 100 m2
or larger; or

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19 May 2023

(b) a building ancillary to such a building on
(i) the planning and development lot; or
(ii) the strata or community titles lot or common property in the strata or community titles scheme.

30. Installing or maintaining reticulated electricity, gas, water,
sewerage, drainage or telecommunications services if the
works are located between

(a) the boundary of a planning and development lot, a
strata or community titles lot in a strata or
community titles scheme, or common property in
the strata or community titles scheme if
(i) a residential building is located on the lot, or will be constructed on the lot; and
(ii) the lot is 1100 m2 or larger;

and

(b) 1 of the following
(i)      the residential building;
(ii)      a building ancillary to the residential building;
(iii)      where the residential building or an ancillary building will be constructed.

31. Installing a driveway or crossover on a planning and
development lot, a strata or community titles lot in a strata
or community titles scheme, or common property in the
strata or community titles scheme.
32. Erecting or installing a structure on undisturbed ground in a
way that does not involve building foundations for the
structure.
33. Maintaining existing infrastructure, other than as described
in item 20, in a way that does not involve any of the
following

(a) removing more than 20 kg of material;
(b) disturbing more than 200 m2 of ground in total;
(c) disturbing more than 10 m2 of contiguous ground;
(d) excavating to a depth of more than 1 m.

34. The demolition of a structure, other than a building and
other than as described in item 21, in a way that does not
involve any of the following

(a) removing more than 20 kg of material;
(b) disturbing more than 200 m2 of ground in total;
(c) disturbing more than 10 m2 of contiguous ground;
(d) excavating to a depth of more than 1 m.
35. Undertaking an activity in an area that results in land use or development that is no greater in surface area than existing land use or development in the area.

19 May 2023 GOVERNMENT GAZETTE, WA 1133

36. An activity that will, through repetition by the proponent,
result in a new track being formed.
37. Clearing for tracks, other than as described in item 24, in a
way that does not involve any of the following

(a) removing more than 20 kg of material;
(b) disturbing more than 200 m2 of ground in total;
(c) disturbing more than 10 m2 of contiguous ground;
(d) excavating to a depth of more than 1 m.

38. Internal building work in relation to a building that is
Aboriginal cultural heritage about which information is
contained on the ACH Directory.
39. Burning, other than as part of an activity described by
another item in Divisions 1 to 8.
40. A burial authorised under the Cemeteries Act 1986
section 12 of a non-Aboriginal person.
41. Air core drilling.
42. Drilling, carried out as part of bore construction, other than as described in item 25, in a way that does not involve any of the following

(a) disturbing more than 200 m2 of ground in total;
(b)
disturbing more than 10 m2 of contiguous ground.

Establishing a stockpile with a surface area of 200 m2 or
less.

43.
Subdivision 4 - General tier 3 activities
44. Subdivision of land.

45. Maintaining existing infrastructure, other than as described
in item 20 or 33.
46. The demolition of a structure, other than a building and
other than as described in item 21 or 34.
47. Clearing for tracks, other than as described in item 24 or 37.

48. The demolition of a building that is Aboriginal cultural
heritage about which information is contained on the ACH
Directory.
49. Blasting.

50. Drilling, other than as part of an activity described by
another item in Divisions 1 to 8.
Examples for this item:

1. Rotary mud drilling.
2. Diamond drilling.
3. Percussion drilling.

4.

Drilling carried out as part of bore construction that involves disturbing more than 200 m2 of ground in total or more than 10 m2 of contiguous ground.

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51. Establishing or expanding a cemetery declared under the
Cemeteries Act 1986 section 4(1).
52. Establishing a stockpile, other than as described in item 43.

Division 2 - Emergency activities

Subdivision 1 - Exempt emergency activities

53. An emergency management activity intended to prevent
imminent loss of life, prejudice to the safety, or harm to the
health, of people or animals.
54. An activity undertaken in an emergency situation for the
purpose of preventing or minimising irreversible damage to
a significant part of the environment.

Subdivision 2 - Tier 1 emergency activities

55. Fire hazard reduction.

56. Inspecting, protecting, providing or restoring essential
services.
57. Complying with a notice given under the Bush Fires
Act 1954 section 33(1) or a direction given under
section 33(4)(a) of that Act.
Division 3 - Aboriginal cultural heritage investigation

activities

Subdivision 1 - Exempt Aboriginal cultural heritage

investigation activities

58. Investigation of Aboriginal cultural heritage, carried out on
foot, that does not involve excavation or removal of
Aboriginal cultural heritage.
Examples for this item:

1. Site recording and assessment.
2. Monitoring and auditing.

3. Digital capture of Aboriginal cultural heritage.

4. Non-digital photography.
5. Probing.
59. Removal or relocation of an Aboriginal object located in an area by, or with the written approval of, a local ACH service for the area.

60. Investigation of Aboriginal cultural heritage located in an
area by, or with the written approval of -

(a) a local ACH service for the area; or
(b) if there is not a local ACH service for the area -
(i) a native title party for the area; or

(ii)
if there is not a native title party for the the area.

19 May 2023 GOVERNMENT GAZETTE, WA 1135
Subdivision 2 - Tier 2 Aboriginal cultural heritage investigation
activities

61. Investigation of Aboriginal cultural heritage that does not
involve any of the following

(a) the use of non-handheld equipment;

(b)

test pitting, excavation or other ground disturbance over a surface area that is greater than 1 m2;

(c)

removing any more Aboriginal cultural heritage than necessary for investigation purposes;

(d)

rock chipping or making moulds of petroglyphs or rock art.
Examples for this item:
1.        Radiocarbon dating.
2.         Luminescence dating.
3.         Dosimetry.
4.         Extraction of scarred element parts from scarred trees.
5.         Mechanical sieving.

Subdivision 3 - Tier 3 Aboriginal cultural heritage investigation
activities

62. Investigation of Aboriginal cultural heritage other than as
part of an activity described by another item in this
Division.

Division 4 - Activities impacting waterways or coastal
waters

Subdivision 1 - Exempt activities impacting waterways or coastal
waters

63. Anchoring a boat in a waterway or coastal waters.

64. Maintenance of a waterway or coastal waters, including the
bed or banks of a waterway or coastal waters, to rectify
accretion and erosion of natural material.

Subdivision 2 - Tier 1 activities impacting waterways or coastal waters

65. Taking water from a waterway or coastal waters without
causing ground disturbance.
66. Discharging water into a waterway or coastal waters in a
way that does not involve disturbance to the bed or banks of
the waterway or coastal waters.
67. Monitoring and sampling in relation to a waterway or
coastal waters in a way that does not, over the course of
1 calendar year, involve any of the following -

(a) removing more than 4 kg of material;

(b)

disturbing more than 10 m2 of the bed or banks of the waterway or coastal waters in total;

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(c) disturbing more than 1 m2 of contiguous bed or banks of the waterway or coastal waters;
(d) excavating the bed or banks of the waterway or coastal waters to a depth of more than 0.5 m.
68. Removing litter from a waterway or coastal waters in a way that does not involve disturbance to the bed or banks of the waterway or coastal waters beyond that which was caused by leaving the litter.
69. Removing flora from a waterway or coastal waters in a way that does not, over the course of 1 calendar year, involve any of the following

(a)

removing more than 4 kg of material (not counting the flora);

(b)

disturbing more than 10 m2 of the bed or banks of the waterway or coastal waters in total;

(c)

disturbing more than 1 m2 of contiguous bed or banks of the waterway or coastal waters;

(d)

excavating the bed or banks of the waterway or coastal waters to a depth of more than 0.5 m.

70. Placing pipe or cable on the bed or banks of a waterway or
coastal waters without anchoring the pipe or cable to the bed
or banks.
71. Installing a structure into, or anchoring a structure to, the
bed or banks of a waterway or coastal waters in a way that
does not, over the course of 1 calendar year, involve any of
the following

(a) removing more than 4 kg of material;

(b)

disturbing more than 10 m2 of the bed or banks in total;

(c)

disturbing more than 1 m2 of contiguous bed or banks;

(d)

excavating the bed or banks to a depth of more than 0.5 m.

Subdivision 3 - Tier 2 activities impacting waterways or coastal waters

72. Discharging water into a waterway or coastal waters, other
than as described in item 66.
73. Monitoring and sampling in relation to a waterway or
coastal waters, other than as described in item 67.
74. Stabilising the bed or banks of a waterway or coastal waters
using handheld equipment only, including -

(a) matting installation; or
(b) brushing; or
(c) surface preparation for application of materials.

19 May 2023 GOVERNMENT GAZETTE, WA 1137

75. Removing flora from a waterway or coastal waters, other
than as described in item 69, in a way that does not involve
any of the following

(a)

removing more than 20 kg of material (not counting the flora);

(b)

disturbing more than 200 m2 of the bed or banks of the waterway or coastal waters in total;

(c)

disturbing more than 10 m2 of contiguous bed or banks of the waterway or coastal waters;

(d)

excavating the bed or banks of the waterway or coastal waters to a depth of more than 1 m.

76. Installing a structure to enable the movement of fauna
within a waterway or coastal waters.
77. Installing a mooring into, or anchoring a mooring to, the bed
or banks of a waterway or coastal waters.
78. Installing a structure into, or anchoring a structure to, the
bed or banks of a waterway or coastal waters, other than as
described in item 71, in a way that does not involve any of
the following

(a) removing more than 20 kg of material;

(b)

disturbing more than 200 m2 of the bed or banks in total;

(c)

disturbing more than 10 m2 of contiguous bed or banks;

(d)

excavating the bed or banks to a depth of more than 1 m.

Subdivision 4 - Tier 3 activities impacting waterways or coastal
waters

79. Stabilising the bed or banks of a waterway or coastal waters
using non-handheld equipment.
80. Reclaiming land from a waterway or coastal waters or
reshaping a beach.
81. Capital dredging.

82. Removing flora from a waterway or coastal waters, other
than as described in item 69 or 75.
83. Establishing new, or expanding existing, trench irrigation.

84. Establishing an aquaculture or mariculture pen and
supporting infrastructure.
85. Erecting or installing a dam, weir or waterway diversion.

86. Installing a structure into, or anchoring a structure to, the
bed or banks of a waterway or coastal waters, other than as
described in item 71 or 78.
87. Erecting, installing or expanding a structure in a waterway or coastal waters, other than as part of an activity described by another item in this Division.

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Division 5 - Agriculture and natural resource management

activities

Subdivision 1 - Tier 1 agriculture and natural resource

management activities

88. Controlling feral or pest fauna without digging or
excavating.
89. Managing weeds or flora in a way that does not, over the
course of 1 calendar year, involve any of the following

(a)

removing more than 4 kg of material (not counting the weeds or flora);
(b) disturbing more than 10 m2 of ground in total;
(c) disturbing more than 1 m2 of contiguous ground;
(d) excavating to a depth of more than 0.5 m.

Subdivision 2 - Tier 2 agriculture and natural resource

management activities

90. Controlling feral or pest fauna, other than as described in
item 88.
91. Managing weeds or flora, other than as described in item 89,
in a way that does not involve any of the following

(a)

removing more than 20 kg of material (not counting the weeds or flora);
(b) disturbing more than 200 m2 of ground in total;
(c) disturbing more than 10 m2 of contiguous ground;
(d) excavating to a depth of more than 1 m.

92. Erecting or installing new agricultural infrastructure on
existing agricultural land.
Examples for this item:

1. Erecting or installing a stock watering point.
2. Erecting or installing a new yard.

Subdivision 3 - Tier 3 agriculture and natural resource management activities

93. Managing weeds or flora, other than as described in item 89
or 91.
94. Conducting agricultural activities in an area not previously
subject to agricultural activities.
95. Establishing a new farm or pastoral station.
96. Establishing a new tree plantation.

97. Harvesting trees in an area not previously subject to tree
harvesting.

19 May 2023 GOVERNMENT GAZETTE, WA 1139
Division 6 - Field investigation activities
Subdivision 1 - Tier 1 field investigation activities
98. An aerial survey.

99. A field investigation (including exploration) that does not,
over the course of 1 calendar year, involve any of the
following

(a) removing more than 4 kg of material;
(b) disturbing more than 10 m2 of ground in total;
(c) disturbing more than 1 m2 of contiguous ground;
(d) excavating to a depth of more than 0.5 m.
Subdivision 2 - Tier 2 field investigation activities

100. A field investigation (including exploration), other than as
described in item 99, that does not involve any of the
following

(a) removing more than 20 kg of material;
(b) disturbing more than 200 m2 of ground in total;
(c) disturbing more than 10 m2 of contiguous ground;
(d) excavating to a depth of more than 1 m.

101. A seismic survey that does not involve using a seismic
vibrator truck.
Subdivision 3 - Tier 3 field investigation activities

102. A field investigation (including exploration), other than as
described in item 99 or 100.
103. A seismic survey, other than as described in item 101.
104. Costeaning.

Division 7 - Mining activities

Subdivision 1 - Tier 1 mining activities

105.         Marking out under the Mining Act 1978.
106.         Metal detecting.
107.         Scrape and detect activities using handheld equipment only.
108.         Extracting basic raw materials -

(a) from within existing pits; and

(b)

in a way that does not involve an increase to the area of ground disturbance.
Subdivision 2 - Tier 2 mining activities
109.         Bulk leach extractable gold (BLEG).
110.         Reopening underground mine workings.

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Subdivision 3 - Tier 3 mining activities

111. Scrape and detect activities using non-handheld equipment.

112. Activities involved with establishing a new, or expanding an
existing, mine or mine site.
Division 8 - Rehabilitation and remediation activities
Subdivision 1 - Exempt rehabilitation and remediation activities

113. Removing surface waste, litter or contaminated or waste
material from

(a)

a planning and development lot on which a residential building is located, or will be constructed; or

(b)

a strata or community titles lot on which a residential building is located, or will be constructed, or common property in the relevant strata or community titles scheme.

Subdivision 2 - Tier 1 rehabilitation and remediation activities
114. Preliminary contaminated site investigation.
Examples for this item:

1. Identifying potential sources of contamination, contaminants of concern, receptors that may be exposed to contamination and exposure pathways.
2. Carrying out a site inspection.
115. Removing surface waste, litter or contaminated or waste
material in a way that does not, over the course of 1 calendar
year, involve any of the following

(a)

removing more than 4 kg of material (not counting the surface waste, litter or contaminated or waste material);
(b) disturbing more than 10 m2 of ground in total;
(c) disturbing more than 1 m2 of contiguous ground;

(d) excavating to a depth of more than 0.5 m.
116. Revegetation using handheld equipment only.

117. Rehabilitation of drill holes, including casing removal,
sealing and capping.
Subdivision 3 - Tier 2 rehabilitation and remediation activities
118. Detailed contaminated site investigation.
Examples for this item:

1. Collecting and evaluating site-specific data.

2.

Carrying out a detailed site investigation to establish ground conditions.
3. Collecting soil and groundwater samples.

19 May 2023 GOVERNMENT GAZETTE, WA 1141

119. Removing surface waste, litter or contaminated or waste
material, other than as described in item 115, in a way that
does not involve any of the following

(a) removing more than 20 kg of material (not counting the surface waste, litter or contaminated or waste material);
(b) disturbing more than 200 m2 of ground in total;
(c) disturbing more than 10 m2 of contiguous ground;
(d) excavating to a depth of more than 1 m.
120. Revegetation using non-handheld equipment.

121. A remediation activity not described by another item in this
Subdivision or Subdivision 2, that does not involve any of
the following

(a) removing more than 20 kg of material;
(b) disturbing more than 200 m2 of ground in total;
(c) disturbing more than 10 m2 of contiguous ground;
(d) excavating to a depth of more than 1 m.
122. A rehabilitation activity not described by another item in this Subdivision or Subdivision 2 that is carried out in an area that has been subject to ground disturbance.

Subdivision 4 - Tier 3 rehabilitation and remediation activities

123. Removing surface waste, litter or contaminated or waste
material, other than as part of an activity described by
another item in this Division.
124. Landform re-contouring or reshaping.

125. A remediation activity not described by another item in this
Division.
126. A rehabilitation activity not described by another item in
this Division.

Division 9 - Other activities

Subdivision 1 - Other tier 1 activities
127. An activity that

(a)

is not described by an item in any other Division of this Schedule; and
(b) is not an exempt activity; and

(c)

does not, over the course of 1 calendar year, involve any of the following
removing more than 4 kg of material;
disturbing more than 10 m2 of ground in
total;
disturbing more than 1 m2 of contiguous
ground;
excavating to a depth of more than 0.5 m.

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Subdivision 2 - Other tier 2 activities

128.         An activity that

(a) is not described by an item in any other Division of this Schedule; and
(b) is not an exempt activity or tier 1 activity; and
(c) does not involve any of the following
(i)      removing more than 20 kg of material;
(ii)      disturbing more than 200 m2 of ground in total;
(iii)      disturbing more than 10 m2 of contiguous ground;
(iv)      excavating to a depth of more than 1 m.

Subdivision 3 - Other tier 3 activities

129. An activity that

(a)

is not described by another item in this Schedule; and
(b) is not an exempt activity.
Schedule 2— Prescribed information and

documents on ACH Directory

[r. 56]

1. Information about protected areas

(1) In relation to each protected area, the following
information

(a) the name of the area;
(b) the boundaries of the area;

(c)

the conditions, if any, to which the protected area order is subject;
(d) a description of the Aboriginal cultural heritage of

outstanding significance for the purposes of the Act
that is located in the area;

(e)

if the protected area order declaring the area as a protected area under section 82(1) of the Act is repealed the day on which the order is repealed.

(2) Each previous version of the information set out in
subclause (1)(a), (b) or (c) and, in relation to each previous
version

(a) the day on which the information changed; and
(b) the reason the information changed.
2. Information about local ACH services

(1) In relation to each person designated as a local ACH service
for an area, the following information -

(a) the name of the person;
(b) details of how the person may be contacted;

19 May 2023 GOVERNMENT GAZETTE, WA 1143

(c) a description of the area;
(d) the day on which the person's designation takes
effect under section 42(1)(a) of the Act;
(e) if the designation is suspended under
section 43(2)(a) of the Act
(i)      the day on which the suspension takes effect; and
(ii)      the period of the suspension; and
(iii)      if the suspension is not in relation to all of the area a description of the part of the area to which the suspension relates;

(f) if the designation is cancelled in relation to the whole of the area under section 43(2)(b) of the Act the day on which the cancellation takes effect;
(g) if the designation is cancelled in relation to a part of the area under section 43(2)(b) of the Act
(i) the day on which the cancellation takes effect; and
(ii) a description of the part of the area to which the cancellation relates;

(h) the fee structure under section 49(2) of the Act for
services that the person provides in connection with
any local ACH service functions that they provide
in relation to the area.

(2) Each previous version of the information set out in
subclause (1)(a) or (c) and, in relation to each previous
version

(a) the day on which the information changed; and
(b) the reason the information changed.
3. Information about native title parties
In relation to each native title party for an area, the

following information

(a) the name of the native title party;
(b) a description of the area;
(c) details of how the native title party may be contacted, including the native title party's preferred contact method.
4. Information about knowledge holders
In relation to each person identified by the ACH Council as a knowledge holder, the following information

(a) the name of the knowledge holder;

(b)

a description of the Aboriginal cultural heritage about which the knowledge holder holds knowledge;

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19 May 2023

(c) details of how the knowledge holder may be contacted, including the knowledge holder's preferred contact method;
(d) if the knowledge holder is a knowledge holder in

relation to an area a description of the area.
5. Information about ACH protection agreements
In relation to each ACH protection agreement endorsed under Part 8 of the Act, the following information

(a) the name of each party to the agreement;
(b) the day on which the agreement was endorsed;
(c) a description of the Aboriginal cultural heritage to which the agreement relates.
6. Information about ACH permits

(1) In relation to each ACH permit, the following
information

(a) the name of the holder of the permit;
(b) details of how to contact the holder of the permit;
(c) the activity to which the permit relates as set out in the permit granted under section 119(1 )(c)(i) of the Act;
(d) the area to which the permit relates;
(e) a description of the Aboriginal cultural heritage
located in the area to which the permit relates;
(f) the day on which the permit takes effect;
(g) if the holder of the permit applies for the term of the
permit to be extended under section 122(1) of the
Act the name of, and details of how to contact,
each of the persons notified under section 122(3) of
the Act about the proposed extension;
(h) the day on which the permit is set to expire;
(i)     if the permit is suspended under section 130(1)(a) of

the Act
(i)      the day on which the suspension takes effect; and
(ii)      the period of the suspension;

(j) if the permit is cancelled under section 130(1)(b) of
the Act the day on which the cancellation takes
effect;
(k) any conditions imposed on the permit by the ACH
Council under section 128(2) of the Act;
(1) any condition on the permit imposed or amended by
the ACH Council under section 128(3) of the Act
and the day on which the condition, or the
amendment of the condition, takes effect;

(m)

the name of, and details of how to contact, each of the persons notified under section 113 of the Act about the activity to which the permit relates.

19 May 2023 GOVERNMENT GAZETTE, WA 1145

(2) Each previous version of the information set out in
subclause (1)(a), (d), (e) or (h) and, in relation to each
previous version

(a) the day on which the information changed; and
(b) the reason the information changed.
7. Information about approved ACH management plans

(1) In relation to each ACH management plan approved under
section 150(1 )(b)(i) of the Act, the following information

(a) the names of—
(i) each party to the plan; and
(ii) each interested Aboriginal party for the plan;

(b) details of how to contact each party to the plan and
each interested Aboriginal party for the plan;
(c) the name of, and details of how to contact, each of the persons to be consulted about the activity to be carried out under the plan;
(d) a description of the area to which the plan relates;
(e) a description of the Aboriginal cultural heritage
located in the area to which the plan relates, and the
characteristics of that Aboriginal cultural heritage;
(f) a description of the activity to which the plan
relates;
(g) the conditions that must be complied with before,
during and after the activity is carried out;
(h) the day on which the plan takes effect;
(i) the day on which the plan expires;

(j) if the approval of the plan is suspended under
section 154(1)(a) of the Act
(i) the day on which the suspension takes effect; and

(ii) the period of the suspension;

(k) if the approval of the plan is cancelled under
section 154(1)(b) of the Act the day on which the
cancellation takes effect.

(2) Each previous version of the information set out in
subclause (1)(a), (d), (e), (f), (g) or (i) and, in relation to
each previous version

(a) the day on which the information changed; and
(b) the reason the information changed.

(3) In relation to each ACH management plan approved under
section 150(1)(b)(i) of the Act, a copy of any report that,
under regulation 47(b), accompanies the application for
approval of the plan.

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8. Information about authorised ACH management plans

(1) In relation to each ACH management plan authorised under
section 165(1 )(b)(i) of the Act, the following information

(a) the names of—
(i) each party to the plan; and
(ii) each interested Aboriginal party for the plan;

(b) details of how to contact each party to the plan and
each interested Aboriginal party for the plan;
(c) the name of, and details of how to contact, each of the persons to be consulted about the activity to be carried out under the plan;
(d) a description of the area to which the plan relates;
(e) a description of the Aboriginal cultural heritage
located in the area to which the plan relates, and the
characteristics of that Aboriginal cultural heritage;
(f) a description of the activity to which the plan
relates;
(g) the conditions that must be complied with before, during and after the activity is carried out;
(h) the conditions to which authorisation of the plan is
made subject under section 167(2) or (3) of the Act;
(i) the day on which the plan takes effect;

(j) the day on which the authorisation of the plan
ceases to have effect;
(k) if the authorisation of the plan is suspended under
section 168(1)(a) of the Act
(i) the day on which the suspension takes effect; and
(ii) the period of the suspension;

(1) if the authorisation of the plan is cancelled under
section 168(1)(b) of the Act the day on which the

cancellation takes effect.

(2) Each previous version of the information set out in
subclause (1)(a), (d), (e), (f), (g), (h) or (j) and, in relation to
each previous version

(a) the day on which the information changed; and
(b) the reason the information changed.

(3) In relation to each ACH management plan authorised under
section 165(1)(b)(i) of the Act, a copy of any report that,
under regulation 47(b), accompanies the application for
authorisation of the plan.

19 May 2023 GOVERNMENT GAZETTE, WA 1147
9. Information about State significance determinations
In relation to each determination under section 176(1 )(b)(i) of the Act that Aboriginal cultural heritage is of State significance for the purposes of the Act, the following information

(a) the day on which the determination is made;
(b) a description of the Aboriginal cultural heritage and the location of the Aboriginal cultural heritage.
10. Information about Part 7 orders
In relation to each Part 7 order, the following information

(a) the name of the person to whom the order is given;
(b) the area to which the order relates;
(c) a brief description of the Aboriginal cultural heritage the subject of the order;
(d) the day on which the order takes effect;
(e) the duration of the order, including any extension of the duration of the order under section 182 or 191 of the Act;
(f) if the order is cancelled under section 203(1) of the

Act the day on which the cancellation takes
effect;

(g) if the order is a prohibition order that is amended under section 203(1)(a) of the Act the amendment to the order;
(h) a brief description of the grounds for giving the order;
(i) the directions that are to be complied with under the order.

Schedule 3 Prescribed periods

[r. 63]

Provision Prescribed period
Part 2 of the Act

Section 46(1)

The period of 28 days after the day on which notice of the decision to refuse to designate is given under section 47 of the Act
Section 46(2) The period of 28 days after the day on which notice
of the decision to which the objection relates is
given under section 47 of the Act

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Provision Prescribed period

Part 3 of the Act

Section 56(1) The period of—

(a)
possession of the Aboriginal ancestral
if the organisation or individual is in 2 years after that day; or

(b) otherwise 6 months after the day on which
the Aboriginal ancestral remains come into
the possession of the organisation or
individual

Section 57(1) The period of 3 years after the day on which the
notice is given under section 56(1) of the Act
Section 57(4) The period of 14 days
Section 58(1) The period of 6 months after the day on which the
notice is given under section 56(1) of the Act
Section 64(1) The period of—

(a)

if the person is in possession of the secret or sacred object immediately before transition

day 2 years after that day; or

(b) otherwise 6 months after the day on which
the secret or sacred object comes into the
possession of the person

Section 65(1) The period of 3 years after the day on which the
notice is given under section 64(1) of the Act
Section 65(4) The period of 14 days
Section 68(1) The period of—

(a) if the person knew of the existence of the Aboriginal place, Aboriginal object or Aboriginal ancestral remains immediately before transition day 2 years after that day; or
(b)

otherwise 90 days after the day on which
the person becomes aware of the existence of
the Aboriginal place, Aboriginal object or
Aboriginal ancestral remains

19 May 2023 GOVERNMENT GAZETTE, WA 1149

Provision Prescribed period
Part 4 of the Act

Section 75(3)(c) The period of 28 days after the day on which the
notice is given
Section 76(1) The period of 28 days after the end of the period for
submissions
Note for this item:
Working out of this period may be affected by

regulation 63(2) or (3)

Section 77(3)(b) The period of 28 days after the day on which the
public notice is given
Section 78(2) The period of 28 days after the day on which the
notice is given
Section 79(1) The period of 28 days after the end of the period for
making submissions
Note for this item:
Working out of this period may be affected by

regulation 63(2) or (3)

Section 81 (1) The period of 60 days after

(a)

if further information is requested in relation to the application area under section 80 of the Act the day on which the request is complied with or the day on which the time period for complying with the request expires, whichever occurs first; or

(b) otherwise the day on which the ACH
Council makes the recommendation

Note for this item:

Working out of this period may be affected by
regulation 63(3)
Part 6 of the Act

Section 113(b) The period of 28 days after the day on which the
notice is given
Section 116(2) The period of 14 days after the day on which the
request is made
Section 118(2) The period of 28 days after the day on which the
notice is given

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19 May 2023

Provision Prescribed period

Section 119(2) The period of 14 days after the end of the period for making submissions under section 118(2) of the Act in relation to the application
Note for this item:
Working out of this period may be affected by regulation 63(3)

Section 122(3)(b) The period of 28 days after the day on which the
notice is given
Section 123(2) The period of 14 days after the day on which the
request is made
Section 125(2) The period of 28 days after the day on which the
notice is given
Section 126(2) The period of 14 days after the end of the period for making submissions under section 125(2) of the Act in relation to the application
Note for this item:
Working out of this period may be affected by regulation 63(3)

Section 127(1) The period of 14 days after the day on which the
permit is transferred
Section 128(8) The period of 14 days after the day on which the
decision is made
Section 129(2) The period of 14 days after the day on which the
ACH Council amends the area

Section 131(1)

The period of 28 days after the day on which notice of the decision to refuse to grant the permit is given

under section 132 of the Act

Section 131(2) The period of 28 days after the day on which notice
of the decision to which the objection relates is
given under section 132 of the Act
Section 131(4) The period of 14 days after the day on which the
objection is made
Section 143(2)(a) The period of 140 days
Section 148(2) The period of 28 days after the day on which the
request is made

19 May 2023 GOVERNMENT GAZETTE, WA 1151

Provision Prescribed period

Section 150(2) The period of 28 days after

(a) unless paragraph (b) applies the day on
which the application is made; or

(b)

if the application is, under section 161 of the Act, considered as an application under section 147(1) of the Act the day on which the applicant and each interested Aboriginal party have advised the ACH Council under section 161 of the Act that they have reached agreement on the terms of the plan
Note for this item:
Working out of this period may be affected by regulation 63(3)

Section 155(1) The period of 28 days after the day on which notice
of the decision to which the objection relates is
given under section 156 of the Act
Section 158(2) The period of 60 days after the day on which the
request is made
Section 162(2) The period of 90 days after

(a) unless paragraph (b) applies the day on
which the application is made; or

(b)

if section 177(1 )(a) or (c) of the Act apply the day on which the determination is made under section 176(1 )(b)(i) of the Act
Note for this item:
Working out of this period may be affected by regulation 63(3)

Section 171(1)(b) The period of 14 days after the day on which the

person ceases to be an interested Aboriginal party
for the plan

Section 171(4) The period of 14 days after the day on which the
former proponent ceases to be the current proponent

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19 May 2023

Provision Prescribed period

Section 175(3)(c) The period of 28 days after the day on which the
notice is given
Section 176(1) The period of 35 days

Part 7 of the Act

Section 186(4) The period of 10 days ending on the day on which
the stop activity order expires
Section 187(2)(c) The period of —

(a) if the notice relates to a recommendation under section 185(1) of the Act — 28 days after the day on which the notice is given; or
(b)
under section 186(1)(b) of the Act —
if the notice relates to a recommendation given

Section 192(1)(d) The period of 28 days after the day on which the
notice is given
Section 204(c) The period of 28 days after the day on which the
notice is given

Part 8 of the Act

Section 208(2) The period of 28 days after the day on which the
request is made
Section 210(2) The period of 60 days after the day on which the
ACH protection agreement is submitted for
endorsement

B. D'SA, Clerk of the Executive Council.

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Citations

Aboriginal Cultural Heritage Amendment Regulations (No. 2) 2023 (WA)

Cases Citing This Decision

0

Cases Cited

0

Statutory Material Cited

0

(a)	regulations 1 and 2 — on the day on which these regulations are published in the Gazette;
(b)	the rest of the regulations — on 1 July 2023.

Planning and Development (Local Planning Schemes) Regulations 2015 Schedule 2 clause 1; *organisation* has the meaning given in section 53 of the Act; *planning and development lot* means a lot as defined in the Planning and Development Act 2005 section 4(1); *public road* means a road as defined in the Road	*multiple dwelling* has the meaning given in the *residential building* means a building occupied, or intended for occupation, as a place of residence; *strata or community titles lot* means
(a)	a lot in a strata scheme or lot in a survey-strata scheme as defined in the Strata Titles Act 1985 section 3(1); or
(b)	a lot as defined in the Community Titles Act 2018 section 3(1);

(a)	a strata titles scheme as defined in the Strata Titles Act 1985 section 3(1); or
(b)	a tier 1 scheme, tier 2 scheme or tier 3 scheme as defined in the Community Titles Act 2018 section 3(1);

(b)	a lake, salt lake, claypan, lagoon, marsh or
swamp;
(c)	a floodplain, estuary or inlet;
(d)	an artificial waterway as defined in the Planning and Development Act 2005 section 4(1).

(2)	In regulation 3 in the definition of *committee* delete "Act." and insert:
Act;

The ACH Council decides to	14 days after the
designate a person as the local	decision is made
ACH service for an area under section 37(1) of the Act

2.	The ACH Council decides to	14 days after the
cancel the designation of a	decision is made
person who is designated as the local ACH service for an area under section 43(1) of the Act
3.	The ACH Council decides to	14 days after the
amend the area for which a	decision is made
person is designated as the local ACH service under section 44(1) of the Act at the request of the
person
4.	The ACH Council amends	As soon as
details or information of a	practicable after

person designated as a local	the details or
ACH service under section 45(1)	information are
of the Act at the request of the	amended
person

5.	A person designated as a local	As soon as
ACH service requests the ACH	practicable after
Council to amend the person's	the decision is
details or information under	made
section 45(1) of the Act and the ACH Council decides not to amend the details or information

6.	The ACH Council decides to	14 days after the
approve a variation of a fee	decision is made
structure in response to a request by a person under section 50(1) of the Act

(1)	This regulation applies if the Minister gives a direction to the ACH Council under section 78(4)(b) of the Act.
(2)	The ACH Council must give written notice of the direction to

(a)	the applicant under section 72(1) of the Act; and
(b)	each person notified under section 75(1) of the Act.

(a)	the activities, or classes of activities, that may
be carried out in the protected area; or
(b)

(a)	driving on a public road;
(b)	in relation to part of a protected area that is Crown land burning carried out by a public authority for fire prevention or control purposes or other fire management works;

(d)	activities carried out in accordance with a remediation order;
(e)	a burial authorised under the Cemeteries Act 1986 section 12 of an Aboriginal person;
(f)	activities carried out in accordance with the Coroners Act 1996 in the course of determining whether human remains are Aboriginal ancestral remains;
(g)	activities carried out in an emergency situation for the purpose of preventing, or minimising, loss of life, prejudice to the safety, or harm to the health, of people or animals;
(h)	activities undertaken by a public authority in an emergency situation for the purpose of preventing or minimising irreversible damage to a significant part of the environment;

(a)	identifying the area as a protected area; and
(b)	providing any information about the matters

(a)	details of the proposed activity, including the proposed duration of the activity and the extent of the ground disturbance caused by the activity; and
(b)	details of the impact (whether beneficial or detrimental) that the proposed activity may have on Aboriginal cultural heritage located in
the area in which the activity is intended to be carried out, including

(i)	cultural heritage has for Aboriginal persons, including the impact on social,	the impact on the value the Aboriginal aesthetic values; and
(ii)	the extent to which the Aboriginal cultural heritage may be impacted; and
(iii)	the cumulative impact on the Aboriginal cultural heritage that the activity may have in combination with the impact of past activities carried out in the area.

(2)	Subject to regulation 40, for the purposes of paragraph (h) of the definition of *exempt activity* in section 100 of the Act, the activities are those described by the items in Schedule 1 under the Subdivision headings referring to exempt activities (other than item 1).
Example for this subregulation:

(1)	This regulation applies if an activity is described by more than 1 item in Schedule 1.
(2)	The activity is taken to be described by the most specific item, and not by any other item, in Schedule 1.
(3)	The most specific item is

41.	Notice of opportunity to submit views regarding tier 2 activity or extension of ACH permit
(1)	A written notice given by a proponent under section 113(a) of the Act must set out an explanation of the opportunity to submit views under section 113(b) of the Act.
(2)	A written notice given by a permit holder under section 122(3)(a) of the Act must set out an explanation of the opportunity to submit views under section 122(3)(b) of the Act.
42.	Additional documents and information accompanying application for ACH permit

An application for the extension of an ACH permit
under section 122 of the Act must be accompanied by
(a)	a copy of each notice given under section 122(3)(a) of the Act; and
(b)	details of how the notice was provided.

44.	Minister may request further information when standing in for ACH Council
(1)	This regulation applies if the Minister stands in the place of the ACH Council to decide an application under section 119(6) or 126(6) of the Act.

(a)	provide the Minister with further information relevant to the application that the Minister requires to assess the application;
(b)	verify any further information by statutory declaration.

(a)	set out why the condition should be revoked; and
(b)	be made in the approved form.

(a)	provide the Council with further information relevant to the application that the Council requires to assess the application;
(b)	verify any further information by statutory declaration.

(f)	details of the impact (whether beneficial or detrimental) that the activity may have on Aboriginal cultural heritage located in the area;
(g)	details of any rehabilitation and remediation measures for Aboriginal cultural heritage that will be impacted by the activity;
(h)	details of how any disputes between the parties in relation to new information about Aboriginal cultural heritage located in the area are to be

(i)	any measures that the parties must take to
ensure compliance with the plan, including schedules for monitoring and reporting and roles and responsibilities regarding compliance;
(j)	the manner in which any Aboriginal party will be notified if the proponent changes;
(k)	if any Aboriginal party will be able to access Aboriginal cultural heritage located in the area while approval or authorisation of the plan is of effect details of how the Aboriginal party will be able to access the Aboriginal cultural heritage;
(1)	details of any other ACH management plan

(ii)	section 150(1)(b)(i) of the Act or authorised under section 165(1)(b)(i) of	that has been approved under approval or authorisation has ceased to be of effect; and
(iii)	that is relevant to the area or activity to which the plan relates;

(a)	evidence of the consultation about the carrying out of the activity that has been conducted with each of the persons to be consulted; and
(b)	a copy of any report prepared by or for the applicant arising out of an investigation into 1 or more of the following