Native Title Year in Review 2022-2023

What you need to know

• The Federal Government has released draft guidelines for working in the near and offshore environment to protect Underwater Cultural Heritage. The guidelines go further than the Underwater Cultural Heritage Act 2018 (Cth) and will likely be followed by legislative reform.  
• Key recommendations include early engagement with First Nations groups and utilising specific methods for identifying and assessing First Nations underwater cultural heritage. 
• This coincides with several other developments in the offshore First Nations' rights space, including NOPSEMA's new consultation guidelines for offshore petroleum projects.  

What you need to do

• Proponents should consider engaging with First Nations groups about offshore projects to identify and assess First Nations underwater cultural heritage in accordance with the new draft Guidelines.  The increased time and costs should be built into project planning. 
• Watch for the release of the final Guidelines in late 2023 and any legislative amendments proposed as a result.

Draft guidelines to protect underwater cultural heritage

The Commonwealth Department of Climate Change, Energy, the Environment and Water (DCCEEW) has released draft guidelines for working in the near and offshore environment to protect Underwater Cultural Heritage (the Guidelines) which outline proponent requirements under the Underwater Cultural Heritage Act 2018 (Cth) (UCH Act). 

The Guidelines go further than the current UCH Act and make recommendations which are not expressly required by the Act.  It is likely that the Guidelines will serve as a stepping stone to legislative reform.

Consultation on the Guidelines has closed. The Department has indicated that the draft guidelines will be finalised in late 2023.

Current position of UCH Act with respect to First Nations Underwater Cultural Heritage

There is currently no automatic protection for First Nations Underwater Cultural Heritage in the UCH Act (as there is for shipwrecks etc).  First Nations Underwater Cultural Heritage is not specifically mentioned in the Act and will only be protected if it has been the subject of a Ministerial declaration under sections 17-19 of the UCH Act. 

Once the subject of a protection declaration, no adverse impact can occur to Underwater Cultural Heritage without a permit.

Guidelines

The Guidelines provide detailed best practice guidance in relation to the preparation of Underwater Cultural Heritage impact assessments and management plans, and recommended methods for the identification and assessment of Underwater Cultural

Heritage prior to commencing work in offshore areas.  

The Guidelines provide that before issuing a permit to impact a site, the Department will consult with relevant stakeholders and may require mitigation measures to be put in place to protect Underwater Cultural Heritage sites.

They note that these are not legal requirements under the UCH Act, but "should be read as the benchmark for Underwater Cultural Heritage assessment and management in relation to near and offshore work and undertaken by a maritime archaeologist".  

First Nations Underwater Cultural Heritage

The Guidelines make express reference to First Nations Underwater Cultural Heritage and encourage proponents to engage with First Nations groups who may have an interest in the proposed offshore activity.  Early engagement with First Nations groups is considered to be essential to identify, assess, and manage Underwater Cultural Heritage.

The Guidelines note that due to sea-level changes, large portions of Australia’s continental shelf which lie beneath coastal and Commonwealth waters were dry landscape for up to tens of thousands of years of First Nations occupation and may contain First Nations Underwater Cultural Heritage.  This might include archaeological remains which may be declared as protected under the UCH Act.  

Intangible heritage with no physical component is not protected under the UCH Act, but the Guidelines note that this type of heritage "may assist in understanding [First Nations] Underwater Cultural Heritage for the purposes of a Underwater Cultural Heritage Impact Assessment".

Interaction with State cultural heritage legislation

The Aboriginal cultural heritage protection legislation in most States already expressly applies offshore.  The only exception is NSW and the ACT.  This is summarised below.

The Guidelines do not discuss how any assessment under the Commonwealth legislation might overlap with State processes. 

Other developments focusing on First Nations' interests in the marine environment

The release of the draft Guidelines coincides with other developments affecting offshore and underwater First Nations' rights.

Tipakalippa decision and NOPSEMA's new consultation guidelines

The Full Federal Court has recently provided guidance on the scope of the requirement for proponents of offshore petroleum projects to consult with First Nations people in Santos NA Barossa Pty Ltd v Tipakalippa [2022] FCAFC 193.

Following this, NOPESMA released a new guideline Consultation in the course of preparing an Environment Plan which clarifies the requirements for consultation under the Offshore Petroleum and Greenhouse Gas (Environment) Regulations 2009 (Cth).  The new NOPSEMA guideline does not refer to the UCH Guidelines. We discuss this decision further in "Full Court Tipakalippa decision – stakeholder consultation grows teeth".

Key insights

The ABC has reported the discovery of stone artefacts at two offshore sites in the Pilbara region of WA and noted calls for further protection of such sites.  

It seems pretty clear that cultural heritage in, and traditional links to, the marine environment will become a greater regulatory focus in coming years, with First Nations people more involved in decision making around offshore developments.

Proponents planning to work off-shore should be aware of the new draft Guidelines and plan to meet consultation requirements with sufficient resourcing to make it meaningful and genuine.

Authors: Junaid Sheikh, Lawyer and Leonie Flynn, Expertise Counsel.