Best practice requirements for ensuring Aboriginal and ecological requirements are met when carrying out exploration activities

David Holmes, Principal Environmental Consultant – Umwelt Environmental and Social Consultants. CEnvP Impact Assessment Specialist.

All States and Territories in Australia have legal requirements related to protecting biodiversity values and Aboriginal heritage. Rules differ in each jurisdiction as to the threshold of harm permitted before it becomes an offence, magnitude of penalties, the defenses available if harm is actualised and approval requirements for unavoidable impacts.

Potential impacts to Aboriginal cultural heritage and biodiversity values present an approval risk in Australia and even approved impacts that are contrary to community expectations can harm corporate reputation. Poor environmental and cultural heritage management can impede the development of resources due to reputational concerns or ‘fit and proper person’ considerations.

This article aims to outline best practices for exploration activities to ensure they meet regulatory requirements and community expectations for protecting ecological and Aboriginal cultural values.

First Steps

Understand Legal Best Practice Requirements

It is imperative that proponents of exploration companies are aware of their legal requirements related to environmental and cultural heritage protection, such as obligations under legislation and approvals (including tenements).

In most cases, offences are strict liability offences and corporations are vicariously liable for the actions of employees and contractors in most cases. It is therefore imperative that legal requirements are communicated down through the workforce (as appropriate) to ensure that all persons involved with undertaking exploration activities are aware of their obligations. Legal advice should be obtained if it is unclear how certain requirements relate to specific the activities.

Understand Constraints

Legal requirements depend on the potential biodiversity or Aboriginal cultural values which exist in a prospective exploration area and how proposed activities may impact on these.

Limits of mapping

Existing mapping of biodiversity values and Aboriginal Cultural heritage sites is a good start to identifying what constraints may apply however it is essential to understand the limitations of this mapping. Aboriginal cultural sites and threatened species mapping only identifies sites/individuals that have been recorded and may not show precise locations. Mapping of cultural heritage sites will also typically not contain information about intangible cultural values or significant cultural landscapes and these features may be of higher cultural sensitivity than archaeological sites. Similarly, vegetation mapping may not have been ground truthed. Government and private mapping should, as best practice, only be used as an indication that mapped cultural sites and biodiversity attributes are potentially present. Regional scale mapping can provide additional guidance on constraints that may be present.

The absence of mapped sensitive features cannot be relied upon as evidence of sensitive features not being present

Biodiversity values

Potential ecological constraints for exploration activities can only be identified by field surveys with appropriately qualified and/ or experienced ecologists and, for some species, confirming the likely presence or absence may require surveys in specific seasonal conditions. Where an exploration activity will impact on native vegetation, and will not be undertaken within areas of existing disturbance, a site inspection of proposed disturbance areas by an ecologist represents best practice. The need for species specific seasonal surveys should be guided by the advice of an ecologist considering risks presented by the proposed activities. Reasons for not undertaking specific surveys should be clearly documented and justified.

Aboriginal Cultural Values

Some jurisdictions have codes of practice for due diligence requirements for Aboriginal Cultural heritage (e.g., NSW). Compliance with these codes is a defense against prosecution for subsequent harm in specific instances. However proponents need to explicitly follow the requirements and often exceptions will only apply to previously cropped or heavily disturbed land.

Even if a field survey for Aboriginal cultural constraints is not required, due diligence inspections are considered best practice.

Site inspections by archaeologists will identify most Aboriginal artefacts and physical sites (e.g., scarred trees, grinding grooves and engravings) however input from cultural knowledge holders is required to identify the presence of sensitive cultural values. While active involvement with Aboriginal groups may not be legally required, it represents best practice and has the following benefits:

• identifies areas of cultural importance and identify intangible values that may not be apparent to an archaeologist

• helps foster trusting relationships with Aboriginal groups and provides mitigation or even a potential legal defense if the activity does impact a sensitive site.

Input from Aboriginal stakeholders need not involve field visits to all potential exploration sites however involving Aboriginal representatives in due diligence inspections is considered best practice for any activities involving more than minimal ground disturbance (e.g., site inspections would not be necessary for field reconnaissance surveys by a geologist). At a minimum, relevant Aboriginal parties or organisations (Traditional Owners where possible) should be consulted about the proposed exploration activities and the proposed areas to identify any significant cultural matters that should be considered in the project design. This engagement should provide opportunities to capture gender-based site sensitivities. Aboriginal knowledge holders may wish the precise nature of cultural sensitivities to remain confidential. This should be respected for areas or sites where Aboriginal people identify significant cultural values however it will be important to understand how exploration activities could impact these areas to understand what, if any project design changes can be made to avoid impacts.

Field due diligence processes

Preferred exploration sites and routes for accessing these sites should be clearly marked out prior to any field survey to define the extent of the potential impact areas. Site boundaries should be identified by GPS coordinates however delineation of potential disturbance areas by markers or tape provides greater certainty that the areas inspected are the extent of proposed impacts. Attendance by a geologist or other project team member at the field surveys is recommended as this enables site layouts to be adjusted or alternative sites to be identified and surveyed in a timely manner if the initially surveyed areas contain ecological or heritage constraints.

Project design

If biodiversity or cultural constraints are identified, the activity should be relocated to avoid impacts. If avoidance isn’t possible, these constraints must be considered in any necessary approvals assessment process. Where sensitive features are avoided through site relocation or project redesign, the areas of sensitivity should be recorded and mapped to inform future constraints processes and avoid future inadvertent impacts. Where activities are close to identified high value areas, the views of Aboriginal parties should be obtained and considered in the final design.

Where impacts to Aboriginal sites or cultural places are unavoidable, Government approval is likely necessary prior to the works beginning. The risk of significant corporate reputational harm should be considered where potential impacts to significant cultural values are possible.

Carrying out the activity

Prior to undertaking the exploration activity and disturbing the area, employees must be made fully aware of the extent and nature of allowable disturbance. Identification of exclusion zones and clear delineation of ‘approved’ disturbance areas through fencing/markers is strongly recommended.

The above provides an outline of best practice approaches. While these processes could add additional costs to exploration programs, they can mitigate against costly and lengthy approval delays and reduce risk of legal action in the event of inadvertent impacts. There are also potentially significant benefits to future approvals processes for resource development as a result of developing respectful working relationships with local Aboriginal people.

Heritage clearance with Nyalpa Pirniku native title claim group for exploration at the Golden Chimney Prospect, on E40/378 owned by Catalina Resources Ltd