Navigating approvals in an ever-changing landscape – it’s all about relationships.

Cassie Lovel , Director at Corporate Affairs Australia

Approvals requirements for mining, infrastructure, renewables and oil and gas projects continue to challenge us all. 2023 saw its fair share of drama with significant proposed heritage and environment reforms (at both a State and Federal level) and increased regulatory scrutiny on compliance and consultation with indigenous partners and other key stakeholders.

Heritage changes

The Aboriginal Cultural Heritage Act 2021 (WA) (2021 Act) was repealed on 15 November 2023, and the State has reverted to an amended Aboriginal Heritage Act 1972 (WA) (1972 Act) as the key document governing Aboriginal heritage in WA.

?The amended 1972 Act has several modifications, most notably to ensure a positive obligation to report any “new information”, the ability for section 18s to be overturned and a ‘call-in’ right to allow the Premier to decide section 18 matters of State or regional importance.

The Department of Planning Lands and Heritage (DPLH) published two Guidelines in November 2023:?

• Aboriginal Heritage Act 1972 Guidelines
• Consultation for Section 18 Applications

These guidelines describe a “best practice” approach for consultation in relation to cultural heritage matters.

?The Commonwealth Government also committed to reforming the Federal cultural heritage framework in response to the Parliamentary inquiries into the destruction of Juukan Gorge. An options paper on this reform includes three potential approaches to enshrine the right of Free, Prior and Informed Consent (FPIC):

1. Replacing all existing state and federal heritage regimes with new federal legislation.
2. Accrediting state and territory legislation that meets mandatory national standards.
3. Developing ‘model’ legislation to be adopted by states and territories.

?Given the controversy generated by heritage reform in Western Australia, one might expect that the Federal Government will tread carefully, and indeed timeframes for reform have been extended on multiple occasions. However, this remains an area to pay close attention to.

Environmental Approvals

In WA, proposed changes to Part V of the Environmental Protection Act 1986, environmental offsets, and the amalgamation of mining proposal and mine closure plan requirements all contribute to the evolving landscape for project proponents.?

Additionally, the EPA has recently published an updated Environmental Factor Guideline – Social Surrounds, which outlines how the EPA will consider the Social Surrounds factor in the environment impact assessment (EIA) process.?

The State Government has commissioned former State EPA chair Paul Vogel and planning expert David McFerran to review State environmental approvals processes, to reduce complexity and duplication and deliver timely decision-making. These recommendations are due to Environment Minister Whitby by the end of the year, but it is not clear when any changes might take effect.?

If all this change wasn’t enough, the Commonwealth reforms to the federal Environment Protection and Biodiversity and Conservation Act will also add complexity to the approvals for WA projects.?

What does this mean??

In a changing landscape, building strong, genuine and positive relationships with stakeholders becomes even more critical.?

A big learning for 2023 is the imperative of early and deep consultation with indigenous stakeholders. This helps ensure heritage constraints are understood ahead of the project schedule and can be adequately managed.?

Proponents should ensure continued engagement throughout a project so the company is aware of any new heritage information that may arise during a project life cycle.?

Consultation and community engagement are also becoming increasingly central factors in environmental approval processes.?

This shifting landscape highlights the importance of:?

1. Early engagement and deep consultation with First Nations communities, project partners, and stakeholders – including regulatory agencies and departments.
2. Strong, trusted relationships with First Nations communities, built through close consultation and engagement with the community.
3. Rigorous internal compliance and governance around native title and heritage, environment, water, and tenure, including robust schedules and plans that are carefully monitored. Companies must be able to deal with “new information” quickly and appropriately.

Sticking to the basics and ensuring a well-planned and carefully executed approach to stakeholder engagement will ensure your project has the best chance of success.??

If you need any support navigating your integrated project approvals or indigenous engagement requirements, please get in touch.

Cassie Lovel is a land access and approvals expert with over 16 years of experience in law, mining and resources.

Cassie’s experience includes managing and progressing regulatory approvals, tenure, native title relationships, heritage and compliance for BHP, Atlas Iron and BBI Group.