Managing cultural heritage risks in the resources sector: a legal perspective

For South Australia’s resources companies, the management of risks related to Aboriginal cultural heritage is not just a legal obligation, but a critical business issue.

Failing to adequately protect heritage sites can lead to significant financial penalties, delays in project timelines, and irreparable damage to a company’s reputation.

In a state where Aboriginal heritage is deeply embedded in the physical landscape, companies in mining, energy, and construction must be proactive in their approach to cultural heritage management.

South Australia's Aboriginal cultural heritage is protected by both state and federal laws. The Aboriginal Heritage Act 1988 (SA) governs how heritage sites are identified, protected, and managed within the state.

Additionally, the Commonwealth Aboriginal and Torres Strait Islander Heritage Protection Act 1984 can also apply where federal intervention is sought to protect heritage that may be at risk.

Navigating these dual frameworks requires a deep understanding of the law and the ability to work collaboratively with Traditional Owners and other stakeholders.

High-profile incidents, such as the destruction of the Juukan Gorge caves in Western Australia, have highlighted the risks of inadequate heritage management.

While that incident occurred outside South Australia, it serves as a stark reminder to resources companies that missteps in heritage management can have far-reaching consequences.

Not only are there substantial penalties for non-compliance, but there is also the potential for public backlash, investor concern, and regulatory intervention.

These risks are not hypothetical – they are very real and must be taken seriously by companies operating in the sector.

One of the most effective ways to manage cultural heritage risks is through early, meaningful engagement with Traditional Owners.

Aboriginal people have a deep connection to their land, and their input is invaluable in identifying and preserving heritage sites.

Early consultation helps companies to develop a respectful and collaborative approach to heritage protection, reducing the risk of disputes or project delays further down the line.

However, engaging with Traditional Owners is not always straightforward. There may be multiple groups with an interest in a particular area, or disagreements about the significance of certain sites.

In such cases, legal advice can be critical in navigating these complexities and ensuring that consultations are carried out in a manner that is both respectful and compliant with the law.

A well-prepared Aboriginal Cultural Heritage Management Plan (CHMP) is essential for companies in the resources sector.

A CHMP outlines how heritage risks will be managed at every stage of a project, from exploration through to rehabilitation.

It should include clear procedures for identifying heritage sites, protocols for engagement with Traditional Owners, and strategies for mitigating potential impacts on those sites.

Importantly, a CHMP must be flexible enough to accommodate changes in the project scope or unforeseen discoveries of heritage sites.

Under South Australian law, it is an offence to disturb or destroy Aboriginal heritage without authorisation.

A robust plan that anticipates such scenarios can help a company avoid costly legal disputes and ensure that their projects proceed without undue delay.

This article provides general commentary only. It is not legal advice. Before acting on the basis of any material contained in this article, seek professional advice.

With a sophisticated understanding of the approval processes, our native title and cultural heritage experts are well-placed to support the successful delivery of major projects.

Our experience includes drafting and negotiating agreements with native title holders, claimants and traditional owners throughout Australia with particular experience advising on behalf of energy, resource and infrastructure clients. From native title agreements and cultural heritage management plans, to advising on the effects of native title and cultural heritage on our clients' interests, we are here to help.

With a deep understanding of these complex issues, our approach to negotiations and structuring agreements takes into consideration the importance of building and maintaining relationships with traditional owners throughout all stages.

Cultural heritage law encompasses the legal frameworks designed to protect and preserve the cultural heritage of traditional owners, including sacred sites, artifacts, and traditional knowledge. Our firm understands the importance of cultural heritage preservation and works closely with clients to ensure their cultural heritage risks are managed in line with relevant project objectives and timeframes.

Find out how our native title and cultural heritage team can assist you to navigate this complex area of law for your next project.