Esperance Nyungar Agreement – Aboriginal Heritage information

Recognising the importance of heritage preservation to the Esperance Nyungar people, the State and Government has committed to a number of projects under the Agreement for the protection of heritage and culture.

Overview

The Esperance Nyungar Government Standard Heritage Agreement, which covers approximately 29,000 square kilometres of land in the Goldfields-Esperance Region, was executed on 14 March 2014. The agreement was executed following a determination by the Federal Court that the Esperance Nyungar people hold Native Title rights over 27,000 square kilometres of this area. 

The Variation Agreement was approved on 5 October 2020. 

The Agreement, in parallel with the Federal Court determining Native Title, streamlines and clarifies Native Title and heritage processes and which provided land and operational funding for four years to the Esperance Tjaltjraak Native Title Aboriginal Corporation (ETNTAC). 

DPLH will provide general oversight in the implementation of the Esperance Nyungar Government Standard Heritage Agreements (ENGSHA) that will be required to be entered into by State Government Departments and Agencies when undertaking Activity in the Agreement Area. 

  • Mandates an agreed heritage regime, the ENGSHA, for government agencies and resource sector explorers impacting the land. 
  • The transfer of 53 parcels of freehold and reserve land, which it holds for the benefits of its members. Some of the properties are held for cultural and community purposes and others will be developed to generate revenue for ETNTAC. 
  • Aboriginal heritage and site identification project to conduct heritage surveys and to record new Aboriginal heritage sites across Esperance Nyungar country and register sites in accordance with the Aboriginal Heritage Act 1972. 
  • Funding to support the development of the ETNTAC land portfolio, including land and heritage management plans, feasibility studies, holding costs and rezoning costs. 
  • A strategic planning consultant to assist the Esperance Nyungar people to set up a sustainable corporation with the highest standards of governance and accountability. 

Further information on the Esperance Nyungar Indigenous Land Use Agreement including copies of the ILUA and maps can be found on the Department of Premier and Cabinet Website.  

Esperance Nyungar Government Standard Heritage Agreement (ENGSHA)

The ENGSHA provides State Government Departments and Agencies and the Esperance Tjaltjraak Native Title Aboriginal Corporation (the Parties) a uniform and efficient approach to working in partnership when undertaking activities and Aboriginal heritage surveys In the ENILUA area.  The ENGSHA assists the Parties in complying with the Aboriginal Heritage Act 1972 (AHA) and provides a clear, timetabled framework about their various Aboriginal heritage obligations. 

The Parties agree that on and from the Conclusive Registration Date of 14 April 2014, if a State Government Department or Agency (Government Proponent) intends to undertake any Activity within the ENILUA area, they must enter into a ENGSHA with the Esperance Tjaltjraak Native Title Aboriginal Corporation. 

Please refer to ENILUA Clause 10.1. 

Activity is defined as any activity, including physical works or operations, involving entry onto the Agreement Area (whether on the surface of the land or waters or under or over that surface). 

Please refer to ENILUA Clause 1.2. 

Activity Notices

Except where ENGSHA Clause 8.1 applies, if the Government Proponent intends to undertake an Activity in the Aboriginal Heritage Area, it must issue a notice in writing to the Esperance Tjaljraak Native Title Aboriginal Corporation (ETNTAC) in accordance with ENGSHA Clause 8.2 (Activity Notice template attached below). 

The main purposes of an Activity Notice is: 

  • to provide adequate information to assist the Yamatji Esperance Tjaljraak Native Title Aboriginal Corporation to make an assessment as to whether a Survey is required and if so, whether a Site Identification Survey or a Site Avoidance Survey; and 
  • if a Survey is required, to provide information relevant to the conduct of that Survey. 

Under ENGSHA Clause 8.1 the Government Proponent may elect not to give an Activity Notice in respect of any proposed Activity where the Activity proposed to be conducted consists entirely of: 

  • Minor Impact Activity; or 
  • Low Ground Disturbance Activity of a class that the Corporation has notified in writing to the Government Proponent need not be the subject of an Activity Notice. 

Please refer to ENGSHA Clause 1.1 for definitions 

In the event that the Government Proponent, acting reasonably, is unsure as to whether clause 8.1(a) operates to exempt it from giving an Activity Notice, then it should give the Activity Notice in any event. 

Early Exchange of Information

The Parties acknowledge the importance of an early exchange of information between the Government Proponent and the Esperance Tjaltjraak Native Title Aboriginal Corporation, to ensure that the Traditional Owners and the Esperance Tjaltjraak Native Title Aboriginal Corporation know what Activities are proposed by a Government Proponent, to avoid misunderstandings and to enable informed decisions to be made and in order that the desired outcomes are achieved. In accordance with this objective: 

The Government Proponent will provide an outline of the nature, location and timing of the Activity to be undertaken in the Agreement Area for the following six months, to the extent that such information is known to the Government Proponent, as applicable; 

  • Where, as a result of receiving the above information, the Esperance Tjaltjraak Native Title Aboriginal Corporation becomes aware of any particular cultural heritage concern arising from a proposal to conduct an Activity, the Esperance Tjaltjraak Native Title Aboriginal Corporation will use its reasonable endeavours to raise those concerns with the Government proponent, as applicable.  

Please refer to ENGSHA Clause 7.1 for further information. 

Fact sheets

Survey Costs

Schedule 5 of the ENGSHA sets out the costs usually involved in an Aboriginal heritage survey including:

  • Aboriginal Heritage Service Providers
  • archaeologists
  • Aboriginal consultants
  • conduct of fieldwork
  • travel expenses.

See Schedule 5 of the Esperance Nyungar Government Standard Heritage Agreement for the rates which include reference to the Consumer Price Indexation (CPI). CPI is varied annually; see the Australian Bureau of Statistics for the CPI for the relevant year.

The rate for Aboriginal Heritage Consultants was originally specified to be $500 per day plus CPI. From 31 August 2022 the total sum including CPI increases is calculated at $589.29 per day

Page reviewed 9 September 2022