Aboriginal Cultural Heritage Bill 2021- implications for farmers

October 29, 2026

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A year after the destruction of Juukan Gorge, the McGowan Government has introduced a new Aboriginal Cultural Heritage Bill to the State’s current Aboriginal Heritage Act 1972. The Bill makes extensive amendments to Act to improve the recognition and protection of Aboriginal cultural heritage in WA. However, the introduction of a four tier assessment process for the approval of activities on freehold and Crown land has raised concerns from many farmers and landholders across the State.


Landholders


Under the Bill a landholder is defined very broadly to include:

  1. a person or body that owns, leases or manages Crown land;
  2. a person that is the proprietor of an estate in fee simple in land; or
  3. a person who is the holder of the freehold in land.


Rights of Aboriginal people in relation to Aboriginal Cultural Heritage


Under the Bill Aboriginal people are granted certain rights in respect of Aboriginal cultural heritage, which is now defined to include an Aboriginal place, an Aboriginal object, a cultural landscape and Aboriginal ancestral remains.


An Aboriginal person, group or community that has traditional rights, interests and responsibilities in respect of a secret or sacred object or an area in which Aboriginal ancestral remains are located, or are reasonably believed to have originated from, is a custodian and entitled to possession and control of the object or ancestral remains. However, in order for an Aboriginal cultural heritage to be recognised and protected from activities that may cause harm to it, a protected area order is required.


Protected Area Order


Under part 4 a protected area application to the Aboriginal Cultural Heritage Council (ACH Council) can only be made by a local knowledge holder, which is an Aboriginal person who in accordance with Aboriginal tradition, holds particular knowledge about Aboriginal cultural heritage of the area.


Once a protected area application is made, the ACH Council must notify each local ACH service, native title party and knowledge holder for the application area. If the ACH Council forms a preliminary view that an area be declared as a protected area, the Council must then give public notice about the area and notify each landholder for the area or a part of the area and any other person the Council considers has an interest in the area. Each party who is notified can then make submissions to the ACH Council about the application area.


The ACH Council may then make recommendations to the Minister for Aboriginal Affairs as to whether the application area should be declared as a protected area and whether it should be subject to any conditions such as management or access to the area. The Minister has the authority to declare an application area as a protected area and issue a protected area order. The Registrar of Titles must also be notified of the protected area order. The Registrar has the discretion to make an endorsement or notation on the certificate of title of the land affected. Once an order is issued it must be complied with.


Activities that Require a Due Diligence Assessment


Under the new Bill, a four-tier approval process has been introduced for activities that may cause harm to Aboriginal cultural heritage.

The four-tier approval process is only applicable to proponents, who are persons intending to carry out activities that may harm Aboriginal cultural heritage. There are four types of activities, however only the proponents of tier two and tier three activities which involve low or moderate to high levels of ground disturbance will be required to undertake a due diligence assessment. Similarly, if the proposed activity is intended to be carried out in an area that is part of a protected area or is an area where Aboriginal cultural heritage is known to be located or there is a risk of harm to Aboriginal cultural heritage by the proposed activity, then the proponent of that activity will be required to undertake a due diligence assessment.


A due diligence assessment involves:

  1. the proponent notifying each ACH local service for the area, or alternatively each native title holder or knowledge holder for the area, of the proposed activity;
  2. if the activity is a tier 2 or 3 then the proponent must give each of the persons notified about the activity the opportunity to submit a statement about the person’s views about the risk of harm being caused to Aboriginal cultural harm from the proposed activity; and;
  3. then an application to the ACH Council to gain an ACH permit to carry out a tier 2 activity.


The application to the ACH Council must outline the details of the proposed activity, the characteristics of Aboriginal cultural heritage of which the proponent is aware of and any risk of harm to Aboriginal cultural heritage identified in the due diligence assessment. The ACH Council can either grant an ACH permit for the proposed activity or refuse to issue a permit. If refused, the proponent can object in writing to the Minister who can either confirm the decision of the ACH Council or make another decision.


For a tier 3 activity, a proponent is required to have an approved or authorised ACH management plan with interested Aboriginal parties, including local ACH services and native title parties in the area, and consult with those parties before the commencement of a tier 3 activity. Aboriginal parties are required to give informed consent to an ACH management plan before a plan can be approved by the ACH Council or authorised by the Minister. Once approved or authorised, a proponent can carry out their proposed activities in accordance with their ACH management plan. However, if new information about Aboriginal cultural heritage emerges in relation to an area to which an ACH permit or approved or authorised ACH management plan relates, then the Minister has the discretion to issue a stop activity order, prohibition order and remediation order to prevent harm to Aboriginal cultural heritage.


Implications for Landholders


If no protected area order has been declared over an area of land and there is no knowledge of Aboriginal cultural heritage in the area then a landholder is free to carry out activities on their land without having to comply with the provisions of the proposed Bill.


Compliance Measures


The main concern about the Bill is the compliance measures that have been introduced. Under part 10, Aboriginal and non-Aboriginal inspectors are given broad powers to enter Aboriginal places, obtain information and conduct inspections for the purpose of ascertaining whether the Act or any instrument has been contravened. As part of their powers, inspectors will have the power to enter places, take samples or specimens, survey and mark out land, and make reasonable use of any equipment, facilities or services on or in a place or vehicle in order to carry out an inspection.


It is unclear, how often inspectors will be used to carry out inspections as the purpose for inspections in s 230 is worded very broadly, but it appears that Aboriginal and non-Aboriginal inspectors will be given much broader powers of inspection, entry and seizure than what is in the current Act. 


By Matilda Lloyd (Paralegal)


If you would like more information about the proposed amendments or how the above matters may affect your business, please contact us on (08) 9321 5451 or by email at office@bailiwicklegal.com.au.


For further information about our legal services, please visit our website: https://www.bailiwicklegal.com.au/


The above information is a summary and overview of the matters discussed. This publication does not constitute legal advice and you should seek legal or other professional advice before acting or relying on any of the content.

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For many growers, the biggest barrier to pursuing a claim is not the legal process itself. It is the relationship. In regional communities, suppliers, agronomists and growers often work together over many years, and many farmers are understandably reluctant to raise concerns if they believe it may damage a valued business relationship. Recent discussions regarding the performance of certain canola varieties have highlighted an important issue for farming businesses: protecting your legal rights does not necessarily mean taking an aggressive approach or ending a long-standing commercial relationship. Where concerns arise about the performance of a seed variety, chemical or other agricultural product, growers are often hesitant to make inquiries or seek compensation because the supplier may be a trusted local business or a person they have dealt with for decades. However, raising legitimate concerns and seeking advice should not be viewed as a personal attack. In many cases, suppliers will notify their insurer as soon as a significant claim is raised. From that point, discussions regarding liability and compensation are often managed by insurers, loss assessors and legal representatives. As a result, a grower may effectively be dealing with an insurance claim rather than a dispute directly with the supplier. That distinction is important. A claim can often be investigated and resolved without permanently damaging an otherwise productive business relationship. At the same time, growers should be aware that not every supplier is insured for every type of loss. Some businesses may not carry insurance that responds to large-scale agricultural claims, while others may not have sufficient coverage where multiple growers are affected. Early advice can therefore be critical in understanding both your legal position and the practical realities of recovery.  If you are experiencing concerns regarding crop performance, keep detailed records, retain product packaging, batch information, invoices and correspondence, obtain independent agronomic advice, and seek legal advice before signing any settlement agreement, release or non-disclosure agreement (NDA). Protecting your rights does not have to mean burning bridges. Often, the best outcomes are achieved through early communication, careful investigation and practical resolution. Author: Matilda Lloyd, Associate Director of Bailiwick Legal, assists farming families and agribusinesses throughout Western Australia with commercial disputes and risk management. For assistance with all of your agribusiness needs, contact Bailiwick Legal: West Perth Office on 08 9321 5451 or email office@bailiwicklegal.com.au Bridgetwoen Office on 08 6288 6240 or email bridgetown@bailiwicklegal.com.au For further information about our legal services, please visit our website: https://www.bailiwicklegal.com.au The above information is a summary and overview of the matters discussed. This publication does not constitute legal advice and you should seek legal or other professional advice before acting or relying on any of the content.

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One of the most common concerns we hear from growers experiencing issues with agricultural products is: "I don't want to sue someone I've known for years." In regional communities, business relationships matter. Suppliers, agronomists and growers often work together over many seasons, and many farmers are understandably reluctant to take action if they believe doing so may damage those relationships. However, pursuing a claim does not necessarily mean attacking a long-standing business relationship. In many cases, the supplier will notify its insurer of the claim and the matter will be managed by the insurer and its representatives. Where insurance is available, discussions regarding compensation often proceed through the insurer's claims process rather than as a personal dispute between grower and supplier. For that reason, growers should not assume that raising legitimate concerns about product performance will automatically result in the loss of an important commercial relationship. That said, every situation is different. Some suppliers may not carry insurance for particular losses, and others may not have sufficient insurance coverage to respond to multiple large-scale claims. In those circumstances, early advice can be particularly important, both to preserve evidence and to understand the practical options available. If you believe a seed variety, chemical or other agricultural product has not performed as represented, keep detailed records, obtain independent agronomic advice and seek legal advice before signing any settlement agreement, release or non-disclosure agreement. The earlier advice is obtained, the more options are generally available. Author: Matilda Lloyd, Associate Director of Bailiwick Legal, assists farming families and agribusinesses throughout Western Australia with commercial disputes and risk management. For assistance with all of your agribusiness needs, contact Bailiwick Legal: West Perth Office on 08 9321 5451 or email office@bailiwicklegal.com.au Bridgetwoen Office on 08 6288 6240 or email bridgetown@bailiwicklegal.com.au For further information about our legal services, please visit our website: https://www.bailiwicklegal.com.au The above information is a summary and overview of the matters discussed. This publication does not constitute legal advice and you should seek legal or other professional advice before acting or relying on any of the content.

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Recent concerns regarding the performance of certain canola varieties have attracted significant attention across the Western Australian grain industry. The issue was recently discussed on the ABC WA Country Hour, where Philip Brunner, Director of Bailiwick Legal, commented on the legal issues that may arise when agricultural products fail to perform as expected. Farmers understand that crop performance can be affected by seasonal conditions, rainfall, frost, pests, disease and other factors beyond their control. However, different considerations may arise where a seed, chemical or agricultural product does not perform consistently with the representations made by the supplier at the time of sale. A well-publicised dispute involving John Snooke, a grower from Cunderdin, highlighted these issues when concerns were raised regarding the performance of a herbicide-tolerant canola variety. Following intervention by the WA Department of Consumer Protection, compensation was ultimately paid to affected growers. As input costs continue to increase, growers should be aware that legal protections may be available where a product: Does not match its description; Is not fit for its intended purpose; or Fails to perform in accordance with representations made by the supplier. If a crop is underperforming, growers should retain seed tags, invoices, marketing materials and paddock records, obtain independent agronomic advice and notify the supplier as soon as possible. Early evidence can be critical in assessing whether a legal claim may exist. Importantly, growers should not sign any settlement agreement, release or non-disclosure agreement (NDA) without first obtaining independent legal advice. These documents may limit future rights or prevent growers from discussing the issue with others who may be similarly affected. Author: Matilda Lloyd, Associate Director of Bailiwick Legal, assists farming families and agribusinesses throughout Western Australia with commercial disputes and risk management. For assistance with all of your agribusiness needs, contact Bailiwick Legal: West Perth Office on 08 9321 5451 or email office@bailiwicklegal.com.au Bridgetwoen Office on 08 6288 6240 or email bridgetown@bailiwicklegal.com.au For further information about our legal services, please visit our website: https://www.bailiwicklegal.com.au The above information is a summary and overview of the matters discussed. This publication does not constitute legal advice and you should seek legal or other professional advice before acting or relying on any of the content.