The Western Australian government has refused to commit to a moratorium on approving the destruction of Aboriginal heritage sites, despite the recommendation of a Senate committee which found that the laws are “unfit for purpose”.
The recommendation was made by an inquiry into Rio Tinto’s destruction of Aboriginal heritage sites at Juukan Gorge on 24 May 2020.
Exactly one year on from the disaster, in which Rio blew up the ancient rock shelters showing human occupancy dating back 46,000 years to access higher-grade iron ore, the dust has settled to reveal that while the company’s reputation is in pieces, the landscape of laws, policies and power imbalances is largely unchanged.
There is, as yet, no guarantee a site like Juukan Gorge could not be destroyed again.
WA’s new Aboriginal affairs minister, Stephen Dawson, said Aboriginal heritage laws would be introduced to parliament in the second half of 2021.
Until then, the current system – which allows land users such as mining companies to make what is called a section 18 application for permission to destroy or impact upon a registered Aboriginal heritage site – will continue to operate.
Dawson said section 18 applications cover a wide range of activities, including road upgrades. “A complete moratorium on s18 approvals is not an appropriate interim measure,” he said.
Two approvals have been granted so far this year. Both were for Fortescue Metals Group to develop the western hub infrastructure at its Solomon iron ore mine in the Pilbara and were granted by the previous minister, Ben Wyatt, before the state election.
The traditional owners of Juukan Gorge, the Puutu Kunti Kurrama and Pinikura people, have expressed doubt about the ability of the new draft laws to prevent a future tragedy.
“Rio Tinto destroyed a sacred site at Juukan Gorge because the laws allowed them to do it, and the people responsible for developing and overseeing those laws did not stop them,” PKKP Aboriginal Corporation’s chief executive, Carol Meredith, said on Monday.
“Effective, ingrained change is not going to be achieved if traditional owners are handed draft legislation which already has the assumptions and agendas of others imposed upon it.”
The chair of the Senate committee into the destruction of Juukan Gorge, Warren Entsch, said the committee was considering whether traditional owners should be granted the power of veto over the destruction of cultural heritage.
“The PKKP people … reaffirmed to me they are not against mining, they see the value of it to the community,” Entsch said. “They want to be heard, and they want to have the right, as they should, to say no.”
Entsch said this power already exists in the Northern Territory and, the committee heard, it has not suppressed mining activity.
“There’s no doubt about it, the Northern Territory is by far the best [in sacred site protection],” Entsch said. “Even with its flaws the Land Rights Act actually provides, in theory, an opportunity for traditional owners to say no. In other jurisdictions, that’s not the case, they can’t say no.”
In contrast, he said the national Native Title Act, which governs Indigenous rights to negotiate with mining companies and developers, “is not fit for purpose in relation to the protection of heritage sites”.
That, coupled with WA’s outdated laws, gives developers “authority to destroy sites with no chance of stopping it”, he said.
“We’re waiting to see what the new Act is going to tell us,” he said. “We’re told that these issues will be addressed under the new legislation but what we’re hoping is that by the time we finish this report, the new legislation will be at least tabled so that we can review it.”
A version of the draft bill, released for public comment last year, outlined a structure reliant on agreements between mining companies and traditional owners which gives the Aboriginal affairs minister the final say. It would tap into the native title system, where traditional owners are required to set up prescribed body corporates to manage their rights and interests, including negotiating with mining companies.
Entsch said there are significant flaws in that model. The Senate committee heard many PBCs are underfunded and face complex governance issues, particularly around the transparency of negotiations and the ability to identify all interested parties.
“If you sit down in good faith and you negotiate with the traditional owners, with the elected groups, representative groups, and you negotiate an outcome … suddenly you might get an individual or a small group of individuals that don’t even live anywhere near the area, they might live on the other side of the country but they have a connection there because of family connections, have no real understanding of what’s happening but then put in an objection.
“There is a lot of a lot of work needs to be done in capacity building [of PBCs].”
But the power of veto is off the table in WA, Dawson said, “despite several public submissions seeking this”.
“A power of veto would be a disincentive to agreement-making and discourage positive relationship building between traditional owners and land users.
“As minister, I will not sign a s18 approval unless there is a clear demonstration of engagement with the Aboriginal knowledge holders. All stakeholders understand this now and have renewed their efforts to improve agreement making. This is a positive indication for the future workability of the regime we will bring in.”
Dawson suggested the global reaction to the destruction of Juukan Gorge showed that “Aboriginal people have significant power now”.
“Cultural and moral authority are often more powerful than words written into law, as demonstrated by the changes forced on the Rio Tinto senior executive,” he said.
But others say cultural and moral authority does not protect heritage, and the destruction of Juukan Gorge shows that self-regulation of the mining industry does not work.
“When you’ve got companies as large and prestigious as Rio Tinto feeling that they can and ought to destroy cultural heritage of the value of the Juukan Gorge caves, it’s in front of your face that regulation is required,” said James Fitzgerald, a former native title lawyer who now works for the Australasian Centre for Corporate Responsibility.
Fitzgerald said the global reaction to the blast took the WA government and the mining industry by surprise.
“The silence of the mining industry, of Rio Tinto, and of the state minister last year in the month after the Juukan Gorge incident, for me is evidence that all of them thought this would blow over within a news cycle or two,” Fitzgerald said.
“And they had some good reason to think that, because the destruction of cultural heritage is a workaday event in the Pilbara and elsewhere.
“I don’t think there’s been any – outside Rio Tinto anyway – I don’t think there’s been any radical soul-searching.”
Even in Rio Tinto, he said, the response has been largely one of public relations, “more fascinated and reliant on spin and on sweet lines than it is on the sort of practical performance with goodwill that that used to be its hallmark”.
Burchell Hayes, from the PKKP Aboriginal Corporation, said they were looking for a more meaningful partnership from Rio Tinto, one of co-management and true prior, informed consent.
“Without that, then that relationship just doesn’t work,” he said. “We want to do business with the mining proponent but we want to do it on our terms.”
Rio Tinto has imposed a moratorium on all work within 10 sq km of Juukan Gorge and committed to working with and offering reparations to the traditional owners, the PKKP peoples, but only after its top global shareholders demanded action, it was slammed in media coverage, and three of its top executives and two board members – including the CEO and chairman – chose to stand aside.
Rio’s chief executive, Jakob Stausholm, has repeatedly apologised for the destruction, saying in a statement last week that it “should never have happened and we are deeply sorry for our actions”.
“I visited Juukan Gorge earlier this year to apologise and express my deep regret for the damage we caused,” he said. “I witnessed and felt first-hand the pain we have inflicted, and I will never forget that. I am grateful to the Puutu Kunti Kurrama elders for their willingness to meet me and other senior Rio Tinto leaders when they had every right not to.”
He added: “We know we will be judged by our actions. We must do better, and we will. That is our commitment.”
On the floor of the gorge itself, there is some hope. The blast which destroyed the rock shelters interrupted the flow of a spring-fed water hole called Purlykuti, a small pool shaped like a snake’s head entering the ground. It is a sacred place to the PKKP.
The water is flowing again, Entsch said.
“Rio had hydrologists there,” he said. “I can tell you now, the $135m they expected to get from that site, this is going to cost them infinitely more.
“There’s a lot of work being done in there and after feeling that devastation I took a great deal of relief that the pool has now effectively been restored.”