1.1
The destruction of the Juukan Gorge Aboriginal heritage sites by Rio Tinto on 24 May 2020 was an event that shocked the nation. Australians were further disturbed to learn that the destruction was permitted under the Aboriginal Heritage Act 1972 (WA).
1.2
The blast to extend the Brockman 4 iron ore mine destroyed two rock shelters of great cultural, ethnographic and archaeological significance–along with evidence of continuous occupation and cultural knowledge stretching back 46,000 years. These are the simple facts.
1.3
But these facts do not tell the grief of the Puutu Kunti Kurrama and Pinikura (PKKP) peoples. They understate the extent of the loss caused by the destruction of part of their vital living culture. The Committee stood with the PKKP peoples at the lost sites and felt the depth of their grief and mourned with them.
1.4
This inquiry has been a journey of enlightenment for some members of the Committee. We are exceptionally privileged as a nation to have the continuous cultural knowledge of Aboriginal and Torres Strait Islander peoples and their living understanding of sacred sites of such historical significance. This is not just a loss for the PKKP peoples, but it is a loss for the nation, and the world, as a whole.
1.5
However, this tragic event, and the national condemnation of the actions of Rio Tinto has sparked action to address the legislative failings that allowed the destruction of the Juukan Gorge sites–and similar sites around the nation. The Juukan Gorge disaster is just one example of countless instances where cultural heritage has been the victim of the drive for development and commercial gain.
1.6
The legislative frameworks that govern the protection of Indigenous heritage are complex, comprising state, territory and Commonwealth laws and international treaties. However, none of these frameworks adequately encompass the complexity of Indigenous heritage which is living and evolving and is connected not just through historical artefacts, but through songlines, storylines, landscapes and waters.
1.7
This has always been known by Aboriginal and Torres Strait Islander peoples, and has begun to be more widely understood by non-Indigenous Australians. This depth of connection to country is also increasingly being recognised by the courts:
It is a connection with land and waters that is unique to Aboriginal Australians. As history has shown, that connection is not simply a matter of what the common law would classify as property. It is a connection which existed and persisted before and beyond settlement, before and beyond the assertion of sovereignty and before and beyond Federation. It is older and deeper than the Constitution. And the connection with land and waters that is unique to Aboriginal Australians does not exist in a vacuum. It was not and is not uniform. It was not and is not static; cultures change and evolve. And because the spiritual or religious is translated into the legal, the integrated view of the connection of Aboriginal Australians to land and waters is fragmented. But the tendency to think only in terms of native title rights and interests must be curbed.
1.8
It has been nearly fifty years since the first legislation was enacted to protect Indigenous cultural heritage. Australia has come a long way in that time in understanding, valuing and respecting this heritage. It should no longer fall victim to the failures of communication, legislation and governance apparent in so many of the destructive events detailed throughout this report.
1.9
It is time for legislative frameworks to catch up to the nation that now understands its Aboriginal and Torres Strait Island heritage in a way that it perhaps never has before. It is time to get rid of the multiple, complex and confusing legislative regimes referencing Aboriginal and Torres Strait Island heritage−particularly those that cover this heritage as part of the environment, harking back to a time when, offensively, Aboriginal and Torres Strait Islander people were classified as ‘flora and fauna’. It is time to recognise and protect the Aboriginal and Torres Strait Islander past, present and future cultural heritage as a unique and valuable part of our nation.
1.10
The Committee commends those in the resources industry, including Rio Tinto, who have proactively responded to the events at Juukan Gorge to improve industry-wide standards and engaged with the Committee’s inquiry. The Committee has been disappointed with the level of engagement from the WA Government.
1.11
Finally, the Committee commends the PKKP peoples, and other traditional owners, for engaging with the inquiry and the resources industry, despite the hurt and losses they have experienced. The Committee acknowledges your strength and resilience in the face of this pain and loss.
The Puutu Kunti Kurrama and Pinikura peoples
1.12
The report refers to the PKKP peoples throughout. The Puutu Kunti Kurrama people and the Pinikura people themselves use this acronym. However, in their words:
The PKKP are two distinct Aboriginal socio-territorial groups, the Puutu Kunti Kurrama people and the Pinikura people, whose country lies in the West Pilbara region of Western Australia.
The Puutu Kunti Kurrama people and the Pinikura people are separate peoples with discrete rights and interests in country, though we have some shared laws and customs. Puutu Kunti Kurrama are also closely related to, and share boundaries with, the Eastern Guruma to the east and Kuruma Marthudunera to the north.
PKKP country includes areas of Puutu Kunti Kurrama country, areas of Pinikura country, and shared areas as shown [at Appendix E]. Puutu Kunti Kurrama people speak for Puutu Kunti Kurrama country and the Pinikura people speak for Pinikura country.
Terminology
1.13
The Committee also recognises that Aboriginal and Torres Strait Islander peoples may refer to themselves and be referred to by others in a variety of ways: collectively as First Nations, First or Indigenous Australians, Australia’s first peoples, traditional owners or native title holders or claimants; and individually according to language or geo-cultural community groups.
1.14
The Committee notes that some of these terms have specific legal meanings. The terms ‘native title holders’ and ‘native title claimants’ are used to refer to those groups who have obtained or are seeking a determination of native title under the Native Title Act 1993 (Cth).
1.15
The term ‘traditional owners’ is similarly given specific meaning under various statutes, including the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) and the Traditional Owner Settlement Act 2010 (Vic). However, it is also used more broadly to refer to Aboriginal and Torres Strait Islander peoples who assert “traditional ownership” of a certain area under traditional laws and customs, including where there has been no determination of native title.
1.16
Wherever possible, this report refers to the specific nation or language group concerned. Where collective terms are necessary, this report prefers the term Aboriginal and Torres Strait Islander peoples, although the terms outlined above may be used interchangeably throughout. Unless specified, the term ‘traditional owner’ is used in the broader sense of referring to a group or groups of Aboriginal or Torres Strait Islander peoples who have a recognised connection to an area under traditional laws and customs, including the ability to speak for cultural heritage.
Conduct of the inquiry
1.17
On 11 June 2020 the Senate referred the inquiry for report by 30 September 2020. Due to the impact of the COVID-19 pandemic and resultant restrictions on travel and the complexity of the issues as they emerged over the course of the inquiry, the Senate granted an extended reporting date of 18 October 2021.
1.18
Submissions were invited from a wide range of stakeholders, including Indigenous groups, industry groups and state and territory governments. The inquiry received 175 submissions, 64 supplementary submissions, 41 exhibits and held 23 public hearings. Submissions, exhibits and witnesses at public hearings are listed respectively at appendices A and B.
1.19
The Committee deeply regrets that the COVID-19 pandemic prevented an extensive travel program and the opportunity to sit on country with communities and yarn. The Committee expresses its gratitude to the communities that offered to host it but were unable to, for their understanding and patience.
Interim findings
1.20
The Terms of Reference address two distinct issues:
1
Terms (a) to (e) asked the Committee to consider the events that resulted in the destruction of the heritage sites at Juukan Gorge, including the relevant state legislation, the decision-making processes by Rio-Tinto, the impact on the traditional owners and remediation efforts conducted at the site.
2
Terms (f) to (j) asked the Committee to consider the legislative framework government the protection of Indigenous heritage and how these laws might be improved to better protect Indigenous heritage.
1.21
Given the significant impact on the PKKP peoples and the need for immediate action to protect the site from further damage, the Committee decided that it was a matter of priority to address these two issues separately, and therefore issued an interim report on 9 December 2020 addressing the first terms of the inquiry.
1.22
Although the Committee has no jurisdiction over the actions of state legislatures or resources companies, the failings at Juukan Gorge were so manifold that it took the unusual step of making recommendations to Rio Tinto, the Western Australian Government and the mining industry more broadly in an effort to make clear the extent of the issues at play. These recommendations are listed at Appendix C.
The report
1.23
This report primarily addresses the second set of issues referred in the Terms of Reference. However, Chapter 2 reviews the events that occurred at Juukan Gorge and the decision-making processes undertaken by Rio Tinto leading up to the event, and actions undertaken by Rio Tinto since the Committee’s interim report was tabled. Sadly the destruction of the heritage sites at Juukan Gorge was not an isolated event but the detailed examination of this incident and the multiple associated corporate, communication and legislative failures serves as a lesson for proponent industries, corporations and governments negotiating with Indigenous peoples globally.
1.24
Chapter 3 gives voice to the other destructive events that have occurred more broadly in Western Australia at the hands of the resources industry and inadequate cultural heritage protections.
1.25
Chapter 4 analyses the Aboriginal Heritage Act 1972 (WA) and its deficits that gave legal authority for the destruction of heritage sites at Juukan Gorge. It also considers the proposed Aboriginal Cultural Heritage Bill 2020 (WA) in this context.
1.26
Chapter 5 outlines the relevant legislation governing the protection of Aboriginal and Torres Strait Islander heritage in the states and territories and considers the benefits and critiques of each of these frameworks. A timeline of legislation governing Aboriginal and Torres Strait Islander heritage protection from 1955 to today is at Appendix F.
1.27
Chapter 6 discusses the Commonwealth legislative framework governing the protection of Aboriginal and Torres Strait Islander heritage and the international laws and covenants that bind Commonwealth obligations. A list of recent case law under the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 is at Appendix G.
1.28
Chapter 7 concludes the report with recommendations to guide the nation forward in its protection of cultural heritage, based on the Committee’s detailed examination of events that occurred in, and legislation being developed, in Western Australia. As will be made clear throughout the report, no state or territory legislative or policy framework is adequately protecting the interests and the heritage of Aboriginal and Torres Strait Islander peoples and it is past time that this is rectified.
1.29
This Chapter makes recommendations aimed at achieving nationally consistent and integrated approaches to Indigenous heritage protection to prevent future catastrophic events like that which occurred at Juukan Gorge, and that which has occurred throughout Australia.
1.30
What was missing from Rio’s decision-making process was the voice of Aboriginal and Torres Strait Islander people. The Committee does not want to make this same mistake. Included throughout the report are case studies of similar events and the impact that these cultural losses have had on Aboriginal and Torres Strait Islander communities, as told to the Committee by those communities.
1.31
The Committee has prioritised the voices of Aboriginal and Torres Strait Islander peoples throughout the report. The Committee acknowledges that there are many companies within the resources industry taking strong measures to protect heritage sites and commends those companies. However, the resources industry has more access to governments, the media and therefore the broader Australian community, than traditional owners and the Committee considered it important to highlight Aboriginal and Torres Strait Islander voices above all others.