1. Juukan Gorge - Interim Report

My name is John Ashburton. I am a proud Puutu Kunti Kurrama man. My father was John Ashburton Senior. His father was Tommy Ashburton, who was also known as Juukan, and was born at Jukarinya, also known as Mount Brockman. He married Topsy Williams, a Pinikura woman. Juukan Gorge was named after my grandfather. My connection to our country is strong, direct and ancient. Today, I am proud to represent the Puutu Kunti Kurrama and Pinikura peoples as the chairperson of the board of the PKKP Aboriginal Corporation.1

Juukan Gorge

1.1
On 24 May 2020, Rio Tinto conducted a blast as part of its extension of the Brockman 4 iron ore mine. The blast devastated Aboriginal heritage sites at Juukan Gorge, including two rock shelters of great cultural, ethnographic and archaeological significance. Indeed, one of these shelters had provided evidence of continuous occupation going back some 46,000 years, making it a site of national and international significance. For the Puutu Kunti Kurrama and Pinikura (PKKP) peoples, it was something even worse—the theft of a vital part of their living culture. Their grief at the loss, which the Committee witnessed at first-hand on visiting the site, is indescribable.
1.2
Mr Burchell Hayes, a proud descendant of Juukan (his grandfather), told the Committee:
Juukan Gorge is an anchor of our culture, with a number of individual cultural sites that makes it unique, an important place. There is also a number of rock shelters along the deep and narrow sandstone gorge. Each of these is a museum of heritage, featuring thousands of artefacts, including grinding stones, rock seats, blade quarries, flaked stone material and human hair, likely to be from a hair belt that has been genetically matched to our people.
Juukan Gorge also includes the distinctive and sacred rock pool that used to hold water long after the rain had fallen. The shape of a snake's head entering the ground forms the shape of what used to be a permanent water source. This rock pool is a very spiritual place, which is still visited by the spirits of our people. The Juukan Gorge is known to be a place where the spirits of our relatives who have passed away, even recently, have come to rest. It is a place that the very, very old people still occupy. Purlykuti has been specifically referred to by the old people as a place of pardu, which refers to the special language only spoken during ceremonies in the Pilbara. Our elders state that it is certain that the spirits are very disturbed, and their living relatives are also upset at this. This is why Juukan Gorge is important. It is in the ancient blood of our people and contains their DNA. It houses history and the spirits of ancestors and it anchors the people to this country.2
1.3
He emphasised that the loss of the Juukan caves was not just a loss for his people:
The loss of Juukan Gorge rock shelters is also a loss to all First Nations people and the community within Australia and internationally—communities who have lived to continuously endure the destruction of their physical, cultural and spiritual land with little to no reprieve through legislation or the courts. It is yet another example of the low importance attached to Aboriginal people and Aboriginal culture.
There are other groups, including our Kurrupa neighbours, who have a direct connection with this place through their own knowledge and songlines and through the creation stories and through families. They have told us that they also feel powerless and angry at this having happened. We have an obligation to look after country in accordance with traditional law and customs. It is our obligation to the old people, who also looked after it. It was on loan to us to pass on to our future generations, our Puutu Kunti Kurrama and Pinikura children, and the future generations yet to come. The disaster has now left a gaping hole in our ability to pass on our heritage to our children and grandchildren.3

The inquiry

1.4
On 11 June 2020, the Senate referred to the Joint Standing Committee on Northern Australia the inquiry into the destruction of 46,000 year old caves at the Juukan Gorge in the Pilbara region of Western Australia.4 The original reporting date was 30 September, but this was subsequently extended to 9 December.
1.5
The terms of reference for the inquiry are ambitious, and deliberately so. The inquiry is not only examining the immediate circumstances of the tragedy at Juukan Gorge, but the wider context surrounding the destruction of Indigenous heritage in Western Australia and nationally. Indeed, some of the evidence received by the Committee has emphasised that this tragedy has international dimensions—other Indigenous peoples face the same threat to their culture and heritage from the same corporations operating in the Pilbara.
1.6
To date, the inquiry has received 142 submissions, received numerous supplementary submissions and other documents, and held 11 public hearings. The Committee also held a yarn session with the PKKP people, at which people were able to speak freely of their grief, anger and hopes to the Committee, before a visit to the Juukan Gorge site itself. This visit, delayed twice because of COVID-19, was essential to the inquiry, allowing the Committee to bear witness to the destruction of the caves and its impacts on the Traditional Owners.
1.7
The extent of the evidence received to date, the complexity of the issues, the need to examine matters more widely in Western Australia and nationally, and the disruptions caused by COVID-19, means that the Committee feels that it cannot do full justice to the issues raised by the inquiry with a final report at this date. The Committee has decided, therefore, to present an interim report, outlining its findings to date, its plans for the future, and making some broad recommendations which it hopes will inform discussion and policy in government at the State and Federal level, within the corporate sector, and within the community.

Findings

Impact of Juukan Gorge

1.8
The destruction of the caves at Juukan Gorge is an event with numerous implications. For the PKKP the destruction was personal and visceral—and a sharp reminder of how vulnerable their culture and heritage are to the imperatives of governments and corporations. For other Indigenous peoples, it highlighted the vulnerability of their culture and heritage to the same processes. Rio Tinto suffered a significant stain on its corporate reputation and three senior executives have lost their jobs. Other companies operating in the Pilbara have taken the opportunity to revisit existing policies and agreements and explore new ways of managing their relationships with the Traditional Owners of the lands upon which they operate. In a warning to companies, institutional investors have also begun to take a closer look at how companies manage their relationships with Traditional Owners. The Western Australian Aboriginal Heritage Act was already under review when Juukan Gorge was destroyed. The incident has placed renewed emphasis on the need to reform or replace that Act, and give meaningful protection to Aboriginal heritage in the State. The Commonwealth Environment Protection and Biodiversity Conservation Act (EPBC Act) is also currently being reviewed—a review which, so far, has identified serious inadequacies in terms of Indigenous heritage protection in both the EPBC Act and the Aboriginal and Torres Strait Islander Heritage Protection Act. The Committee is interested to see how much of this activity will lead to meaningful change, and how much is simply the result of the spotlight of inquiry and media scrutiny.
1.9
The Committee is aware that Rio Tinto has undertaken a significant re-evaluation of its relationship with the PKKP—including looking into the rehabilitation of the Juukan Gorge site and placing a moratorium on further development in the area pending further consultation with the PKKP and a re-evaluation of the interaction between heritage and mining. The Committee has also become aware that Fortescue Metals Group (FMG) has recently obtained a mining tenement in the same area, within the moratorium template, and would urge FMG to join the development moratorium until the heritage issues on the site have been fully resolved.

Juukan Gorge

1.10
The evidence presented to the Committee indicates that the following factors were instrumental to the destruction of Juukan Gorge:
The legal framework for the protection of Aboriginal heritage in Western Australia and at the Federal level is completely inadequate. The Western Australian Aboriginal Heritage Act 1972 (AHA) made the destruction of the site legal and offered no avenue to protect it even when its archaeological significance had been revealed. Federal legislation offered no meaningful protection.
The agreements between Rio Tinto and the PKKP required the PKKP to cede their rights and prevented them from contesting company decisions, raising concerns, or having recourse to law to protect heritage sites.
The culture and institutional structure within Rio Tinto did not adequately prioritise Indigenous heritage. Indeed, it would appear that Juukan Gorge was effectively destroyed from the moment Section 18 consent—allowing for the disturbance, damage or destruction of sites5—was granted in 2013. There is no concrete evidence that Rio Tinto ever intended to avoid the site despite having options to do so—in fact, the opposite is true.
The Section 18 administrative process approving the consent was seriously flawed. Clear evidence as to the significance of the rock shelters was ignored, mistakes in the application forms were missed, and the PKKP and key consultants were not contacted by state government officials for their views on the application.
Communication between Rio Tinto and the PKKP failed, with the two sides remaining largely oblivious to each other’s plans and concerns until it was too late to save the site.
1.11
These factors have implications for Aboriginal heritage protection in Western Australia more broadly. The legal framework and the administration of heritage protection processes impacts the entire State, meaning all Traditional Owners and corporate entities are affected by the shortcomings of the law. The extremely low bar of protections offered by legislation has meant that the best option for heritage protection available to most Traditional Owners is the agreements they can make with companies. However, the nature of Native Title and the legal framework surrounding it means that these agreements are not between parties of equal power. In effect, agreements are offered on a take-it or leave-it basis by the mining companies, and failure to accept terms means effective exclusion from the benefits—royalties, training, employment, commercial engagement—which flow from these agreements. Most agreements have contained ‘gag’ clauses, which have prevented Traditional Owners from taking legal action or voicing their concerns to prevent the destruction of heritage. Indeed, once signed, the agreements often require consent to the destruction of heritage. Even those mining companies that do not enforce compliance through agreements are prepared to enforce it through other forms of legal action. There is widespread frustration among Traditional Owners with both process and outcomes. It has created the situation, as one Traditional Owner put it, where her people ‘utilise our Mining Royalties to protect our Heritage from Mining Companies that do not meaningfully engage with us’6. She stated:
The loss we feel is compounded by lack of power we have. By the fake responsibility that the white man’s system expects us to shoulder. By the fundamental conflict that affects each and every Traditional Owner in the Pilbara who is forced to rely on what mining brings to the Pilbara and, each day, is a little more diminished, by what it does to the Pilbara.7

The role of Rio Tinto

1.12
A primary purpose of this inquiry was to examine the sequence of events and decision-making processes undertaken by Rio Tinto that led to the destruction of the significant rock shelters at Juukan Gorge in the Pilbara region of Western Australia on 24 May 2020.
1.13
Substantial evidence was provided to Rio Tinto over many years about the cultural importance of the rock shelters at Juukan Gorge to the Puutu Kunti Kurrama and Pinikura (PKKP) people and indeed its global significance as a site of human occupation over 46,000 years. Excavations of the rock shelters had identified thousands of artefacts, including fragments of an ancient hair belt dated to 4000 years ago and a grinding stone dated to 30,000 years ago.
1.14
Despite this knowledge, Rio Tinto made a deliberate decision to choose the only one of four mine expansion options that required the destruction of the rock shelters on the basis that it would maximize the company’s access to the lucrative iron ore body located in the area. They were legally permitted to do so by the grant of a Section 18 permit approved by the Western Australian Minister in 2013 under the Aboriginal Heritage Act 1972 (WA). There is no evidence that the four options for the mine site were ever put to the PKKP for their consideration. Rather, Rio Tinto’s communications with the PKKP indicated that there was no possibility of avoiding the sites, which on Rio Tinto’s own admission was not correct.
1.15
The evidence before the committee demonstrates severe deficiencies in the company’s heritage management practices, internal communication protocols and relationship practices with the PKKP. It is the Committee’s view that these deficiencies have not been fully grappled with in Rio Tinto’s Board Review.
1.16
This includes failures to properly consult with the PKKP Traditional Owners, lack of transparency regarding information and decision making, a structure which sidelined heritage protection within the organisation, lack of senior management oversight and no clear channel of communication to enable the escalation of heritage concerns to executives based in London.
1.17
The events immediately preceding the destruction of the rock shelters also reveal Rio Tinto’s legalistic approach to heritage protection, including a self-interested reliance on outdated laws and unfair agreements containing gag clauses prohibiting PKKP from critiquing the operations of the company and restricting their rights to access state and federal heritage protections without first obtaining the company’s consent.
1.18
Collectively, these deficiencies represent more than just a series of ‘unfortunate mistakes’ or mere ineptitude by individuals. Rio Tinto’s conduct reflects a corporate culture which prioritised commercial gain over the kind of meaningful engagement with Traditional Owners that should form a critical part of their social licence to operate. This corporate culture belied Rio Tinto’s public rhetoric of working in partnership with First Nations people, as reflected in the company’s (now dis-endorsed) Reconciliation Action Plan. The Committee will give a more detailed assessment of the events and communications between Rio Tinto and the PKKP in its final report.

The Aboriginal Heritage Act 1972

1.19
The Aboriginal Heritage Act 1972 (WA) is the principal legislation affording protection to Aboriginal Heritage in Western Australia. Theoretically, it offers protection to:
any place of importance and significance where persons of Aboriginal descent have, or appear to have, left any object, natural or artificial, used for, or made or adapted for use for, any purpose connected with the traditional cultural life of the Aboriginal people, past or present;
any sacred, ritual or ceremonial site, which is of importance and special significance to persons of Aboriginal descent;
any place which, in the opinion of the Committee8, is or was associated with the Aboriginal people and which is of historical, anthropological, archaeological or ethnographical interest and should be preserved because of its importance and significance to the cultural heritage of the State; or
any place where objects to which this Act applies are traditionally stored, or to which, under the provisions of this Act, such objects have been taken or removed.9
1.20
In practice, a combination of inherent shortcomings, legislative amendments and administrative practice have rendered the protections of the Act ineffectual.
1.21
Rio Tinto were legally sanctioned to destroy the rock shelters under Section 18 of the AHA, an Act which is outdated, unfit for purpose and in urgent need of replacement. The State began a review of the AHA in early 2018, but has done little to curtail the existing regime that enables the destruction of Aboriginal sites.
1.22
The Committee’s inquiry has highlighted several aspects of the AHA which contributed to the destruction of the Juukan rock shelters, particularly the operation of the current Section 18 process. This includes lack of proper scrutiny of Section 18 applications by the Aboriginal Cultural Material Committee (ACMC) and the absence of appeal avenues for Traditional Owners. Far from ensuring principles of free, prior and informed consent are upheld, the AHA does not provide for any meaningful involvement of Aboriginal people in the decisions made over their heritage.
1.23
In practice, the operations of the various bodies and decision-makers under the AHA have evolved into a system designed to facilitate mining operations rather than proactively protecting Aboriginal heritage.
1.24
The Committee received concerning evidence of a large number of sites being removed from the state register of protected places since 2011. Concerns were also raised about the perfunctory nature of the ACMC’s consideration of applications under Section 18, as well as a broader lack of awareness by the Registrar and ACMC of the practical context including the existence of ‘gag’ orders restricting tradition owners from raising objections under the Act.
1.25
These inadequacies in the text and administration of the AHA are exemplified by the absence of scrutiny by the ACMC of Rio Tinto’s application under Section 18 to destroy the Juukan rock shelters, which failed to identify and challenge inaccuracies in the information provided by Rio Tinto and resulted in a fixed decision which was unable to be reversed when further evidence about the heritage value of the site came to light.
1.26
Different stakeholders have placed a different emphasis on which of these shortcoming are the most significant, but there is general acceptance that the Act needs reform, and the Western Australian Government has embarked on the development of new legislation. A consultation draft of the new Aboriginal Cultural Heritage Bill has been released. Key features include:
an updated Aboriginal Cultural heritage definition that recognises living culture and cultural landscapes
recognition of Aboriginal custodianship and control of cultural heritage and encourages the return of secret and sacred objects to the rightful Aboriginal custodians
establishment of a new directory of Aboriginal cultural heritage including permits and plans
ensuring Aboriginal voices in decision- making
allowing new information that has come to light to be taken into account
prohibiting contracts from modifying its operation, voiding agreement clauses which seek to limit or restrict rights available to Traditional Owners under the Bill
amended processes for protection orders
increased penalties for breaches
extending the right of review to all parties involved in an application.10
1.27
The Committee supports the intention to replace the Aboriginal Heritage Act and the broad principles outlined in the Aboriginal Cultural Heritage Bill, but is conscious that many stakeholders have reservations about aspects of the proposed legislation. The experience of the PKKP with Rio Tinto, and that of other Aboriginal groups, would suggest that the Bill’s focus on agreement-making needs careful consideration. There are concerns that the tiered approvals process could operate in a way that encourages proponents to minimise expected impacts to avoid regulatory oversight. There is no provision for the resourcing of the Local Aboriginal Cultural Heritage Services which will provide heritage assessment at the local level. There are also concerns about the lack of information about the content of supporting regulations—regulations that will provide detail in relation to timeframes for approvals following new information coming to light, and appeals. The Aboriginal Affairs Minister can, on appeal by a proponent, override decisions of the new Aboriginal Cultural Heritage Council if they think it is in the ‘interests of the State’—a relationship reminiscent of that between the Minister and the Aboriginal Cultural Material Committee (ACMC) under the current Act. The passage of the Bill is likely to be delayed by the Western Australian election in March 2021, meaning there is still opportunity to consider the Bill in detail. The Committee will give a more considered assessment of the proposed legislation in its final report.

The broader Western Australian experience

1.28
The corporate failures which led to the destruction of the Juukan rock shelters are not unique to Rio Tinto. The Committee has heard evidence of significant systemic issues across companies operating in Western Australia and nationally. Similar to Rio Tinto, other mining companies have taken advantage of the inadequate protections in State and Commonwealth laws for commercial advantage at the expense of cultural heritage and Traditional Owners.
1.29
There is particular concern surrounding existing Section 18 permissions and the potential for future damage to heritage sites as a result of historical approvals under this demonstrably flawed system.
1.30
The Committee has heard evidence of other companies entering into agreements that include gag clauses and restrictions on Traditional Owners’ ability to exercise their legal rights. Rio Tinto has joined BHP in communicating an intention not to rely on these clauses, however, there is still some uncertainty about how far and in what circumstances the protection extends.
1.31
The evidence before the Committee indicates that companies have failed to respect the rights and interests of Traditional Owners in a variety of ways, including creating division among Traditional Owner groups and seeking to undercut the authority of native title bodies including PBCs.
1.32
Entering into early, fixed agreements with Traditional Owners has advantaged mining companies, particularly if executed before there is an opportunity to undertake comprehensive heritage surveys. Companies must recognise that free, prior informed consent requires an ongoing process of review and engagement with Traditional Owners.
1.33
While Rio Tinto has faced direct scrutiny, there is nevertheless a clear public expectation that other companies will reform their practices and that Governments will enforce higher standards of respect for First Nations heritage and culture.

The Indigenous heritage experience outside of Western Australia

1.34
To date, the Committee has focused on developments in Western Australia, especially with regard to the specific events surrounding the destruction of Juukan Gorge. Nonetheless, the Committee is aware that Indigenous heritage protection is a live issue across the nation. Submissions have been received from most jurisdictions outlining concerns about the protection and management of particular sites and Indigenous heritage protection more broadly. It is the Committee’s intention to expand its consultations in the new year to encompass other jurisdictions, both with a view to addressing particular issues and to developing a nationally consistent response to heritage protection.

Commonwealth law

1.35
The agreements negotiated between Rio Tinto and the PKKP in the context of the Native Title Act 1993 (Cth) (NTA) form an essential part of the background to the destruction of the Juukan rock shelters. These agreements were not negotiated from positions of equality between Rio Tinto and the PKKP. Rather, the PKKP’s position – and consequently its ability to protect cultural heritage – was significantly weakened by inferior resourcing and the lack of any real bargaining power provided by the NTA.
1.36
The Committee is aware of concerns with the quality of representation provided to the PKKP by the Yamatji Marlpa Aboriginal Corporation (YMAC) in negotiations with Rio Tinto, particularly YMAC’s joint representation of PKKP alongside other Traditional Owner groups and whether the organisation made sufficient efforts to communicate the complex and lengthy agreements to the PKKP prior to signing. It was incumbent on the PKKP’s representatives to ensure the communication of these detailed agreements in an intelligible form. It is of great concern to the Committee that members of the PKKP gave evidence that they did not understand the terms of the agreement they signed. It is difficult to see how free, prior and informed consent can be achieved in such circumstances. All parties to agreements in this context ought to take steps to ensure the integrity of the negotiating process.
1.37
Nevertheless, even without these factors, Rio Tinto had a substantial advantage in negotiations with the PKKP because of the current operation and interpretation of the NTA. The likelihood that mining companies will be granted exploration or mining permits and the difficulty faced by Traditional Owners in enforcing the right to negotiate under the NTA gives mining companies an advantage in agreement making at the expense of Traditional Owners and heritage protection.
1.38
One result of this inequality in negotiating positions in the agreements between the PKKP and Rio Tinto was the inclusion of ‘gag clauses’ and clauses that prevented the PKKP from exercising their rights under state and federal laws, including heritage laws.
1.39
Attempts by the PKKP to seek assistance at the Commonwealth level despite these restrictions were unsuccessful. Lack of communication between the two Federal Ministers’ offices and their departments frustrated the PKKP’s efforts to protect the Juukan rock shelters from destruction and denied the PKKP the option of injunctive relief. The PKKP were further compromised by the fact that their legal representative did not adequately advise the PKKP of the legal avenues available at the federal level.
1.40
It is clear that Commonwealth protections are essential in safeguarding First Nations heritage, especially where states and territory governments have a financial interest in facilitating mining and other developments on their land. The Committee is aware of significant concerns about failures to adequately protect First Nations heritage in almost all states and territories.
1.41
It is the strong view of the Committee that the Commonwealth should play a far more significant role in ensuring and enforcing a standard of heritage protection across the states and territories that is consistent with Australia’s international obligations.
1.42
Currently, there are three principal pieces of Commonwealth law covering aspects of Indigenous heritage:
Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act)
Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (ATSIHP Act)
Native Title Act 1993.
1.43
Evidence received by the Committee highlights the inadequacy of current Commonwealth protections under both the ATSIHP and the EPBC Act. The process for Traditional Owners to access the protections in either Act is complex and often unsuccessful. The limited number of declarations made under ss. 9 and 10 of the ATSIHP Act and the small number of sites added to the National Heritage List primarily for their Indigenous values demonstrate how rarely these Acts have been used to effectively protect First Nations heritage.
1.44
The EPBC Act provides protection to Indigenous heritage sites through National or World Heritage listing. The Act is currently under review by Professor Graeme Samuel AC. In its interim report, published in June 2020, the Review observed that ‘the EPBC Act is not fulfilling its objectives as they relate to the role of Indigenous Australians in protecting and conserving biodiversity and heritage, and promoting the respectful use of their knowledge’11. It also found that ‘the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (ATSIHP Act) provides last-minute intervention and does not work effectively with the development assessment and approval processes of the EPBC Act’.12 The review concluded:
The current laws that protect Indigenous cultural heritage in Australia need comprehensive review. This review should explicitly consider the role of the EPBC Act in providing national-level protections. It should also consider how comprehensive national-level protections are given effect, for example how they interact with the development assessment and approval and regional planning processes of the Act.13
1.45
The legal and administrative shortcomings of the ATSIHP Act were revealed by the Juukan Gorge fiasco, where attempts to invoke the Act were frustrated by stakeholder confusion over ministerial responsibility and administrative delay. But the evidence received by the Committee to date also indicates that there are deeper problems with the legislation and that it will require thorough review. Likewise, the evidence received by the Committee to date backs the interim findings of the Samuel review with regard to the EPBC Act. Both these Acts will require substantial revision to make them effective and bring them in line with community expectations and international obligations. The substantive questions raised to date are whether:
primacy should continue to be given to State legislation
the issue of Indigenous heritage protection at the Federal level should be entirely subsumed within the EPBC Act
there should be more effective stand-alone Indigenous heritage protection legislation at the federal level—incorporating national standards and expectations with which to benchmark and back-up State and Territory legislation.
The Committee will examine this more closely in its final report.
1.46
The main role of the Native Title Act in heritage protection is through agreement making. Agreements allow for the development of protocols and procedures in relation to works proposed to impact cultural heritage, the reservation of sites between Native Title holders and other land users and the negotiation of benefits between Native Title holders and land users. BHP explained in its submission that:
In BHP’s experience, these agreements include a package of financial benefits (such as royalties) and non-financial benefits (for example employment, educational, training and business opportunities and cultural training requirements) in return for native title consents as well as compensation for land impacts. Moreover, BHP’s agreements in Western Australia provide consents for BHP to carry out its business according to agreed heritage protocols, subject to ‘Exclusion Zones’ which are sites expressly identified by traditional owners as ones that BHP cannot disturb or seek section 18 consents, or where greater protections apply (referred to as ‘Exclusion Zones’).14
1.47
One of BHP’s partners in the Pilbara, the Banjima people, put a different slant on the process stating:
Claim Wide Agreements place traditional owners in a position of being expected to trade away their heritage for mining interests. In this regard, the contribution that Aboriginal people make to support the prosperity of this nation is significant, and largely goes unrecognised.15
1.48
For Indigenous people there are significant concerns around the Native Title process—as summed up in the submission of the Kimberley Land Council:
The KLC submits to the Committee that it should not be assumed that consent given under ILUAs16 which purport to provide the agreement of native title holders to acts done under the “right to negotiate” provisions of the NTA17 is freely given for the simple reason that, should the native title holders not agree and provide their consent, the proponent may make an application to the NNTT18 for the act to be done even without the agreement of native title holders. Since 1994, the NNTT has determined 163 future act determination applications (not including applications withdrawn, dismissed or resolved by consent). Of these 163 determinations, three have resulted in a determination that the act may not be done, while 160 have resulted in a determination that the act may be done or done subject to conditions. That is, if native title holders do not agree to an act being done and the matter proceeds to determination before the NNTT, there is a 98% chance that the NNTT will determine that the act can be done or done subject to conditions. The extremely high likelihood that proponents will obtain the necessary approvals even if they don’t reach agreement with and obtain the consent of native title parties means that the playing field for agreement-making is never level and native title parties participate in the future act process knowing that if they don’t reach agreement with a proponent there is an almost 100% chance the proponent will have its interest granted if it makes a future act determination application.19
1.49
Other stakeholders have also questioned the efficacy and fairness of the agreement making process surrounding Native Title, and it has been identified as a significant factor in the destruction of Juukan Gorge. Resource companies in Western Australia have indicated their intention to revisit these agreements. The Committee wholly supports this process and recommends that it be undertaken across the whole of industry with a view to ensuring free, prior and informed consent and the removal of any provisions which restrict the legal rights of Traditional Owners and their representatives to seek recourse to law to protect their land, culture and heritage. The Committee will make a more detailed assessment of the Native Title Act and agreement making in its final report.

International laws and covenants

1.50
International law potentially pays a significant role in Indigenous heritage protection. Australia is a signatory to a number of conventions which seek to protect and preserve Indigenous heritage and is a supporter of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), which encapsulates comprehensive standards for the human rights of Indigenous People and articulates principles of international law. As the inquiry progresses, the Committee will seek to look more closely at this issue as a means of benchmarking standards of heritage management in Australian law.

Solutions

1.51
It is too early in the inquiry process for the Committee to offer a comprehensive set of recommendations addressing the terms of reference, but the Committee is already in a position to articulate certain findings.
1.52
The Committee is conscious of the pain experienced by many Rio Tinto staff at the destruction of the caves at Juukan Gorge and the genuine desire to right the wrong as far as it is possible. This is evidenced by the proposal to rehabilitate the site, put a moratorium on further development pending consultations with the PKKP, and waiving the ‘gag’ provisions of the agreements. The Committee would like to see that good will taken further. The previous excavation of the site produced a significant amount of culturally significant material which is now in temporary storage, inaccessible to Traditional Owners. The Committee believes that Rio Tinto should negotiate a restitution package for the destruction of the Juukan rock shelters with the PKKP, including keeping places where artefacts and other material could be stored and displayed for the benefit of Traditional Owners.

Recommendation 1

1.53
That Rio Tinto:
Negotiate a restitution package for the destruction of the Juukan rock shelters with the PKKP
Ensure a full reconstruction of the Juukan rock shelters and remediation of the site at its own expense, with guidance and oversight from the PKKP, acknowledging Rio Tinto’s undertaking in this regard and the steps taken to date. The reconstruction should specifically include steps to mitigate water and other damage to the creek that flows in Juukan Gorge and protect the Sacred Snake-head Rock Pool
Commit to a permanent moratorium on mining in the Juukan Gorge area, negotiated with the PKKP, and that this is respected by all mining and exploration companies
Undertake an independent review of all its agreements with Traditional Owners to ensure they reflect best practice standards
Remove any gag clauses or restrictions on Traditional Owner rights under heritage and other laws
Commit to a stay on all actions under Rio Tinto’s current Section 18 permissions until they are properly reviewed to ensure that free, prior and informed consent has been obtained from Traditional Owners and is current
Commit to a voluntary moratorium on applying for new Section 18 permissions, pending either the passage of stronger heritage protections in Western Australia or the negotiation of a protocol with relevant Traditional Owners to establish an improved process for site surveys, cultural protection and work area clearances based on the principle of avoiding damage wherever possible
Return all artefacts and other materials held by Rio Tinto to PKKP and after negotiation and by agreement with PKKP, fund appropriate keeping places for artefacts and other materials to be supervised and controlled by the PKKP.
1.54
The Committee is also of the view that Rio Tinto could re-establish itself as a leader in Indigenous relations by reviewing its agreements with Traditional Owners, making them more flexible and responsive to the needs of Traditional Owners, removing gag provisions, and benchmarking them against international best practice in free, prior and informed consent. The Committee will expand on this in its final report.
1.55
Probably the most basic issue facing Traditional Owners in the protection of heritage is the simple recognition of their knowledge of their own culture, heritage and lore. Traditional Owners know their own culture and traditions, they know the significance of sacred, ceremonial and heritage sites, and, at least roughly, their geographical location. They should not have to fight to prove what is already known to them. Their knowledge should be accepted in Australian law.
1.56
Another critical problem is the resourcing of Traditional Owners and their representative groups, especially the Registered Native Title Bodies Corporate (RNTBC). Evidence gathered in this inquiry, and in the Committee’s other inquiry on the economic engagement of Traditional Owners, highlights the problems of managing basic legal and administrative obligations, let alone heritage protection, under current funding arrangements. Consideration needs to be given to providing RNTBCs with a basic level of funding to manage basic legal and administrative obligations, and providing additional funding to manage their responsibilities under Native Title and State and Commonwealth heritage law. The current funding situation means that RNTBCs are reliant on intermittent grant funding or the good will of the resources sector to fund heritage management.
1.57
Action must be undertaken by the Western Australian Government and the mining industry to rebalance the relationship between the mining industry and Traditional Owners. It is important that Traditional Owners be seen as partners of industry, able to engage on equal terms with other land users. Traditional Owners are not opposed to mining—that has been made clear in the evidence presented to the Committee—but they wish the relationship between Indigenous people and the mining sector to be reset on more equitable terms. The Committee is mindful that there should not be an absolute freeze on mining developments while the Western Australian Government establishes better legislative protections for Indigenous heritage. Such a freeze would impose a high cost on the Indigenous Australians that would miss out on a job or a contract. That said, mining companies should take extra caution to ensure that free, prior and informed consent is provided while the new legislation is being established.

Recommendation 2

1.58
That the Western Australian Government:
Replace the Aboriginal Heritage Act 1972 with stronger heritage protections as a matter of priority, noting the progress already made in consultation on the draft Aboriginal Cultural Heritage Bill 2020. Any new legislation must as a minimum ensure Aboriginal people have meaningful involvement in and control over heritage decision making, in line with the internationally recognised principles of free, prior and informed consent, including relevant RNTBCs under the Native Title Act. Any new legislation should also include a prohibition on agreements which seek to restrict Traditional Owners from exercising their rights to seek protections under State and Commonwealth laws
Place a moratorium on the consideration and approval of new Section 18 applications until the new legislation is passed unless it can be established and verified that there is current free, prior and informed consent obtained from Traditional Owners
Strongly encourage mining companies with existing Section 18 permissions to not proceed with these approvals but to have them reassessed under the new legislation once it is passed unless it can be established and verified that there is current free, prior and informed consent obtained from Traditional Owners
Urgently establish new procedures to improve the quality and transparency of decision making by the Registrar and ACMC prior to any legislative change, including processes for appropriate escalation of urgent matters to the Minister
Adequately resource the ACMC
Institute rolling membership of the ACMC to ensure the involvement of Traditional Owners of the country that is the subject of any decision, as nominated by the relevant RNTBC
Investigate the large number of heritage sites de-registered since 2011 and ensure that proper procedures are in place for the removal of heritage sites from the register
Reinstate sites to the register where these were inappropriately removed
Undertake a mapping and truth-telling project to record all sites that have been destroyed or damaged pursuant to the AHA, including visual representations of the impact to country, with a view to establishing a permanent exhibition or memorial in the Western Australian Museum.

Recommendation 3

1.59
That all mining companies operating in Western Australia whether or not on Native Title land:
Undertake independent review of their agreements with Traditional Owners and commit to ongoing regular review to ensure consistency with best practice standards. In particular, companies should review final compensation clauses in recognition that free, prior and informed consent requires continuous review and engagement with traditional owners
Issue public confirmation that they will not rely on gag clauses or clauses preventing Traditional Owners from exercising their rights under state and Commonwealth heritage laws and remove these clauses from their agreements with Traditional Owners
Commit to a stay on all actions under currently held Section 18 permissions until they are properly reviewed to ensure that free, prior and informed consent has been obtained, and is current, from Traditional Owners for any damage or destruction to significant sites
Commit to a voluntary moratorium on applying for new Section 18 permissions, pending either the passage of stronger heritage protections in Western Australia or the negotiation of a protocol with relevant Traditional Owners to establish an improved process for site surveys, cultural protection and work area clearances based on the principle of avoiding damage wherever possible
Fund appropriate keeping places for artefacts and other materials to be agreed on with and controlled by the relevant Traditional Owners. Wherever possible, working together with other companies operating on country to jointly fund keeping places in agreement with Traditional Owners
Facilitate the sharing of all heritage information and mapping technology used by mining companies with relevant PBCs, to correct information asymmetry and ensure Traditional Owners have access to records of their cultural heritage and are resourced to set up their own mapping initiatives
Actively support and fund efforts by the Western Australian and Commonwealth governments to establish mapping and truth telling initiatives as recommended above
Work with Traditional Owners to ensure better access to country.
1.60
The first stage of the Committee’s inquiry has demonstrated the importance of the Native Title, ATSHIP and EPBC Acts in heritage protection. It has also highlighted the broader policy dilemma underlying these three legal frameworks: that of balancing the desire for development and wealth creation alongside the protection of the world’s oldest continuing culture. What is clear is that this balancing act can no longer be maintained at the expense of First Nations people.
1.61
As a nation we will need to find new ways to resolve these policy tensions and to strengthen heritage protection at the Commonwealth level. A thorough investigation of the options for reform is contemplated by the Committee for the second phase of its inquiry, but in the meantime it makes the following recommendations:

Recommendation 4

1.62
The Committee recommends that the Australian Government:
Seek to legislate a prohibition on agreements that restrict Traditional Owners from publicly raising concerns about heritage protection or exercising their rights under heritage legislation;
Implement and publicly publish improved procedures within the Ministers offices, the National Indigenous Australians Agency and the Department for responding to and recording heritage concerns raised by Traditional Owners, including protocols for communicating and escalating urgent concerns to the responsible Minister and their Department;
Work with Western Australia to implement the recommendation above for a mapping and truth telling project in relation to heritage that has been damaged or destroyed, and to extend this project at the national level in collaboration with other states and territories.
1.63
The Commonwealth Government must also reposition itself with regard to the Aboriginal Heritage Act. The Commonwealth has been reluctant to utilise the ATSIHP Act where existing State Indigenous heritage regimes are in place. In the case of Western Australia, where that regime is widely acknowledged as being dysfunctional, including by the relevant Minister, it would be appropriate for the Australian Government to apply its intervention of last resort more willingly and effectively than it has to date, giving Traditional Owners in Western Australia another mechanism for protecting Indigenous heritage. It is also the Committee’s view, given that absence of any synergies between the administration of the EPBC Act and the ATSIHP Act, and the apparent confusion among stakeholders about ministerial responsibility at the time of Juukan Gorge, that the administration of the ATSIHP Act should revert to the Federal Minister for Indigenous Australians.

Recommendation 5

1.64
The Committee recommends to the Australian Government that ministerial responsibility for the administration of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 revert to the Minister for Indigenous Australians, and that the National Indigenous Australians Agency become the administering authority.

Recommendation 6

1.65
The Committee recommends to the Australian Government that the relevant Minister direct their office and department to more vigorously prosecute use of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 in Western Australia until such time as new legislation is enacted in Western Australia replacing the current Aboriginal Heritage Act 1972 (WA).

Recommendation 7

1.66
The Committee recommends that the Australian Government urgently review the adequacy of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984.
1.67
The ultimate conclusion of this report is that the tragedy of Juukan Gorge must not be repeated. While arguments might be had about the details of events and the impacts of laws, the ultimate cause of the destruction of the caves was that insufficient value has been placed on the preservation of Indigenous culture and heritage—a living culture with a timeless heritage. That must change. As Ms Sara Slattery, ‘a proud Robe River Kuruma woman and the CEO of the Robe River Kuruma Aboriginal Corporation’,20 put it:
Traditional owners aren’t going anywhere. We must live with the mistakes of others. We want you all here too, cleaning up the mess, atoning for your mistakes, understanding our pain and building a better future with us.21
Hon Warren Entsch MP
Chair
3 December 2020

  • 1
    Mr John Ashburton, Chairperson, PKKP Aboriginal Corporation, Committee Hansard, 12 October 2020, p. 1.
  • 2
    Mr Burchell Hayes, Director and Traditional owner, PKKP Aboriginal Corporation, Committee Hansard, 12 October 2020, p. 2.
  • 3
    Mr Burchell Hayes, Director and Traditional owner, PKKP Aboriginal Corporation, Committee Hansard, 12 October 2020, p. 2.
  • 4
    Journals of the Senate, 11 June 2020, p. 1848.
  • 5
    Aboriginal Heritage Act 1972, ss. 17–18.
  • 6
    Ms Sara Slattery, Submission 139, p. 15.
  • 7
    Ms Sara Slattery, Submission 139, p. 12.
  • 8
    Aboriginal Cultural Heritage Committee, formed under the Aboriginal Heritage Act 1972 to ‘evaluate on behalf of the community the importance of places and objects alleged to be associated with Aboriginal persons’, including evaluating Section 18 notices. Aboriginal Heritage Act 1972, ss. 18, 28, 39.
  • 9
    Aboriginal Heritage Act 1972, s. 5.
  • 10
    Overview, Aboriginal Cultural Heritage Bill 2020, available at: <https://www.dplh.wa.gov.au/getmedia/9dbb101f-8cb8-406f-8453-84b89fbc5530/AH-ACHB-overview>.
  • 11
    Independent Review of the EPBC Act, June 2020, p. 6.
  • 12
    Independent Review of the EPBC Act, June 2020, p. 30.
  • 13
    Independent Review of the EPBC Act, June 2020, p. 6.
  • 14
    BHP, Submission 86.1, p. 2.
  • 15
    Banjima Native Title Aboriginal Co. RNTBC, Submission 89, p. 4.
  • 16
    Indigenous Land Use Agreements under the Native Title Act.
  • 17
    Native Title Act 1993.
  • 18
    National Native Title Tribunal.
  • 19
    Kimberley Land Council, Submission 101, pp. 4–5.
  • 20
    Ms Sara Slattery, Traditional Owner and Chief Executive Officer, Robe River Kuruma Aboriginal Corporation, Committee Hansard, 2 November 2020, p, 16.
  • 21
    Ms Sara Slattery, Submission 139, p. 12.

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