Foreword

Never again can we allow the destruction, the devastation and the vandalism of cultural sites as has occurred with the Juukan Gorge—never again!
On 24 May 2020, Rio Tinto destroyed a site that represented 46,000 years of culture and history for the Puutu Kunti Kurrama and Pinikura (PKKP) peoples of the Pilbara in Western Australia. The blast devastated a place of personal, community, national and international significance. The Parliament responded to this tragedy by tasking the Joint Standing Committee on Northern Australia with investigating its immediate causes and consequences, and its wider ramifications for the protection of Indigenous heritage.
The scale of the inquiry, the sheer volume of evidence that the Committee has received, and continues to receive, and the serious constraints posed by COVID-19, means that the Committee felt unable to do full justice to the inquiry in so short a time. As a result, the Committee has chosen to table this interim report addressing its findings to date and setting forth recommendations which will be built upon at a later date.
The Committee has chosen to break this inquiry into several phases. The first phase was an investigation of the immediate causes of the destruction of Juukan Gorge rock shelters and permanent water source. It involved an exhaustive investigation of the role played by the PKKP, Rio Tinto and the Western Australian Government. It has also taken in the experience of other stakeholders in Western Australia, including industry and Indigenous groups. The next phase of the inquiry will involve taking a broader view of the issues, looking at the experience of other jurisdictions and the role of the national government in the protection of Indigenous heritage.
The final report of the Committee will do a range of things. It will look more closely at the evidence concerning the destruction of the shelters at Juukan Gorge—including the role of Rio Tinto, the Western Australian Government and other stakeholders. It will conduct a closer examination of the current Western Australian Aboriginal Heritage Act and the proposals to reform that Act. It will look at the experience of other stake holders—Traditional Owners and mining companies—who all work with the current legal regime in Western Australia, with all its faults and failings.
The final report will also encompass the Indigenous heritage experience outside Western Australia, looking at Indigenous heritage regimes in the States and Territories and the impacts of Commonwealth law. The Committee has already received evidence flagging concerns in all these areas and is conscious of the need for legislative reform more broadly at the State and Commonwealth level.
There are a lot of things which contributed to the destruction of the shelters. The PKKP faced a perfect storm, with no support or protection from anywhere. They were let down by:
Rio Tinto
The Western Australian Government
The Australian Government
Their own lawyers
Native Title law
Rio Tinto’s role in this tragedy is inexcusable. Rio knew the value of what they were destroying but blew it up anyway. It pursued the option of destroying the shelters despite having options which would have preserved them. Rio knew of the site’s archaeological significance and its cultural significance to the PKKP. It had funded studies which had uncovered some 7,000-odd artefacts, including a four thousand year old human hair belt that linked the site directly to the ancestors of the current Traditional Owners. The Rio-funded archaeological report identified Juukan 2 as a place of ‘the highest archaeological significance in Australia’. Rio also funded a documentary that highlighted the cultural significance of the shelters. Yet, even though there were other options available, the only option put to the PKKP for the mining of the area involved the destruction of the shelters. The evidence presented to the Committee raises significant issues about the culture and practices inside Rio Tinto and highlights a need for the internal reform of the company.
Western Australian law played a critical role in the destruction of the shelters. The Aboriginal Heritage Act 1972 has failed to protect Aboriginal Heritage, making the destruction of Indigenous heritage not only legal but almost inevitable. It is inconceivable that such a valuable heritage site could be destroyed in complete accordance with the law and without any means for Traditional Owners or their representatives to effectively intervene—yet it happened. The Western Australian legislation that enabled the destruction of Juukan Gorge is woefully out of date and poorly administered. Everyone accepts this. The need for new laws is widely recognised. In the meantime, without government and industry action, Indigenous heritage will continue to be at risk.
The destruction of Juukan Gorge also highlighted the shortcomings of federal law. The Environment Protection and Biodiversity Conservation Act 1999 has proved of limited value in Indigenous heritage protection. The Aboriginal and Torres Strait Island Heritage Protection Act 1984 is virtually moribund. Moreover, confusion about who is responsible for the legislation and inadequate legal advice from the PKKP’s legal representatives, destroyed any hope of the federal heritage protection Act offering any protection at all. Underlying these problems is the vexed issue of Native Title. Ironically, Native Title has become another means to destroy Indigenous heritage. The lack of rights given to Traditional Owners to protect their own heritage, the legal and procedural precedence given to other land holders, and the imbalance of power in the agreement making process have all been highlighted in the inquiry. The Committee will give further consideration to the need to amend the Native Title Act as the inquiry progresses.
The Traditional Owners of the Pilbara are not opposed to mining. They see the possibilities that development offers both to themselves and to other Australians. They do not accept, and we should not accept, that the destruction of their ancient culture and heritage is the price to pay for potentially short term prosperity. Damage is being done not because it is unavoidable, but because people are not doing enough to avoid it. There was nothing inevitable about the destruction of Juukan Gorge. By its own admission, Rio Tinto had options for mining the site which did not involve the destruction of the shelters—they simply chose to proceed with the destruction of the gorge.
The defining moment of the first phase of this inquiry was the visit to Western Australia. It was an opportunity for the Committee to experience the destruction of the site from the perspective of those affected most directly, the PKKP. The Committee’s visit out to the Juukan Gorge site to see the devastation firsthand was quite distressing. The grief of the Traditional Owners was almost overwhelming for everyone who witnessed it. They had lost more than a piece of heritage—they had lost part of themselves, a piece of their living culture which was infused with the still present spirits of their ancestors and pregnant with the future stories of their descendants.
But there was also some optimism there. The PKKP and Rio had discussed remediation of the Juukan Gorge site. Juukan 1 appeared to have survived but there was remediation work that needed to be done. The most significant shelter was Juukan 2. It was totally destroyed, but there was still hope that the floor of the cave had survived. The other shelters and a fair amount of the gorge was still intact. Within the snake's head waterhole, while the destruction of the area had impacted on the spring flow, which had stopped, they were very keen to try and get remediation. Included in that will be a ‘keeping place’ for the thousands of artefacts and the like that have been stored in containers and removed from the site. The PKKP is very keen to have that keeping place that they can control.
This was an incident waiting to happen. We have all paid a price for that. Rio Tinto has paid a high price in reputation for its failure at Juukan Gorge. Other resource companies need to take note: governments, investors and the community will no longer tolerate such tragedies. Protecting Indigenous heritage should be a priority of all governments. The best way to achieve certainty for all stakeholders is to ensure adequate legal protections for Indigenous heritage are in place. The States and Territories and the Commonwealth have an absolute obligation to preserve our Indigenous heritage for the benefit of all Australians, and corporate Australia can no longer ignore the link between its social licence to operate and responsible engagement with Indigenous Australia. The Committee has made the point all the way through this inquiry that the destruction at Juukan Gorge has not just impacted on a small and discreet group of Traditional Owners in the middle of the Pilbara; it has robbed a significant piece of history from all Australians—from the world.
I would like to conclude with some words of thanks. Many people have contributed to this inquiry, including Traditional Owners, Indigenous organisations, companies, governments, lawyers and academics, and members of the public who were outraged by the incident and wished their voices heard. I would particularly like to thank the PKKP who, despite their grief, have embraced the inquiry and assisted with its work. Thanks also goes to Rio Tinto, who, perhaps in contrition for their error, have been forthcoming with evidence—not always to their advantage—and who facilitated the Committee’s visit to Juukan Gorge. I would like to think that Juukan Gorge marks a turning point for that company and the mining industry as a whole. I would also like to thank my Committee colleagues for their attentive and constructive contributions to a difficult inquiry undertaken under challenging circumstances. And last, but not least, I would like to thank the secretariat for their sterling work. They have been outstanding.
Never Again!Hon Warren Entsch MP, Chair

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