Senator Dean Smith, Senator for Western Australia
The recent destruction of the rock shelters in the Juukan Gorge of the Pilbara region is devastating for all parties involved and was clearly avoidable.
In its interim report, the Committee has acknowledged the terms of reference for the inquiry are ambitious, and deliberately so and the scope of the inquiry is not limited to an examination of the immediate circumstances of the tragedy at Juukan Gorge, but the wider context surrounding the destruction of Indigenous heritage.
While the Committee has received 143 submissions and conducted 11 public hearings with 89 witnesses, it can confidently make early observations regards items (a) - (e) as part of its interim report.
However, the matters captured in the terms of reference (f) - (i), which refer to the interaction and effect of state/territory heritage laws and the suitability of broadening the scope of the Environmental Protection and Biodiversity Conservation Act 1999, have not been sufficiently canvassed or contested by a wide enough range of interested parties for the Committee to comment at this stage.
It is important to note the Inquiry into the matters captured by terms of reference (f) to (i) will require extensive and thorough investigation and will be highly technical in their nature. The Committee should not be averse to referring these matters to other Parliamentary Committees for more detailed and expert examination.
While the final reporting date has been extended, there is no inhibition on the Committee issuing a further interim report on its deliberations and to use this mechanism to foreshadow significant and technical jurisdictional issues.
With the economic value of Indigenous enterprises servicing the mining industry ranging between $200 million and $350 million and native title related payments estimated at $3 billion in 2013, it is necessary to highlight the costs of delay and uncertainty should the Committee’s recommendations be implemented. This is a cost that will not only be borne by resource and mining companies, but also Indigenous and Non-Indigenous communities across Western Australia.
It is important to acknowledge the commitment of the resources and mining industry to ongoing improvement:
Mining has occurred in the Pilbara for more than six decades and things have evolved considerably in this time. As we look ahead to coming decades, the value of an ongoing, open dialogue has never been more central. As partners in managing land on which development occurs, we must continue to invest in our relationships and strengthen them through real listening and active participation.
Rio Tinto’s accountability
The Committee has indicated that it intends to make further commentary on Rio Tinto’s timeline prior to the destruction of the Juukan Gorge in its final report.
However, I feel it is important to canvass these issues in this interim report, in order for Rio Tinto to hold those responsible accountable, end the uncertainty for those involved, and enable the deep wounds this incident has caused to begin healing.
Rio Tinto has now admitted that the destruction of the Juukan rock shelters should not have occurred.
It is disappointing that it took Rio Tinto until its submission to the Committee to finally reach this conclusion.
On 31 May 2020, Rio Tinto Iron Ore Chief Executive Chris Salisbury apologised for the ‘distress we have caused’. He did not apologise for the destruction of the 46,000-year-old rock shelters.
On 9 June 2020, Mr Salisbury stated in an internal meeting with staff:
… we haven’t apologised for the event itself, per se, but apologised for the distress the event caused.
On 12 June 2020, nearly 20 days after the incident, and three days after Reconciliation Australia revoked its endorsement of Rio Tinto as an Elevate RAP organisation, Rio Tinto Chief Executive Jean-Sebastien Jacques repeated the apology for distress caused. Again, there was no apology for the destruction of the rock shelters themselves.
I am pleased that Rio Tinto changed its position and apologised for the incident itself, but the delay in doing so further damaged Rio Tinto’s social licence and unfairly affected the social licence of the entire mining industry.
Accordingly, Rio Tinto should review why it took so long to properly acknowledge its failings, and those within the organisation who argued for apologising only for the distress caused should consider their positions within the industry.
Further scrutiny required of Rio Tinto’s actions in the days before Juukan was destroyed
According to Rio Tinto’s evidence, on 14 May 2020 a Rio Tinto heritage team member met with PKKP representative Dr Heather Builth. At this meeting Dr Builth asked whether a site visit to Juukan Gorge could be arranged as part of NAIDOC week. The heritage representative undertook to make inquiries.
It is concerning that Rio Tinto’s heritage team was unaware at this time that loading of blast holes at the site had already commenced. This is crucial, because delays in the provision of information to PKKP at this time reduced the already limited time available to prevent the blasts from occurring. If Rio Tinto staff were feigning ignorance in order to count-down-the-clock, they must be held accountable.
Rio Tinto continued to load blast holes following the meeting with PKKP, with a further 62 holes loaded on 16 May 2020, 72 holes loaded on 17 May 2020 and 22 holes loaded on 19 May 2020.
On the 18 May 2020, the Rio Tinto heritage team recommended that all planned blasting within a 350 metre radius of Juukan 1 and 2 be temporarily suspended to allow for further consultation with the PKKP.
I emphasise that 22 blast holes were loaded on the following day.
Notes provided by Rio Tinto from a teleconference on 21 May 2020 indicate their concern at this stage was focused around ensuring other significant sites, not subject to the Section 18 approval, were not damaged by the blasting:
C Salisbury summarised our position that the blast can proceed provided we do not impact the New Potential Sites. B Haynes and N Tole agreed from Communities and Legal perspectives. Chris reiterated the need to do all necessary due diligence to prevent potential damage to the New Potential Sites.
Had these other sites been damaged, Rio Tinto would have potentially committed an offence against Section 17 of the Aboriginal Heritage Act 1972.
The documents also highlight Rio Tinto had engaged and briefed a legal firm in preparation for an attempted injunction by PKKP.
C Salisbury queried injunction risk. N Tole advised preparations were underway and external law firm Ashursts is instructed.
Disturbingly, they demonstrate that PKKP was reminded of its ‘gag’ capacity under the participation agreement in an effort to prevent it from issuing a media release:
PKKP indicated it intended to make a press release. The respect legal teams have spoken. Our position is that our Participation Agreement includes a non-disparagement clause. A reactive media statement will be prepared if required.
A briefing note to support this meeting was provided to the Committee on a confidential basis. For the sake of transparency, I encourage Rio Tinto to release this document with appropriate redactions.
Ms Niven held responsibility for both global communications and heritage matters, so it is my view that her testimony to the Committee that she was unaware of the significance of the site until 24 May 2020 is unreliable.
Ms Niven spoke with Chief Executive on the 21 May 2020:
When I spoke with JS Jacques, our chief executive, we were talking more broadly. I did mention to him that there was an issue at Brockman and that he should speak with Chris Salisbury, the chief exec of iron ore at the time. This was because it was an operational matter, as I saw it. I thought Chris, given that he was running the iron ore resilience team, would be best placed to make sure that information was shared in an accurate way.
Given that Rio Tinto was preparing itself for PKKP taking the issue to the media, and lawyers had been engaged for a potential injunction, it is odd that Ms Niven did not inform Mr Jacques.
In evidence to the Committee, Mr Jacques stated he was unaware of the significance of the rock shelters until 24 May 2020.
This is also difficult to believe and, if true, would indicate that Ms Niven and Mr Salisbury facilitated a state of deliberate ignorance for Mr Jacques.
The loaded blasts
The Committee was provided with technical evidence to support Rio Tinto’s position that it was unsafe to unload the explosives from the blast holes. Independent technical advice sought by PKKP supported this.
Mr Salisbury, in evidence to the Committee, stated:
I had called an emergency meeting, what we call a business resilience team meeting, on the Thursday with all of the senior leaders and our technical staff, and we decided to progress to determine whether in fact it was possible, through risk assessment, to remove some of the holes. We met again on Friday 22 May, and we'd confirmed that we would be able to remove some, which we actually did on the Saturday—23 May. We attempted to remove eight holes, which took in fact 10 hours and, of those eight holes we only managed to recover seven. We actually lost the booster and detonator, which meant that the hole was still live. That took 10 hours. I guess what I'm trying to do is paint a picture here that, despite the risks involved, which we managed under careful risk assessment, it was obvious to us that we couldn't remove all 382 holes.
The seven blast holes that Mr Salisbury states were removed ensured that Rio Tinto was not committing an offence under Section 17 of the Aboriginal Heritage Act 1972.
I reluctantly accept the technical advice provided to the Committee that once the charges had been laid there was no safe way to remove them.
However, this advice by Rio Tinto is undermined by the fact that it was able to remove seven explosives that would have led to an offence under Section 17, but unable to remove any of explosives that caused damage to the rock shelters.
I encourage Rio Tinto to explain this anomaly further.
Culture at Senior Levels of Rio Tinto
The Board Review found that:
These changing realities in the period from 2018 should have prompted a review within Rio Tinto of the implications of the new ethnographic and archaeological reports for the Brockman 4 mine development plans, and especially their timing and sequencing. Such a review should have been initiated even in the absence of a formal request by the PKKP. It should have involved input that included formal risk assessment and proactive management of the heritage and social consequences associated with the planned destruction of the Juukan rock shelters. It should have been co-ordinated at appropriately senior levels from areas within Rio Tinto responsible for communities, heritage, mine planning and mine operations. And the outcomes of such a review should have been escalated to the Senior Leadership Team in Iron Ore. These steps were not taken and important opportunities for pausing and re-considering options were missed until the PKKP formally raised their concerns in May 2020, by which time, as described in our submission to the Inquiry, it was no longer safe and practicable to protect the sites.
However, the Review failed to adequately address why these issues were not raised with the Iron Ore Senior Leadership Team, or why the executive responsible for heritage internationally was unaware of the Juukan rock shelters.
The Australian Financial Review reported in 2018:
Shortly before becoming Rio Tinto chief executive in July 2016, Jean-Sebastien Jacques fronted a town hall staff meeting in Brisbane where he was asked about his approach to dealing with ‘deadwood’ among the mining giant’s 50,000 employees…
‘If someone is stuck in the past,’ he told the gathering, ‘they can either fit in or f--- off.’
In response to questions regarding this phrase, the Joint Company Secretary of Rio Tinto provided a written response to the Chair on the 30 September 2020, providing context to the statement:
… although the relevant question at the Brisbane town hall meeting was not confined to safety issues [it covered safety, honesty/transparency and integrity/social licence], the comment ‘fit in or f--- off’ was made by Mr Jacques to emphasise his views as to the non-negotiable importance of safety and being straightforward.
I view this defence by the Joint Company Secretary as evidence that Mr Jacques’ management style created a poor culture at Rio Tinto that was endorsed by the board.
It is my view that those board members involved with the appointment and ongoing performance management of Mr Jacques enabled a culture to develop at Rio Tinto where non-executive level management did not feel empowered to inform the executive of the significance of the rock shelters.
On 11 September 2020, Rio Tinto announced that Ms Niven and Mr Salisbury would leave Rio Tinto on 31 December 2020 and Mr Jacques would step down on 31 March 2020.
No doubt all three will be well remunerated, particularly given their insensitive endorsement by the Chairman of Rio Tinto in the relevant statement.
These golden handshakes from Rio Tinto will further damage both its social licence and relationship with traditional owner groups.
The Chairman of Rio Tinto stated:
What happened at Juukan was wrong and we are determined to ensure that the destruction of a heritage site of such exceptional archaeological and cultural significance never occurs again at a Rio Tinto operation. We are also determined to regain the trust of the Puutu Kunti Kurrama and Pinikura people and other Traditional Owners. We have listened to our stakeholders’ concerns that a lack of individual accountability undermines the Group’s ability to rebuild that trust and to move forward to implement the changes identified in the Board Review.
I am of the view that further group and individual accountability is required from Rio Tinto.
Location of Rio Tinto executives
Of Rio Tinto’s ten executives, only one is based in Western Australia. Of the three Australian-based directors, none are from Western Australia.
Western Australian Minister for Aboriginal Affairs, the Hon. Ben Wyatt MLA, addressed this issue:
We have a range of companies in Western Australia where the vast majority of earnings come out of the Pilbara. Obviously iron ore is the standout. I think for Rio it's about 74 per cent; for BHP, it's over 50 per cent. It's not just iron ore; oil and gas are similar. But iron ore is the standout. It has worried me for some time that there is a vast distance between the boards of these organisations and the area in which they generate the majority of their wealth.
Given the level of profit generated from Western Australia, it is only appropriate that Rio Tinto should recognise this with additional executive level and board presence in the state.
The executive responsible for heritage matters is currently based in London. I can understand how this is of concern to, and viewed as particularly insensitive by, Aboriginal traditional owners. I would strongly encourage Rio Tinto to relocate this position to Australia.
Rio Tinto does not reflect the values of the broader mining industry
It is disappointing that the Committee Report creates an impression that Rio Tinto’s behaviour is reflective of the values of the entire Western Australian mining industry.
The reaction from the two industry associations that represent Western Australian miners makes this clear.
In evidence provided to the Committee, Chief Executive of the Chamber of Minerals and Energy (CME), Paul Everingham stated:
I think it's upset a lot of people in the resources industry in Western Australia. Across the workforce of the mining sector and the oil and gas sector in WA—140,000 people, I think—there's long been a sense of pride in both the relationships and the collaboration between traditional owners and resource sector companies. The Juukan incident, which was very regrettable, has shaken that sense of pride and belief in collaboration and partnership with traditional owners, and we feel we've got a fair amount of work to do, as an industry, to rebuild the faith and trust to bring us back to the table with traditional owners in Western Australia.
Similarly, the Chief Executive of the Association of Mining and Exploration Companies (AMEC) stated in evidence:
Australian mining and mineral exploration companies seek to build strong relationships with traditional owners that are based on genuine understanding and respect. These companies seek to amend operations so that any potential disturbance or damage can be avoided and minimised wherever possible. All of our exploration and mining companies have a deeply vested interest in the engagement with traditional owners and Aboriginal people, the processes by which this happens and ensuring mutually beneficial and lasting relationships between them. These agreements, deserving of scrutiny in this inquiry, have also delivered many benefits for traditional owners and Aboriginal people—delivering jobs, training, social and community contributions, as well as financial payments.
The community should be confident that the resources and mining industry is committed to strong relationships with traditional owners, sharing the benefits of Australia’s mineral wealth in a way that benefits all.
Replacement of Aboriginal Heritage Act 1972 (WA)
The Committee indicates (paragraph 1.27) it is conscious that many stakeholders have reservations about the proposed legislation, detailing a number of specific concerns.
Given the consultation for the Aboriginal Cultural Heritage Bill 2020 included consultation with more than 550 participants, including 40 workshops and 130 submissions, followed by a second consultation phase with more than 500 participants attending workshops across the state and a further 70 submissions, the final legislation is unlikely to fully satisfy all stakeholders.
It is disappointing that the Committee has not been able to provide a more fulsome endorsement of this vital reform, especially given previous attempts have failed.
I share the confidence of the Hon. Ben Wyatt MLA, who stated on the release of the draft bill:
On this occasion, I am confident that we have a path forward to introduce historic reform that reflect modern values.
I have been enormously pleased with the constructive approach taken by Aboriginal people and the resources industry through all consultation phases.
I am confident that the effort undertaken to reach broad consensus on these reforms will allow the best possible chance for a Bill to be supported by the 41st Parliament.
The Western Australian Government is to be commended for progressing this important legislation and I believe that it will address many of the concerns raised by traditional owners and industry throughout this Inquiry.
Problem with moratorium and its unintended consequences
A moratorium on Section 18 applications is a handbrake on the resources and mining industry in Western Australia.
It will also cease upgrades, maintenance and construction of public infrastructure in the state.
This is demonstrated by the agenda for the Aboriginal Cultural Material Committee (ACMC) meeting to be held 9 and 10 December 2020. Of the 17 applications to be considered, nine are for public infrastructure, two are for agricultural development and the remaining seven are related to mining.
Western Australia is the world’s largest supplier of iron ore, with exports valued at $78 billion.
As a bulk ore, mining operations have a large footprint, with an ongoing requirement for sustained investment to maintain output.
Given Western Australia’s rich and widespread Aboriginal history, it would be impossible to undertake any mining activity without affecting any Aboriginal heritage.
Effects on heritage should be minimised, and significant locations like Juukan Gorge should be fully protected, but it must be acknowledged that traditional owners and industry should be able to continue to make agreements for these heritage matters.
AMEC, in its submission to the Productivity Commission’s Draft Resources Sector Regulation Report described a moratorium well:
Moratoriums are a blunt instrument to manage resources that undercut the risk-based approach to regulation. Moratoria are usually implemented for political rather than scientific rationale. AMEC is opposed to moratoria in principle as poor economic policy. The introduction of a moratorium removes certain property rights, reduces optionality for both taxpayers and investors, as well as extinguishes an economic growth pathway for a jurisdiction. In the short term, a moratorium has the most obvious negative impact directly on the affected subsection of the industry. In the longer term, the willingness of a Government to resort to moratoria erodes a jurisdiction’s investment attractiveness and can lead to the disappearance of skills and understanding associated with the industry under the moratoria, which move to more welcoming jurisdictions.
The Committee should acknowledge the complexity of balancing heritage and economic growth.
The Committee's proposal for a moratorium is out of step with the broader cross-aisle efforts to grow the Australian economy and does not acknowledge the significant support the industry has provided the economy during the COVID-19 pandemic.
What should be of high interest to the Parliament is the risk that a moratorium would have on the economic development of Northern Western Australia.
Confidence in the current Section 18 process
The inference by the Committee (Paragraph 1.22 to 1.23) that there is still no meaningful involvement by Aboriginal people in the decisions over their heritage is misleading.
The Aboriginal Heritage Due Diligence guidelines highlight the requirement for ‘meaningful’ consultation with the relevant Aboriginal people.
Paragraph 2.23 of these guidelines are clear:
Please note. Consultation with relevant aboriginal people is a pre-condition to the Committee’s consideration of an application for consent or approval under the AHA.
While the AHA does not require the membership of ACMC to be Aboriginal, the majority of committee is Aboriginal. Currently, the final decision on a Section 18 application is made by WA Minister for Aboriginal Affairs, the Hon Ben Wyatt MLA, who is of Yamatji heritage.
Minister Wyatt gave an insight into his decision making during the Inquiry:
Well, there are thousands and thousands of sites around Western Australia with various levels of significance, as we know. Section 18s apply to some of those that won't be contentious at all, as I've outlined earlier on in our conversation. And I just again come back to that point: I will always defer to those Aboriginal groups, because they know the significance of their locations. I don't require a particular anthropologist or archaeologist to come along and tell me that a site is significant when I can certainly get that information from an Aboriginal group.
I have confidence in the advice of the members of the ACMC and the final decision-maker, Minister Ben Wyatt, to ensure that future Section 18 approvals are appropriately balanced.
Support for Prescribed Bodies Corporate
During evidence to the Committee, Minister Ben Wyatt highlighted what the Commonwealth could do to improve agreement making without legislative intervention:
So one thing that I think the Commonwealth can do, rather than create a separate heritage regime, is actually invest in the architecture that's been created under the Native Title Act. I see that as the real opportunity now. If we're wanting to elevate agreement making, if we're wanting to elevate the voice of Aboriginal people at this table, the Commonwealth has an easy way to do it—it's to provide more support to PBCs.
AMEC, in its submission, also highlighted this issue:
Unfortunately, this is not simply a matter of a lack of funding. The Commonwealth Government has taken a deliberately hands-off approach to the governance of prescribed bodies corporate due to potential political complexities. This is leading to poor outcomes. One of the unintended consequences of the lack of funding and oversight is that “a PBC may be more likely to approach heritage agreements as a central source of revenue from native title.
Until the role and responsibilities of Prescribed Bodies Corporate and Native Title Representative Bodies are thoroughly reviewed, and their levels of governance and transparency improved, the traditional owners they support will continue to be constrained by a Native Title process conceived in the spirit of the people it now punishes.
Expansion of Commonwealth Jurisdiction
There needs to be strong evidence that any expansion of Commonwealth jurisdiction will lead to efficient, effective outcomes.
I place strong weight on the views of the Minister Ben Wyatt in regard to this issue:
My view is that Aboriginal heritage regimes should be legislated and implemented by state and territory government.
This is a view that is shared by industry in Western Australia:
CME recommends that State legislation retains primacy on regulation of cultural heritage, without the introduction of duplication at a Federal level.
Any move to expand the existing duplication of Commonwealth Government legislation will be an overreach. It is our view that Aboriginal Heritage will be best, and most appropriately, protected through State legislation.
I remain open to improvements between the overlap of Commonwealth and state legislation; however it is important that decisions on heritage are made on a local level.
Effectiveness of the ATSIHP Act
The Productivity Commission inquiry in 2013 into Mineral and Energy Resources Exploration in Australia highlighted a number of concerns with the Aboriginal and Torres Strait Islander Heritage Protection Act 1984:
There are several concerns, including that the ATSIHP Act:
is considered ineffective and costly to administer
is seen by some as being redundant, as they argue that all States and territories now have legislation protecting Indigenous heritage Others, however, question whether the legislation is effective in some states…
I support the urgent review of Aboriginal and Torres Strait Islander Heritage Protection Act 1984.
Senator Dean Smith