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A year on from the destruction at Juukan, could it happen again?

What are the laws and agreements that are meant to protect Indigenous heritage? How can they be improved? And are laws enough?

Winter school holidays are peak time on the Warlu Way cultural drive. Tourists from Perth travel 1000 kilometres up the coast to Exmouth to start the drive, which follows the path of a Dreamtime sea serpent inland to the town of Tom Price and then on to Broome. Tom Price, set up in the 1960s by Rio Tinto, provides a base from which to explore the stunning landscapes of the Hamersley Range and the gorges and waterfalls of the nearby Karijini National Park.

The country around Juukan Gorge, 80 kilometres from Tom Price, is spectacular too, but tourists don’t go there. It’s been leased from the state by Rio for its Brockman 4 iron ore mine since 1965. Within the small gorge are several natural caves that served as shelters for the traditional owners and native title holders of the land, the Puutu Kunti Kurrama and Pinikura people, for tens of thousands of years. Under an agreement with Rio, they have to apply to the miner to visit the gorge.

At its base is a stream, dry for most of the year but with a perennial water source – a rock pool shaped like a snake’s head. Traditional owners believe their ancestors’ spirits still visit this pool. Archaeological digs in the caves have turned up thousands of Indigenous artefacts, among them the oldest grindstones found in the Pilbara, a 28,000-year-old marsupial bone sharpened into a tool, and part of a 4000-year-old plaited hair belt with DNA links to today’s traditional owners.

These are some of the objects discovered in the years before an explosion destroyed the main cave in May 2020 as Rio Tinto sought to expand its mine to access more ore. Also damaged were the next-closest cave, the gorge and the waterhole. Rio copped significant damage, too: the fallout from its bid to mine the $US135 million deposit has forced it to remove about $US11 billion worth of iron-ore reserves, at today’s prices, from its plans.

The blast was legal – but it went against the wishes of the Puutu Kunti Kurrama and Pinikura people. They had entered into an agreement years earlier with Rio but say they were then not listened to as they tried to articulate the importance of the gorge. After the blast, with nothing left to lose, they broke a “gag clause” in the agreement and went to the media.

International condemnation and a shareholder revolt ensued, and Rio apologised for the deed. Politicians stirred and launched a federal inquiry. Rio began its own investigation, announcing changes to some of its processes and, eventually, the resignations of three top brass and the earlier-than-expected departure of its chairman. There was renewed focus in Western Australia on other mining agreements with Indigenous groups, on the glacial progress of state heritage law reforms and on what else had been blown up or paved over – amid public shock that such sites were not off-limits.

Why did Juukan happen? What laws are supposed to protect Indigenous heritage? And can we yet say it will never happen again?

Juukan Gorge in 2015.Credit:PKKP Aboriginal Corporation

How was the explosion legal?

The federal inquiry has delivered the Australian public the first contemporary analysis of what exactly is protecting Aboriginal heritage across the country, drawing together the strands of a fiendishly complex array of legal and cultural arrangements.

“The traditional owners faced a perfect storm, with no support or protection from anywhere,” it found in an interim report in December. “They were let down by Rio Tinto, the Western Australian government, the Australian government, their own lawyers, native title law.”

The inquiry has heard from dozens of Australia’s top mining executives, traditional owners and heritage specialists and has combed through 142 submissions. Its interim report found severe deficiencies at Rio Tinto: failures of consultation, transparency, heritage management, oversight and communications with London.

“Rio Tinto’s role in this tragedy is inexcusable,” the report says.

But the fault went still deeper, to the heart of the system.

The national Native Title Act gives traditional owners the right to negotiate Indigenous Land Use Agreements with mining companies. The agreements typically include financial benefits such as royalties, employment and compensation for land impacts, in return for consent to mine.

Theoretically, the agreements can place no-go zones around the most important sites. But if Juukan traditional owners had tried to withhold consent to mine the area, Rio Tinto could have appealed to the national Native Title Tribunal, which has overruled traditional owners in 98 per cent of cases – 160 out of 163 – since 1994.

“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,” the federal inquiry’s interim report says.

“Native title has become another means to destroy Indigenous heritage.”

Pilbara traditional owner Sara Slattery told the inquiry her people were forced into the situation of using mining royalties to fund heritage protection efforts.

“The loss we feel is compounded by the lack of power we have,” says Slattery, the chief executive of Robe River Kuruma Aboriginal Corporation.

“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.”

Rio Tinto began negotiating with Juukan’s traditional owners in 2003. Key agreements were signed in 2006 and 2011 and the final land use agreement was reached in 2013.

But, in an example of what the inquiry called critical under-resourcing of traditional owner groups, the PKKP were hamstrung from the start. They engaged another local Aboriginal corporation to represent them in negotiations but there were problems with communication, and they ended up signing agreements, some more than 700 pages long, without a complete understanding of the implications.

A still from a video of archaeological digs in the caves at Juukan gorge in 2015. Credit:PKKP Aboriginal Corporation

The agreements resulted in them ceding their rights, preventing them from appealing decisions or mounting legal challenges. They also faced a non-disparagement clause, or gag order – a common feature of these agreements – preventing them voicing their concerns publicly.

This meant the best that Juukan’s traditional custodians could legally do was attempt to relay the importance of the site to Rio Tinto and hope that the mining company understood and would work around it.

They say they did this numerous times after Rio received permission under state heritage laws to blow up the site in 2013, including in a 2014 report that proved the main cave was “one of the most archaeologically significant sites in Australia”.

For its part, as legally required, Rio conducted numerous surveys of Juukan Gorge from 2003 to 2020 and did salvage digs to remove artefacts. In a 2018 report to the state government, Rio even claimed the main cave was “discovered” during 2003 survey work. But while Rio says it understood the gorge was an important site, it claims it was not clear how deeply the native title holders valued the site and wished to protect it.

The inquiry found the two sides remained “largely oblivious to each other’s plans and concerns” until it was too late.

The situation came to a head on May 14, 2020 when the traditional owners requested access for NAIDOC week celebrations in July and learned that by that time, the site would no longer exist. Rio Tinto said explosives loaded for the blast were too dangerous to remove and, so, on May 24 it detonated them.

Rio Tinto chief executive for Australia Kellie Parker.Credit:Nine

But aren’t there other laws that protect heritage?

Usually, state laws protect a certain type of area or object while enabling developers to apply for a permit for activities that might affect these. Inquiry chairman Warren Entsch says there was significant variety among the state laws – but serious flaws abounded, with heritage lost across the spectrum.

The Northern Territory’s heritage laws are probably the most effective at protecting Indigenous heritage, he says. The Territory has intersecting laws that compel companies to negotiate with Indigenous people – who have a right to say an outright no – and also, theoretically, provide absolute protection to sacred sites.

Victoria’s 2006 law is the newest and has been described as ahead of the curve because rather than leaving decision-making to ministers, it puts the power in the hands of Indigenous people through registered corporations. This has its own issues, however: only one group of traditional owners gets consulted on a particular area and this can be terribly divisive.

A major rerouting of Victoria’s Western Highway that impacted a stretch of sacred “birthing trees” is one recent example, with some traditional owner groups disagreeing with others about the heritage significance of individual trees. The case has sparked long-running court battles and calls for law reform.

The laws of NSW and WA laws have been described as archaic.

The states, as the inquiry noted, have financial interests in facilitating mining and other developments. In WA, this takes explicit precedence over heritage concerns. As the state government phrased it soon after the Juukan blasts, “the obligations under the [law] are not an impediment to the effective operations of the mining industry”.

Under WA’s 1972 Aboriginal Heritage Act, miners can apply to impact sites in the way of their plans. The minister has the final say on these applications under section 18 of the act.

Rio Tinto applied to impact the Juukan caves under this section, and former Aboriginal affairs minister Peter Collier gave his consent in 2013.

If he had said no, Rio Tinto would have been able to appeal, but the native title holders did not have the same right, even when a year later they received and gave to Rio Tinto compelling new information about the archaeological significance of the second cave.

Section 18s have been granted to almost every major company in the Pilbara, including Fortescue Metals Group and BHP. In fact, of more than 1000 Section 18 applications made since 2010, only five have been denied.

The federal inquiry says the WA law made “the destruction of Indigenous heritage not only legal but almost inevitable”.

But after four years of work on it, the WA government is yet to introduce its promised reform. The draft gives traditional owners more input on what constitutes a heritage site but still gives the minister the final say.

Juukan’s traditional owners have voiced deep concern about a law positioning “Aboriginal cultural heritage, heritage that Indigenous owners have a responsibility to protect, as being somehow owned by the state”, and asked for “real decision-making power”.

Miners, meanwhile, fear the draft’s definitions are too broad and will result in an unworkable system with long delays. They have privately fumed that the Juukan debacle means they can’t publicly criticise the bill for fear of being labelled as uncaring about heritage.

Despite all this, it is likely to breeze through Parliament in whatever form the government chooses, given the thumping majority the March election delivered Labor.

The inquiry’s report says state flaws and vested interests mean federal laws are critical.

But the two federal laws supposed to protect Indigenous heritage – the Environment Protection and Biodiversity Conservation Act 1999 and the Aboriginal and Torres Strait Island Heritage Protection Act 1984 – have failed in this purpose.

Bids to seek federal protections for both Juukan Gorge and Victoria’s birthing trees were unsuccessful.

Indigenous leader Marcia Langton, an anthropologist and geographer, says even at federal ministerial level, “the obligations of the Crown are treated as non-compulsory”.

It is expected that some federal law reform will ensue from the federal inquiry and other reviews commenced and recommended, but nothing has yet been announced.

Burchell Hayes says laws can capture spiritual value if done right.

Countries such as New Zealand could be a model. In a world-first in 2017, a river sacred to the Whanganui people of New Zealand’s North Island was granted the same rights against harm as a living entity.

But Hayes says traditional owners needed to be involved from the start “rather than being handed something that is almost impossible to unpick or has the views of others already welded into it”.

PKKP director Burchell Hayes, pictured here near Juukan Gorge, says laws can reflect spiritual values. Credit:PKKP

What have mining companies done in response?

Rio has reformed its risk management and cultural heritage systems. It has rejigged its operational reporting lines, reviewed more than 1300 heritage sites within its plans and offered to modernise agreements.

In line with the recommendations of the federal inquiry, Rio wrote to traditional owners in the Pilbara freeing them from any gag clauses. BHP did the same, while Fortescue says it does not have heritage gag clauses.

Rio also agreed to a moratorium on mining in the Juukan Gorge area and the damage is being repaired where possible, including on the first cave, although the second and most important cave was totally destroyed.

The thousands of artefacts that were salvaged from the site are in purpose-built facilities in Karratha and at the Juukan site. Rio says Juukan’s traditional owners will design a permanent Aboriginal-controlled “keeping place” and discussions are under way on what it will look like.

Rio has launched a national mission to restore its reputation, led by Kellie Parker, and will establish an Indigenous advisory group later this year to coach its senior leaders on Indigenous culture and provide advice to the board.

While some groups, including investors, have welcomed this response, others have criticised it for being insular: the executives that left did so with significant payouts, the remaining leadership team was reshuffled and no new blood was brought in. It has also been criticised for not going far enough to empower traditional owners to protect and manage their cultural heritage.

Burchell Hayes says the response so far has been “more words than actions”.

But one of the key changes his people are working on with Rio and other miners “is a model of co-management of mining where … we are active participants in the decision-making and planning of resources projects.”

Parker says she understands Rio will be judged on its actions. Management has been consulting with Juukan’s traditional owners and other groups to design a new model of co-management and says there are “differences of opinion” on what that could look like.

“We’re working with the PKKP right now on defining what co-management means,” Parker says.

“It is going take us a little while to get to best practice.”

It is hoped the events of Juukan can set a new standard.

“I can say that we had become very insular as a company, and we very much relied on the law,” Parker says.

“What we have learned, what we are striving for [and] what I’m totally motivated to do is ensure that … best practice is developed, it’s agreed, and we hold ourselves to that.

“Any change in legislation, and it does need to be modernised, but any change is then a safeguard. We’re going to hold ourselves to something above the law.”

Other miners say they too have heeded the lessons of Juukan, with large players such as BHP committing to reviewing plans and fresh consultations.

Yet in early 2021, two separate incidents impacted significant heritage sites in the state’s iron ore heartland. A registered Aboriginal heritage site was damaged at one of BHP’s mines. And Fortescue Metals Group had to apologise for clearing land on a sacred site.

Professor Marcia Langton says elders are the key part of the Indigenous governance system.Credit:Arsineh Houspian

Will new laws and new agreements fix the problem?

Marcia Langton is calling for all Indigenous land use agreements to be reviewed, to ensure they don’t enable “unconscionable conduct”, and for community elders to be treated with respect.

“Traditional owners come from societies where elders are the key part of the Indigenous governance system,” says Professor Langton. “These elders have responsibilities that are uniquely Aboriginal … but they are disregarded by company personnel because they’re old, and they’re not wearing a suit, and they haven’t got a Western education.

“They need to know how the agreements are being implemented and that requires regular meetings, plain English statements of the content of the agreements, and what checks are made to ensure the agreement is complied with … but the disrespect for Aboriginal elders is gobsmacking, actually.”

Until then, the odds are that more damage will be done.

“It will happen again,” she says. “I am very confident in predicting that it will happen again.”

Rio’s Parker says she is “working hard to ensure we never again have this happen in our business”.

But despite advocating for the state’s strengthened laws, West Australian Aboriginal Affairs Minister Stephen Dawson is cautious.

“Can I say something like Juukan would never happen again? No, I can’t. I can never give that commitment,” he told the press on May 18.

Burchell Hayes says the next phase of agreements his people ink with mining companies will be the “true test” of promises the industry has made, as the shockwaves from Juukan ebb.

“There can be no confidence that another Juukan Gorge will never happen again until there has been real change,” Hayes says. “That will be when meaningful and fair agreements are signed and new laws and policies are in place that truly protect our lands, our heritage, and our right to make informed and early decisions about what happens on it.

“It is only when the broader community understand and appreciate the importance of a place that there is a shared will to protect it.”

He says Rio shareholders signalling the Juukan blasts were unacceptable was an example of such a turning point.

“Many West Australians would agree that the Ningaloo Reef needs to be protected, and powerful voices across WA, Australia and the world called for that to happen,” he says, of the 2002 mass protests that helped protect the marine park.

“So, we need more voices, not just those of traditional owners, to be heard.”

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