Meanwhile,Rio has accepted responsibility and is seeking to make amends.
“We are deeply sorry for what has happened,” says Rio’s new chief executive for Australian issues,Kellie Parker.
“Not only have we damaged something that is irreplaceable,we have broken trust with the PKKP,other traditional owners,our Indigenous community,the community at large and our employees.”
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.
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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 thethumping 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 wasgranted 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”.
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.
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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 sitewas damaged at one of BHP’s mines. And Fortescue Metals Group had to apologise forclearing land on a sacred site.
Will new laws and new agreements fix the problem?
Marcia Langton is calling for all Indigenousland 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.”