Perspectives on the destruction of Juukan Gorge

The recent destruction of significant sites at Juukan Gorge and exposed in National Reconciliation Week has caused deep distress for Aboriginal peoples and revealed the inadequacies of  corporate standards and legal protections. Two of the University of Melbourne’s leading scholars provide their perspectives.

A comment from Professor Marcia Langton AM

National Reconciliation Week in Australia began with the wrong kind of blast. On Sunday 24 May, Rio Tinto personnel near the Brockman iron ore mine in the Pilbara region in Western Australia dynamited the 46,000 year old Juukan Gorge caves and with them the last remaining evidence of the oldest site of human occupation on the continent and possibly in the world. The caves were sacred places for the Puutu Kunti Kurrama and Pinikura peoples of the area. Like other Indigenous people throughout Australia they were preparing in late May to contribute to a better relationship between their people and Australians who descended from the British and other colonists. I was told by one of my friends in Western Australia that in the week before the blast an elder approached a Rio Tinto employee in a shopping centre to ask to use the caves for a special event for National Reconciliation Week. He was told that he was too late and that they dynamite had already been wired into place and it was too late to remove it.

Rio Tinto claims that it had the legal right to destroy these caves under Section 18 of the State’s Aboriginal Heritage Act. Long criticised for its role in a string of vandalous destruction of Aboriginal sacred sites and human occupation sites of great antiquity, the Act is being reviewed by the Western Australian government. Other sites that have been desecrated and been destroyed include areas of the Burrup Peninsula, also in the Pilbara. These caves, along with several other places, held the evidence of the astonishing antiquity of human occupation of this continent.  As such, as important as they were to the Aboriginal traditional owners, their significance for further understanding of deep human history is a matter that was wilfully ignored by Rio Tinto. Even a school child with a modicum of historical knowledge understands this loss. For Aboriginal Australians the loss is heart-breaking, and moreover insulting that such a gross act of vandalism was timed to occur at the commencement of Reconciliation Week. This represents for Indigenous Australians a sharp turning point in relations with this company.

A major transnational company with a long history in Australia, Rio Tinto transformed itself from a corporate bully in Papua New Guinea in the Bougainville case to a leader in corporate responsibility that served it well in Australia and globally for twenty years. The blasting of the Juukan Gorge Caves has undone twenty years of work to establish a working relationship with Indigenous Australians. So how could such a breach of corporate standards occur?

After the Native Title Act became federal law in 1994, under the chairmanship of Leon Davis, Rio Tinto was the first mining company to support the rights of Aboriginal people and developed a policy of respect for traditional owners. The company strived to overcome the reputational damage of its disastrous handling of the Panguna mine on the island of Bougainville where its sheer incompetence led to a long civil war. The company known in Australia as CRA changed its name to Rio Tinto.  Expert teams negotiated agreements under the terms of the Native Title Act and set a standards with respect to the rights of traditional owners that were unprecedented in the Australian mining industry. These agreements were registered in the Federal Court and were binding. Surveys involving traditional owners marked out areas for cultural and environmental protection, new programs led to the employment of high numbers Aboriginal people for the first time, and also business opportunities for Indigenous locals. This work was showcased internationally to obtain agreements to mine in Africa, Mongolia, south east Asia and north America. Then in the 2010s, the company’s fortunes hit obstacles when a string of cases of corruption were exposed and bad investments in alumina increased their debt to levels that caused a major rethink. Beset by financial and reputational troubles of its own making in Africa, community relations personnel in Australia were made redundant and the complex native title agreements were handed over to spin doctors to manage. The company’s leadership changed in 2016 with the appointment of Jean-Sebastian Jacques as CEO.

There is now a strong case to overhaul the Aboriginal Cultural Heritage Act in Western Australia to prevent outrages like this in the future. There is also a strong case for action against the company for breaching the understanding of the agreement with the traditional owners. A thorough investigation is required, and a mere apology just will not cut it.

Professor Marcia Langton AM, Associate Provost, Redmond Barry Distinguished Professor and Foundation Chair of Australian Indigenous Studies at the University of Melbourne.

The Failure of Legal Frameworks to Protect Aboriginal Cultural Heritage: Professor Lee Godden

The recent destruction of significant sites at Juukan Gorge in the Pilbara region of Western Australia highlights the inadequacy of many of Australia’s laws for protecting the cultural heritage of Aboriginal peoples.

The main framework of legal protection for Aboriginal and Torres Strait Islander cultural heritage is to be found in state and territory  laws. The Western Australian Aboriginal Heritage Act 1972 represents an older, inadequate model of cultural heritage law, and it is currently subject to review. The Act has been the subject of a series of legal challenges over time by Aboriginal peoples, including a judicial review action by Wintawari Guruma Aboriginal Corporation in 2019 challenging decisions to allow extension of mining operations and infrastructure. A key limitations of the heritage legislation is that it leaves effective decisions about the significance and importance of sites with the relevant Minister (on the recommendation of a Committee) who can grant consent for activities, such as allowing expansion of mining activities, which otherwise would constitute an offence under the laws.

At a national level, the Australian government is responsible for protecting Indigenous heritage places that are nationally or internationally significant under the Environment Protection and Biodiversity Conservation Act 1999. The protections largely apply in respect of project development impact assessment and controls, and currently are limited in the range of measures for protection of cultural heritage places. That Act also is currently under review. The Aboriginal and Torres Strait Islander Heritage Protection Act 1984  provides that the Environment Minister, on the application of an Aboriginal person or group of persons, may make a declaration to protect an area, object or class of objects from a threat of injury or desecration. The limitations of this law are that to make such declarations it is necessary for there to be knowledge of an imminent threat to cultural heritage, and the willingness of the Minister to make that declaration.

This legislation has not been reviewed for many years. Given the limitations in the state and national cultural heritage laws, there are current windows of opportunity to reform the relevant laws to ensure more robust protections, and to prevent the type of destruction that occurred in Juukan Gorge.

Professor Lee Godden is the Director, Centre for Resources, Energy and Environmental Law at the University of Melbourne. She researches in environmental resources law, natural resources law, water law, and indigenous people's land and resources rights.