In May 2020, the international mineral mining company Rio Tinto blew up a sacred cave which had been home to 46,000 years of continuous occupation in Western Australia’s Pilbara region in the name of iron ore mining. This mineral excavation effectively destroyed the Juukan Gorge cave, a site sacred to two Aboriginal groups, with thousands of years of continual occupation through the last Ice Age and a 4,000-year-old genetic link to present day indigenous people, the Puutu Kunti Kurrama and Pinikura (PKKP) people. According to Rio Tinto, the site’s destruction was not in any way a violation of existing law. Rather, Rio Tinto was given consent by Western Australia’s (WA) government based on an outdated provision that ultimately prohibits Aboriginal populations a consultation opportunity regarding their sacred sites.

Current Law

Under Western Australia’s Aboriginal heritage laws, drafted in 1972, Section 17^[1] of the Aboriginal Heritage Act states that it is an offence to excavate, destroy, damage or conceal or in any way alter an Aboriginal site. However, an offender who damages an Aboriginal site in any way may make application under Section 18 of the Act, receive consent, and evade criminal liability. In 2013, Rio Tinto utilized this Section 18^[2] exception procedure to conduct mining endeavors, causing damage to the site. One year after this ministerial consent was given, during a salvage excavation, archaeologists discovered that the cave was actually twice as old as it was previously thought and contained many artifacts, including sacred objects. One example, a 4,000-year-old length of plaited and woven human hair, provided DNA testing revealing direct ancestral links to the Puutu Kunti Kurrama and Pinikura, traditional owners of the site today. However, despite these findings, the outdated Aboriginal Heritage Act does not allow renegotiation of consent based on any new emerging information and the continued destruction of the site could not be stopped. Due to widespread backlash including from their own shareholders, Rio Tinto gave a public apology and Rio’s CEO and two executives resigned.^[3]

Legislative Reforms

Currently the destruction of 26 of a total of 124 Aboriginal heritage sites have been given consent under Section 18 applications. These permits cause concern for archaeologists as more sacred sites may be destroyed under the existing archaic legislation. The State Government has rejected requests for a moratorium on projects that are already underway under the Section 18 exception.

The former Liberal government had put forward Draft legislation in 2014 to overhaul the Aboriginal Heritage Act to remove the exception procedure in Section 18, but it was rejected after a National party MP had concerns that it was not fair to the traditional owners and did not allow for adequate consultation. The Labor party had listed the rewriting of the Act as a priority before their election win in 2017, however, the complex bill was only introduced for public consultation in September 2020 for five weeks before likely being sent to parliament later this year.

New Bill

On September 2, 2020, Aboriginal Affairs Minister Wyatt introduced a draft Aboriginal Cultural Heritage Bill 2020, intended to replace the current 48-year-old Aboriginal Heritage Act. Once passed, this legislation would provide Indigenous groups greater power to negotiate and form agreements with mining and farming companies that want to operate on their native title lands. First, the bill proposes to eliminate Section 18 consent approval. A new Aboriginal cultural heritage council is also proposed to oversee agreements and advise the Aboriginal Affairs Minister.^[4] Additionally, the legislation would allow Indigenous groups to have a right to appeal approvals to destroy heritage sites, and companies would face fines of up to $10 million for destroying sites without permission. A tier approvals system would be created and there would be a focus on agreement-making between Aboriginal groups and land users. Aboriginal Affairs Minister Wyatt said the bill would “reset” the relationship between Aboriginal people and land users and bring state laws into line with Commonwealth native title laws.

However, there has been criticism of the bill. The Chief Executive of the Yinhawangka Aboriginal Corporation (YAC) Grant Bussell argues the draft legislation “will not correct the imbalance” of power between the Indigenous groups and the mining companies. The Aboriginal Affairs Minister will still retain discretionary power to grant approval to destroy heritage sites, which, according to Yamatji Marlpa Aboriginal Corporation chief executive Simon Hawkins, may present a “risk of conflict,” since the mining industry has a very powerful economic presence in Western Australia. Moreover, anthropologist and archaeologist Robin Stevens states underfunded prescribed corporate bodies (PBCs), which will be appointed as Local Aboriginal Cultural Heritage Services, will be put under further administrative strain.^[5] There have also been concerns about the rushed consultation period with heritage professionals and Aboriginal groups.^[6]

Conclusion

Doubt has recently been cast regarding the Section 18 approval granted to Rio Tinto to destroy the Juukan Gorge.^[7] The former Aboriginal Affairs Minister had given consent on the basis of a recommendation from a meeting with the Aboriginal Cultural Materials Committee, where three ex-officio members were counted in a quorum. Since the Aboriginal Heritage Act specifies a maximum of two ex-officio members, the traditional owners of Juukan Gorge may be liable for compensation from the state. The PKKP have also reportedly been in talks with Rio Tinto concerning compensation for Juukan Gorge, though money cannot return a site home to 46,000 years of continuous occupation. The fact that the state is liable for compensation after a procedural error rather than for giving consent to destroy significant Aboriginal site highlights the need for increased legislative protection for the culture and sites of Indigenous peoples.

In this respect, the introduction of the new bill by Minister Wyatt is a significant step in the right direction by the WA government and ministry of Aboriginal Affairs. The bill would give companies and traditional owners equal rights at the negotiating table, with Aboriginal groups having the same appeals right as land users and the land users found destroying sites will not have recourse anymore to the Section 18 consent procedure. Also, under a tiered approval system, land users will be required to enter into a management plan with the traditional owners of the site if the users expect a medium-to-high level of disturbance.  

The Western Australia government’s reforms of its heritage laws are long overdue, and the proposed legislation is a step in the right direction towards increasing the participation of Aboriginal groups in protecting sacred sites. While criticism has been voiced over whether the legislation is as effective as it could potentially be, it is to be hoped that such concern will be taken into account during the consultation period and in parliamentary debate. To successfully protect and preserve heritage sites in Western Australia and prevent another Juukan Gorge debacle, the government must ensure the sufficient consultation with Aboriginal groups in the mining process.

^[1] Aboriginal Heritage Act 1972 (WA) s 17, https://www.legislation.wa.gov.au/legislation/prod/filestore.nsf/FileURL/mrdoc_25428.pdf/$FILE/Aboriginal%20Heritage%20Act%201972%20-%20%5B04-g0-05%5D.pdf?OpenElement.

^[2] Id. at s18.

^[3] Calla Wahlquist, Rio Tinto expected to destroy 124 more Aboriginal sites, inquiry told, The Guardian, September 21, 2020,  https://www.theguardian.com/australia-news/2020/sep/21/rio-tinto-expected-to-destroy-124-more-aboriginal-sites-inquiry-told. 

^[4] Lorena Allam, Western Australia revamps Indigenous heritage laws after Juukan Gorge destruction, The Guardian, September 1, 2020, https://www.theguardian.com/australia-news/2020/sep/02/western-australia-revamps-indigenous-heritage-laws-after-juukan-gorge-destruction. 

^[5] Michael Ramsey, Concerns over WA Aboriginal heritage bill, Guardian News, September 30,  2020, https://www.nambuccaguardian.com.au/story/6948034/concerns-over-wa-aboriginal-heritage-bill/?cs=4135.

^[6] Id.

^[7] Allam, Western Australia revamps Indigenous heritage laws.