Time for law reform in light of Rio Tinto’s choice to destroy Juukan Gorge
It was with shock that we learned of Rio Tinto’s behaviour in the destruction of ancient sites that contained knowledge of world significance regarding life before the Ice Age and had special cultural significant to Traditional Owners the Puutu Kunti Kurrama and Pinikura (PKKP) Peoples.
We should not have been surprised, when we recall negotiations with mining companies and their legal teams. When you represent Aboriginal people, you learn the significant power imbalance that exists between them and the mining industry. The industry’s assumption that ‘It doesn’t matter what you say, we will get our way’, weaves through their every statement, every strategy.
Rio Tinto would have you believe the destruction of a 46,000-year-old site was a misunderstanding and that they consulted with Traditional Owners. Rio Tinto would have you believe this consultation amounted to consent from the Aboriginal custodians of the site to destroy the Juukan Gorge caves.
Australia’s First Peoples have always been forced to justify their identity and connection to their traditional lands. This has been done through Elders’ cultural stories, historical documentation, archaeological and anthropological evidence. In this context we cannot image any Traditional Owner group consenting to the destruction of their identity.
We need to understand what has led us to this position where an international mining company thinks it is okay to use an outdated piece of legislation, Western Australia’s Aboriginal Heritage Act 1972, to wash its hands of any reasonability for destroying a unique and priceless piece of cultural heritage.
Under Section 18 of the Act, a government minister can authorise the destruction of registered Aboriginal Sites to make way for mining. This legislation was abhorrent in 1972. How is it still being used today?
The first point to recognise is that Australia’s Native Title Act 1993 should act to protect cultural heritage as one component of Native Title but does no such thing.
The big end of the mining industry uses top level legal firms to reduce Native Title Holders’ rights as Australian citizens. These legal firms understand the legal framework under the Native Title Act 1993.
They understand the mining industry needs to wait six months and then the National Native Title Tribunal will do its job and grant the mining lease without the consent of Traditional Owners.
This process places Native Title Holders and their advisors under incredible pressure. If you don’t accept the terms on the table, the lease will be granted to the mining company and you will get nothing.
Under duress, Native Title Holders accept agreement clauses that, for example, prevent Native Title Holders lodging ‘any objection, claims or appeals to any Government authority … under any [state] or Commonwealth legislation, including any Environmental Legislation’.
This would explain why the PKKP Peoples have not been able to act to protect their cultural heritage—because the power in their negotiations with mining companies is so unbalanced that the resulting agreements take away their rights to object on environmental or heritage grounds.
The other key part of this story involves what has happened to Rio Tinto as a company in the last decade. Part of the sense of shock that was created by Rio Tinto Iron Ore’s destruction of the Juukan Gorge caves was because Rio Tinto had built a reputation as being at the more ‘enlightened’ end of the mining industry.
In recent years Rio Tinto, as part of cost saving measures in response to falling mineral prices, has drastically reduced its commitment to community engagement and its capacity in this area.
The company retrenched large numbers of its community relations staff and, as always happens in this situation, some of its ablest people left the company before they were pushed.
In 2005, another Rio Tinto subsidiary, Argyle Diamonds, signed an Indigenous Land Use Agreement (ILUA) with Traditional Owners under which the company undertook never to use Section 18 of WA’s Aboriginal Heritage Act 1972 to damage or destroy a site without the consent of Traditional Owners.
This was the sort of action that gained Rio Tinto its reputation as one of the better companies for Traditional Owners to deal with.
If Rio Tinto Iron Ore had such an agreement with the PKKP Peoples, the Juukan Gorge caves would still be intact.
The absence of such an agreement and the destruction of the caves reflects a conscious choice by Rio Tinto, and one which results from demands by its investors for higher and higher profits.
The power of industry is out of step with community expectations and community values. So-called corporate social responsibility or the ‘social licence to operate’ will not bring these back into line, because unless the law dictates otherwise, mining companies will always put profit first when it comes to the crunch.
Only the abolition of WA’s Aboriginal Heritage Act 1972 and the reform of the Native Title Act 1993 to create something resembling a level playing field, will prevent the ongoing destruction of cultural heritage which is priceless to its Aboriginal owners, Australia and the world.
By Wayne Bergmann and Ciaran O’Faircheallaigh
Wayne Bergmann is an Industry Fellow at Griffith University and part-owner of National Indigenous Times.
Ciaran O’Faircheallaigh is a Professor of Politics and Public Policy at Griffith University.
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