Aboriginal heritage law reform following the Juukan Gorge Inquiry
The Joint Standing Committee on Northern Australia (Committee) released its final report into the destruction of Indigenous heritage sites at Juukan Gorge: A Way Forward (Final Report) on 18 October 2021.
The Final Report followed an inquiry into the tragic destruction of the over 46,000 year old Juukan Gorge rock shelters in the Pilbara region of Western Australia on 24 May 2020 by Rio Tinto, and the loss suffered by the Puutu Kunti Kurrama and Pinikura (PKKP) peoples. These events and the resulting inquiry have been the catalyst for proposals for significant change to Australia’s existing Commonwealth and State-based cultural heritage legislation.
The Final Report highlighted a series of failures by Rio Tinto and the State leading up to the blasts. It exposed the inadequacies of the protections afforded by existing cultural heritage legislation, and highlighted the imbalance of economic and political power between mining corporations and Indigenous groups.
The Committee was particularly scathing of Rio Tinto’s decision-making processes that led to the destruction of the Juukan Gorge rock shelters which reflected "at best, corporate incompetence or, at worst, deliberate corporate misdirection leading to the deception of a group of Aboriginal peoples and the destruction of their sacred heritage". However, it commended those in the resources industry, including Rio Tinto, who have proactively responded to the events at Juukan Gorge to improve industry-wide standards and engaged with the Committee’s inquiry.
The Committee released a series of recommendations which include a proposal that the Federal Government introduce a new national legislative framework to establish minimum standards for cultural heritage protections for States and Territories, in line with international laws and standards.
The new framework, which is proposed to be co-designed with Indigenous groups, would impact the way mining companies continue to operate with respect to seeking development approvals, managing cultural heritage and negotiating with traditional owners in relation to projects. Significantly, the recommended changes contemplate:
The Committee released eight recommendations.
As a matter of urgency, the Minister for Indigenous Australians should be made responsible for all Aboriginal and Torres Strait Islander cultural heritage matters under the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) and the Environmental Protection and Biodiversity Conservation Act 1999 (Cth). As an interim measure, the Australian Government should take action to prohibit clauses in agreements that prevent traditional owners from seeking protection through Commonwealth legislation.
The Convention for the Safeguarding of the Intangible Cultural Heritage 2003, which recognises the importance of safeguarding intangible cultural heritage, be ratified.
The Australian Government to introduce a new national legislative framework for cultural heritage protection, co-designed with Aboriginal and Torres Strait Islander peoples, which sets out minimum standards for State and Territory heritage protections consistent with international law (including the United Nations Declaration on the Rights of Indigenous People (UNDRIP)), and the Dhawura Ngilan: A Vision for Aboriginal and Torres Strait Islander Heritage in Australia.
The Commonwealth should retain the ability to extend protection to and/or override decisions that would destroy sites contrary to Aboriginal and Torres Strait Islander peoples’ consent, with the Minister for Indigenous Australians being the responsible Minister under the legislation.
Traditional owners should be able to effectively enforce Commonwealth protections through civil action, and the use of clauses in agreements that prevent traditional owners from seeking protection through Commonwealth legislation should be prohibited by legislation.
As to setting the minimum standards referred to above, the Final Report notes that consideration should be given to including the following:
The Australian Government review the Native Title Act with the aim of addressing inequalities in the negotiating position of Aboriginal and Torres Strait Islander peoples in the context of the future act regime.
The Australian Government endorse and commit to implementing Dhawura Ngilan: A Vision for Aboriginal and Torres Strait Islander Heritage in Australia.
The Australian Government develops a model for a cultural heritage truth telling process that may be followed by all Australians − individuals, governments and companies - as a part of any process to engage with Aboriginal and Torres Strait Islander peoples and their cultural heritage.
The Australian Government establish an independent fund to administer funding for PBCs under the Native Title Act. Revenue for this fund should come from all Australian governments and proponents negotiating with PBCs.
PBCs should, as part of funding agreements, be required to demonstrate transparency and accountability in their decision-making processes with respect to their local community.
The Australian Government increase the transparency and accountability requirements on PBCs and Native Title Representative Bodies under the Native Title Act to require that they demonstrate adequate consultation with, and consideration of, local community views prior to agreeing to the destruction or alteration of any cultural heritage sites.
Where to from here?
As there will be an upcoming federal election in or before 2022, it is unlikely that new Commonwealth legislation will be passed soon, as the Australian Government will assume a caretaker role following the announcement of the federal election.
By contrast, the Western Australian Government has stated that it is close to finalising the draft Aboriginal Cultural Heritage Bill, which is currently in its third phase of consultation. There is a notable divergence between the recommendations to be implemented in Commonwealth legislation, and the draft ACH Bill in its current form - under the draft Bill, the Minister for Department of Lands, Planning and Heritage will be the final decision-maker in respect of an activity that is likely to cause harm to Aboriginal cultural heritage in the event of a dispute between traditional owners and proponents, following a tiered due diligence assessment process, the preparation of management plans, and consultation and facilitated negotiations with the relevant Indigenous parties.
Pending the implementation of any new legislation, it is an opportune time for mining companies and other land users (if they have not done so already) to be proactive in their approach to managing cultural heritage matters and engaging with traditional owners in relation to their agreements and the impact to cultural heritage sites.
Practically, this might involve the review of existing agreements, and negotiations that are currently on foot, and considering whether agreements with traditional owners or PBCs might require amendment following legislative reform. In particular:
We must remember that these are recommendations only at this stage. Whether governments at State and Commonwealth level are prepared to make such changes to legislative frameworks or bring in a veto remains to be seen.
HopgoodGanim Lawyers acknowledges the traditional owners of country on which our offices are located and acknowledges their continuing connection to land, waters and community. We pay our respects to the Elders past, present and emerging.