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Aboriginal heritage law reform following the Juukan Gorge Inquiry

Paul Harley, Jonathan Fulcher, and Alison Cooper / 26 October 2021
9 min.
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Worthwhile read for: Mining industry practitioners, mining companies, land users

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: 

  • traditional owners having veto power over applications to destroy or disturb Aboriginal sites;
  • traditional owners being able to commence civil action to enforce Commonwealth protections;
  • a prohibition on ‘gag’ or confidentiality clauses in agreements which prevent traditional owners from seeking protection through Commonwealth legislation;
  • increases to the penalties for damage to Aboriginal cultural heritage to a level that will act as a deterrent; and
  • a ‘user-pays’ system by which proponents and all Australian governments will be required to contribute to an independent fund, administered by the Commonwealth government, to provide funding to prescribed body corporates (PBCs) under the Native Title Act 1993 (Cth) (Native Title Act) to adequately manage their roles and responsibilities (such as dealing with future act determination applications) and to promote greater cultural heritage protection.

The Recommendations

The Committee released eight recommendations. 

Recommendation 1

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. 

Recommendation 2

The Convention for the Safeguarding of the Intangible Cultural Heritage 2003, which recognises the importance of safeguarding intangible cultural heritage, be ratified.

Recommendation 3

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:

  • a definition of cultural heritage recognising both tangible and intangible heritage;
  • a process by which cultural heritage sites will be mapped, which includes a record of past destruction of cultural heritage sites (with adequate safeguards to protect secret information and ensure traditional owner control of their information on any database);
  • clear processes for identifying the appropriate people to speak for cultural heritage that are based on principles of self-determination and recognise native title or land rights statutory representative bodies where they exist;
  • decision making processes that ensure traditional owners and native title holders have primary decision-making power in relation to their cultural heritage;
  • a requirement that site surveys involving traditional owners are conducted on country at the beginning of any decision making process;
  • an ability for traditional owners to withhold consent to the destruction of cultural heritage;
  • a process for the negotiation of cultural heritage management plans which reflect the principles of free, prior and informed consent as set out in the UNDRIP mechanisms for traditional owners to seek review or appeal of decisions;
  • adequate compliance, enforcement and transparency mechanisms;
  • adequate penalties for destructive activities, which include the need to provide culturally appropriate remedy to traditional owners;
  • the provision of adequate buffer zones around cultural heritage sites;
  • a right of timely access by Aboriginal and Torres Strait Islander peoples to protected cultural heritage sites; and
  • a process by which decisions can be reconsidered if significant new information about cultural heritage comes to light.

Recommendation 4

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.

Recommendation 5

The Australian Government endorse and commit to implementing Dhawura Ngilan: A Vision for Aboriginal and Torres Strait Islander Heritage in Australia.

Recommendation 6

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.

Recommendation 7

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.

Recommendation 8

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.

A full copy of the Final Report is available on the Parliament of Australia’s website

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:

  • whether confidentiality restrictions (or ‘gag clauses’) operate to prevent traditional owners from seeking protections under Commonwealth or State legislation, and whether those clauses should be removed;
  • whether the terms of agreements and the management of agreements are consistent with the UNDRIP principles of “free, prior and informed consent”, including:
    • whether the timing and methods of obtaining consents are culturally appropriate and reflect traditional decision-making processes;
    • whether surveys involving traditional owners are conducted prior to decisions being made that affect Aboriginal cultural heritage; 
    • whether there are systems and processes in place to deal with new information as to the significance of sites, and other matters which potentially affect existing consents provided by traditional owners to disturb cultural heritage; and
  • whether appropriate dispute resolution procedures are in place in the event of a dispute or litigation if civil action is commenced by traditional owners to seek protections in respect of their cultural heritage.

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.
 

 

Authors
Paul Harley
Partner
Paul is a Partner and the head of our leading Resources and Energy practice in Perth.
Jonathan Fulcher
Partner
Jonathan is a Partner and the head of our leading Resources and Energy practice in Brisbane and is also the leader of our Native Title practice.
Alison Cooper
Senior Associate
Alison is a Senior Associate in our Resources and Energy practice.

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