COMMITTEES: Northern Australia Joint Committee Report on Juukan Gorge

18 October 2021

The Committee is therefore making the following findings: 1 The Australian Parliament should legislate for an overarching Commonwealth legislative framework based on the protection of cultural heritage rather than its destruction, in line with the principles set out below. State and territory legislation should also be required to meet the principles set out in this report. 2 The Commonwealth, state and territory governments should endorse

I too wish to speak to the report tabled today regarding the Juukan Gorge inquiry conducted by the Joint Standing Committee on Northern Australia. It's a pleasure to follow on from Senator Dodson and Senator Thorpe. Of all the committees I've been involved with in the five years I've been here, this is the one where I learned the most of the way traditional owners have been treated, the way native title has been used, and the complexity of how this is managed around the country as well. I sincerely hope the report tabled today leads to change that means these things are better managed into the future.

I want to go to some of those complexities that I saw at play. The inquiry was commenced after Rio Tinto destroyed the two rock shelters at Juukan Gorge on 24 May 2020. The rock shelters were sacred to the PKKP people and contained evidence of continuous occupation stretching back 46,000 years. The legislative frameworks that govern the protection of Indigenous heritage are complex. They comprise state, territory and Commonwealth laws and international treaties. However, clearly none of these frameworks adequately encompasses the complexity of Indigenous heritage, which is living and evolving and is connected not just through historical artefacts but through song lines, story lines, landscapes and waters. I particularly thank the traditional owners who came and gave evidence to us and explained some of those connections to us, which I found really significant.

Whereas the interim report focused on the events of Juukan Gorge, the final report reviews the inadequacy of legislation across Australia to protect Aboriginal cultural heritage, which has resulted in widespread destruction of heritage. The report recommends legislation to give real meaning to the UN Declaration on the Rights of Indigenous Peoples. It emphasises the concept of free, prior and informed consent and the need for First Nations people to have primary decision-making power in relation to their cultural heritage. It calls for a new standalone framework for cultural heritage protection, including minimum standards for state and territory heritage protections, to be developed in a co-design process with First Nations people. It also calls for a review of 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. And we saw many examples of this in the limited work we were able to do as part of the committee process.

Consistent with the committee's interim report, it also recommends measures that transfer ministerial responsibility for First Nations heritage protection to the Minister for Indigenous Australians, as well as legislative prohibition of gag clauses or clauses that prevent traditional owners from accessing current Commonwealth heritage protections.

It was a challenging inquiry due to the COVID-19 pandemic, which prevented us from being able to travel and meet with more people on country and in community. I want to thank in particular those senators and members who were able to do a significant amount of travel. From my side, my colleagues Senator Dodson and the member for Lingiari covered off on the Northern Territory and Western Australia, which was obviously a significant part of this inquiry.

The report covers a number of areas. Chapter 2 reviews the events that occurred at Juukan Gorge, the decision-making processes undertaken by Rio Tinto leading up to the destruction, and actions undertaken by Rio Tinto since the committee's interim report was tabled. Chapter 3 gives voice to other destructive events that have occurred more broadly in Western Australia because of inadequate cultural heritage protections. Chapter 4 analyses the WA Aboriginal Heritage Act 1972 and the deficits that gave legal authority for the destruction of heritage sites at Juukan Gorge. Chapter 5 outlines the relevant legislation governing the protection available for Aboriginal and Torres Strait Islander heritage in the states and territories and considers the benefits and critiques of each of these frameworks. Again, it goes to the complexity that I talked about in different states and territories. Chapter 6 discusses the Commonwealth legislative framework governing the protection of Aboriginal and Torres Strait Islander heritage and the international laws and covenants that bind Commonwealth obligations.

The committee thanks the PKKP people and other traditional owners for engaging with this inquiry, and the resources industry for also participating. Despite the hurt and losses that the traditional owners have experienced, the committee acknowledges their strength and resilience in the face of this pain and loss. The committee has prioritised the voices of Aboriginal and Torres Strait Islander peoples throughout the report. The committee acknowledges that there are many companies within the resources industry taking strong measures to protect heritage sites, and it commends these companies. But the committee considered it important to highlight Aboriginal and Torres Strait Islander voices above all others as part of this review.

The committee's view on the destruction is that the evidence presented to the committee suggests that a combination of factors were responsible for the destruction of the heritage sites at Juukan Gorge. State and Commonwealth legislative frameworks enabled Rio Tinto to exercise excessive power over the PKKP peoples in negotiation, but it was also Rio Tinto's internal processes that made the destruction of the Juukan Gorge heritage sites almost inevitable. Changes to the corporate structure at Rio Tinto introduced in 2016 by the then CEO saw appropriately skilled and experienced staff replaced with less experienced and unsuitably qualified replacements, resulting in a drop in adherence to internal standards and an organisational culture focused on securing quick and easy approvals. Certain community relationship responsibilities were taken away from mine managers on the ground and redistributed to other corporate roles that were removed from being on the ground.

The events at Juukan Gorge were not one-off. Rather—as evidenced by Aboriginal and Torres Strait Islander experiences outlined in chapter 3, which only highlighted a few cases—the destruction of cultural heritage sites is an alarmingly common occurrence. The committee is heartened to see the reckoning over the events of Juukan Gorge. Some companies in the resource industry are reflecting on their previous relationships with traditional owners and trying new models of engagement that are more culturally appropriate. Nevertheless, while commitments have been made to review and modify agreements, there is little transparency about how this is being done. The protection of Aboriginal and Torres Strait Islander cultural heritage across the states and territories is at best complex, with no consistency in how legislative frameworks are developed or applied. The committee acknowledges that Western Australia is not the only state pursuing an inquiry into Aboriginal heritage legislation. Queensland, South Australia, New South Wales and Tasmania are also conducting inquiries into cultural heritage legislation.

We finished with the pathway forward:

The Committee is therefore making the following findings:

1 The Australian Parliament should legislate for an overarching Commonwealth legislative framework based on the protection of cultural heritage rather than its destruction, in line with the principles set out below. State and territory legislation should also be required to meet the principles set out in this report.

2 The Commonwealth, state and territory governments should endorse a set of standards that set best practice in the management of cultural heritage sites and objects and the development of cultural heritage management plans.

3 The economic benefits of protecting and celebrating cultural heritage sites should be promoted.

In conclusion, it is clear that there is a need for strong federal leadership to ensure that heritage protections across the nation are clear, consistent and effective in protecting the living culture and heritage of First Nations people. Unfortunately, we haven't seen any concrete action from the federal government in the 18 months since the Juukan disaster. It is time for the government to stop dragging its feet and come clean about what reforms it intends to make to improve protections for First Nations cultural heritage.

As the committee's report indicates, the mining industry has recognised the need for change, and is beginning to step up to the plate by reviewing existing section 18 permits and agreements with traditional owners. But without further reform, we will continue to see the destruction of precious heritage that forms part of the oldest continuing culture on earth. At a minimum, Ministers Ley and Wyatt should explain what improvements have been made to prevent the kind of bureaucratic mishandling that we saw from both officers when they were approached by the PKKP people in the days before the explosions. There is no excuse for inaction at the federal level.

I want to put on record my thanks to the committee staff and to those people who gave their time to appear as witnesses, particularly given the complexity of travel over the past 18 months. I want to thank the committee chair, Warren Entsch, and other members for the way they worked as part of the committee process. I want to give thanks to my fellow Labor colleagues on the committee: the member for Lilley, Senator Dodson and the member for Lingiari. I particularly want to thank Senator Dodson and the member for Lingiari, whose vast experience in this area was invaluable for me as one of the participating members of this committee. Thank you.