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McIntyre, Greg --- "The demolition of Juukan Gorge" [2021] PrecedentAULA 41; (2021) 165 Precedent 21

THE DEMOLITION OF JUUKAN GORGE

By Greg McIntyre SC

‘Never again can we allow the destruction, the devastation and the vandalism of cultural sites as has occurred with the Juukan Gorge – never again!’^[1]

These are the opening words of the Interim Report of the Inquiry into the destruction of 46,000-year-old caves at Juukan Gorge in the Pilbara region of Western Australia by the Joint Standing Committee on Northern Australia of the Parliament of the Commonwealth of Australia (Interim Report).

The Committee found that Rio Tinto’s role in the destruction was ‘inexcusable’, particularly considering that Rio Tinto knew of the archaeological and cultural significance of the rock shelters and had options it could have pursued that would have preserved them. The Committee stated that the Inquiry raised ‘significant issues about the culture and practices inside Rio Tinto and highlights a need for internal reform of the company’.^[2]

Further, the Committee emphasised the failure of the law to protect the Juukan Gorge, pointing out shortcomings in both WA legislation, namely the Aboriginal Heritage Act 1972, and federal legislation, namely the Environment Protection and Biodiversity Conservation Act 1999 and Aboriginal and Torres Strait Island Heritage Protection Act 1984. It also addressed the shortcomings of native title law, and emphasised the need for new laws together with government and industry action.^[3]

Powerful evidence was presented during the Inquiry regarding the archaeological and cultural importance of the Juukan Gorge, the impact of its tragic destruction, and the need for change.

Mr Burchell Hayes, a proud descendant of Juukan, told the Committee:

‘Juukan Gorge is an anchor of our culture, with a number of individual cultural sites that makes it unique, an important place ... The Juukan Gorge is known to be a place where the spirits of our relatives who have passed away, even recently, have come to rest. It is a place that the very, very old people still occupy. Purlykuti has been specifically referred to by the old people as a place of pardu, which refers to the special language only spoken during ceremonies in the Pilbara. Our elders state that it is certain that the spirits are very disturbed, and their living relatives are also upset at this. This is why Juukan Gorge is important. It is in the ancient blood of our people and contains their DNA. It houses history and the spirits of ancestors and it anchors the people to this country.

The loss of Juukan Gorge rock shelters is also a loss to all First Nations people and the community within Australia and internationally’.^[4]

The Society of American Archaeology said of the rock shelters:

‘Given the worldwide rarity of sites of such antiquity, the rock shelters were also of outstanding archaeological importance ... speak[ing] directly to worldwide understanding of what it means to be human, in utterly unique ways.’^[5]

The Law Council of Australia said in its submission to the Committee:

‘The incident at the Juukan Gorge is one example of the wide structural disconnect existing across the current legislative framework. Cultural heritage laws at the Commonwealth, state and territory levels have failed to incorporate recognition of the rights of First Nations peoples to land and waters. These regimes have not kept pace with the paradigmatic change precipitated by the High Court’s decision in Mabo v Queensland (No. 2) [1992] HCA 23; (1992) 175 CLR 1.

In particular, Commonwealth, state and territory laws have failed to conceptualise that the importance of land and waters lies in their connection to the diverse cultures of First Nations peoples, which are living cultures. Most of the existing cultural heritage protection regimes have severe limitations in their ability to identify relevant Aboriginal parties or include these parties in the decision-making process. This includes the lack of a systemic process by which to ensure appropriate First Nations representation or meaningful consultation, which would include the ability to seek review of a decision.’^[6]

The Interim Report made recommendations including:

• restitution;

• reconstruction;

• remediation;

• a moratorium;

• a review of agreements with Traditional Owners;

• removing gag clauses;

• staying statutory permissions to ensure free, prior and informed consent by Traditional Owners;

• a voluntary moratorium on statutory permissions pending stronger heritage protection laws; and

• an improved protocol for cultural protection surveys based on avoidance of damage and return of artefacts and funding a keeping place.^[7]

This article will explore the severe limitations on the statutory mechanisms in place to protect Aboriginal heritage in WA.

ABORIGINAL HERITAGE ACT

The primary responsibility for protecting tangible Aboriginal cultural heritage lies with the states and territories. The Juukan Gorge caves are in WA and the operative legislation is the Aboriginal Heritage Act 1972 (WA) (AH Act), which is administered by the Minister for Aboriginal Affairs in WA, currently The Hon Ben Wyatt MLA. The main purpose of the Act is ‘to make provision for the preservation on behalf of the community of places and objects customarily used by or traditional to the original inhabitants of Australia or their descendants’.^[8]

The AH Act was the ‘first legislation of its kind in Australia to protect Aboriginal places and objects’.^[9] However, it has remained substantially unchanged for almost 50 years and, as put by Minister Wyatt in the course of the current WA review, elements of the Act are no longer ‘fit for purpose’. In the wake of the destruction of the caves at the Juukan Gorge, Minister Wyatt stated: ‘I feel the pain of administering an outdated and inadequate system that led to this sad and regrettable outcome.’^[10]

Section 17 of the AH Act creates a general prohibition against the alteration of an Aboriginal site. However, this prohibition is capable of being overridden under s18, which allows the ‘owner of any land’ to notify the Aboriginal Cultural Material Committee (ACMC), a body established under the Act, that the owner requires the use of the land for a purpose likely to violate the prohibition against the alteration of an Aboriginal site. The ACMC is obliged to form an opinion on the importance and significance of any site on the land and recommend to the Minister whether to consent to the use of the land. The Minister considers the recommendation along with the ‘general interest of the community’.^[11] There is no requirement for Aboriginal representation on the ACMC and, as Chaney J said in Robinson v Fielding:

‘There is nothing in the process set out in s18 which expressly requires consultation with Aboriginal people with interests in sites on the land the subject of a s18 notice.’^[12]

Statutory consent to destroy

In the case of Juukan Gorge, Rio Tinto applied to destroy the site and an ACMC comprised of five members (the minimum number for a quorum), of whom four were public servants and one was an Aboriginal person, recommended to the Minister that permission be given to destroy the site. The Minister gave that permission in 2013.

However, in a 2014 report by archaeologist Dr Michael Slack to Rio Tinto, it was confirmed that the site known as the Juukan-2 (Brock-21) cave was rare in Australia and unique in the Pilbara:

‘The site was found to contain a cultural sequence spanning over 40,000 years, with a high frequency of flaked stone artefacts, rare abundance of faunal remains, unique stone tools, preserved human hair and with sediment containing a pollen record charting thousands of years of environmental changes ... In many of these respects, the site is the only one in the Pilbara to contain such aspects of material culture and provide a likely strong connection through DNA analysis to the contemporary traditional owners of such old Pleistocene antiquity.’^[13]

Dr Slack and his team removed 7,000 artefacts from the caves in 2014 and the executive summary to the 2014 report states that ‘[t]he results of the excavations at Brock-21/Juukan-2 are of the highest archaeological significance in Australia’.^[14]

Inadequacies of the AH Act

There is no provision in the AH Act that allows the Minister to take into account information acquired after their consent is given and reverse their consent if the new information is persuasive.

Additionally, if the Puutu Kunti Kurrama and Pinikura peoples, who are the custodians of the area, had wished to provide information to the Committee or to the Minister to prevent the consent from being given in 2013 or appeal that decision once it was made, there is no such process under the AH Act.

In order to participate in the processes under the AH Act, Aboriginal custodians have typically been required to go to the Supreme Court to argue that the decision of the Committee or Minister is invalid because of denial of procedural fairness or other jurisdictional error, after establishing that the Aboriginal person has a sufficient special interest in the subject matter of the decision to establish standing in the court.^[15]

There have been more than 460 applications made under s18 to impact Aboriginal heritage sites on mining leases over the last ten years and, up until recent events, all have been approved.^[16]

INDIGENOUS LAND USE AGREEMENTS AND DURESS

The capacity for traditional custodians to play a role in the protection of heritage is further hampered by the use of Indigenous Land Use Agreements (ILUAs). The Native Title Act 1993 (Cth) (NT Act) provides for ILUAs between native title parties and those who may wish to do something affecting native title (generally miners and developers). ILUAs entered into under the NT Act,^[17] particularly with the larger mining companies, frequently cover project areas that involve multiple tenements associated with the project or native title claim areas involving more than one project. Such agreements usually include a heritage protection protocol which includes an obligation on the native title parties to participate in heritage surveys to provide heritage clearance in respect of work programs or site identification, with a view to avoiding site damage. However, where the project plans include economic benefits from activities involving site impact which is not able to be avoided without a significant economic impact, the ILUA provides that the company may seek approval from the state or territory authority to impact the site and includes covenants by the native title parties prohibiting objection or challenge to the approvals being obtained as consideration for the financial and other benefits that comprise the company’s consideration for arriving at the agreement.

This situation was illustrated in the Juukan Gorge cave destruction, and also in the s18 approval of the destruction of between 40 and 86 sites in the Djadjaling (Hamersley) Range in the course of BHP’s expansion of its south-flank iron ore mining operation in June 2020. The Banjima Traditional Owners and native title holders were bound by an ILUA with BHP not to object to the s18 application, and their concerns became publicly known only indirectly through an archaeologist with knowledge of the impact of the mining operation.^[18]

As Tony McAvoy SC has said, referring to the impact of the ILUA process on native title rights including the cultural heritage embedded in them: ‘the native title system “embeds racism” and puts traditional owners under “duress” to approve mining developments or risk losing their land without compensation ... the native title system ... coerces Aboriginal people into an agreement. It’s going to happen anyway. If we don’t agree, the native title tribunal will let it go through, and we will lose our land and won’t be compensated either. That’s the position we’re in.’^[19]

Aboriginal Cultural Heritage Bill 2020 (WA)

The WA Government is currently conducting a review of the AH Act. It has produced an exposure draft of an Aboriginal Cultural Heritage Bill 2020 (WA), which creates a multitude of new and improved processes compared to the AH Act. It picks up a significant number of concepts that are not in the AH Act – for example, ‘Aboriginal cultural heritage’ is defined as including tangible and intangible elements important to Aboriginal people of the state and spiritual, historic, scientific and aesthetic perspectives (cl 10) – and some of these new concepts bear similarities to those existing in other state legislation.^[20] Other additions include provisions relating to:

• Local Aboriginal cultural heritage services (LACHS) (cls 30–45), including notification and consultation in relation to Aboriginal parties (cl 97) and a definition of informed consent for the purposes of agreement to a management plan (cl 130);

• A definition of harm, which excludes an expression of opinion disrespecting Aboriginal cultural heritage, and imports qualifications on the concepts of harm – ‘serious harm’ being harm that is irreversible, high impact, of wide scale or to a protected area, and ‘material harm’ being harm that is not trivial or negligible – and significant penalties for harm, including fines of up $1m and imprisonment for individuals and fines of up to $10m for corporations (cls 80–3);

• Management plans in relation to medium to high impact activities (cl 122) which may be agreed and approved and may incorporate native title agreement provisions (cl 124) and be approved (cls 130 and 144), or authorised by the Minister if not agreed (cl 147); and

• Stop activity, prohibition and remediation orders (cls 176, 182 and 186).

The main area of criticism of the Bill is that it does not go far enough in devolving decision-making to traditional custodians and that the decision-making power in relation to harm to sites still remains with the state Minister.

CONCLUSION

One can only hope that lessons have been learned from the demolition of the Juukan Gorge caves, and that the new legislation will contain enough protection to reassure the community that ‘never again’ will destruction of a site with such archaeological and cultural importance occur.

Greg McIntyre SC is a barrister practising from Michael Kirby Chambers in WA. PHONE 0408 097 046 EMAIL mcintyre@iexpress.net.au WEBSITE https://www.michaelkirbychambers.net.au/barristers/greg-mcintyre-sc.

^[1] Joint Standing Committee on Northern Australia, Never Again: Inquiry into the destruction of 46,000 year old caves at the Juukan Gorge in the Pilbara region of Western Australia (Interim report, December 2020) (Interim report) v.

^[2] Ibid, vi.

^[3] Ibid.

^[4] Ibid; see also M Stanley and K Gudgeon, ‘Pilbara mining blast confirmed to have destroyed 46,000-year-old sites of “staggering” significance’, ABC News, 26 May 2020, <https://www.abc.net.au/news/2020-05-26/rio-tinto-blast-destroys-area-with-ancient-aboriginal-heritage/12286652>.

^[5] Quoted by V Laurie, ‘Destroyed Aboriginal sites at Juukan Gorge “of global importance”: Archaeologists’, The Australian, 18 June 2020, <https://www.theaustralian.com.au/nation/destroyed-aboriginal-sites-at-juukan-gorge-of-global-importance-archaeologists/news-story/547643c23711f16fe5c167b3e673cbfb>. See also World Archaeological Congress, ‘Statement on the destruction of the Juukan Gorge Indigenous sites in the Pilbara, Western Australia, by the mining company Rio Tinto’ (Statement, 9 June 2020).

^[6] Law Council of Australia, ‘Inquiry into the destruction of 46,000 year old caves at the Juukan Gorge in the Pilbara region of Western Australia’ (Submission, 21 August 2020) 6 at [2], [3] and [14].

^[7] Interim report, above note 1, [1.53]–[1.67].

^[8] Aboriginal Heritage Act 1972 (WA) (AH Act).

^[9] Government of WA, Department of Planning, Lands and Heritage, Review of the Aboriginal Heritage Act 1972 (Consultation paper, March 2018), Minister’s Foreword, 2.

^[10] B Wyatt, ‘A stronger shelter for Indigenous heritage’, The Australian, 9 June 2020, <https://www.theaustralian.com.au/commentary/a-stronger-shelter-for-indigenous-heritage/news-story/68dff4f78a7fc6b6088fd8b0d2e547bf>.

^[11] AH Act, above note 8, s18(3).

^[12] [2015] WASC 108, [123].

^[13] G Borschmann, ‘Report reveals Rio Tinto knew the significance of 46,000-year-old rock caves six years before it blasted them’, ABC News, 5 June 2020, quoting Dr Michael Slack, <https://www.abc.net.au/news/2020-06-05/rio-tinto-knew-6-years-ago-about-46000yo-rock-caves-it-blasted/12319334>.

^[14] Ibid.

^[15] See for example Bropho v State of WA & WADC [1990] HCA 24; (1990) 171 CLR 1; Culbong v SECWA (1989) Supreme Court WA, SC WA Lib No 7944 (Franklyn J); Bodney v Trustees of Museum (1989) Supreme Court WA, SC WA Lib No 7959 (Franklyn J); Van Leeuwin v Dallhold Investments (1990) 71 LGPR 348; Bropho v Minister for Aboriginal Affairs, Minister for Environment & Ors (1990) Supreme Court of WA (Wallwork J); Watson ex parte Bropho (1992) SCWA (Wallwork J); Robinson v Fielding [2015] WASC 108 (Chaney J); Abraham v Collier, Minister for Aboriginal Affairs [2016] WASC 269; Woodley v Minister for Aboriginal Affairs [2009] WASC 251, [38].

^[16] Commonwealth Parliamentary Debates, Senate Hansard, 11 June 2020, 2809 (Senator Siewert).

^[17] Either body corporate agreements on behalf of determined native title holders (Native Title Act 1993 (Cth), ss24BA–BI) or area agreements on behalf of native title claimant groups (ss24CA–CL).

^[18] L Allam and C Wahlquist, ‘BHP to destroy at least 40 Aboriginal sites, up to 15,000 years old, to expand Pilbara mine’, The Guardian, 11 June 2020, <https://www.theguardian.com/business/2020/jun/11/bhp-to-destroy-at-least-40-aboriginal-sites-up-to-15000-years-old-to-expand-pilbara-mine>; E Borrello, ‘BHP halts destruction of 40 sacred Aboriginal sites amid outcry over Rio Tinto blasting of Juukan caves’, ABC News, 11 June 2020, <https://www.abc.net.au/news/2020-06-11/bhp-halts-aboriginal-site-destruction-after-rio-tinto-protests/12345566>.

^[19] B Smee, ‘Native title system “embeds racism”, Australia’s first Indigenous silk says’, The Guardian, 19 July 2018, <https://www.theguardian.com/australia-news/2018/jul/19/native-title-system-embeds-racism-australias-first-indigenous-silk-says>.

^[20] For example, in the Aboriginal Heritage Act 2006 (Vic), ss79A–L, 148 and 165A; the Aboriginal Heritage Act 1988 (SA), s19B.