Last month, mining giant Rio Tinto destroyed caves in the Juukan Gorge in Western Australia while blasting in the area as part of its mining operations. The caves contained archaeological treasures evidencing human occupation spanning some 46,000 years. As such, they represent globally significant sites far older than Stonehenge and the Pyramids of Egypt. But more than that, the caves held ongoing spiritual significance for the traditional owners of the area, the Puutu Kunti Kurrama and Pinikura (PKKP).
Much to the astonishment of the general public in destroying the obviously special caves, including a shareholder backlash, Rio Tinto did not break the law. It had obtained the necessary permissions to destroy the culturally significant site. The company has indicated that there was a ‘misunderstanding’ about the future of the site. Misunderstanding or not, the entire framing of cultural heritage is not one that comprehends substantive rights for Indigenous custodians and as such, will always leave a miner in charge of decisions concerning its land.
The Aboriginal Heritage Act 1972 (WA) applies to places of ‘importance and significance’ that are connected with the ‘traditional cultural life of the Aboriginal people past or present’; and sacred, ritual, or ceremonial sites of special significance. Under s18 of the Act, an owner of land (such as Rio Tinto) can give notice to the Aboriginal Cultural Material Committee that they require use of the land contrary to any heritage protection. The Committee must consider the ‘importance and significance’ of the site and make a recommendation to the Minister as to whether they should consent to that use. In the case of the Juukan Gorge caves, the Minister consented to their destruction. The Committee is appointed by the Minister and comprises at least one anthropologist and other members who are suitably qualified to assist in assessing cultural materials.
Of note, there is no aspect of this process requiring consultation with the relevant Aboriginal group—in this case, the PKKP. Indeed, there is no requirement that any Aboriginal person at all is involved in assessing these matters (though of course there may happen to be an Aboriginal person on the Committee).
Since the tragic and intentional destruction of the Juukan Gorge caves, it has been revealed that BHP is set to blast up to 40 significant Aboriginal sites in the Pilbara. Like Rio Tinto, it has the same ministerial permission to destroy places that are recognised as significant. When questioned about the approval, Ben Wyatt the WA Minister for Aboriginal Affairs flagged that the Act would soon be amended to replace the existing process. While this gives some hope of positive reform of such an egregious failure to uphold the Act’s very purpose, of concern however, he indicated that the impending reforms would ‘reinforce the need for land users to negotiate directly with traditional owners.’
One of the challenges for traditional owners is that the law situates their interests in culturally significant sites in between native title processes and cultural heritage. At the moment, where a native title claim is made or determined, traditional owners have a right to negotiate under the Native Title Act 1993 (Cth). This gives them a seat at the table with miners, and the scope to negotiate an Indigenous land use agreement (ILUA). ILUAs generally provide for benefits to be delivered to the native title holders—such as guaranteed jobs, or payments. The terms of ILUAs are confidential and once in place the terms are fixed. Importantly, native title holders cannot refuse permission for miners to use land. All they can do is try to gain some benefits in exchange for an otherwise guaranteed right of use. The miner has the upper hand.
In addition to the terms of ILUAs remaining confidential, they frequently contain provisions preventing native title holders from speaking publicly about action taken by the miners. The BHP proposals are a case in point. Traditional owners were not permitted under their ILUA from speaking out about the sites. The Guardian revealed that despite this prohibition their archaeologist had written to the WA department to notify it that they did not support the continued destruction of the significant cultural landscape.
It is telling then that the Minister, Ben Wyatt, said that he is ‘cautious about governments interfering in private negotiations by registered native title holders’. Although the ILUA system is established under Commonwealth, not state, law, the sketched proposals for the WA cultural heritage reforms reflect the ILUA process, involving yet more consultation between miners and traditional owners—but without any substantive rights. The only reason there are ‘private negotiations’ is because that is all the state provides. The Minister’s suggestion uses negotiation to privatise cultural heritage protection. As the state makes itself responsible for cultural heritage under the Act, leaving protection to a private negotiation process abnegates the very responsibility the state has undertaken.
Native title holders thus fall into a liminal space between multiple processes none of which affords them substantive rights to protect their country. On the one hand, although native title is a property right, it excludes mining rights leaving native title holders with a right to negotiate that falls well short of property as we understand it. On the other hand, although Aboriginal interests in the cultural landscape are inherent in its declaration as cultural heritage, cultural heritage law brings that landscape within the purview of the state, not traditional owners. Further, even with amendments to WA cultural heritage law that give a concession to involving traditional owners in cultural heritage through negotiation, a right to negotiation again falls short of substantive rights to protect the land—while letting the state off the hook for taking action that would actually prevent destruction of significant sites.
Since the story became public early this week, BHP has indicated that it will stall its planned destruction of the sites in the Pilbara pending ‘further extensive consultation’ with traditional owners. The fact remains, however, that as a miner, its extensive and substantive rights will continue to override the claims of traditional owners to save their country because this is how governments decide that the law will work.