The report coming from the destruction by Rio Tinto of an important First Nations site at Juunkan Gorge is a significant victory for the custodians of that land. This report by Calla Wahlquist and Lorena Allam (The Guardian  9 December 2020) tells the story of what happened, the conclusions of the inquiry and its recommendations.

A parliamentary inquiry into the destruction of 46,000-year-old caves has delivered a scathing report criticising the actions of Rio Tinto and calling for the Western Australian government to put a stop to the destruction of heritage until new laws are passed.

The majority bipartisan interim report said Rio Tinto’s decision to destroy two rock shelters in Juukan Gorge, against the wishes of the traditional owners and despite knowing the archaeological value of the site, was “inexcusable”.

“Rio knew the value of what they were destroying but blew it up anyway,” the report said.

The report recommended a moratorium on the approval of all new section 18 approvals under the Aboriginal Heritage Act until new laws are passed next year – unless it can be “established and verified that there is current free, prior and informed consent obtained from Traditional Owners”.

Photo by Richard Wainright/AAP

It also called for mining companies to introduce a voluntary moratorium on acting on existing approvals, under section 18 of the Western Australian legislation, to destroy sites.

“How many Juukan Gorge catastrophes are lurking on working schedules around the country? We don’t know because there are still existing legal regimes that permit various companies to destroy them,” senator Pat Dodson told the Senate after the interim report was tabled on Thursday.

“Whilst our report is called Never Again, it’s in a legislative environment where there’s still capacity for an organisation or a company to destroy such a site. So, we have a serious problem.”

The report recommended the Australian government outlaw the use of gag clauses in agreements between mining companies and traditional owners, which prevent traditional owners from speaking publicly against the destruction of their heritage.

It also recommended that:

• Rio Tinto must negotiate a restitution package with the Puutu Kunti Kurrama and Pinikura peoples (PKKP) and ensure a full reconstruction of the rock shelters and remediation of the site at its own expense.
• Rio must commit to a permanent moratorium on mining in the Juukan Gorge area.
• All mining companies, including Rio Tinto, should undertake an independent review of all agreements with traditional owners and remove any gag clauses or restrictions in existing agreements.
• All mining companies should commit to a voluntary moratorium on applying for new section 18 permissions until new Aboriginal heritage laws are passed.
• Rio Tinto should commit to a stay on actions on the 1,700 Aboriginal heritage sites which it currently has permission to destroy.
• The WA government should urgently establish new procedures to improve the regulation of Aboriginal heritage and undertake a mapping and truth-telling process to record all sites that have been destroyed or damaged.
• The federal Aboriginal and Torres Strait Islander Heritage Protection Act 1984 be “urgently” reviewed, and responsibility for the legislation revert to the minister for Aboriginal affairs.

Dodson said the failures that led to the Juukan Gorge disaster “did not happen out of the blue”.

“These failures were symptomatic of the ‘don’t care’ culture that infected Rio Tinto from the top down,” he said. “It had gone through a rapid decline in the way it did business.”

Dodson said it was “a mistake” for Rio Tinto board member Michael L’Estrange to conduct the company’s internal review into the disaster. “His report is full of mea culpas and corporate lingo,” he said. “It was an unsatisfactory piece of work. It didn’t get to the heart of the drift and rot that was allowed to corrupt Rio Tinto’s formerly good practice.”

He said that First Nations people were “seriously disadvantaged” when dealing with mining companies, failed by state and federal heritage legislation that required “serious overhaul”, and failed by the “ineffectual Native Title Act”, which he said had “delivered nothing of substance to protect the interests of First Nations”.

“If Eddie Mabo were with us, he would be deeply distressed to realise that what he had fought for so vigorously has delivered so little.”

The inquiry was led by the LNP MP Warren Entsch, who wrote in the forward that while the interim report focused on the actions of Rio the committee would continue to investigate the actions of other mining companies and failures in state and federal legislation.

The report said the WA legislation was “outdated, unfit for purpose and in urgent need of replacement” and noted that while the state government had begun reviewing the laws in early 2018 it continued to use the same approvals process. It also raised concerns with the proposed new laws stating, “the experience of the PKKP with Rio Tinto, and that of other Aboriginal groups, would suggest that the bill’s focus on agreement-making needs careful consideration”.

The WA Aboriginal affairs minister, Ben Wyatt, said the recommendation to introduce a moratorium on new section 18 approvals until the replacement legislation was introduced was “not a practical solution in light of their use across a vast array of different projects most of which are uncontentious”.

“As minister, I won’t be considering applications for Section 18s where native title parties have not been appropriately consulted,” he said.

Wyatt cited the dissenting report from the WA Liberal senator, Dean Smith, who argued that the proposed moratorium could prevent upgrades and maintenance of public infrastructure including the $3bn project to upgrade Perth’s train network.

Smith also said it was “disappointing” that the majority report “creates an impression that Rio Tinto’s behaviour is reflective of the values of the entire Western Australian mining industry”.

But he agreed with the rest of the committee that Rio Tinto should be subject to further scrutiny, telling parliament the company, including its chairman and board, “are still on notice”. “They should not allow themselves to believe the investigation into their culpability has concluded,” he said.

Rio Tinto’s global CEO, Jean-Sébastien Jacques, and its Perth-based chief executive of iron ore, Chris Salisbury, both appeared before the inquiry before resigning over the issue in September. They both appeared again alongside the head of corporate affairs, Simone Niven, who also resigned, in October.

All three had previously lost their annual bonuses following an internal review that blamed the destruction on “shortfalls in linked-up decision making”, but will keep their long-term bonuses on exit from the company. The internal review has been criticised as “inadequate” and lacking transparency.

Smith criticised the “golden handshakes” granted to the outgoing executives and questioned Jacques’ assertion that he had been unaware of the significance of the shelters until after they were destroyed on 24 May 2020. “This is also difficult to believe,” Smith said.

Rio’s global chairman, Simon Thompson, on Wednesday said the company would review the report’s recommendations. He also repeated his apology to the PKKP.

“We are committed to learning from this event to ensure the destruction of heritage sites of such exceptional archaeological and cultural significance never occurs again,” he said.

At the site before it was destroyed

PKKP Aboriginal corporation spokesman Burchell Hayes said they were grateful the committee had conducted a “full, thorough, and transparent investigation”.

“We hope the inquiry’s preliminary findings prompt a fundamental reset of the sector, particularly in the relationships between traditional owners and mining companies; and pave a way forward for more equal partnerships fostered by greater respect and mutual benefit,” he said.

“We have started the long road to healing and repairing our relationship with Rio Tinto but … Rio Tinto now needs to turn its words into actions.”

The PKKP peopletold the inquiry in October they were “devastated” by the destruction of the two rockshelters, one of which had been described by an archaeologist paid for by Rio Tinto as one of the most significant archaeological sites in Australia.

The inquiry was called in June, three weeks after Rio Tinto blew up the 46,000-year-old Aboriginal heritage site.

Senior executives from BHP, Roy Hill, Woodside, and Fortescue Metals were also called before the public hearings. All defended their own relationship with traditional owners. But Aboriginal corporations in the Pilbara said that the issues outlined in the destruction of Juukan Gorge were widespread. They include agreements with gag clauses that prevent traditional owners from speaking out against mining companies, and a heritage system that is geared towards mining companies and does not allow for review once more information about a site is discovered.