Committee wants Feds to handle Aboriginal heritage

A parliamentary inquiry reviewing the Juukan Gorge controversy has recommended the federal government should take overarching responsibility for all Aboriginal heritage matters.

It has called for new legislation at the national, state and territory level, including an overarching Commonwealth legislative framework to address the failings of the states.

As this will take time, it has called, as a matter of urgency, for amendments to current legislation so that the Minister for Indigenous Australians – currently Perth-based Ken Wyatt – is responsible for all Aboriginal and Torres Strait Islander cultural heritage matters at a national level.

The joint standing committee on Northern Australia, chaired by Queensland-based Liberal National Party MP Warren Entsch, also reviewed planned WA reforms, saying the McGowan government needed to address concerns that WA's Aboriginal Affairs minister would have too much power.

Mining giant Rio Tinto triggered the inquiry when it blew up ancient Aboriginal rock shelters at Juukan Gorge in the Pilbara, after obtaining a contentious 'section 18' approval from the WA government under the current Aboriginal Heritage Act.

The destruction led to global condemnation of the big miner, which has made multiple changes to its board, management and operations to try and overcome the self-inflicted damage to its reputation.

Nationally, the committee believes there is a need for an overarching Commonwealth legislative framework.

“States have failed,” it stated bluntly.

“Lack of responses and concerns with WA legislation indicates that states will continue to fail without an overarching legislative framework guiding the protection of Aboriginal and Torres Strait Islander cultural heritage.

“This report has demonstrated that time and time again, states have prioritised development over the protection of cultural heritage−including through the enactment of site-specific development legislation intended to further dispossess Aboriginal and Torres Strait Islander peoples.”

The committee said new Commonwealth legislation was needed to provide for stricter protection of sacred sites, and also called for improvements to the Native Title Act.

It said new legislation should be underpinned by the United Nations Declaration on the Rights of Indigenous Peoples which, in turn, was underpinned by the principle of free, prior and informed consent.

In practice, this means giving Aboriginal and Torres Strait Islander Australians a primary role in decision-making.

“Aboriginal and Torres Strait Islander peoples must have greater access to their areas, sites and places, and the connected knowledge and cultural expression, and the law must empower them to protect their cultural heritage,” the report said.

“This will enable them to care for heritage sites in line with their customary obligations, and contemporary aspirations.”

Notably, the committee concluded that “timeframes and sign-offs must be culturally appropriate and reflect decision-making processes that abide by the traditional law and custom of an affected Aboriginal and Torres Strait Islander group”.

The committee acknowledged reform efforts by the WA government, which include drafting a bill to replace the outdated Aboriginal Heritage Act (AHA).

The bill, which drew upon substantial community consultation, proposes a new decision-making process that gives Aboriginal groups a greater say.

However, the bill has been strongly criticised by many Aboriginal groups.

The committee said it received conflicting views about the role of the minister under the proposed new arrangements.

“Submissions from mining representatives expressed agreement with the sections of the bill which provide for the Minister to have a final deciding role in the agreement making process when the two parties are unable to reach agreement,” it said.

“Submissions from Aboriginal organisations and other stakeholders, on the other hand, argued that the draft legislation gives the Minister too much power and that this will replicate the problems of the current Act where the Minister has been the decision-maker in the great majority of cases concerning approvals to damage Aboriginal heritage.

“The view of Aboriginal organisations is that the relevant traditional owners should have final responsibility for deciding whether their cultural heritage should be damaged or destroyed.”

Aboriginal organisations have concluded that provisions allowing the Minister to make decisions in certain circumstances, will mean the Minister will make the decisions and do so on a routine basis, according to the committee.

“This interpretation appears to reflect traditional owners’ negative experience of the operation of the AHA over many years,” the committee concluded.

“There is a clear lack of confidence and trust that such a situation will not be replicated under the proposed legislation.

“It will be challenging for the WA government to pass legislation that is generally acceptable to all parties if such fundamental problems of trust are not overcome.”

The committee has encouraged the WA government to review its proposed bill and make amendments to address these concerns.

“Particular consideration could be given to accommodating the principles of free, prior and informed consent,” it said.

“Consultations with Aboriginal representatives must be conducted in a way that accords with Aboriginal traditions of dialogue.

“And indeed the new law must seek to establish processes which recognise that Aboriginal knowledge may be passed on in ways that are not yet recognised in our existing systems.”

Aboriginal Affairs minister Stephen Dawson has been charged with responsibility for finalising the Bill.

He welcomed the joint standing committee's report earlier this afternoon, and asserted that the Aboriginal Cultural Heritage Bill was in line with the committee’s findings and recommendations.

"Destruction of the 46,000-year-old caves at Juukan Gorge was a tragedy and the WA government is working hard to ensure better legislative protections are afforded to our sacred cultural heritage sites," he said.

"Better protection for Aboriginal cultural heritage will absolutely be achieved once the new Aboriginal Cultural Heritage Bill becomes law - and the McGowan Government is committed to this reform.

"The central foundation of the Bill is consultation, negotiation and agreement making between Aboriginal parties and proponents - the very foundation of the United Nations Declaration on the Rights of Indigenous Peoples.

"It also legally protects Aboriginal people from being silenced, requires proponents to provide full disclosure of all possible options for their operation and mandates voluntary consent of the traditional owners."

The Chamber of Minerals and Energy of Western Australia reiterated its support for the state government remaining the primary regulator of cultural heritage.

“CME and its member companies are steadfast in the view that any proposal to strengthen federal oversight on Aboriginal heritage matters would not deliver improvements and would only duplicate processes and relationships  that are best delivered at a local level with local stakeholders,” director of policy and advocacy Rob Carruthers said.

Rio Tinto chief executive Jakob Stausholm welcomed today’s final report, adding that the company was working hard to rebuild trust and meaningful relationships with the Puutu Kunti Kurrama and Pinikura people (PKKP) people and other traditional owners.

“Rio Tinto is absolutely committed to listening, learning and showing greater care, and this remains a top priority,” Mr Stausholm said.

The work being undertaken by Rio Tinto includes working closely with the PKKP on the ongoing remediation of the Juukan Gorge rock shelters.

The company is undertaking a detailed review to ensure there are no other sites of exceptional cultural significance within its existing mine plans. To date, Rio Tinto has reviewed 2,205 heritage sites.

It has commenced agreement modernisation discussions with ten Pilbara traditional owner groups and their representatives.

Rio is also building social performance capacity, capability and governance across the company.

Rio said it was also working to drive cultural change at every level of the business.

This includes steps to grow Indigenous leadership, with $50 million invested to retain, attract and grow Indigenous professionals and leaders in Rio’s Australian business.