Senate debates

Monday, 18 October 2021


Northern Australia Joint Committee; Report

6:02 pm

Photo of Anne UrquhartAnne Urquhart (Tasmania, Australian Labor Party) Share this | | Hansard source

I present the report of the Joint Standing Committee on Northern Australia on the destruction of 46,000-year-old caves at Juukan Gorge and seek leave to move a motion in relation to the report.

Leave granted.

I move:

That the Senate take note of the report.

I understand that Senator Dodson wishes to speak to that report.

Photo of Jess WalshJess Walsh (Victoria, Australian Labor Party) Share this | | Hansard source

Senator Dodson?

Photo of Patrick DodsonPatrick Dodson (WA, Australian Labor Party, Shadow Assistant Minister for Reconciliation) Share this | | Hansard source

[by video link] I wish to speak to the final report, tabled today by the Joint Committee on Northern Australia, on the destruction of Indigenous heritage sites at Juukan Gorge in Western Australia. Firstly, I commend the chairmanship of Mr Warren Entsch, who conducted the inquiry with fairness and sympathy. The committee's interim report, Never again, was published in December last year. It focused largely on what went wrong within Rio Tinto before and after the explosions on 24 May last year which destroyed the caves at Juukan Gorge. The nation was shocked and outraged. Australia's international reputation was seriously damaged, and we're still on trial about it. The caves have provided shelter to the Puutu Kunti Kurrama and Pinikura peoples for over 40,000 years. Our committee was able to visit the site and hear firsthand the grief and trauma that the PKKP people had suffered as a result of the destruction of their heritage.

If indeed there's never to be another Juukan Gorge catastrophe, governments must act with integrity and urgency to fix the legislative regimes around the country that have been shown to be wholly inadequate. Let's not forget that the destruction of Juukan Gorge was licensed by the laws of Western Australia. The Aboriginal Heritage Act was never fit for purpose, if in fact that purpose was ever meant to adequately protect Aboriginal cultural heritage. That wholly inadequate legislation remains in law today. Section 18 exemptions have allowed wholesale destruction of Aboriginal cultural heritage sites across Western Australia. Mining companies continue to hold section 18 exemptions stating they can legally destroy similar cultural heritage without penalty. But the laws of other jurisdictions are just as deficient.

First Nations people are fearful that their already diminished heritage is at risk of further ruin and, with it, so is essential evidentiary material that supports their native title rights and interests. That's why our report recommended Commonwealth legislation to provide minimum standards for all states and territories. Some government members of the joint committee say there's no need for overarching Commonwealth legislation. I just cannot believe they hold that view after all the stories of heartache and distress in all parts of Australia that we heard about the loss of Aboriginal culture and that we heard from Aboriginal witnesses in the course of our inquiry. Theirs is not a majority position. It's very clear where the balance of public opinion on this issue is.

On this side of politics, we want to see urgent legislation that gives real meaning to the United Nations Declaration on the Rights of Indigenous Peoples, emphasises the concept of free, prior and informed consent and gives people a right to say no to the destruction of their cultural heritage. We want to see ministerial responsibility for Indigenous heritage matters moved from the Minister for the Environment to the Minister for Indigenous Australians. Existing Commonwealth laws, as unsatisfactory as they are, should have provided remedy for the PKK people when they came knocking on the door of Canberra. Instead, the PKKP got the run-around and experienced only inertia and uninterest in ministerial and departmental offices.

For too long, governments have turned a blind eye to the widespread destruction of the heritage of First Nations peoples. It's been nearly a year and a half since the explosions at the Juukan caves reverberated across the world. What has this government done over that time to give comfort to First Nations peoples that they'll never see another Juukan Gorge? Very little—in fact, nothing at all. All we hear from the other side is this nonsense about how better laws and regulations can be used as deliberate weapons against the resource sector. But the evidence we heard from the sector itself during our inquiry acknowledges that things must change. Especially we heard support from the mining industry for upholding the principle of free, prior and informed consent and removing from contracts gag clauses that limit the rights of First Nations peoples that seek redress when their heritage is threatened.

From the earliest times of colonial settlement, there's been no appreciation of the intrinsic value which First Nations peoples attach to their heritage. The widespread, enormous destruction of ancient materials that accompanied the occupation of this land of the First Nations peoples has served to obliterate the connection to country and the prima facie proof of their native title in these lands. Real property rights have been trashed without compensation.

What became apparent during the joint committee's inquiry was the weight of demand endured by native title holders who have to deal with the well-resourced mining sector, especially in the Pilbara. Native title representative bodies and prescribed bodies corporate are clearly underresourced. Some have had to use compensation money to respond to the demands placed on them by the industry, therefore limiting their own capacity to leverage their opportunities. There's a fundamental imbalance here.

But getting governments to face up to their responsibilities has always been a difficult exercise. The private sector has shown itself to be more ready and willing to improve its performance. It's demonstrated more leadership than this government. Driven, perhaps, by commercial imperatives and the pressure from shareholders, the outrage over the destruction of the Juukan Gorge prompted investors to call for sanctions. The protection of Aboriginal cultural heritage is now not only a moral and ethical issue; it's now an issue of economic risk. The government should at least recognise that, in this space, that alone should be sufficient reason for the Commonwealth and state governments to reshape their cultural heritage laws and their relationships with First Nations.

The nexus with the Native Title Act was also a matter that came to our attention, and the real need for an inquiry into various sections of the future acts regime under which many of these native title holders operate. They feel very much under duress and at a disadvantage, even to the extent of criticisms about the National Native Title Tribunal itself.

6:10 pm

Photo of Lidia ThorpeLidia Thorpe (Victoria, Australian Greens) Share this | | Hansard source

I wish to speak to the Juukan inquiry report, tabled today. I want to acknowledge the traditional owners, elders and land defenders who not only took the time to come and speak to the inquiry but also opened up their lands for us to come and visit, to see for ourselves. I'd like to acknowledge their resistance, their fight and their ongoing connection to country, land, culture and song, which are all affected. As we heard through the inquiry from those people, it is not just about a piece of land; it is about a piece of us. We are no separate to our land, our water and our animals; we are the same as. We don't own them and they don't own us; we care for one another and we protect one another. We don't look at our animals and our land in the way that the colonisers do—that is, to dig up, destroy and make as much money as they possibly can in a very quick, short time. That won't sustain you for thousands of generations, like it has sustained us, but we'll see about that, hey!

I want to acknowledge all those people who were involved, and I also want to acknowledge my colleagues on the committee. There were people who knew about the destruction, who'd been personally affected by destruction on their own lands, and there were also people who got a greater understanding of what this means to people on the ground. I think people in places like this lose track of what is happening to communities and everyday people out there. It was an exercise for people to gain some empathy; instead of doing the training around it, they can create some empathy of their own by hearing real stories.

As we know, in May last year the incredibly magnificent Juukan Gorge caves on the country of the PKK were destroyed by mining giant Rio Tinto. It sent a shockwave not only through that country and those people; it sent a shockwave throughout the world. It was compared to Notre Dame. It's as simple as that; it is our place of prayer, it is our place of connection and it is our place to speak to our ancestors and our country, the same way a Christian would go to church and speak to their God. Our gods, our waterways, our mountains—that's who we pray to. That's who we connect to, because that's what's going to keep us alive at the end of the day.

During the inquiry we heard from so many First Nations people and communities about the struggles they face around the country—not just in WA, not just at Juukan. Right across this country we heard stories of destruction, stories of dodgy deals and stories of mining companies coming to communities saying: 'We'll give you a four-wheel drive. We'll give you some money for your family. Just sign here, uncle, aunty, brother.' I saw it with my own eyes. The con job that goes on in these communities is unconscionable, illegal.

So I acknowledge the struggle that our people are facing out there with these dodgy deals and the coercion that goes on to manufacture the consent—these so-called consultation processes. Consultation—may I remind everybody in this place, particularly the government and Labor—is not consent. The word 'consultation' is different to the word 'consent', okay? Be clear about that. You have no consent to destroy any part of this country. You've never been given consent because there's never been a treaty. So you can't say: 'But I consulted. I went to the land council. We had a meeting. We got buses there. We paid for people'—the same old story that you hear, the con job. You know which family is blueing which family, so you just get the one that's going to agree. Come on. We're awake up to that. It's the 21st century. There are a lot of blackfellas educated out there, and we know exactly what you're up to.

The inquiry clearly showed how broken our heritage protection laws are in this country. They not only fail to protect in most instances, but they are even designed to favour the developers and the miners. I wonder if the system's really broken at all, or is it that the system was actually designed for the developers, and the blackfellas come later, because we are on the bottom rung here in these lands? Miners and those developers who want to destroy country get given this really high precedence, and the blackfellas are on the low rung. We see that all the time. It's not going to happen anymore, not on our watch anyway.

Traditional owners should be the ones making the decisions over their country, otherwise stop doing acknowledgements to country and getting your welcomes done. The system does not provide for adequate consultation and consent and the possibility to say no to a proposed activity. The system doesn't even allow this to happen. It encourages coercion. It brings division into our communities, and in the end it is the minister, not the traditional owners, who has the last say on what happens to our land. Hello? The minister says what happens, not the traditional owners? Talk about being part of the colonial project!

The committee recommends that a national framework be developed so that we can better protect our cultural heritage, which at the end of the day is yours too, if you opened your eyes and connected with it some more. The whole process needs to be First Nations led. We need to start putting First Nations people at the centre of any decision-making, and we need to be careful of the word 'co-design', because it's not. Come on. That's just another gammon word. 'Gammon' means 'pretend' in blackfella way. Co-design is a bit gammon. It's not really talking to us; it's telling us how you want to do it. Free, prior and informed consent, which Senator Dodson raised and which came through very clearly in the inquiry, is what we have to look at, not co-design.

May I also say that neither Juukan nor any other site in this country would have been destroyed if we had a treaty in this country. You know we've been at war against the first people of these lands for more than 240 years. There has never been an agreement to even settle this country. That really questions the legitimacy of this government and this whole place, doesn't it? Until we have a treaty, we have so much unfinished business. It's time to mature as a nation and come on this journey to protect everybody.

6:21 pm

Photo of Anthony ChisholmAnthony Chisholm (Queensland, Australian Labor Party) Share this | | Hansard source

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.

6:30 pm

Photo of Dean SmithDean Smith (WA, Liberal Party) Share this | | Hansard source

In the very short time that is available to me, I would just say that I was very happy to give way to Senator Thorpe and Senator Dodson to make their contributions, and I concur with some of what Senator Chisholm has also had to say.

Eighteen months after the destruction of the Juukan Gorge, which we know to be of such tremendous heritage value to Indigenous people in my home state of Western Australia, people should ask themselves, 'What has changed?' In the report there are some additional comments from myself and others that make it very, very clear that Rio Tinto should not get off scot-free. To date there has been little or no financial penalty to Rio Tinto. This is outrageous.

In addition to those comments, I also make the point that Rio should be held accountable, and Rio's actions should not reflect on the resources industry in my home state of Western Australia or, indeed, across the country. I encourage you to read the additional comments. I absolutely support a judicial inquiry into Rio Tinto's actions. Thank you.

6:32 pm

Photo of Dorinda CoxDorinda Cox (WA, Australian Greens) Share this | | Hansard source

This is not my first speech, but I rise to make a contribution to the tabling of the Joint Standing Committee on Northern Australia's final report in this inquiry, A way forward. I wish to acknowledge the traditional owners of the lands I'm on, the Ngambri and Ngunawal people, and traditional owners all over the country. I pay my respects to the elders past and present, and to their continued practice of caring for country and culture.

This was a significant inquiry that shone light on the many ways in which First Nations cultural heritage is destroyed, and sometimes how that is even encouraged in this country. While Juukan Gorge was the wake-up call for many Australians, the legal and wilful destruction of cultural heritage is not new for First Nations people. As the final report clearly shows, First Nations people across WA have been experiencing the impact of inadequate legislation for decades—

Photo of James McGrathJames McGrath (Queensland, Liberal National Party) Share this | | Hansard source

Sorry, Senator Cox; the time for your contribution has finished.

Photo of Dorinda CoxDorinda Cox (WA, Australian Greens) Share this | | Hansard source

I seek leave to continue my remarks later.

Leave granted; debate adjourned.