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As a senate inquiry investigates Rio Tinto’s destruction of the Juukan Gorge caves, Senator Pat Dodson says a royal commission into the entire Native Title Act may be necessary as the law ‘has been basically brought into disrepute by the capacity of those who are rich and powerful’. By Mike Seccombe.

The failures behind the destruction of the Juukan Gorge caves

Senator Pat Dodson at a press conference for the start of NAIDOC Week.
Credit: AAP Image / Mick Tsikas

In a remote part of Western Australia’s Pilbara region, in an unprepossessing mining company building, resides one of the great records of human history.

It is a strip of latex, some two metres long, to which is stuck brown soil containing various bits of organic matter and tagged with little pieces of paper.

At the far end, a tag reads: “1770 Cook arrives in Australia”. A few centimetres on are two others: “1492 Discovery of America by Columbus” and “1348 Black Plague in Europe”. And so it goes, back in time, with tags denoting the fall of Rome, the construction of the Great Wall of China, the first Olympiad of Ancient Greece, the building of the Great Pyramid of Giza in Egypt.

These are all clustered together in less than one-tenth of the length of the latex strip. Further along, tags denote the start and finish of the last ice age. And at the end, one simply says “43,000 years ago”.

The strip, this profile of soil and human history, was taken from the side of an archaeological dig in the floor of a rock shelter in Juukan Gorge. That last tag indicates the length of time the cave was occupied by Aboriginal people.

Some 7400 artefacts were found at the site, including a belt made of human hair, 4000 years old, which genetic testing showed came from the forebears of the current traditional owners, the Puutu Kunti Kurrama and Pinikura (PKKP) people.

But on May 24 – as the world now knows – despite the scientists’ finding that Juukan Two, as the most important of the series of caves in the gorge was designated, was of the “highest archaeological significance in Australia”, and despite all efforts by the PKKP people to stop it, the mining company Rio Tinto destroyed the cave using explosives.

Eventually the blast would also take with it the careers of three of Rio’s senior executives, including chief executive Jean-Sébastien Jacques, and put a huge hole in the miner’s corporate reputation.

More importantly, though, it blew up any remaining notion that native title means much at all when it gets in the way of moneyed interests.

But it has never really meant anything in Western Australia, and is meaning ever less elsewhere in the country, says Senator Pat Dodson. He says that “piecemeal” legislative changes that give governments ever more power to direct the operation of Indigenous land corporations, as well as smart lawyers for big miners and pastoralists, have “whittled away” at the fundamental concept of native title.

“The uniqueness of native title is rapidly being lost,” says Dodson. “The concept of collective ownership of land and collective decision-making is being rapidly taken away from the meaning of native title.

“The nature of the [Native Title Act] has been basically brought into disrepute by the capacity of those who are rich and powerful to manoeuvre in a manner to suit their purposes.”

And the consequence of that, Dodson says, is Indigenous people are dispossessed of their rights, all over again.

“I’m starting to think that there needs to be a royal commission into the operation of the Native Title Act,” he says.

It is hard to imagine such an inquiry happening. Not least under this government. But clearly something needs to be done, not only according to Dodson, but also according to other members of federal parliament’s joint standing committee on northern Australia, chaired by Liberal National Party MP Warren Entsch. Since June, the committee has been conducting a wide-ranging inquiry precipitated by Rio’s actions at Juukan.

Despite the fact the PKKP people hold native title over Juukan Gorge and the giant iron ore mine for which the caves were destroyed – and despite 43,000 years of occupation and 4000 years of DNA-demonstrated connection to country – they, like other title holders in Western Australia, “don’t own a square metre of that land”, says Entsch.

“The mining companies have total control. They can come in and they can trash this place, whenever, wherever they want.”

And it’s all perfectly legal, under Western Australia’s ironically named Aboriginal Heritage Act, passed almost half a century ago.

Before beginning the inquiry, says Entsch, he was “ambivalent” about what happened at Juukan Gorge. He assumed the traditional owners had “signed it off … got paid a bucketload of money and now they were complaining about it”.

“Nothing could be further from the truth,” he says.

“I’ve got to say to you, as an Australian, I am absolutely outraged that they think it’s okay to screw with our history. The more I see of this, the more enraged I get.”

Earlier this month, four core members of the committee – Entsch, Dodson, Labor MP Warren Snowdon and Greens senator Rachel Siewert – travelled to Juukan. All four spoke with The Saturday Paper this week about what they saw. “Devastation,” says Entsch. “Absolute devastation.

“And there is no way you will convince me it wasn’t deliberate, calculated.”

Siewert is of the same view. She notes that Rio had four options for the expansion of the mine at Juukan, three of which did not involve blowing up the caves. She further notes that the options were never presented to the PKKP people.

The PKKP people had reason to believe their heritage was safe, Siewert says. In 2013, Rio’s then chief executive, Sam Walsh, gave an assurance “that Juukan wouldn’t be touched”.

That same year, Rio funded the archaeological survey that collected those 7400 artefacts from the site. The company even made a documentary that featured the PKKP people and highlighted the significance of the rock shelter. The miner gave every indication it was serious about not only preserving Aboriginal cultural heritage but also being seen to be.

And yet, Entsch points out, “JS Jacques said, right at the beginning, that the first time that anybody on the executive of Rio was aware of the actual existence of the shelters – not the significance, the actual existence of them – was basically when they blew them up.”

“So,” says Siewert, “what happened was the PKKP found out at the last minute [about the planned blast], raised concerns, tried to get in contact … put a lawyer onto it … [who] raised it with the wrong minister in the first place and didn’t chase it aggressively enough, in some of our [the committee members’] view.”

But by this point there was really little the PKKP people could do, because of the WA Aboriginal Heritage Act.

Section 17 of the act makes it a crime to excavate, destroy, damage, conceal, or in any way alter an Aboriginal site. But section 18 provides a get-out-of-jail-free card – that any landholder may apply for an exemption, as many mining companies do regularly, and as Rio had done for Juukan.

“Under the legislation, the TOs [traditional owners] can’t appeal,” says Siewert. And this applies even in cases where it is realised only after the granting of a section 18 exemption that a site is more important than originally thought.

The committee is yet to hear exactly how many section 18 exemptions have been granted, but there are certainly many hundreds. One company alone, Andrew Forrest’s Fortescue Metals Group (FMG), told the committee on Tuesday this week it held 121, with five more pending.

Section 18 applications, Snowdon says, are almost never refused.

“And as a direct result, you’ve got mass extinction [of traditional owners’ rights],” he says. “You’ve got sites of very great importance like the ones at Juukan that are being destroyed as a matter of course.”

But the Aboriginal Heritage Act was only one obstacle to the PKKP people’s efforts to save Juukan.

Another, says Siewert, was a so-called participation agreement between the miner and the traditional owners.

“They were subject to what we are calling gag clauses, where they couldn’t use the Racial Discrimination Act, they couldn’t use the [Environment Protection and Biodiversity Conservation Act], they couldn’t use the Heritage Act, to complain.”

Such participation agreements can run to hundreds of pages, says Siewert, and can be sprung at short notice on traditional owners, many of whom, “particularly a decade or more ago when these were signed, didn’t really read even easy English”.

And while section 18 is unique to Western Australia, variants of participation agreements are proliferating across the nation.

The combination of these two forces left the PKKP people essentially powerless to prevent their heritage being destroyed.

Siewert says that Rio is now “working with the traditional owners, the archaeologists and ethnologists to see what they can do to at least stabilise” Juukan One.

“They’ve put a moratorium on this bit of land, quite a large area of land. But now FMG has got an exploration permit over some of that, which they are in the process of converting into a mining licence.”

When FMG executives appeared before the committee this week, the company was at pains to stress it did not resort to gag clauses, and supported Aboriginal people in various ways, including employing them directly – 14 per cent of its workforce is Indigenous.

They also noted that, since Juukan, Fortescue had determined to contact native title holders before engaging in action under section 18.

But committee members, particularly Dodson, challenged the miner over its frequent recourse to litigation and coercion.

As Dodson summarises Fortescue’s approach: “Whenever it doesn’t get its way it seeks to litigate. I think that’s a tactic … to run down the resources of [its opponents].”

When it comes to FMG, says Siewert, “No one seems to have a good word to say.”

The greater point is that there are many ways powerful interests – miners and pastoralists – can frustrate, and indeed extinguish, native title. And, says Snowdon, they do it quite legally, and “are beholden really to no one”.

No one but their investors, of course, and it was investor pressure, particularly from superannuation funds, that eventually forced Jacques and his fellow executives out of Rio.

One big union fund, Hesta, which has $54 billion of assets under management, including $244 million in Rio shares, and more than $2 billion in all mining companies, also appeared before the committee.

In its opening statement, the fund laid out its dissatisfaction with the current state of affairs, both in relation to Rio’s actions at Juukan and the broader approach of mining companies to native title.

It called for major reforms: for an independent review of all agreements between companies and native title holders, and for consistency across state and federal laws, with “clear national standards”.

And it appears likely this is something the committee will recommend when it reports.

The destruction of Juukan cannot be reversed, so the focus now is preventing another such catastrophe.

For, as Entsch says, what Rio destroyed was “not just a cultural site for a handful of blackfellas in the middle of the desert. This is a historical site that belongs to every single Australian. It belongs to the world.”

This article was first published in the print edition of The Saturday Paper on Nov 21, 2020 as "Mine over matter".

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Mike Seccombe is The Saturday Paper’s national correspondent.