SA’s Aboriginal heritage protection laws could serve as a model for other jurisdictions, but there should be appeal rights on decisions to disturb heritage sites

1 September, 2020
The destruction of Juukan Gorge rock shelters, which contained evidence of human life dating back 46,000 years, should never have happened.

Rio Tinto, the mining company that blasted the ancient caves, admitted it themselves.

The Board of Rio Tinto publicly apologised for the distress caused to the Puutu Kunti Kurrama and Pinikura people, acknowledged the need to give Traditional Owners a bigger say in decisions that affect culturally significant sites, and resolved to cut a total $4.9 million in bonuses to the company’s chief executive and two other executives.

However, there was nothing illegal about the actions of Rio Tinto.

The multinational company was required by WA’s Aboriginal Heritage laws to apply to the State’s Aboriginal Cultural Material Committee for approval to conduct mining operations in the caves.

The Committee, whose members are appointed by the Minister for Aboriginal Affairs, is charged with the duty to evaluate, on behalf of the community, the importance of places and objects to Aboriginal people and to provide advice to the Minister on Aboriginal heritage matters. The Committee also makes recommendations to the Minster with regard to whether places and objects are of special significance to Aboriginal communities and should be preserved.

In this particular case, the Minster approved Rio Tinto’s application to destroy the caves so the company can access iron ore deposits. 

The whole sorry saga highlights weaknesses in WA’s Aboriginal heritage laws.

In comparison, South Australia’s Aboriginal heritage laws provide stronger protections for culturally significant sites and could provide a model for future reform of WA’s – and other jurisdictions’ – heritage protections laws.

One of the key differences between the States’ laws is the level of consultation required for an application to disturb a site or object can be approved.

Before making a determination as to whether a site or object is significant to Aboriginal tradition, or giving an authorisation to interfere with an Aboriginal site, the South Australian Premier, as the Minister responsible for Aboriginal Affairs, must take all reasonable steps to consult with the State Aboriginal Heritage Committee, as well as any Aboriginal organisation, Traditional Owners and other Aboriginal people that, in the opinion of the Minister, have an interest in the matter. 

The Minister is required to undertake a significant consultation process with Aboriginal communities and organisations. Meetings are advertised to ensure relevant persons and organisations can attend and be heard. Such consultation must take place before the Minister may authorise the destruction, disturbance or interference with any Aboriginal site, object or remains.

A significant risk with WA’s model is that the requirement to only consult with one advisory Committee whose remit encapsulates the entire State, is that Aboriginal people with local knowledge of the cultural elements in question may well be shut out of the conversation.

The WA Law Society has suggested regional consultation Committees should be formed to represent eight distinct regions within WA. Those Committees can, based on their local knowledge and skills, provide advice to the Minister on the cultural significance of sites or objects within their region.

South Australia’s Aboriginal Heritage Act recognises Aboriginal people as primary decision makers about their own heritage, which includes ancestral remains, sites and objects. The Act encourages applicants such as miners, researchers or government departments to first talk about their plans directly with Traditional Owners.

This statutory recognition gives Traditional Owners a significant voice in determining the value and sanctity of areas and artefacts.

There should be a right to review Ministerial decisions

State and Commonwealth Aboriginal Protection laws- including SA’s – do not give Traditional Owners the right to appeal a Ministerial authorisation. The WA Government has indicated that it will introduce a Bill shortly that would strengthen Aboriginal cultural heritage protections and give Aboriginal people a right to appeal Ministerial decisions relating to Aboriginal heritage sites and objects.

Currently in SA, WA and other jurisdictions, only landowners have the right to cause a review a decision of the Minister under Aboriginal heritage laws. The series of events that led to the blast of the Juukan cave highlighted the dangers of a legislative framework that has no appeal rights.

Governmental authorisation of mining operations in the Juukan Gorge caves was given in 2013. Since then, archaeological digs unearthed new artefacts and other evidence indicating ancestral occupation of the land spanning more than 40,000 years. However, there was no legal mechanism to compel the minister to re-assess his decision in light of the new evidence.

While businesses need to have commercial certainty, there should be statutory provisions for the re-assessment of Aboriginal heritage decisions if new facts emerge that were not known at the time of the original decision, especially if they pertain to archaeologically and culturally significant sites that tell stories of the nation’s rich history of Indigenous habitation. 

For example, a rock shelter in SA’s Flinders Ranges, discovered in 2016 and known as Warratyi, indicates that Indigenous people settled that part of the country around 49,000 years ago. Imagine if there were plans to destroy that site, and despite such a remarkable archaeological discovery being made after authorisation had been given to blow it up, there was no legal mechanism to compel a reassessment of the decision.

Perhaps it is time to review Aboriginal Heritage laws in all States, as well as the Commonwealth’s Aboriginal and Torres Strait Islander Heritage Protection Act, before another cultural and historical treasure is lost.