State and territory protections +

Each state and territory has laws that protect types of Indigenous heritage. According to the Prescribed Bodies Corporate, there are ‘significant differences in cultural heritage laws across the country as cultural heritage has been defined and recognised in different ways’.

The Department of Agriculture, Water and the Environment offers a list of principal Indigenous heritage legislation in each state and territory, along with details of registers of Indigenous heritage sites.

Commonwealth protections +

The Commonwealth Government also has laws protecting Indigenous heritage places of national significance. These include:

• The Environment Protection and Biodiversity Conservation Act 1999, which establishes the National Heritage List. This protects Indigenous places of ‘outstanding heritage value’ along with significant natural and historic places.
• This Act also establishes the Commonwealth Heritage List, which includes places under Australian Government control that have significance for Indigenous heritage.
• The Australian Government Policy on Indigenous Repatriation, which governs the return of ancestral remains and secret sacred objects to their communities.
• Protection of Movable Cultural Heritage Act 1986, which protects movable cultural objects in Australia, and supports the protection of movable cultural objects from foreign countries.
• Aboriginal and Torres Strait Islander Heritage Protection Act 1984, which works to ‘preserve and protect places, areas and objects of particular significance’ to Indigenous heritage.

Submissions report a failure of cultural heritage management +

Rio Tinto’s Standards and Procedures for cultural heritage management have previously been dedicated to cultural heritage protection in Australia, placing the company at the forefront of cultural heritage management in the minerals sector worldwide (Harvey, submission 19).

However, these internal standards had little effect on the management of Juukan Gorge. Harvey, who worked as Rio Tinto’s Global Practice Leader and Chief Advisor on Aboriginal and Community Relations for over 30 years, suggests that a crucial factor in the destruction of Juukan Gorge was cost cutting by Rio Tinto, leading to a lack of cultural heritage professionals and limited oversight of cultural heritage management by corporate affairs.

In clear contrast to Rio Tinto’s claims that the impact of the charges to be used around Juukan Gorge could have been better communicated to the Puutu Kunti Kurrama and Pinikura (PKKP) Traditional Owners (Rio Tinto, submission 25), Harvey observes that ‘while Rio Tinto was not in breach of the law, … it was in serious breach of its own Standards and world leading guidance on the matter of cultural heritage management’. Harvey concludes that as a result of Rio Tinto’s actions ‘Juukan, or an event like it, sadly was waiting to happen and was perhaps overdue’ (Harvey, submission 19).

The submissions emphasised that adherence to corporate internal policies must be reinforced by strong legislative mechanisms. The Australasian Centre for Corporate Responsibility noted that ‘the egregious non-adherence by Rio Tinto to its own publicly disclosed co mmitments to Indigenous cultural heritage demonstrates a manifest insufficiency of corporate self-regulation in ensuring human rights are upheld.’(ACCR, submission 56)

Legislative changes must be made before the working relationship between the native title sector and the resource sector is damaged irreparably or other corporations lower their standards for cultural heritage management (Langton, submission 103).

Agreement making - best practice for protecting cultural heritage +

Land use agreements between Indigenous and non-Indigenous Australians can form the basis of cultural heritage protection. However, these agreements can be limited by various factors including:

• approaches that do not recognise the unique relationship Indigenous communities have to land,
• situations where Traditional Owners have limited bargaining power due to an inequality of resources, and
• legal frameworks which create reliance on the benevolence and enforcement of internal corporate standards.

The Rio Tinto Iron Ore (RTIO) and Puutu Kunti Kurrama and Pinikura (PKKP) People Indigenous Land Use Agreement requires PKKP Traditional Owners to consent to destruction of cultural heritage where they consider it appropriate. The Yamatji Marlpa Aboriginal Corporation, acting on behalf of PKKP Traditional Owners, sees this agreement as an improvement in cultural heritage protections compared to current Western Australian legislation (YMAC, submission 114). Despite this, the agreement did not prevent the destruction of Juukan Gorge.

Research from the 2000s onwards has explored proposals for best practice agreement making, which should encompass cultural heritage protection. Best practice should:

• As a first step, ensure all relevant organisations and people affected by the agreement are able to meaningfully participate in agreement negotiations.
• The negotiation process and setting must ensure effective collaboration between parties, allowing for an Indigenous organisational structure that manages communication between Indigenous negotiators, the parties they represent and non-Indigenous parties.
• The issues to be discussed should be identified prior to negotiation to ensure everything is covered during the process and that the precise rights and obligations of each party are established in the agreement.
• Finally, best practice calls for effective mechanisms for the implementation of agreements and an ongoing review mechanism to ensure that the agreement reflects any changes to the parties’ goals (Langton and O’Faircheallaigh, 2008).

Submissions to the senate inquiry into Juukan Gorge have built on this past articulation of best practice agreement making. The majority call for the inclusion of the United Nations Declaration on the Rights of Indigenous Peoples 2007 (UN DRIP) requirement of ‘free, prior and informed consent’ by the relevant Prescribed Body Corporate (PBC) to the agreement (Kimberley Land Council, submission 101).

The National Native Title Council extends the understanding of consent to include the appropriate resourcing of PBCs, ensuring equal bargaining power in the negotiation process. Increased resources will ensure Indigenous parties can engage in meaningful discussion that goes beyond having to either acquiesce to the miner’s suggested terms, or take part in arbitration, which may be too resource-intensive (NNTC, submission 34).

The importance of ways to monitor an agreement’s implementation and review activities has been restated by the Banjima Native Title Aboriginal Corporation, with a review mechanism potentially challenging the expectation that Traditional Owners will trade their heritage for mining interests.

Finally, submissions call for open access to agreement documents, which are currently considered confidential by the Native Title Act 1993 (Cth). Open access will improve non-Indigenous parties’ accountability to the terms of the agreement (NNTT, submission 14). By applying these best practice standards, true partnerships can be established between parties to agreements, enabling the good behavior and enlightened stewardship needed to protect cultural heritage (Cochrane, submission 11).

To learn more about Indigenous Land Use Agreements, explore our background material or search our website.

Strengthening cultural heritage protection laws +

Cultural heritage protection is currently managed by a range of State, Territory and Commonwealth legislation. The Juukan Gorge destruction occurred under the Aboriginal Heritage Act 1972 (WA) and shows its failure to call for consultation with Aboriginal people in the identification, management and protection of their heritage.

In November 2020, the WA government proposed a Bill to strengthen Aboriginal voice in these matters.

However, submissions called for a comprehensive national review of ‘how Indigenous heritage is protected by national laws in Australia, and how national laws should interact with state-based arrangements’ (NNTC, submission 34). Developed through consultation with Traditional Owners, their PBCs and broader stakeholders, a national reform would secure common principles across Australian jurisdictions. Paired with an overarching Commonwealth legislative power to prevent destruction, this type of two-tiered model would broadly conform to the principles of UN DRIP. As the international community expects that national governments facilitate the rights of traditional owners to protect their cultural heritage, the Commonwealth government is best placed to lead legislative review.

Legislating reform with best practice standards +

The NNTC has received broad support for its proposal that legislative reform follow the best practice standards developed by the heritage Chairs and officials of Australia and New Zealand. These best practice standards include:

• recognising heritage as a living phenomenon.

• legislation should be structured so it provides a blanket protection, subject only to authorisations granted with the consent of affected Indigenous communities.

• authorisations for disturbances of Indigenous cultural heritage should be made by an Indigenous organisation that is genuinely representative of traditional owners.

• Indigenous cultural heritage issues should be considered early in any development process.

• Indigenous communities should be provided with adequate resources to manage Indigenous cultural heritage processes.

• enforcement regimes should be effective and broadly uniform.

• regimes for the management of Indigenous ancestral remains and secret or sacred objects should be based on the primacy of traditional owners.

• recognition of frontier conflict sites is undertaken only with the participation and agreement of affected Indigenous communities.

A complete copy of the best practice standards was submitted to the Inquiry (NNTC, submission 34).

Findings of the Joint Standing Committee on Northern Australia +

An interim report was released in December 2020.

The Committee observed that “[t]here are a lot of things which contributed to the destruction of the shelters. The PKKP faced a perfect storm, with no support or protection from anywhere. They were let down by:

• Rio Tinto
• The Western Australian Government
• The Australian Government
• Their own lawyers
• Native Title law”

(Joint Standing Committee on Nothern Australia, 2020)

The Committee made seven recommendations directed towards Rio Tinto, the Western Australian Government, mining companies in Western Australia, and the Australian Government.

The recommendations included Rio Tinto’s restitution and reconstruction of the Juukan rock shelters and remediation of the site; a permanent moratorium on mining in the area; an independent review of Rio Tinto agreements to ensure they reflect best practice standards; and a removal of gag clauses or restrictions on Traditional Owner rights under heritage or other laws. Other recommendations focused on moratoriums or stays on activities in Western Australia that may impact on cultural heritage sites until stronger protections are in place or current Traditional Owner’s current free, prior and informed consent can be verified; strengthening cultural heritage protection laws, transparency of processes, administration and oversight.

These recommendations can be read in full (Joint Standing Committee on Nothern Australia, 2020).

The interim report noted that 'the destruction at Juukan Gorge has not just impacted on a small and discreet group of Traditional Owners in the middle of the Pilbara; it has robbed a significant piece of history from all Australians—from the world."

It concluded that “the ultimate cause of the destruction of the caves was that insufficient value has been placed on the preservation of Indigenous culture and heritage—a living culture with a timeless heritage. That must change.”

The final report was released 18 October 2021.

The Committee found that the "destruction of Juukan Gorge was the result of Rio Tinto's failures, but the events also highlighted the inadequate protection afforded by the Western Australian Aboriginal Heritage Act 1972. Throughout the course of the inquiry, it became apparent that there are serious deficiencies across Australia's Aborignal and Torres Strait Islander cultural heritage legislative framework, in all state and territories and the Commonwealth" Furthermore, the Committee stated, "legislative change must be based on the UNDRIP principles of Free, Prior and Informed consent. Such changes will bring deserved protections to Aboriginal and Torres Strait Islander peoples' cultural heritage and ensure that the world's oldest living culure continues to thrive"

(Joint Standing Committee on Northern Australia 2021).

The Committe made eight recommendations directed towards the Australian Commonwealth Government.

The recommendations called on the Australian Government to:

1. make the Minister for Indigenous Australians responsible for all Aboriginal and Torres Strait Islander Cultural Heritage matters;
2. ratify the Convention for the Safeguarding of the Intangible Culural Heritage 2003;
3. legislate a new framework for cultural heritage protection at the national level, through a process of co-design with Aboriginal and Torres Strait Islander peoples, setting out minimum standards for state and territory protections consistent with relevant international law (including UNDRIP) and the Dhawura Ngilan: A Vision for Aboriginal and Torres Strait Islander Heritage in Australia;
4. review the Native Title Act 1993 (Cth) with the aim of addressing inequalities in the negotiating positions of Aboriginal and Torres Strait Islander peoples;
5. endorse and commit to Dhawura Ngilan: A Vision for Aboriginal and Torres Strait Islander Heritage in Australia;
6. develop a model for a cultural heritage truth telling process that may be followed by all Australians as part of any process to engage with Aboriginal and Torres Strait Islander peoples and their cultural heritage;
7. establish an independant fund to administer funding for native title Prescribed Body Corporates (PBCs), with PBCs being required to demonstrate transparency and accountability in their decision making processes with respect to their local community; and
8. increase transparency and accountability requirements for PBCs and Native Title Representative Bodies by requiring that they demonstrate adequate consultation with, and consideration of, local community views prior to agreeing to the destruction / alteration of any cultural heritage sites.

These recommendations can be read in full (Joint Standing Committee on Northern Australia, A Way Forward 2021).

Western Australia's legislative reform +

In October 2021, the Western Australian Parliament passed the Aboriginal Cultural Heritage Act 2021 after a three-stage process which sought to identify issues and gaps in the Aboriginal Heritage Act 1972. The Western Australian Government hailed this as a "significant step towards equity in the relationship between Aboriginal people, industry and Government" (WA Government).

Criticisms

The Western Australian Government was reported as having disregarded widespread calls from Aboriginal land councils and over 150 eminent Australians to withdraw the new legislation (ABC News, 2021; The Conversation, 13 Dec 2021; NIT, 2021).

The criticisms, among other things, emphasised the new legislation's failure to meet international or best practice standards.

The NNTC openly condemned the new legislation stating that it "was not co-designed with Traditional Owners, as required by national best practice standards and recommended by the Juukan Gorge inquiry". Further, it "does not make Traditional Owners the decision makers in the protection and management of their cultural heritage". Rather, "it leaves ultimate decision making power in the hands of the relevant Minister in circumstances where a proponent or developer and an Aboriginal party cannot agree". In addition, "a developer can also appeal to the state administrative tribunal over ministerial decisions they don't like, with Aboriginal custodians for that area not having an equivalent right of appeal". (NNTC, 2021)

Ultimately, the new legislation "flies in the face of the findings [and] recommendations" of the Joint Standing Committee on Northern Austrlia's final report, which "called for, among other things, the right for Indigenous people to withold consent to destruction of an important place" (The Conversation, 7 Dec 2021).

"Given Indigenous peoples are not free to say "no" to harm, damage or destruction of their sites, [the principle of free, prior and informed consent] is not met", meaning that Aboriginal people in Western Australia are not permitted to exercise self determination over things which affect their lands (The Conversation, 13 Dec 2021).

Other developments +

The considerable stakeholder, community and shareholder backlash against Rio Tinto is broadly reported (ABC News, 2020; BBC News, 2021; Australian Financial Review, 2021).

In September 2020, Rio Tinto announced the resignation of then Chief Executive Officer, Jean-Sebastien Jacques, and head of iron ore Chris Salisbury and head of corporate relations Simone Niven. The resignation of Chairman Simon Thompson and non-executive director Michael L'Estrange was also announced in 2021 (ABC News, 2021).

In May 2021, a majority of shareholders at the annual general meeting voted to oppose executive bonuses (BBC News, 2021; Mining Weekly, 2021). If more than 25 percent of shareholders again vote against the executive remuneration policy next year, Rio Tinto must hold a resolution over a spill of the board (ABC News, 2021).

Rio Tinto's response to the Inquiry and its ongoing activities are reported on their website.

Read more +

Further information on cultural heritage in Australia:

• Centre for Rock Art Research and Management.
• AIATSIS report on the situation and status of Indigenous cultures and heritage.
• AIATSIS native title and Indigenous cultural heritage management bibliography.
• Department of Agriculture, Water and the Environment's information on Australia's heritage, Indigenous heritage and Indigenous heritage laws.
• Indigenous Cultural Heritage Conference 2021.
• Dhawura Ngilan: A vision for Aboriginal and Torres Strait Islander heritage in Australia and the Best Practice Standards in Indigenous cultural heritage management and legislation.
• Ministerial Indigenous Heritage Roundtable Communique—21 September 2020: Modernisation of Indigenous Heritage Protection Regimes.
• National Native Title Tribunal's overview of Indigenous cultural heritage schemes in Victoria, Queensland and the Northern Territory.