‘Embarrassingly out of kilter’ law destroys 46,000-year-old Aboriginal sacred sites

Posted on: June 17, 2020 by

The destruction of 46,000-year-old sacred Aboriginal rock shelters in Western Australia has prompted a national inquiry and calls for urgent reform of Indigenous cultural heritage law.

During a mine expansion project, Rio Tinto detonated explosives in the Juukan Gorge in May, destroying two deep cave sites of the Puutu Kunti Kurrama and Pinikura People (PKKP).

The Director of the PKKP Aboriginal Corporation described the caves as “one of the most sacred sites” in the region.

Western Australia’s Minister for Aboriginal Affairs and Lands, Ben Wyatt MLA, acknowledged the incident has been “heartbreaking” for Traditional Owners “who have lost an irreplaceable spiritual and emotional connection to an ancestral past that continues to nourish their contem­porary cultural life”.

Hamersley Range (Pilbara region, Western Australia) where the Juukan Gorge caves are located (Image Credit: Public Domain via Wikimedia Commons)

The destruction had been authorised under section 18 of the Aboriginal Heritage Act 1972 (WA).  Section 17 of the Act makes it an offence for a person to excavate, destroy, damage, conceal or in any way alter any Aboriginal site, unless that person is acting with the Minister’s consent under section 18 to sign off on mining projects.

The consent had been granted in 2013, before more than 7,000 Indigenous artefacts and sacred objects were subsequently discovered in the area, including a 4,000-year-old plait of human hair, woven together from the strands of the Traditional Owners’ direct ancestors.

Rio Tinto Iron Ore’s Chief Executive, Chris Salisbury apologised for the distress caused and committed to reviewing plans for all other Indigenous sites in the area, as well as the company’s heritage approach in consultation with Traditional Owners.

The incident has triggered public protests and a wide-ranging Federal Parliamentary Inquiry. Its terms of reference include the effectiveness and adequacy of state and federal Indigenous heritage laws. This Inquiry provides an important opportunity to consider the fragmented protections that exist across Australian jurisdictions.

During the last decade there have reportedly been more than 460 applications made under section 18 of the Aboriginal Heritage Act 1972 (WA) to impact Aboriginal heritage sites on mining leases, and all were approved.

Minister Wyatt acknowledged he felt “the pain of administering an outdated and inadequate system”.

This legislation has been under constant review for eight years. A draft new Bill is due for public release and consultation this year. Problems identified with the current law include low penalties, costly compliance processes and a lack of active enforcement, which contribute to the continued destruction of Aboriginal cultural heritage.

A discussion paper by the Department of Planning, Lands and Heritage referred to the legislation as “‘embarrassingly out of kilter’ with modern standards of heritage management… and more importantly, the rights and reasonable expectations of Aboriginal people”.

The Juukan Gorge incident demonstrates a criticism often levelled at Indigenous cultural heritage legislation across Australia that the statutes are more permissive of destruction than protective.

For example, in Tasmania, construction of a bypass through a 40,000-year-old Aboriginal heritage site on the Jordan River Levee attracted public controversy in 2010.

Jordan River Levee Bridge in Tasmania (Image Credit: Wiki ian CC BY 3.0 via Wikimedia Commons)

Stone artefacts of cultural significance to Traditional Owners were located at the site. Despite community calls for an alternative route to be found, the State Environment and Heritage Minister, Brian Wightman, authorised the bypass to cross the levee instead via a four-lane single arched bridge.  The Minister argued the decision to build the bridge “will protect the significant Jordan River levee and enable further protection and investigation of the surrounding Aboriginal site”.

Aboriginal cultural heritage protections in Tasmania are now contained in the Aboriginal Heritage Act 1975 (Tas) (amended), which commenced in 2017 and is also under review. Section 9 provides that except in accordance with a permit from the Director of National Parks and Wildlife, it is an offence to destroy, damage, disfigure, conceal, uncover, expose, excavate, or otherwise interfere with a protected object, or carry out an act likely to endanger a protected object.

Queensland has taken a different approach by creating a “cultural heritage duty of care”, which applies to any activity where Indigenous cultural heritage is located.

Under section 23(1) of the Aboriginal Cultural Heritage Act 2003 (Qld), this duty of care requires a person carrying out an activity to “take all reasonable and practicable measures to ensure the activity does not harm Aboriginal cultural heritage”.

Section 24 makes it an offence to harm Aboriginal cultural heritage if the person knows or ought reasonably to know that it is Aboriginal cultural heritage, unless the person is acting under another provision of the Act, an approved cultural heritage management plan or native title agreement, in compliance with their cultural heritage duty of care or duty of care guidelines, the person owns the Aboriginal cultural heritage or acts with the owner’s agreement; or the harm results from a necessary act because of an emergency, like a bushfire.

Regrettably, cultural destruction has still occurred.

In 2018 a Queensland company was fined $188,000 AUD after failing to comply with its cultural heritage duty of care by destroying sacred Gumbi Gumbi trees, damaging significant stone artefacts and harming the spiritual culture of the Karingbal People while quarrying in a known area of Aboriginal cultural heritage.

In Dunn v Ostwald Construction Materials Pty Ltd [2018] QMC 23, [36], the Court also ordered the company to pay $250,000 towards the rehabilitation of Aboriginal cultural heritage under section 27 of the legislation, the first time an amount had been ordered under this provision.

New South Wales remains the only Australian state without a stand-alone Aboriginal cultural heritage Act.  Instead, legislative protections are located in the National Parks and Wildlife Act 1974 (NSW), a framework consistently criticised as disrespectful and offensive to First Nations Peoples, and ineffective in protecting their tangible and intangible cultural heritage.

The opportunity the new Inquiry presents to lead much-needed reform of Australia’s Indigenous cultural heritage laws must not be passed up.