By Joe Morrison, EDO Board, and David Morris, CEO
The destruction of one of the Juukan caves in Western Australia’s Pilbara region by Rio Tinto is shocking, but not surprising. It is not Rio Tinto’s fault alone either. Their actions, which were immoral and lacked credibility, were condoned by the laws of Western Australia and not affected by the protections in Commonwealth law. The culpability of governments has seemed largely absent from the debate.
Unless things change, it will not be the last time Traditional Owners are left devastated and emotionally tormented when a place of immense significance is destroyed against their wishes.
But there is an opportunity here. The widespread outrage following Rio Tinto’s decision to destroy the cave places a spotlight on the corporate processes and laws which allowed it. “But it was lawful”, they note. Much is often made of the “lawfulness” of actions, but rarely do these discussions involve consideration of customary law and values or the views of the Traditional Owners. The enormous disconnect between the nation state and Indigenous Australians remains and, in many instances, has grown. We cannot assume that lawfulness equates to justice or appropriate development. In matters of cultural heritage in Australia, our laws often ensure exactly the opposite.
Let’s be clear. Rio Tinto, the Western Australian Government and Commonwealth Government didn’t care. In reality, Australians didn’t care enough either. If we did, Governments would simply not have been able to allow this type of destruction to persist and continue since federation. This outcome also adds weight to the need for an Indigenous voice to parliament, so as to ensure that Indigenous people are a fundamental part of nation building.
Australia has always prioritised extractive industries and devalued cultural heritage. At least four First Nations groups are fighting right now to prevent the destruction of their sacred sites. In a recent case – currently awaiting decision by the Federal Court – the Commonwealth Environment Minister acknowledged the significance of sites threatened by a proposed coal mine, but nevertheless declined to make a protective declaration. She found difficulty weighing the relative significance of the priceless vs the price-tagged. Priceless generally means something so valuable it is incapable of being meaningfully valued in monetary terms – such is its importance. Yet in cultural heritage matters this inability to be measured in dollars has seen countless sites destroyed.
Yes, there’s an opportunity now to change. But that change isn’t evidenced by an apology and a promise to do better, it is evidenced by real change that affords First Nations Traditional Owners the legal ability to protect their places of significance. To provide an opportunity for Traditional Owners to participate with the extractive industries as equals in that process.
Rio Tinto has, commendably, committed to advocating for law reform. The Commonwealth Government has committed to another review. In both instances, the commitments lack detail. As a start, they could commit to some principles and key among those should be First Nations People having genuine control over their heritage, including powers to make decisions about cultural heritage, issue protection orders and provide First Nations people with review rights. The United Nations Declaration on the Rights of Indigenous Peoples is a good basis to start from.
The current pandemic has demonstrated that Governments can move fast when they need to and the rapid introduction of interim protection measures is warranted while proper processes for the reform of cultural heritage laws occurs.
For example, positive obligations of prior notification to Traditional Owners before activity that would impact cultural heritage takes place should be introduced. Governments could also move to introduce appeal rights for traditional custodians, empowering First Nations people and giving them greater say in processes which affect their cultural heritage. And in all States and Territories with outdated cultural heritage laws, current authorities of the kind which permitted the destruction of the Juukan cave should be revoked and reassessed later under contemporary laws.
On lands where Native Title is claimed or is determined, pastoral lease holders should not be able to diversify their leases without consent from Native Title holders to ensure that protection of Indigenous heritage on the vast pastoral estate does not adversely affect those people whose ancestors have owned, lived and managed those landscapes for tens of thousands of years prior to them being taken away. Governments can change this without amending the Native Title Act, but it boils down to leadership.
Rio Tinto’s actions have placed a spotlight on corporate conduct and the failure of Governments to provide protections for our shared history in a way many past events have not. Occurring, as it did, during Reconciliation week and against the backdrop of global calls for greater recognition of – and action to address – the structural marginalisation of minorities only serves to further emphasise the need for change.
Apologies cannot replace what is lost. We advocate for a better way to honour the things lost by reforming our national psyche, our laws and our values.