Article by Michael Pelly for the Australian Financial Review 

The brazen destruction of Juukan Gorge by Rio Tinto in 2020 has proved a gamechanger for the mining industry, with lawyers saying it raised the bar for agreements and increased approval times.

Scott Singleton, a partner at King & Wood Mallesons, said proponents were less likely to rely on fallback options, such as going to the Native Title Tribunal for a determination. Indigenous land owners are also more vigilant.

“Expectations around free, prior and informed consent mean native title holders more heavily scrutinise the details,” he said.

Mr Singleton and other native title experts welcomed news this week that the Australian Law Reform Commission would examine the “future acts” regime in the Native Title Act, which governs how development projects can proceed on land subject to native title.

However, they warned that a previous review completed in 2015 had been left to gather dust, with no government response.

Among its 20 recommendations was a recognition that traditional laws and customs – which form the basis of native title – “may adapt, evolve or otherwise develop”.

In 2020, Rio detonated explosives in the gorge, about 60 kilometres from the mining town of Tom Price, in Western Australia’s Pilbara region, amid negotiations with the traditional owners, the Puutu Kunti Kurrama and Pinikura people (PKKP). No notice was given.

The rock shelters provided evidence of continuous human occupation for 46,000years and were said to be the most important archaeological site in Australia. The area also contained high-grade iron ore, which has made the PKKP the richest native title group in the Pilbara.

Scathing report

A Senate committee report in 2021 was scathing of Rio– and the state of Commonwealth and state laws that govern Indigenous heritage and culture.

For example, cultural heritage in NSW is covered with a chapter in the National Park and Wildlife Act. “It is treating Indigenous heritage like flora and fauna,” Mr Singleton said.

In 2023, the West Australian government scrapped new cultural heritage laws after a backlash led by farmers and the resources industry.

Jonathan Fulcher, a partner at Hopgood Ganim, said Juukan Gorge had “raised both the perception of risks specifically around heritage matters on projects, as well as raising the actual risks of delay”.

There were “increased procedures for the management of significant sites and places resulting from cultural heritage assessments on projects by Indigenous groups”.

“It has become uppermost in the minds of boards and CEOs in a way that was not the case before the destruction of the caves,” he said.

Mr Singleton said “inadequate regulations and substandard engagement led to bad outcomes”.

“Rio was in the spotlight, but Juukan Gorge captured the attention of proponents across industries.”

Damien Gardiner, a partner at Clayton Utz, said there had been “much greater emphasis on recognition and respect” since the disaster.

‘Not that difficult’

He said it should not be left to the courts or parliament to frame negotiations.

“The concept of free, prior and informed consent is not that difficult to get our minds around … if there has been a genuine, respectful and transparent engagement with traditional owners and Indigenous representatives as part of a negotiation, or other future act process under the Native Title Act.”

Mr Gardiner said the ALRC should “address the increasingly complex interplay between cultural heritage matters and native title”.

“Yes, they’re two separate issues on paper (and are dealt with under separate and very disparate legislative regimes, including between the states, and as between the states and the Commonwealth), but Indigenous communities increasingly see them as inherently intertwined.”

Mr Singleton noted that the 2015 report also made recommendations to lower hurdles for proving native title, including how courts can draw inferences about ongoing connection to country.

“There have been nine more findings that native title doesn’t exist since these reforms were recommended and ignored.

“Negative native title determinations have grave consequences for traditional owner identity and opportunity, but they also impact industry certainty when engaging with Indigenous people. This is adverse for everyone.”

Mr Fulcher said courts had been “assiduous in protecting heritage and sacred Indigenous places”.
“Witness the latest decision of the High Court relating to falls in Kakadu, which were damaged by the director of National Parks.”

He noted the parliamentary report on Juukan Gorge was titled Never Again.

“But that was ill-advised, as it has happened again since. There is an increasing gap between the governors and the governed on these highly important issues around cultural heritage protection,” Mr Fulcher said.