Investors are up in arms over a draft law in Western Australia which they say will not prevent another Juukan Gorge scandal.
The 46,000-year-old sacred rock shelters were legally destroyed last year by big miner Rio Tinto to expand an iron ore mine, despite the opposition of the traditional owners, the PKKP.
The cultural heritage bill, designed to prevent another such incident, was introduced into the WA parliament last week and it could be law by Christmas, but investors and many traditional owners in the state are not happy with it.
Mary Delahunty, head of impact at the HESTA industry superannuation fund, said the proposed new law would not do enough to stop another incident like that at Juukan Gorge.
“They had such a great chance to make a real difference and make sure that a disaster like Juukan Gorge never happened again and we don’t think this bill does that,” she said.
‘It’s going to be business as usual for the mining companies’
Tjiwarl traditional owner Kado Muir’s country is in the northern goldfields of Western Australia, near Leinster.
The chairman of the National Native Title Council and the First Nations Heritage Protection Alliance is also worried the proposed heritage law will not stop further destruction of sacred sites.
“Basically it’s going to be business as usual for the mining companies and others except where investors are asking them the very difficult questions in their boardroom presentations,” he told the ABC.
Mr Muir has teamed up with major investors, including the Australian Council of Superannuation Funds, to form the Dhawura Ngilan Business and Investor Initiative.
“So there’s no change at the government level, but in the investor community there is a lot of positive change, some real change, and focus on taking responsibility for the protection of Aboriginal cultural heritage by all Australians,” he said.
‘We want a fair go’
Ngadu traditional owner Leslie Schultz’s country in south-east Western Australia covers part of the Nullarbor Plain and the Great Australian Bight.
He is another senior Indigenous leader who is not happy with the planned WA bill and he points to the Northern Territory’s sacred sites law as a better model.
“What we’re saying is we want a fair go and the Northern Territory has a good example of how it works successfully with Indigenous people,” he said.
Over the past decade, miners have submitted more than 460 applications in WA to develop Aboriginal heritage sites, with all but one approved.
Northern Territory authorities believe their laws, which mandate consultation and can see firms or individuals face hefty fines or jail time for offences against sacred sites, should be adopted as the national benchmark.
The WA law also proposes multi-million-dollar fines. However, jail terms for individuals were removed from the latest draft of the bill.
Investors call for change
Investors are also unhappy there is no right of appeal for traditional owners under the WA law.
The view of investors is significant because they forced the departure of former Rio boss Jean-Sebastien Jacques last year over the Juukan Gorge disaster.
Ms Delahunty said investors were disappointed the WA Aboriginal Affairs Minister retained the right to make the final decision in the case of a conflict between developers and traditional owners.
“We were very disappointed to see that between a draft that was released earlier and the one that we can now see, there has been a removal of appeal rights,” she said.
“Now, that’s an important component of any decent and progressive act that seeks to enshrine native title protection and cultural heritage protection.”
WA Aboriginal Affairs Minister Stephen Dawson said there was no veto on development by traditional owners.
“In the rare instance where parties cannot agree, the minister will make a decision on behalf of the government in the interests of the state.”
“Major decisions on contentious issues are the job of the elected government,” he told the ABC.
Mr Dawson told the ABC that while the minister had the final say on development decisions, there were rights of appeal to the State Administrative Tribunal.
But Greg McIntyre SC, the lawyer who represented traditional owner Eddie Mabo in the landmark Mabo legal case, which recognised the land rights of the Meriam people in the Torres Strait, said the bill did not provide full, free, prior and informed consent because there was no veto right for Indigenous people.
“It’s much more comprehensive than the existing piece of legislation and introduces a number of new, useful concepts,” he said.
“In the version of the bill last year, there was a capacity for Aboriginal parties to seek a review by the state-administered tribunal of the minister’s decision.”
He said that clause had been removed from the current version of the bill.
“So the people who are miners and property developers still have some rights of review. But Aboriginal people don’t.”
WA Aboriginal Affairs Minister touts ‘progressive’ law
Mr Dawson said the bill was the most progressive in the country and came after more than 100 workshops and information sessions attended by more than 1,400 people, 150 targeted and individual stakeholder meetings and more than 380 submissions.
“The new bill makes it a statutory requirement that land users undertake meaningful consultation with traditional owners, aimed at reaching agreement based on informed consent, for activities that may impact their cultural heritage,” he said.
“The new legislation makes it a legal requirement that Aboriginal people are at the centre of decision-making over their own country.”
However, the legislation will allow existing Section 18 permits, which allow the destruction of sacred sites, to go ahead for the next 10 to 15 years.
That clause allowed Rio Tinto to blow up the Juukan Gorge caves.
Call for stronger national heritage law
The Juukan Gorge parliamentary committee recommended new national laws to protect thousands of sacred sites across Australia.
Ms Delahunty said that was supported by investors.
“From an investor point of view, what we really need is consistency in the approach at a national level,” she said.
But Paul Everingham, chief executive of the WA Chamber of Minerals and Energy, said states and territories needed to make their own decisions on development.
“We believe strongly that it should be … [and] the West Australian government strongly believes that land management should remain the province of the local state government,” he said.
“We believe that this bill is a good compromise.
It strengthens Aboriginal cultural heritage. It means everyone that wants to undertake activity on Aboriginal land has to negotiate with the local Aboriginal group.”
A Rio Tinto spokesman said the miner supported the strengthening of Aboriginal heritage protection in WA.
“We will now take some time to review the bill in detail,” he said.
“We have spent the past year making major changes right across the business to better protect Aboriginal heritage.”
But Mr Muir said Rio Tinto had not gone far enough.
The PKKP traditional owners have said the compensation they received from Rio Tinto would never make up for the loss of their sacred rock shelters.
