Article by Rachael Knowles for NITV News

It’s been two years since Rio Tinto destroyed Juukan Gorge.

For Puutu Kunti Kurrama People (PKKP) the day serves as a “sad and powerful reminder” for strong cultural heritage protection across the nation.

“It has been two incredibly painful years for our people,” Burchell Hayes, Kurrama Elder and Chair of the PKKP Aboriginal Corporation RNTBC said.

“The Juukan Gorge disaster and the devastation it has caused to the PKKP should be in the forefront of all politicians’ minds when they are considering any proposed legislation or policies that deal with the preservation of culturally significant places.”

The Day that started it all

On May 25, 2020, Rio Tinto detonated charges at Juukan Gorge in WA’s Pilbara region.

The mining giant destroyed two ancient rock shelters dated over 46,000-years old and of significant cultural heritage for PKKP Traditional Owners.

The site of the explosion, 60km northwest of Tom Price, and fell under the Native Title Claim awarded in 2015.

The Juukan Gorge site is considered one of the most significant research sites in the nation.

A 2014 excavation revealed some of the earliest recorded signs of grindstone technology in the Pilbara region, alongside a macropod fibula that had been sharpened into a pointed tool dated at 28,000 years and plaited hair dated at 4,000-years old.

“This is one of the earliest, if not the earliest, sites in the upland Pilbara and is part of a rich landscape of places in the area that have not been studied in-depth,” said Puutu Kunti Kurrama Land Committee Chair John Ashburton.

“There are less than a handful of known Aboriginal sites in Australia that are as old as this one and we know from archaeological studies that it is one of the earliest occupied locations not only on the western Hamersley Plateau but also in the Pilbara and nationally. Its importance cannot be underestimated.”

How the legislation let it slide

Whilst Section 17 of the WA Aboriginal Heritage Act 1972 says that any cause of destruction, damage or alteration to an Aboriginal site is a criminal offence. The following section, Section 18, allows landowners to apply for consent to proceed with any intended land use despite the potential risk to Aboriginal cultural heritage.

Landowners are required to send a request to the Aboriginal Cultural Material Committee, who assesses the request and submits a notice to the Minister for Aboriginal Affairs with their written recommendation.

The minister has full discretion on the outcome of the application.

In December 2013, Rio Tinto applied for a Section 18 for Juukan Gorge, and ministerial consent was granted by the then-minister the Hon. Peter Collier under the former WA Liberal Government.

Despite the 2014 findings at the Juukan Gorge site, this approval was not reversed and in 2020, the gorge was destroyed.

The consequence of catastrophe

On June 11 the Joint Standing Committee on Nothern Australia established an inquiry into Juukan Gorge.

The following day Rio Tinto Chief Executive Jean-Sebastien Jacques formally apologised for Juukan Gorge.

“We are very sorry for the distress we have caused PKKP in relation to the Juukan Gorge and our first priority remains rebuilding trust with PKKP,” he said in a statement.

Mr Jacques said that Rio Tinto would cooperate with Joint Standing Committee on Northern Australia’s Inquiry into the destruction and support the WA Government in reforming the Aboriginal Cultural Heritage Act.

“We believe the mining industry has a critical role to play in contributing to the future prosperity of all Australians.”

In September, Rio Tinto parted ways with Mr Jacques and two senior executives after mounting pressure for consequences for their role in Juukan Gorge.

In December, PKKP and Rio Tinto released a joint statement noting their decision to start rebuilding their relationship.

Mr Hayes said in the statement that whilst there was progress, much work was ahead.

“While we have made some initial positive steps in rebuilding our relationship there is so much more we need to do in order to shape a shared future for our next generations of PKKP people working with Rio Tinto.”

WA’s response to the Inquiry

In October 2020, the inquiry handed down its final report, A Way Forward, which delivered 8 recommendations.

It called for widespread reform on national Aboriginal cultural heritage legislation and native title, a national framework for cultural heritage protection developed through co-design with Traditional Owners, the development of independent funding for prescribed body corporates and for the Australian government to endorse and commit to implementing Dhawura Ngilan: A Vision for Aboriginal and Torres Strait Islander Heritage in Australia.

In December, the WA government passed the new Aboriginal Cultural Heritage Act 2021 without amendment – despite opposition from Traditional Owners, the United Nations, legal experts, advocacy groups and Land Councils.

The bill, which was not designed through a co-design process like the inquiry recommended, holds a similar capacity to the former bill in regards to Section 18.

It asks Traditional Owners to negotiate a cultural heritage management plan, however, does not require their consent for it, nor for “other activities”.

Queensland MP Warren Entsch who chaired the Inquiry told ABC at the time that the committee were “quite alarmed” at the “serious deficiencies” in the bill.

The bill leaves the final approval in the hands of the minister and revokes Traditional Owners’ right to appeal the decision.

Speaking to the Guardian at the time, Senator Pat Dodson said the bill set the state back.

“If you look back at the history of Western Australia, it hasn’t been so advanced in this space for a very long time and this was the one opportunity it had to be a bit advanced, and it has failed,” he said.

The movement toward national protection

Two years on from Juukan Gorge, a new national government has invoked hope for the fight for Aboriginal heritage protection.

In November, the federal government created the First Nations Heritage Alliance to empower self-determination for Traditional Owners in heritage decisions. The body, alongside the National Native Title Council (NNTC), will continue lobbying the government for full implementation of the inquiry’s recommendations.

“The National Native Title Council and the First Nations Heritage Protection Alliance will be advocating for the full implementation of the Jukkan George Report Recommendations with the new Federal Government,” said NNTC CEO Jamie Lowe.

“With a priority to implement the Dhawura Ngilan best practice standards and develop and legislate a new framework for cultural heritage protection at the national level – by continuing the co-design work being undertaken by the previous government.”

The fight continues for PKKP

For PKKP, the journey has been long and hard, with much still to go to ensure Country is protected.

“The only people who have the right to decide how their lands are treated are the people who have inhabited them for tens of thousands of years,” said Mr Hayes.

Whilst Rio Tinto and PKKP are moving towards remediation, PKKP will never forget the impact of May 25, 2020 on their People, their Country and culture.

“The damage has been done, and there is no amount of money in the world that can bring back what was destroyed by the blasts two years ago, and all we can do now is work with governments and industry to protect our Country,” Mr Hayes said.

“Hopefully, this will in turn help deliver protection for the culturally significant places and lands of other First Nations people.”