Early Week Essay: Aboriginal spokesperson reiterates Juukan demands

Mining companies have operated with a free rein and few consequences
for too long

The Juukan Gorge catastrophe could have happened to any mining company.
We need strong law reform

Jamie Lowe

Opinion

The Guardian

21 September 2020

They were dragged kicking and screaming, but Rio Tinto’s board finally
took the crucial first steps towards accountability for the destruction
of caves at Juukan Gorge.

Cultural heritage destruction is an almost daily occurrence for
traditional owners. Mining companies are almost never held accountable.
Media coverage is usually scant at best. No wonder Rio thought the story
would go away. And no wonder the three executives in question, whose
governance failings robbed us of a world heritage significant site, were
smug enough to destroy it in the first place.

The Juukan Gorge disaster has unveiled shocking revelations that are
everyday reality for traditional owner groups. The enormous imbalance of
power on which traditional owners and mining companies sign agreements
has become tragically normalised in our sector. Mining companies
capitalise on this power imbalance and the deficiencies in legislation
to push traditional owners into agreements they mightn’t otherwise sign.

The Native title act (NTA) governs these agreements. Mining companies
argue that state law reform is not needed because the NTA already
provides a negotiating mechanism for traditional owners to protect their
heritage. However, the NTA does not require ‘free, prior and informed
consent’, the human rights standard for Indigenous agreement-making. If
a company wants to mine on a group’s land, and the group does not
consent, the mining company can make an application to the National
Native Title Tribunal, which almost always rules in industry’s favour.

Some mining agreements are beneficial to both parties. Many companies
have good rapport with local traditional owners. We need to dispel the
myth that traditional owners are anti-economic development. But the
fairness of the agreement negotiated shouldn’t be left to the whims of a
company’s benevolence. And the lack of transparency around these
agreements, which can contain “gag clauses”, is highly unethical. It’s
an outrage that traditional owners are too terrified of legal
repercussions to speak out. It’s no surprise then that so much heritage
destruction has historically gone unnoticed.

State cultural heritage laws are also inadequate. The Western Australia
government recently released a draft bill to replace its 48-year-old
predecessor. The draft bill does not go far enough but it does remove
the notorious s18 under which miners apply for ministerial consent to
destroy a site and which traditional owners have no right to appeal.
This is how Juukan was destroyed. In the past ten years, 463 section 18
applications were made. None were rejected. We hope the WA government
can back its own bill against the might of industry pressure.

Our people were on this continent long before mining companies
arrived and we’ll be here long after they’re gone

There’s also the issue of resourcing. When traditional owners gain
native title, they are legally obliged to form a corporate entity known
as a ‘Prescribed Body Corporate’ (PBC), through which mining agreements
are negotiated.

But here’s the catch: not only do PBCs have far more burdensome
statutory requirements than other corporations, but 80% of them have no
income whatsoever. They are often comprised of a voluntary board with no
employees, no administrative experience and no office. Now tell me how a
PBC is meant to negotiate a mining deal on a level playing field with a
billion-dollar, multinational corporation? We know of one PBC that has
546 mining tenements on its books right now. For a small PBC to handle
that kind of workload with zero government funding and be expected to
find the resources to negotiate a mining deal is absurd.

This is just a snapshot of the government machinery enabling the
destruction of Australia’s cultural heritage. Federal and state laws do
not interact effectively, if at all. To any casual observer it would
appear these laws are crafted to sanction and expedite the destruction
of cultural sites, rather than allow traditional owners to self-determine.

This approach robs an already disempowered people of their cultural
responsibilities. Australia, and humankind, are robbed of some of the
earliest evidence of human existence. Australia would be aghast at
wilful damage to the Opera House. Or the destruction of an Anzac
memorial. Yet heritage ten times older than the Egyptian pyramids is
detonated regularly.

Even with the Juukan Gorge caves in ruins, the mining sector still won’t
support legislative reform. They think they can be trusted to
self-regulate. Some companies have pledged to improve processes. BHP
announced it would set up a heritage advisory council. This is all well
and good, but if we could trust them to self-regulate, wouldn’t the
Juukan Gorge caves still be standing? Other than shareholder pressure or
bad publicity, where is the mining sector’s incentive to change?
Australia’s laws give them open slather. The status quo is pretty
comfortable for the top end of town.

We hope this will be the mining sector’s watershed moment. When these
companies eventually pack up and leave our continent, what will they
leave behind? After stripping impoverished traditional owners of their
rights and agency, what sustainable, long-term development plan have
they negotiated? How will their triple bottom line stack up?

We’re calling on the commonwealth to show some leadership and implement
strong cultural heritage laws and more resourcing for PBCs. The NNTC has
worked with the Heritage Chairs of Australia and New Zealand (HCOANZ) to
draft a federal cultural heritage policy framework. The best practice
‘national standards’ is based on principles outlined in the UN
Declaration on the Rights of Indigenous Peoples, endorsed by Australia.
The national standards are comprehensive and would provide more
certainty for both industry and traditional owners.

We’re also calling on the mining sector to support law reform and an
independent, transparent review into agreement-making processes.

Rio Tinto might have been the sacrificial lamb, but the Juukan Gorge
catastrophe could have happened to any mining company. For too long
they’ve been operating with free rein and few consequences. Rio must now
commit to a forensic review and overhaul of its company culture if it is
to have any hope of rebuilding its brand and its trust with traditional
owners.

Let this be a wake-up call to them all: our people were on this
continent long before mining companies arrived and we’ll be here long
after they’re gone. The decisions made now will determine how much of
what makes Australia profoundly unique will still be standing when they go.

Jamie Lowe is CEO of the National Native Title Council and a
Gunditjmara Djabwurrung man. He is also elected to the First Peoples
Assembly of Victoria, tasked with negotiating a Treaty framework with
the Victorian government.