The rockshelters of Juukan Gorge were destroyed in minutes. As Evana Ho reports, investigations in the two years since have highlighted the gaps in native title legislation to properly protect sacred sites and traditional lands.

On the morning of 24 May 2020, an area of the Pilbara region in Western Australia (WA) was rocked by an explosion.

That explosion on the traditional lands of the Puutu Kunti Kurrama and Pinikura (PKKP) people destroyed the rockshelters of Juukan Gorge, a sacred site that had been continuously occupied for 46,000 years.

In the wake of the tragedy, there was mourning. There were apologies by mining giant Rio Tinto, the main culprit. And there was a parliamentary inquiry to untangle how it was able to happen.

The inquiry’s final report, handed down in October 2021, acknowledged the destruction of Juukan Gorge was “not just a loss for the PKKP peoples, but it is a loss for the nation, and the world, as a whole”.

Protesters rally outside Rio Tinto’s office in Perth in June 2020. Photo: AAP Image

A tragedy decades in the making

The rockshelters were gone in minutes, but testimony shows the foundations for the action had been years, arguably decades, in the making.

The PKKP people began negotiations with Rio Tinto about mining the area in 2003. These were facilitated by the Yamatji Marlpa Aboriginal Corporation and agreements were reached in 2006 and 2011, and finally an Indigenous Land Use Agreement was registered with the National Native Title Tribunal in 2013.

That same year Rio Tinto applied for, and received, Section 18 consent under the Aboriginal Cultural Heritage Act 1972 (WA) to lawfully impact the rockshelters.

The PKKP were then in the midst of their native title claim. In 2015, after a 14-year battle, they were recognised as native title holders and granted non-exclusive rights to the lands on which Juukan Gorge stands.

“The idea that you would have native title recognised was just unheard of those decades ago.”

Emeritus Professor David Trigger

However, this designation didn’t significantly improve the PKKP peoples’ bargaining position with Rio Tinto.

“Even with exclusive possession, we’re not talking about sovereign interest,” Professor Peter Yu, a Yawuru man and the Vice-President of the First Nations Portfolio at The Australian National University (ANU), says.

Yu was one of the key negotiators for the Yawuru peoples’ successful native title claim, which resulted in exclusive rights for much of the land in the determination.

“Native title sits under the tenure system like everything else,” he explains. “Like national parks, like freehold, like leasehold, it is really a title that gives you an interest, and that interest has to be negotiated.

“But the right to negotiate future acts is probably the significantly important part of it in this.”

Limited protection

The PKKP were already at the negotiating table with Rio Tinto. While the Native Title Act 1993 (NTA) recognised the PKKP peoples’ rights and interests to their lands, those had to co-exist with the rights and interests of others.

The destruction of the Juukan rockshelters underscored how, across most of Australia, the rights and interests of First Nations peoples are put second to other interests – most notably, mining.

“WA mining laws take precedence over any other piece of legislation,” Yu says.

Only in the Northern Territory, under the Aboriginal Land Rights Act 1976, are First Nations peoples legally entitled to veto possible mining activities on Aboriginal land, except where those activities are deemed in the national interest.

Yu argues giving more weight to the rights and authority of First Nations peoples would protect sacred sites and advance reconciliation.

“Just because you’ve got native title doesn’t mean you get any special rights or any different rights,” Yu says.  

“From a relationship, reconciliation and nation building standpoint, it would be useful to view the First Nations peoples not only as Traditional Owners of the land and waters but also custodians of the natural and thus national estate on behalf of all Australians.”

Professor Peter Yu. Photo: Jamie Kidston/ANU

An imperfect Act

The Director of the Centre for Native Title Anthropology based at ANU, Emeritus Professor David Trigger, says while the NTA was an enormous step forward in 1993, it remains imperfect.

“The idea that you would have native title recognised was just unheard of those decades ago. But, it’s hardly perfect and there are a lot of flaws,” Trigger says.

The final report into the Juukan Gorge highlights some of these flaws, including how native title common law and the Act are limited in their ability to protect cultural heritage, and the primacy of other land interests over native title.

“Native title law does not inherently protect Aboriginal cultural heritage in an enforceable way which would prevent the destruction that occurred at Juukan Gorge,” the report determined.

While the NTA provides the “right to negotiate”, designed to provide native title holders with comprehensive procedural rights where mining rights are proposed, the report noted concerns about the “entrenched inequality and power imbalance” between parties.

In its submission to the inquiry, the National Native Title Council stated: “Both sides to the negotiation know that unless the native title holders acquiesce to the developer or miner’s suggested terms the alternative is an arbitrated outcome, likely in the favour of the developer or miner without any provisions for the awarding of compensation, royalties or other arrangements for financial settlement.”

Ultimately, as the inquiry’s report identified, the limitations of the NTA and the inadequacies of other Commonwealth and WA legislation paved the way for the destruction of the Juukan rockshelters.

The way forward

Trigger says solutions are at hand. Although, he says, we can’t pretend there is always agreement among different Indigenous parties or that compromises with wider interest groups won’t be needed.  

In the wake of Juukan Gorge, the WA Government passed the Aboriginal Cultural Heritage Bill 2020 to replace the Aboriginal Heritage Act 1972. Some Traditional Owners in the state have described the bill as fundamentally flawed. Although the bill removes Section 18, which had permitted the destruction at Juukan Gorge, the state’s Minister for Aboriginal Affairs still has final say on the protection or destruction of sacred sites.  

Yu suggests a significant penalty regime and Commonwealth legislation is needed to more ably protect Aboriginal heritage.

“This is not going to happen, but you need a very clear, distinct law preventing you from desecration of, and the destruction and interference with, Aboriginal sites,” he says. “That could be through the Environment Protection and Biodiversity Conservation Act 1999 making the connection between Commonwealth native title and state heritage laws.”

In a report released in September 2021, Rio Tinto reaffirmed its permanent moratorium on mining in the Juukan Gorge area and described its commitment to improving the company’s heritage management processes. The company is working with the PKKP people to remediate the Juukan Gorge site.

The Centre for Native Title Anthropology based at ANU oversees professional development for researchers who are central to native title cases. Indigenous organisations and other parties engage the services of anthropologists to prepare reports on traditional connections to Country.

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