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‘Current legislation failing to protect cultural heritage sites’
The systemic failure of Australia’s Commonwealth, state and territory legislation to protect cultural heritage, has been exemplified by the incident that occurred at the Juukan Gorge, according to legal advocates.
Tony Zhang
Appearing before the joint standing committee on Northern Australia, Law Council president, Pauline Wright, Indigenous legal issues committee member Tony McAvoy SC and representatives on the Australian environment and planning law group Greg McIntyre SC and Robyn Glindemann, called on the government to substantially review and reform the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) to provide effective, standalone protection to First Nations cultural heritage.
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“There exists a failure in the laws across the country, to understand the importance and connection to land and waters within First Nations cultures,” Ms Wright said.
“Nor do the laws acknowledge the definitive change in the recognition of land rights that occurred due to the Mabo decision.”
“Traditional Owners must have a voice in administering and managing their own cultural heritage sites.
“This includes the ability for the Traditional Owners to seek a review of a decision.”
The Law Council stated they support the development of national principles to guide reforms across all jurisdictions.
“While certain jurisdictions provide examples of better practice, other existing cultural heritage protection regimes have severe limitations, including the lack of a systemic process to ensure appropriate First Nations representation or meaningful engagement,” the Law Council said.
This comes as the traditional owners of Juukan Gorge say Rio Tinto provided them with incomplete information, publicly misrepresented the level of consultation, incorrectly described the significance of Aboriginal heritage sites to government authorities, and continued to load explosives above the 46,000-year-old heritage site after promising to delay the blast.
They learned after the caves had been destroyed that Rio Tinto had only attempted to remove explosives near sites that it did not have legal permission to destroy, and had not sought advice on the feasibility of removing explosives to protect the rock shelters.
Ms Wright said there exists a critical need for reform to be conducted in a coordinated manner. It makes sense for the Commonwealth government to take a leading role, working with the state and territories, to develop national principles in consultation with traditional owners and their representative bodies.
“Law reforms would then be benchmarked against these principles. This would ensure laws across all Australian jurisdictions meet certain thresholds that incorporate important principles such as self-determination and free, prior and informed consent,” she said.
“In the days before the disaster, Rio Tinto kept loading charges around Juukan 1 and Juukan 2 and then only took steps to avoid blast damage to sites over which they did not have legal authority to destroy,” the submission stated.
“The Juukan Gorge disaster tells us that Rio Tinto’s operational mindset has been driven by compliance to minimum standards of the law and maximisation of profit. PKKP believes that this is reflective of the industry as a whole.”
Previously, Clayton Utz partner Brad Wylynko and special counsel Tosin Aro stated that the expansion in protection, together with the broadening of the concept of Aboriginal cultural heritage, “shifts the goalposts in protecting Aboriginal cultural heritage in Western Australia.”
Furthermore, the Law Society of South Australia also highlighted the flaws around Australia’s heritage protection laws after the destruction of a 46,000-year-old site by Rio Tinto and has stated that their model could be an effective fit for other states.
