Reforming the Lawful Destruction of Aboriginal Heritage

At the inaugural online NSW National Trust Heritage Awards we heard from the Hon. Minister Harwin and Frank Howarth, Chair of the Heritage Council of NSW.  High on the government’s priority list for 2021 is the long anticipated Aboriginal Heritage reform.  This reform has been on and off the government’s agenda since well before 2012.  In February 2018 we got close to a new legislative framework that better recognised and reflected Aboriginal people’s aspirations for planning, managing, and conserving their heritage.  The draft Aboriginal Cultural Heritage Bill 2018 recognises Aboriginal people’s responsibility and authority over Aboriginal heritage, and most importantly shifts the concept of culture to a living expression linked to wellbeing.  Perhaps 2021 will finally see the new legal framework for Aboriginal heritage protection enacted in NSW.

The need for reform of Aboriginal and Torres Strait Islander heritage legislation extends beyond NSW.   Rio Tinto’s destruction of irreplaceable Aboriginal heritage at Juukan Gorge captured global attention, shining a light on not only the shortcomings of Western Australia’s outdated Aboriginal Heritage Act 1972 (WA) but on the broader faults and failures in Australia’s Indigenous heritage legislation.  As the State of the Environment 2016 report found,

‘approved lawful destruction, even where it includes decision-making by traditional owners, remains a major threat to Indigenous heritage. The total quantum of such impact is not clear, because there is no national assessment or public reporting of the cumulative impact of development on Indigenous heritage’.

The Parliamentary inquiry into the destruction of Indigenous heritage sites delivered its Interim Report on 9 December 2020, titled ‘Never Again’.  The Committee Chair, Warren Entsch, has previously stated that ‘the Commonwealth has an absolute obligation to preserve our Indigenous heritage of the benefit of all Australians’. The report doesn’t hold back. It calls out Rio’s ‘destruction, devastation and vandalism’ of the Puutu Kunti Kurrama and Pinikura peoples heritage as ‘inexcusable’.  Rio Tinto’s action is reported as ‘deliberate’ supported by an underlying company culture and structure that prioritised financial gain and used the current legislative shortcomings to its own advantage.  The report includes several recommendations directed to Rio Tinto including, a moratorium on all mining in the area, a review of all agreements with Traditional Owners, a negotiated restitution package, removal of all Traditional Owner gag clauses and restrictions, repatriation of all cultural property,  and a commitment to a proper review of consent conditions and actions under existing Section 18 approvals with no new Section 18 applications until the passage of new protections.

The Foreword to the interim report describes the ‘defining moment’ in the inquiry during a visit accompanied by the Traditional Owners to the Juukan Gorge site. In the Hon. Warren Entsch’s words,

‘the grief of the Traditional Owners was almost overwhelming for everyone who witnessed it. They had lost more than a piece of heritage—they had lost part of themselves, a piece of their living culture which was infused with the still present spirits of their ancestors and pregnant with the future stories of their descendants.’

Sadly, Rio Tinto is not the only company exploiting the flaws in the Aboriginal Heritage Act 1972 for commercial gain. Interestingly, the report’s title ‘never again’ references published research elsewhere in Western Australia.  In late 2017, Never Again: Reflections of Environmental Responsibility after ROE 8 was published by UWAP. The book takes a close look at the planning system that permitted that destruction.  It is the very same legislation that permitted the 46,000 year-old rock shelters at Juukan Gorge to be destroyed.

The scale of the inquiry is now such that it will deliver staged reporting. While the interim report focusses on the specifics of the Juukan Gorge incident, the next phase will consider Aboriginal heritage protection in other jurisdictions including the Australian government’s role. As the Hon. Warren Entsch MP chair of the inquiry states,

‘the Environment Protection and Biodiversity Conservation Act 1999 has proved of limited value in Indigenous heritage protection and the Aboriginal and Torres Strait Island Heritage Protection Act 1984 is virtually moribund.’

We can only hope that the loss of irreplaceable heritage at Juukan Gorge has not been in vain, and that it will be the catalyst for urgent and genuine reform to Aboriginal heritage protection in Australia.  We will be eagerly awaiting the next report from the inquiry.