MAC: Mines and Communities

Does Aboriginal living-heritage "matter"?

Published by MAC on 2020-06-24
Source: Bloomberg News

The current debate, intended to settle the issue of Aboriginal "heritage" destruction by mining companies, almost certainly won't be justly settled.

"The issue of ownership rights to the land can’t be resolved unless you say to miners — these parts are quarantined, you can’t blast them”, says an Australian law professor.


Australian sacred sites seen as remaining under threat after mine law reform

By Sybilla Gross

Bloomberg News -

23 June 2020

Legislation review in W. Australia to be completed this year

Shift in political will needed to quarantine sites: law expert

Looming legislative changes aimed at boosting protection for Aboriginal
heritage sites in Western Australia are unlikely to prevent their
destruction or stymie expansion by mining companies that are under
intense pressure over their preservation practices.

Rio Tinto Group’s decision last month to carry out explosions that saw
the destruction of a 40,000-year-old site in the centre of the nation’s
iron ore industry has sparked widespread controversy, scrutiny from
investors and calls for legal reform.

The new laws will include more precise legal definitions of what
constitutes Aboriginal heritage, modified financial penalties for
misdemeanors and the encouragement of agreements between Aboriginal
people and other land use proponents, according to the state government.

While the proposed legislation embodies significant changes on paper,
they will do little to prevent miners in practice from getting their way
in land rights matters, according to Kate Galloway, an associate
professor at Queensland’s Griffith Law School who specializes in land
and property rights.

‘Be realistic’

“We need to be realistic. I don’t think that is going to stop the
destruction of sites,” Galloway said. “The framework of cultural
heritage that is in Australia — without a real shift in political will —
is not going to save these places.”

Investors have held meetings with Rio’s Chairman Simon Thompson and
executives to raise questions over the producer’s actions, and
Australia’s First State Super, which holds about $69 billion in assets,
this month removed the company from a socially responsible portfolio
option. A parliamentary committee is also scheduled to report to
Australia’s Senate by Sept. 30 on Rio’s decision-making. The company
reiterated its support for the reform of the legislation.

Also this month, rival BHP Group said it won’t disturb indigenous sites
identified under a land use agreement at the South Flank iron ore mine
without further extensive consultation with traditional landowners after
it was granted permission to the land under the current act.

“The new Aboriginal heritage legislation that is expected to be released
soon for final consultation will cement the rights of Traditional Owners
to make their own decisions on their ancient sites,” Western Australian
Aboriginal Affairs Minister Ben Wyatt said in a statement. “While there
may be rare occasions where the interests of the state exceed those of
the relevant Aboriginal people, I will continue to support agreements
made by Traditional Owners.”

Draft bill

Drafting of the Aboriginal Cultural Heritage Bill 2020 is slated for
completion before the end of the year. Rio’s explosions were authorized
by the state government under a system used to rule on situations where
impacts on Aboriginal sites are deemed unavoidable.

Competing land rights, afforded to miners, and cultural rights, afforded
to traditional landowners, share fundamental incompatibilities that make
disputes difficult to reconcile, Galloway said. While landowners will be
more involved in the decision-making process under the proposed
legislation, miners can still refuse their requests because — ultimately
— they still have the right to use that land, she said.

The issue of ownership rights to the land can’t be resolved “unless you
say to miners — these parts are quarantined, you can’t blast them,” she
said. “I would be extremely surprised if there were a blanket
prohibition on the destruction of these sites.”

Appeal avenue

The controversial Section 18 of the original act — that gives companies
with mining rights permission to damage a site and prevents any avenue
for appeal — would have to be changed not only to give a right to appeal
decisions, but to remove altogether the right to destroy sites, she said.

Rio, the world’s second-biggest mining company, has voiced support for
state heritage law reform following the blasts in the Juukan Gorge area
to facilitate mining at its Brockman 4 operation. Chief Executive
Officer Jean-Sebastien Jacques also has apologized for distress caused
to the Puutu Kunti Kurrama and Pinikura people, the traditional owners
of the land.

Last week, the company launched a review into its heritage management
processes within iron ore business, focusing on recommending
improvements to the effectiveness of its internal processes and governance.

The proposed laws may introduce some procedural hurdles for miners — if
consultation processes with Aboriginal communities drag out, and if
there is a greater requirement for more robust justification of
destruction at cultural sites, Galloway said. “Companies are already
doing that,” she said. “I don’t see that it will be that much much
harder for them.”


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