The 1967 constitutional referendum which empowered the federal government to make laws for Aboriginal peoples; and the 1992 High Court decision in Mabo v Queensland (No.2), which recognised that First Peoples traditional ownership of country survived British colonisation, and was recognised by the common law in the form of ‘native title’.
Eddie Mabo launched his native title claim because it was totally inconceivable to him that he was not regarded as an owner of his ancestral lands under white man’s law. Yet almost thirty years later First Peoples still have to constantly assert their traditional ownership of country and fight to protect our sacred sites from being destroyed.
The destruction of 46,000 year old caves at Juukan Gorge, at the start of Reconciliation Week 2020, sent shockwaves around the nation and the world. The caves were destroyed to make way for an iron ore mine, situated on the traditional country of the Puutu Kunti Kurrama and Pinikura peoples which were handed back under a native title consent determination in 2015. Prior to the native title determination the traditional owners entered into an Indigenous Land Use Agreement with Rio Tinto Iron Ore in 2012. In 2013 ministerial consent was granted for the destruction of these sites under the Western Australia Aboriginal Heritage Act (1972). Although further evidence was uncovered in 2014 which revealed that the site was 46,000 years old, and the finding of a 4,000 year old plait of human hair linked by DNA to living descendants of Puutu Kunti Kurrama and Pinikura people, this additional evidence was not enough to revisit the Minister’s decision to destroy the site.
The Brockman mine at the centre of this controversy is operated by Rio Tinto, a multinational corporation which boasts contributing $7.6B in taxes to Australian governments each year.[1] Rio Tinto’s iron ore mining operations in the Pilbara netted revenue of $24.1B in 2019, with a profit margin of some 72%.[2] The Brookman 4 mine is 80,000 square kilometres, with an estimated 600 million tonnes of iron ore.[3] Reducing the Brookman operation to preserve the Juukan cave complex would have had a negligible impact on Rio Tinto’s bottom line. Despite Rio Tinto boasting a working relationship with the Puutu Kunti Kurrama and Pinikura peoples (including the Juukan site for 17 years), the relationship was not important enough for Rio Tinto to stop their destruction of these sites. Rio Tinto representatives also state that ‘where practicable’ it modifies its operations to avoid heritage impacts and to protect places of cultural significance. Yet despite the overwhelming evidence of the rich cultural significance of this site, such is the greed of Rio Tinto that even a modest reduction in the mining operation was not contemplated.
Unfortunately what is most remarkable about this wanton destruction of ancient Aboriginal cultural heritage sites is that it was all perfectly ‘legal’ under the Australian legal system. The recognition of native title of the traditional owners in 2015, and the cultural heritage laws of the Western Australia, were impotent to prevent this destruction. In fact, they both condoned it. The Native Title Act 1993 (Cth) does not give traditional owners a right to ‘veto’ development on their country. The NTA has only prevented the destruction of significant cultural sites in a very few cases. Likewise the WA Aboriginal Heritage Act, authorises the WA Minister for Aboriginal Affairs, to consent to the destruction of cultural heritage sites.
While this legislation has been ‘under review’ since 2012, proposed changes which would allow Aboriginal people to have more say in how their cultural heritage is managed, have been delayed. Further the Federal Aboriginal and Torres Strait Islander Cultural Heritage Protection Act 1984, has been long criticised as being completely ineffectual. We must question the lack of urgency to create a more rigorous approach to the protection of Aboriginal cultural heritage in this country. What is it that drives this malaise?
The destruction of the Juukan caves is not just an assault on Aboriginal cultural heritage and the living culture of First Peoples, but also to the heritage of all humankind. To my mind this destruction highlights the continuing dehumanisation of First Peoples, as if our human story is less important or significant, compared to the Euro-centred history and story of ‘progress.’ Until Australians can honestly value First Peoples culture and history, as part of human history, we are a long way from becoming a unified and reconciled nation. It makes me wonder: how far have we really come on the road to reconciliation?
Marcelle Burns is a Gomeroi-Kamilaroi woman and lecturer in law at the University of New England and a member of the First Peoples Rights and Law Centre.
References:
[1] Rio Tinto, Taxes Paid: Our Economic Contribution 2019.
[2] Rio Tinto, Fact Book, March 2020.
[3] https://www.mining-technology.com/projects/brockman-mine/
