Warren Entsch (Leichhardt, Liberal Party) Share this | Link to this | Hansard source

On behalf of the Joint Standing Committee on Northern Australia, I present the committee's report, incorporating dissenting reports, entitled A way forward: final report into the destruction of Indigenous heritage sites at Juukan Gorge.

Report made a parliamentary paper in accordance with standing order 39(e).

by leave—On behalf of the Joint Standing Committee on Northern Australia, I wish to make a few remarks on the committee's final report into the destruction of Indigenous heritage sites at Juukan Gorge which has just been presented. Firstly, I'd like to acknowledge the Aboriginal and Torres Strait Islander peoples in this nation and the traditional custodians of country throughout Australia, and I pay my respects to ancestors and elders past, present and emerging.

This report follows on from Never again, the interim report of the inquiry, which was tabled on 9 December 2020. Despite the impact of COVID-19, we have been successful in producing a complete examination of the issues brought to light throughout the inquiry. Aboriginal and Torres Strait Islander cultural heritage—both tangible and intangible—is a key part of Australia's history. Loss of cultural heritage diminishes the heritage of our nation and deeply wounds the Aboriginal and Torres Strait Islander peoples for whom this heritage is sacred. The destruction of the 46,000-plus years old Juukan Gorge rock shelters in May 2020 caused immeasurable cultural and spiritual loss as well as profound grief for the Puutu Kunti Kurrama and Pinikura, or PKKP, people. Rio Tinto's actions were inexcusable and an affront not only to the PKKP peoples but to all Australians. The company's actions demonstrated the profound lack of care for Aboriginal and Torres Strait Islander heritage in this country, but perhaps the tragedy may at least be a catalyst for change.

The destruction of the Juukan Gorge was a result of Rio's failures, but the events also highlighted the inadequacies of protection afforded by the Western Australian Aboriginal Heritage Act 1972. Throughout the course of the inquiry, it became apparent that there were serious deficiencies across Australia's Aboriginal and Torres Strait Islander cultural heritage legislative framework. The destruction of the Juukan rock shelters also awakened national and international awareness to the loss of the ancient presence of human beings on the continent. This has implications for governments, lawmakers and corporations who must take seriously the public awareness of international developments like the United Nations Declaration on the Rights of Indigenous Peoples, or UNDRIP, shareholders nationally and internationally who have become attuned to the behavioural standards of corporations and their relationships with Aboriginal and Torres Strait Islander people.

Aboriginal and Torres Strait Islander people across the nation reported to the committee their perspectives on the inadequacy of cultural heritage legislation. It became apparent to the committee that the legislation designed to protect cultural heritage has, in many, many cases, contributed to the damage and destruction. The committee was heartened by those in the resources industry who have responded to the destruction of the heritage sites at the Juukan Gorge by proactively reassessing their agreements with traditional owners and proposing processes to address inadequacies and inequalities in these agreements. The committee also calls on those working within the industry to improve the respect shown to Aboriginal and Torres Strait Islander peoples, and to also demand change across their industry as a whole. It is time for the legislative frameworks in all Australian jurisdictions to be modernised to bring meaningful protection to Aboriginal and Torres Strait Islander cultural heritage to ensure that nothing like Juukan Gorge ever happens again. Aboriginal and Torres Strait Islander peoples are not opposed to mining and acknowledge the economic benefits mining brings to the nation. They do, however, want the rights afforded to them by the UNDRIP to be a reality. Legislative change must be based on the UNDRIP principles of free, prior and informed consent. Such changes will bring deserved protections to Aboriginal and Torres Strait Islander people's cultural heritage and ensure that the world's oldest living culture continues to thrive.

I'd like to conclude with some words of thanks. Many people have contributed to this inquiry, including traditional owners, Indigenous organisations, companies, governments, lawyers, academics and members of the public. I would like to particularly thank the PKKP peoples, who, despite their grief, have embraced the inquiry and assisted its works. Thanks also to Rio Tinto, which, perhaps in contrition for its errors, has been forthcoming with evidence, not always to its advantage. I'd like to think that Juukan Gorge marks a turning point for that company and for the mining industry as a whole. I'd also like to thank all of my committee colleagues—including the member for Lingiari, sitting over there—for their attentive and very constructive contributions in what has proved to be quite a difficult inquiry, undertaken under very challenging circumstances. Last, but not least, I have to say a great thankyou to the staff of the secretariat—to Jenny Adams and her team—for their sterling work. They have been absolutely outstanding. I'm a little disappointed and saddened that, given the circumstances, we haven't been able to have them sitting here in the chamber today to personally thank them for their work, but I know that they will be listening to this contribution. I say thank you to each and every one of them: it's you guys who've made this report as good as it is. It's my earnest hope that this report leads to some very positive changes, and I commend it to the House.

Warren Snowdon (Lingiari, Australian Labor Party, Shadow Assistant Minister for External Territories) Share this | Link to this | Hansard source

by leave—I firstly acknowledge the traditional owners of this country and the country of Aboriginal and Torres Strait Islander people right around this country, their elders past and present and those who are emerging. I want to thank and acknowledge the member for Leichhardt for his contribution, which was well thought through, and for his role in leading this committee inquiry. I'll make further comments about that towards the end of my contribution. I want to speak to this report, A way forward, the final report on the destruction of the Juukan caves by Rio Tinto. As the member for Leichhardt said, the committee also published an interim report, Never again, which made a number of significant recommendations and addressed the immediate anger and concern about the destruction of the caves and the processes leading up to it.

The destruction of these 46,000-plus-year-old caves underlines the ongoing impact of dispossession and alienation of Aboriginal people across this country, legitimised and enacted by legislatures across state, territory and Commonwealth jurisdictions since Federation. As a result, Aboriginal land was seen as fair game by miners, pastoralists and the like, whose actions in exploiting the traditional lands of the First Australians, including the destruction of sites, were legitimised and encouraged. It wasn't until the seventies, with the Woodward royal commission and the passage of the Aboriginal Land Rights (Northern Territory) Act 1976, that the rights and interests of Aboriginal people in the Northern Territory—but nowhere else—were given part-recognition and limited protection. At a national level, it wasn't until the passage of the Native Title Act in 1993, following the victory of Eddie Mabo in the High Court—which consigned the notion of terra nullius to the dustbin of history, where it should have been in the first place—that the nation was compelled to at last deal with and address the rights and interests of people who claim native title over land and waters. The destruction of the Juukan Gorge epitomised the arrogance of developers to operate with impunity and ignore the legitimate rights and interests of native title holders, the traditional owners of the lands whose sacred sites were being destroyed.

The final report of the committee charts a way forward that acknowledges the pre-eminent rights and interests of Aboriginal and Torres Strait Islander peoples as the original owners of the lands and seas. The report underscores the need for legislative reform, as the member for Leichhardt said, to give real voice and meaning to the UN Declaration on the Rights of Indigenous Peoples, most especially the concepts of free, prior and informed consent and, in particular, the right to withhold consent—to say no—to the destruction of their heritage and, most particularly, places of significance. This report addresses the need to recognise both tangible and intangible heritage.

But, of course, the report, as you would expect, pays particular attention to the failures by Rio Tinto in its wanton destruction of Juukan Gorge as well as the failures and inadequacies of the Western Australian heritage laws to protect Aboriginal heritage in that state. What the committee uncovered was the historical abuse of power by the mining industry in Western Australia, enabled by Western Australian law, to effectively corral, ignore and override the rights and interests of traditional owners, to use every legal trick to do this and to do so without recrimination or penalties or the need to properly compensate Aboriginal people in Western Australia for the exploitation of their traditional lands and the destruction of their heritage.

It's startling that, despite the destruction of Juukan Gorge, Rio Tinto had no penalties applied and that those with ultimate responsibility left the company with golden handshakes. Despite this, though—and as the member for Leichhardt commented—the committee saw evidence and took evidence from Rio Tinto to the effect that that company has embarked on a very important process of real reform in the way it deals with, recognises, prioritises and addresses the rights and interests of Aboriginal and Torres Strait Islander peoples. Other companies, notably BHP, have also introduced new policies and procedures and taken significant action in reforming the way they treat and contract with Aboriginal peoples. Of particular note is the express recognition of the rights of traditional owners and native title holders in the negotiation process over developments on their land. However, there is still a long way to go for the mining industry.

The committee also saw the gross inadequacy of legislative protection of Aboriginal and Torres Strait Islander heritage across jurisdictions and at a national level. In the case of Juukan Gorge, Commonwealth legislation and ministerial and administrative inaction failed to protect this heritage site from destruction. The committee's report goes into some detail and explores this failure and its implications. There is now clear and unequivocal evidence that the way forward requires the responsibility of heritage protection in the case of First Nations people to be the responsibility of the minister responsible for First Nations. It most certainly should not remain the responsibility of the Minister for the Environment. In addition, there is a need for new overarching Commonwealth legislation to protect our First Peoples' cultural heritage, with minimum standards that state and territory jurisdictions will be required to meet. Of course, this legislation will need to be developed in concert with Aboriginal and Torres Strait Islander peoples.

This committee's report explores and reports on the deficiencies of relevant state and territory legislation. Most particularly, of course, it exposes the flaws in the existing Western Australian legislation, which provided the framework and capacity for the destruction of heritage sites in Western Australia through the use of section 18 determinations and ministerial discretion. It is noteworthy, however, that Western Australia is currently in the process of drafting new legislation that we hope will address the deficiencies identified by this committee in its deliberations. The committee's report exposes the use of gag clauses which have denied Aboriginal people from access to legislation such as, at a federal level, the Aboriginal and Torres Strait Islander heritage protection legislation and the EPBC Act that could otherwise protect heritage sites.

Another piece of Commonwealth legislation that the committee has found is in clear need of revision, as a result of evidence to the committee, is the Native Title Act, in particular the future act regime and the right and capacity of native title holders to withhold consent for development on their land, as well as the need to remedy the inequality and negotiating positions with future act proponents and native title holders. In this context, the role of the representative bodies and prescribed body corporates needs to be considered, including for them to be adequately resourced so that they can properly participate in negotiations and protect the interests of native title holders, including, of course, the protection of their very important heritage.

The outrage over the destruction of Juukan Gorge has ignited investor interests nationally and internationally. The protection of cultural heritage has now become not only a moral and ethical issue but an issue of economic risk. The time for reform is long past.

I, along with the member for Leichhardt and I'm sure other members of the committee, want to acknowledge the massive contributions of the PKKP and other traditional owners of the Pilbara for giving evidence to this committee under very difficult circumstances. I want to thank them for their forbearance and their open-mindedness to the prospect for change.

It's noteworthy that the committee's report is illustrated by some paintings from Mr Jack Green, a traditional owner from Borroloola, which are very important in telling a story. I, along with, I'm sure, my colleagues, want to acknowledge the work of the committee and its membership. I want to thank Mr Entsch, the member for Leichhardt, for his leadership. It was a particularly difficult inquiry. I also want to acknowledge the contribution of my colleague and friend Senator Dodson, who was a very important cog in the wheel of this inquiry and, as I'm sure as the member for Leichhardt would attest, was integral to making sure we had a successful outcome. I also acknowledge someone who's no longer on the committee and no longer in the parliament, former senator Rachel Siewert, who, with a very open mind, made a very positive contribution to the deliberations of the committee.

The committee secretariat did an outstanding job, as the member for Leichhardt said, under very difficult circumstances. I want to acknowledge—and I will name them all—Jenny Adams, as Committee Secretary; Bill Pender, as Inquiry Secretary; Siobhan Leyne, as Inquiry Secretary; Kate Harkins as Senior Researcher; Stephen Sherlock, as Senior Researcher; Adam Walker, as Researcher; Ben Russell as Researcher and Sarah Brasser as Office Manager.

Deputy Speaker, in the length of time that I've been in this parliament I've been involved in many inquiries, I can say to you that I've not seen an inquiry as important as this. In my terms, it was absolutely vital that the committee undertook this work and exposed the thuggery—really—of some people in the mining industry in this country. But I am very, very pleased to say that change is afoot and that the mining industry is, at last, addressing the need to recognise the proper rights and interests of the First Nations people of this country.

Warren Entsch (Leichhardt, Liberal Party) Share this | Link to this | Hansard source

I'd quickly and briefly like to acknowledge Senator Dodson, who was outstanding. I'd also like to acknowledge former senator Rachel Siewert, who instigated this in the first instance. She's no longer in the Senate. Both of those senators had an absolutely critical contribution to this inquiry. I move:

That the House take note of the report.

Mark Coulton (Parkes, Deputy-Speaker) Share this | Link to this | Hansard source

In accordance with standing order 39, the debate is adjourned. The resumption of the debate will be made an order of the day for the next sitting.