Perin Davey (NSW, National Party) Share this | Link to this | Hansard source

On behalf of the Joint Standing Committee on Northern Australia, I present the interim report of the committee on the Juukan Gorge caves, and I move:

That the Senate take note of the report.

I seek leave to continue my remarks later.

Leave granted.

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

As a member of this committee, I would most certainly like to talk to this very important report, titled Never again: inquiry into the destruction of 46,000 year old caves at the Juukan Gorge in the Pilbara region of Western Australia—interim report.It contains seven extensive recommendations around what happened when Rio Tinto blew up the 46,000-year-old rock shelters at Juukan Gorge in the Pilbara, devastating the traditional owners, the PKKP, who had indicated that these were extremely important caves. The process failed so badly that, every single way along the process, they were failed, absolutely failed.

This is a multipartisan interim report. These recommendations are powerfully supported by the members of this committee. We made recommendations around Rio Tinto, whose internal processes completely failed. For a long time, Rio Tinto's name around the world was pretty poor because of the way they dealt with Indigenous peoples. Their name improved in Western Australia in terms of their commitment to First Nations cultural heritage. They had their internal processes and then they went downhill. They went downhill to such an extent that they thought it was okay to blow up these 46,000-year-old rock shelters, when, in their administration block at the mine, there is a soil profile that demonstrates that 46,000-year-old history. It has little stickers on it that mark the ice age, that mark where the pyramids were and that mark other memorable points. So this was there. Rio knew this was in the admin centre. Some people walked past it every day, and their executives—some of them, not all of them—had visited it and seen it. They still blew it up. So there are recommendations for Rio Tinto. The first dot point in recommendation 1 is:

The report then talks about full reconstruction, to try and recover those rock shelters. It then makes recommendations to the Western Australian government, who oversaw this destruction and knew very well that their processes were flawed and that they needed to improve the act. There are a series of recommendations there. There are a series of recommendations to all mining companies, because, for all mining companies, reputation is on the line here. There are still 100 sacred sites—important cultural heritage sites—that have current section 18 approvals over them. There are many other sites; there are many other section 18s. But there are 100 sites that still have section 18s over them.

Do you know what happened at Rio Tinto? When they got approval to destroy the Juukan Gorge, the two rock shelters, the indicators came off the maps. Just because you get approval to destroy them, the indication of them being in certain sites comes off their maps. So there is a recommendation to all mining companies to:

The interim report goes on to make a number of other recommendations. It makes a recommendation to the Australian government to:

That's because mining companies in Western Australia—and Rio Tinto is not the only one—have participation agreements, and other agreements, that have gag clauses in them that stop people exercising their rights under, for example, our Racial Discrimination Act, our environmental protection laws or our human rights laws. That is appalling—absolutely appalling. So, even though the PKKP were raising objections and raising their concerns about this, they had no legal mechanism with which to act, because our ATSIHP Act, the Aboriginal and Torres Strait Islander Heritage Protection Act 1984, is barely worth the paper it is written on. And recommendation 7 of the interim report says:

Aboriginal and Torres Strait Islander Heritage Protection Act 1984

Recommendation 5 is:

Aboriginal and Torres Strait Islander Heritage Protection Act 1984

Recommendation 6 is:

Aboriginal and Torres Strait Islander Heritage Protection Act 1984Aboriginal Heritage Act 1972

I urge all senators to read this report. It has many very important points that people need to read to see what's going on in this country. I agree with the title of this report: Never again. Never again.

Dean Smith (WA, Liberal Party) Share this | Link to this | Hansard source

I also rise to make a brief contribution on the tabling of the Joint Standing Committee on Northern Australia's interim report, Never again. I begin by acknowledging the PKKP people and the loss of such a foundational feature of their heritage due to Rio Tinto's destruction of the Juukan Gorge. Their anger and grief is shared by every Australian, both Indigenous and non-Indigenous. In my additional comments to this report, I've consciously focused on two critical areas. The first is the importance of continuing to hold Rio Tinto accountable for its deliberate and destructive actions. I'm sure I speak for many, many people who believe Rio Tinto's remorse has been shallow and still shows an outrageously poor understanding of the consequences of Rio's actions. The second is ensuring that the actions of Rio Tinto, and Rio alone, do not result in a significant loss of confidence in the goodwill and progress that has been made on resource development and Indigenous issues over many decades in my home state of Western Australia. It is necessary to remind people that WA's resource and mining industry does not just power the Western Australian and national economies; it is a critical element in enabling the empowerment of Indigenous people across my home state.

Rio Tinto still needs to be held accountable. In its final report, the committee intends to comment further on Rio Tinto's time line prior to the destruction of the Juukan Gorge, but it's important to canvass Rio Tinto's conduct now, to hold those responsible accountable, to end the uncertainty for those involved and to enable the deep wounds this incident has caused to begin healing. As far as I'm concerned, Rio Tinto, including its chairman and its board, are still on notice. They should not allow themselves to believe the investigation into their culpability has concluded. In brief, it took nearly 20 days for Rio's Chief Executive, Mr Jacques, to make a public apology following the event. Even then, he apologised only for the distress caused. It was not until Rio Tinto made a submission to the inquiry that he acknowledged the destruction of Juukan Gorge should not have occurred. In my additional comments I have called for Rio Tinto to review why this took so long and for those within the organisation who argued for only apologising for the distress caused to reconsider their positions within the industry.

My additional comments also highlight the actions of Rio Tinto in the days prior to the event. In their submission, the PKKP asserts:

PKKP do not accept Rio Tinto's position that, before May 2020, it was unaware of the ethnographic and archaeological significance of the Juukan Gorge. Neither does PKKP accept that if Rio Tinto had known the 'new information' contained in … [the] further report dated 18 May 2020 it would not have proceeded with the blast.

I agree with PKKP. The fact that Rio removed seven explosives to prevent committing an offence under section 17 of the Aboriginal Heritage Act 1972 but none of the explosives that destroyed Juukan Gorge amplifies this view, I believe.

The board review was insufficient. Rio Tinto must more genuinely and independently review its actions and be honest with the PKKP and the Australian community. This is a board that employed and oversaw the contract of Mr Jacques, who created a 'fit in or F-off' culture at Rio Tinto. Those who supported him through this period should resign and exit the WA mining industry. The actions of Rio Tinto have tarnished the whole resource and mining industry in Western Australia and beyond. This is the most disappointing element of the inquiry: Rio Tinto has positioned itself as a moral leader in the industry, including funding political campaigns to influence others, yet, when a practical test of respecting Aboriginal culture arose, it failed—capital F failed.

We can continue to hold Rio Tinto accountable and deliver regulatory certainty for WA's resource and mining industry. No-one would be surprised by the combined emphasis of my additional comments in the report. Evidence to the committee indicates there is room for improvement across the industry in relation to agreement-making with traditional owners. But I disagree that part of the solution is a moratorium on section 18 approvals, which are a vital process to enable development in WA. In these economic times it is wrong to create uncertainty for the resource and mining industry, the pastoral and other industries and government agencies that use the Aboriginal Heritage Act 1972 to facilitate development. A full moratorium would put at risk or halt METRONET, the Perth Airport runway and countless resource and other job-creating projects across the state. I believe it is a step too far and its inclusion represents a sovereign risk.

It's important to highlight that the final decision-maker on section 18 approvals is the WA Minister for Aboriginal Affairs, the Hon. Ben Wyatt MLA. I have confidence in his ability to ensure that adequate consideration is given to the views of traditional owners. The WA government is already progressing key reforms to address the issues identified in the report, with the replacement of the Aboriginal Heritage Act 1972. It has released a draft bill that has been subject to exhaustive consultation with industry and traditional owners. I have confidence in the process to date and what this bill will achieve.

Rio Tinto's conduct does not represent that of the entire industry. Rather than a regulatory overreach and punishing the entire industry and Indigenous people for Rio Tinto's failures, we should instead use this terrible event as a catalyst to improve agreement-making with traditional owners. At all times, the guiding principle must be the empowerment of local communities to make their local decisions. The work of this inquiry has been important, and its future contribution will be critical in restoring the trust that Rio Tinto has so willingly and knowingly destroyed. I seek leave to continue my remarks later.

Leave granted.

Anthony Chisholm (Queensland, Australian Labor Party) Share this | Link to this | Hansard source

As part of this inquiry, the committee heard from the PKKP people, including Mr Burchell Hayes, a descendent of Juukan, who described the gorge as 'an anchor of our culture,' and said:

The loss of Juukan Gorge rock shelters is also a loss to all First Nations people and the community within Australia and internationally …

He talked about how neighbouring Indigenous groups have a direct connection with Juukan and also feel powerless and angry at this happening. The traditional owners said that the incident had caused immeasurable cultural and spiritual loss and profound grief.

It was fantastic that committee members were able to go and visit the PKKP people on their lands, talk to them and visit the site. Unfortunately, due to the restrictions of COVID and quarantining, I wasn't able to do that myself. But because of the importance of this inquiry and the nature of it—that it be concluded or the interim report be delivered this year, given the significance of this issue—it was worth that sacrifice, for people to be able to go and be on location and view what had gone on.

Since the inquiry began, it has received over 142 submissions and held 11 public hearings. The committee held a yarn session with the PKKP people and some members were able to visit the site itself. I'd like to thank the committee for their support on this work, because it was a difficult year, particularly with the geography and locations that we were dealing with. It was such a significant issue with not only national interest but also international interest, given the nature of the company that we are talking about.

I think the role that Rio Tinto had in the destruction is obviously crucial. The committee heard from the now former CEO, Mr Jacques, and his leadership team. I think one of the more consequential pieces of evidence that we heard from Rio was that they actually had four proposals that they were looking at in regard to expansion. But they only presented one of those options to the PKKP people, and that involved the destruction of the gorge. We also found out, through the evidence, that that was worth $134 million extra to Rio because of the higher grade ore that would be gained from the destruction of Juukan. It was obvious from the evidence that we teased out of Rio that they were going to make more money by the destruction of the gorge and mining that area than they would have if they had considered some of those three areas that they had looked at for expansion. There's no doubt that the decision was a financial one that would have resulted in more returns to Rio and their shareholders.

In the days leading up to the blast, there were clear examples of how they failed to consult with the PKKP people. When the Rio Tinto heritage team was meeting with the PKKP people on 14 May, the heritage team were unaware of the plan to blast the site. On 18 May the heritage team requested to temporarily suspend blast plans to allow further consultation with the PKKP. Yet, even after the suspension at the request of the PKKP, Rio Tinto continued to load explosives into the site.

On 20 May when Richard Bradshaw, the lawyer for PKKP people who had planned on lodging an injunction to prevent the explosions and protect the rock shelters, contacted Ken Wyatt's office regarding the destruction, he was told to contact Minister Ley. Despite calling Minister Ley's office twice and being promised a call back, he never heard back from the minister's office. The next day Mr Bradshaw was sent an email from a law firm representing Rio Tinto, reminding him that under the agreement between the PKKP people and Rio Tinto there was a gag clause and that they could not speak publicly. If they did, there was a risk that they could lose payments.

The failure in communication is a broader symptom of the corporate culture at Rio Tinto, and this is also shown through the delay in Rio Tinto apologising to the PKKP people. On 31 May 2020, Chris Salisbury, the Rio Tinto boss iron ore boss in WA, apologised for the distress caused but not for the destruction of the gorge. Similarly, Mr Jacques apologised for the distress caused, not the destruction. They have subsequently apologised and acknowledged that it shouldn't have occurred, but it speaks to the broader cultural issues that the committee recognised were more than just some unfortunate mistakes or ineptitude—that Rio Tinto prioritised commercial gain over meaningful engagement with traditional owners.

Rio Tinto had a number of reports and major excavation of rock shelters in 2014, both highlighting the significance of the site. Ms Niven, who was in charge of relationships with traditional owners and was Rio's most senior executive for Indigenous relations, never visited the Juukan Gorge site and in her role only offered to meet with the PKKP people after they had made a submission to the inquiry, despite being in her role for a number of years. It is worth noting that the three senior Rio executives that have lost their jobs—Mr Jacques, Mr Salisbury and Ms Nevin—walk away with a payout of tens of millions of dollars whilst the PKKP are left with the destruction of the site.

Over recent years, there's no doubt been a degrading of culture within Rio Tinto, especially in relation to Indigenous relations. There have been actions like moving Indigenous relations into the public relations team and then basing that overseas rather than on the ground in Australia where they could actually deal and build a relationship with these people. We heard evidence from Mr Cochrane, a former executive at Rio Tinto, that the Indigenous relations function used to be an integral part of Rio Tinto's operations but is now lumped in with public relations and based in Washington DC. He said:

It's been a source of some puzzlement to me – and I still don't understand it …

He went on to suggest that, in the early 2000s, there was a shift that mining companies like Rio could cut costs and earn high marks for corporate social performance in questionnaires from international organisations. He said:

If these forms could be filled out in a central office, by people with little field knowledge, why maintain social science specialists in the communities?

And that is unfortunately what they said.

We know there was plenty of evidence provided by experts and by former Rio executives to understand that they had degraded their relationship with Indigenous Australians. They had moved it into a function so that it was dealt with as part of the government relations rather than actually administering and working with Indigenous Australians. There's no doubt that the culture that Mr Jacques had in relation to 'fit in or f-off', which Senator Smith raised as well, played a role in executives and management not being as truthful and honest in dealing with these issues as well as they could have.

The results from this are devastating. The report is very honest, it's very confronting and it deals with substantial challenges not only for the mining community in WA but also for the government of WA and the Commonwealth government. It's why we have delivered an interim report to deal with the substance of WA and what went on with Rio, and it was important that that was done in a timely fashion. I look forward to continuing the work of the committee into next year as we look at the nationwide implications and at how we can work with this parliament to ensure that there's a spotlight on these issues so that something like the Juukan Gorge destruction can never happen again.

Patrick Dodson (WA, Australian Labor Party, Shadow Assistant Minister for Reconciliation) Share this | Link to this | Hansard source

As a member of the Joint Standing Committee on Northern Australia, I wish to make some comments about the committee's interim report on its inquiry into the destruction of caves occupied by humans for 46,000 years in the Juukan Gorge in the Pilbara region of Western Australia by the Rio Tinto mining company. The committee was due to report on 30 September 2020 but COVID restricted our travel into Western Australia. The Senate, on 31 September, agreed to an extension till today.

First, I want to thank the committee chair, Mr Warren Entsch, for his leadership and commitment to this inquiry. It is most heartening to me that the interim report is a unanimous one. The report expresses a common concern held by all about the destruction of the caves at Juukan Gorge, news of which reverberated around the world. We should take note of the fact that shareholders took a very keen interest in what had happened in this particular situation. But our concern extended beyond the Juukan Gorge. The priceless First Nations heritage is under threat right across the land, and protections are wanting.

The joint committee inquiry attracted more than 140 submissions, which demonstrated widespread community concern at the wanton destruction of the caves at Juukan Gorge on 21 May this year. The most poignant testimony came from the Puutu Kunti Kurrama and Pinikura people themselves in both written and verbal evidence. It will suffice to quote one of those witnesses, Burchell Hayes, whose grandfather was known as Juukan. He said:

We have an obligation to look after country in accordance with traditional law and customs. It is our obligation to the old people, who also looked after it. It was on loan to us to pass on to our future generations, our Puutu Kunti Kurrama and Pinikura children, and the future generations yet to come. The disaster has now left a gaping hole in our ability to pass on our heritage to our children and grandchildren.

As a committee, we were able to hear evidence like that directly thanks to the good offices of the Premier of Western Australia, Mr McGowan, and the Commonwealth, which, given all the difficulties with COVID, laid on an Air Force aircraft to transport us, particularly interstate members, to Karratha and for us to get out to the Brockman mine site at Newman. It was an invaluable opportunity, because we were able not only to hear from and talk to the people so tragically affected but also to see their country for ourselves and to witness the area of destruction. The committee had a meeting with over 100 of the traditional owners, a very rare kind of way for committees to work, and we heard from various people the hurt, frustration and anger that they carried as a consequence of this.

This interim report identifies a catalogue of failures of the processes of Rio Tinto. It much saddens me that a company which not that long ago was one of the industry leaders in the way it dealt with First Nations peoples became so cavalier in its pursuit of profit. I caught the tail end of my colleague on this point about how the company had lost the integration of its management and its governance, but failures such as these that led to the Juukan Gorge disaster do not happen out of the blue. These failures were symptomatic of the 'don't care' culture that infected Rio Tinto from the top down. It had gone through a rapid decline in the way it did business. While we're dealing with the top, let me say it was a mistake for board member Mr Michael L'Estrange to be the one to do the company's review of cultural heritage management. He was the wrong man for the job. The report was full of corporate mea culpas and corporate lingo and was an unsatisfactory piece of work. It didn't get to the heart of the drift and rot that were allowed to corrupt Rio Tinto's formerly good practice. It simply didn't nail the fundamental cultural shift over recent years at Rio Tinto that devalued the importance and the input of top-shelf anthropologists and physical heritage advice, as witnessed by Professor Cochrane and Mr Bruce Harvey, who informed the inquiry.

What became plain in the course of the inquiry is that the First Nations peoples are seriously disadvantaged when it comes to dealing with mining companies and government agencies. The scant resources that the First Nations can muster are far outweighed by those the mining companies and bureaucracies bring to bear. The legislation, state and federal, has failed to protect First Nations and their heritage. The ineffectual Native Title Act has delivered nothing of substance to protect the interests of First Nations. We heard of gag clauses in contracts. We heard of people signing over their civil rights to not protest about destruction, or potential destruction, by a company in the exercise of its rights under section 18 of the Western Australian act. If Eddie Mabo were with us, he would be deeply distressed to realise that what he fought for so vigorously has delivered so little—and I'm talking about the future legal regime of the Native Title Act.

The environment and heritage protocols and laws around the country need a serious overhaul, and this committee will be looking at those, going forward. As we speak, even in the Northern Territory, where sacred sites legislation leads the nation, important sites at the blighted McArthur River Mine in the Gulf Country are under threat right now because the government has approved a new mine management plan without the necessary sacred sites clearance certificates having been approved. Australia's reputation and standing in the world is under threat because of deficient legislation, and the casual disregard for First Nations heritage that flows from that.

We have international obligations here to take the United Nations Declaration on the Rights of Indigenous Peoples seriously. Article 11 speaks about the right of Indigenous people to maintain and protect 'manifestations of their cultures, such as archaeological and historical sites'. It goes on to say that states shall provide redress 'which may include restitution, developed in conjunction with Indigenous peoples,' if their cultural property is 'taken without their free, prior and informed consent or in violation of their laws, traditions and customs'. That's a matter this report dealt with in a tangential way. But the importance of free, prior and informed consent cannot be underestimated, and in the review we've been encouraging companies to look at what they've got in their existing section 18s. Australia signed up to the UN Declaration on the Rights of Indigenous Peoples, but what does it really mean in practice? It just gets disregarded.

How many more Juukan Gorge catastrophes are lurking on working schedules around the country? We don't know, because there are still existing legal regimes that permit—and legally permit—various companies to destroy them. So, whilst our report is called Never again, it's in a legislative environment where there's still the capacity for an organisation or a company to destroy such sites. We have a serious problem, and this committee's got some serious work to do, going forward into the new year, on the comparative basis of the legal framework.

It's so sad that things went wrong, badly wrong, for Rio at Brockman 4. But it's also sad that this is not an isolated incident; it's not confined to just this company's operations. There is a lot for us to consume and there is hard work ahead of us. I seek leave to continue my remarks later.

Leave granted; debate adjourned.