Carol Brown (Tasmania, Australian Labor Party, Assistant Minister for Infrastructure and Transport) Share this | Link to this | Hansard source

I present a ministerial statement and a government response to two reports of the Joint Standing Committee on Northern Australia relating to the committee's inquiry into the destruction of Indigenous heritage sites at Juukan Gorge. In accordance with the usual practice I seek leave to have the government response incorporated in Hansard.

Leave granted.

The document read as follows—

The document was unavailable at the time of publishing.

Jonathon Duniam (Tasmania, Liberal Party, Shadow Minister for Environment, Fisheries and Forestry) Share this | Link to this | Hansard source

I move:

That the Senate take note of the documents.

I welcome the opportunity to take note of this ministerial statement. As the member for Cowper, Mr Conaghan, said on my behalf in the other place on Thursday of last week, it's always been the coalition's view that the events at Juukan Gorge on 24 May 2020 represented, at the very least, a tragic failure on so many levels in the interactions between Rio and the traditional owners. Those events were so disastrous that they made it very clear that comprehensive work needed to begin, as a matter of urgency, on modernising Indigenous heritage protection laws in Australia. To each of those ends, the coalition fully agrees with many of the elements of the ministerial statement.

I would also like to reiterate comments by the member for Cowper about the importance of the work on these issues by the Joint Select Committee on Northern Australia. That committee's work led to a series of crucial findings and recommendations, and it also led, during the years of the coalition government, to a range of work guided by our then environment minister, Ms Ley, and by the then Indigenous affairs minister, Mr Wyatt. That work was underpinned by funding in the 2021-22 budget that was specifically devoted to developing an engagement process to identify the best options for reform. As we said throughout that time, we always considered it vital that this process be centred on the views and experiences of traditional owners.

We're also pleased that Ms Plibersek's statement now clarifies that the government intends to continue in those directions. On that note I should add that the coalition is comfortable in principle with the government's decision to accept the first seven recommendations of the joint standing committee's 2021 report and to continue to explore the eighth. In saying all of that, though, I think all of us should be concerned about what has come to light in the wake of the statement last Thursday. I'm specifically referring to the multiple subsequent media reports that traditional owners in the Puutu Kunti Kurrama and Pinikura people say they've not been consulted with properly by Minister Plibersek. The PKKP Aboriginal Corporation chairman, Burchell Hayes, has in fact gone as far as saying:

It seems like a media event in Canberra is more important than giving PKKP people the respect of asking us what can be done to try and stop something like the destruction of the Juukan rock shelters happening again …

He also said:

We would have expected the minister would want to meet with us before making a public announcement about our country and cultural heritage.

The government should take note, especially when Ms Plibersek has made such big things of the work that had been done, supposedly, with the traditional owners. It's hard to see how it can be said on the one hand that you're fully committed to, 'full and genuine partnership with First Nations people,' as stated in the booklet on page 5, and also on page 8, where it says:

… the importance of putting First Nations peoples at the heart of decision-making for issues that affect Aboriginal and Torres Strait Islander peoples.

when it turns out, as it has now been revealed, that there has been no consultation with traditional owners. They're left feeling disrespected and, understandably, very insulted. This is, plainly, unacceptable.

I will add that there are other part of the ministerial statement and the accompanying booklet that leave the coalition with some concerns. Foremost among those is that there is really very little in the way of firm time lines and KPIs for progress. On page 5 of the booklet the wording says that options to reform First Nations' cultural heritage protection will merely be provided for consideration in this term of government. I think Australians deserve and, in fact, have a right to be sceptical about, exactly what this means. It sounds like the wheels of government are now turning very slowly on this, and that any potential and genuine progress might well be a long way away.

More positively, though, I do want to acknowledge that the ministerial statement says:

These reforms are not about stopping development, or halting progress.

Industry, and the resources sector in particular, plainly need to be consulted closely in the consideration of new laws. Moreover the government does need to honour the point that the overwhelming majority of companies in modern Australia are very committed to environmental protection and conservation. They need to contribute to this process rather than being excluded from it. We urge the government to make sensible and balanced decisions here that align environmental protection with sensible, measured and sustainable economic development.

In the meantime, I want to return to where I began by saying that there is a resounding agreement between the government and the opposition on the overwhelming majority of issues covered by this ministerial statement. I also reiterate the comments of my colleague the member for Cowper in paying tribute to the traditional owners of the Juukan Gorge for their ongoing determination to preserve and honour their beautiful and phenomenal cultural heritage, and in thanking all the many people who have been involved in the past 2½ years in trying to turn an environmental tragedy into a much more positive and inspiring future.

Dorinda Cox (WA, Australian Greens) Share this | Link to this | Hansard source

I also wish to take note of this ministerial statement and make a short statement. There's no amount of money that can restore what was destroyed at Juukan Gorge on 24 May 2020. No reparations will heal the anguish, the devastation and the loss inflicted on the PKKP traditional owners by the blasting of those rock shelters. I have familial links there and, before coming to work in this place, I had the pleasure of walking and working alongside them to discuss ways in which they can create opportunities for their elders and their young people. From health care to continuation of law practices, we collectively put our minds to work to improve the economic and social benefits for the PKKP people. I'm forever grateful to them for allowing me to share this experience, especially Uncle Burchell Hayes.

The PKKP mob come from an area that is 10,888 square kilometres, between Onslow and Tom Price in Western Australia. If you drive to the top of Mount Nameless, which is in fact its Western name, or Jarndunmunha, which is the Eastern Guruma name—meaning 'place of the rock wallabies'—you can get a wonderful view of the majestic Hammersley ranges.

The lack of legislative oversight at federal and state levels has resulted in the absolute destruction of tens of thousands of years of cultural heritage, and, since this monumental disaster, there's been little progress shown by any government to prevent Juukan 2.0 from occurring across this country. In fact, nearly every mining project has a cultural heritage tenor to it, particularly in my home state of Western Australia, which is the engine room of mining in this country.

Last week the environment minister, on behalf of the Australian government, tabled their response to the interim and final reports by the Joint Select Committee on Northern Australia on the destruction of Juukan Gorge—a committee I served on to deliver this final report and its recommendations, alongside an open letter that we wrote to the Premier of Western Australia about the WA cultural heritage legislation, which I nicknamed 'the mining enabling legislation', because there are plenty of loopholes in it.

Federal and state ministers, the Prime Minister, in fact, and other state premiers need to get out on country and visit some of the sacred places like Juukan Gorge. They need to listen to traditional owners to truly hear, see and feel the importance of these places, and to understand the link to our rich biodiversity and our totemic systems, our artefacts and our sacred sites. They are our museums and cathedrals, our artwork, our scientific knowledge and our cosmology, which is about our religion and our spirituality. Consultation cannot be a box-ticking exercise. There has to be genuine, meaningful and collaborative engagement. That is what is required.

Internationally, people were shocked and outraged by the actions of Rio Tinto. 'A national disgrace', 'A dark day in Australia's history', some of you in this place might recall, were some of the headlines that were touted. My colleague on the committee and fellow Western Australian Senator Dodson is quoted as having called 'incremental genocide' the mining company's behaviour in the lead-up to the destruction of the Juukan Gorge caves.

It's time for all Australians to see the destruction of Juukan Gorge by an ignorant mining company as a wake-up call, but, more importantly, for those who were in the opposition at the time to do what they said they would do. We will now see if, as a newly anointed government, they are up for the challenge. Australian cultural heritage sites, whether they are significant to First Nations people or to other cultures, deserve protection in this country. As the PKKP mob have said, 'The Juukan Gorge disaster is a tragedy not only for our people. It is also a tragedy for the heritage of all Australians and indeed humanity as a whole.'

Tourists all over the world visit Stonehenge, the pyramids of Egypt and ancient temples across the Asian continent, but it is here in Australia that the world's oldest surviving culture endures. It is in the dynamic, resources-rich landscapes that First Nations culture and tradition endures, uninterrupted for tens of thousands of years until one day a billionaire decides to blow it up, at the stroke of a pen. The federal and state governments of this country have failed to protect this profoundly important place at Juukan—with 46,000 years of continuous occupation, the sacred place of tradition and sharing of knowledge. Juukan was blown up just a few days before National Reconciliation Week, when elders were set to share their cultural teachings with the next generation. Traditional owners are given, through their birthright, the right to speak, protect and care for country.

I'd like to offer you an example of an intangible cultural heritage so some of you might actually understand or try to connect with my definition of what that means as a First Nations woman. When I gave birth to my daughters, I took the placentas and buried them on my mother's country because we are a matriarchal culture. I put them next to the olive tree on the old cottages site of the New Norcia Mission, where five generations of my ancestors lived during the time their children were placed in the care of missionaries. My family have practised this for generations, and, to my old people, this means that their cultural heritage will be preserved—and, as I teach my children the stories, the songlines, the trade routes and the legacy of this place, the importance of their connection. The two Dreaming tracks that are from this place link them to the ningarn, which is the echidna in the Noongar language, and the dwert, which is the dingo, and across the country. It gives them their responsibilities for protecting their totems.

Cultural heritage is more than native title rights. It is the knowledge that is passed to us through our stories and our oral teachings. I'm fortunate enough to have two black parents, who gave me this knowledge on both sides. Cultural heritage provides information about place, history, story, dance and our connection. It goes to the things which are environmental, cultural, spiritual and familial. This is the way we learn, and we teach our generations to have a reciprocal relationship with our boodjar, which is the Noongar name for earth. It comes from the word boodjarri, which means pregnant. We are born through her spiritual being, which is Mother Earth, to a place and a time that was created by our ancestors. Therefore, there is no manual or book that we hand over for those decisions about our land and our sea country or the transfer of title. We should retain the power to say no to industry and, in particular, to mining companies. This is why proponents and governments should not now, or ever, be able to make decisions about First Nations cultural heritage in this country.

I welcome and I agree with the environment minister's acknowledgement that state laws are too weak and that Juukan Gorge was not an isolated mistake. This was a result of a failing system a, a white colonial system that has failed First Nations people, and it will continue to fail us until something drastically changes. The federal and state government also continue to fail First Nations people until we have free, prior and informed consent, until we are considered equal partners in negotiations, and until we have truth-telling about the destruction. The people in this place must listen to the ways in which we fight every day to keep our culture alive, and its links to our heritage.

The recommendations of this report require these principles to be respected, and I will keep fighting and hold this government accountable to make sure that they are seen through. Today, it's been reported that the PKKP people, through their Aboriginal corporation, have reached an agreement with Rio Tinto on a legacy foundation that will deliver a social and economic program, which will include elements such as education and training opportunities, business development, capacity building and preservation of and advocacy for cultural heritage and land.

First Nations people are finding something enduringly positive in the greatest tragedy, as we always do, and the mechanism for our survival. But, without meaningful and lasting action, this won't be the last tragedy for First Nations cultural heritage, and we anxiously await the government's latest test, at Murajuga, to save our songlines and our rock art from destruction by another corporate entity that claims to be the friend of First Nations people.

I look forward to hearing about this government's approach in relation to legislative reform, to ensure there is accountability and transparency. The interim report, called Never again, and the final report, called A way forward, must ensure that the destruction of cultural heritage does, in fact, never happen again, and we do find a way forward. We need to make sure that the destruction of cultural heritage ensures the stopping of disenfranchisement and the dislocation of First Nations people from their country. Pivoting out of extractive mining into regenerative and renewable sources is a way for the future.

Patrick Dodson (WA, Australian Labor Party) Share this | Link to this | Hansard source

DODSON () (): I rise to speak on the response to the Juukan Gorge inquiry. I was a member of the committee that did the inquiry. On Thursday, the Minister for the Environment and Water tabled the government's response to the interim and the final reports of the inquiry into the destruction of 46,000-year-old caves and Juukan Gorge in the Pilbara region of Western Australia. The destruction of the rock shelters at Juukan Gorge was a wake-up call for the nation It was absolutely necessary that the parliament thoroughly interrogated how such an atrocity could occur within existing legal frameworks. As a member of the Joint Standing Committee on Northern Australia, we had the important task of finding out what went wrong. We needed to understand how to stop it from happening again. I want to acknowledge the resilience and the strength of the PKKP throughout this inquiry. Their integrity and capacity to leverage opportunity by participating even when they had every right to be disengaged has been commendable.

As a committee, we adopted a unique process to ensure cultural safety for witnesses and to show respect for what had been lost. We went on country to hear directly from the people so tragically affected by the needless destruction of culture and the causing of pain to themselves. We held roundtables so that hearings were more accessible and less formal and encouraged conversations and knowledge sharing. As a result, all the committee members could see and feel in person the deep impact of lost culture. I commend the work of my fellow committee members, particularly chairman Warren Entsch, Warren Snowdon and Rachel Siewert for their care and commitment to this inquiry.

The inquiry's interim and final reports demonstrated quite clearly that this incident was endemic of a broken cultural heritage system. Rio Tinto's failures were appalling and systematic of a 'don't care about culture' approach. But they were also legally entitled to do what they did. This destruction could happen anywhere, by any mining or development company and even by governments. There are still existing section 18 notices under the Western Australian Aboriginal Cultural Heritage Act that are active in Western Australia, and there are sites that are just as much at risk. We currently have a system that doesn't protect First Nations culture but equally isn't clear for the proponents of development. We have a scheme that allows destruction of heritage that runs very close to destroying evidence of 60,000 years of First Nations history. While it is legal, proponents should not presume that they have a social licence to cause harm within an existing broken system. In public protests and outrage, Australians showed what occurred at Juukan Gorge should not have been legal and was definitely not moral. They must adopt processes of free, prior and informed consent. They must do better.

I'm proud the Albanese government has accepted seven of the eight recommendations to reform the Australian cultural heritage system. The future cultural heritage system needs to be strong, and it needs to protect that culture for our families and our communities. We have committed to developing standalone cultural heritage legislation in the future. It will be developed in partnership with the First Nations Heritage Protection Alliance. It will holistically adopt reforms to address the existing flaws. In this co-design process, we're working through the final recommendation about ongoing portfolio responsibilities. Federal leadership on this is critical to sustaining the preservation and protection of our ancient cultural heritage. That is why there must be minimum standards in federal legislation for states and territories to live up to. Those minimum standards will be rigorously adopted in our future standalone Commonwealth cultural heritage legislation. That is because there has to be a floor—not only aspiration—if we're to protect culture.

Many of the cultural heritage protections are currently to the detriment of the free, prior and informed consent of First Nations peoples. Clauses that enable such disregard to exist, such as section 18 in the Western Australian heritage act, should be rooted out and replaced with positive provisions. The operations of our future legislation should not be constructed with commercial obligations which force First Nations peoples to negotiate under duress. We found there were clauses in these negotiations that, basically, amounted to putting people's right to express their concerns at risk. We need to ensure that negotiations between First Nations people and resource development companies are not conducted so that compensation is simply to offset the cost of operations. The new regime needs to set the expectations for resource developers to be that they need to win the social licence from traditional owners and the public, not find ways to work around the statutory requirements. First Nations cultural heritage is precious. It is interconnected to who we are as a community. It is the flipside of the commercial bottom line.

I am proud that this government will address the long overdue reform. The PKKP's strength throughout the inquiry will lead to greater protections for all First Nations cultural heritage across these lands. My hope is that we do justice to the PKKP's resilience with real reform to ensure the destruction we saw at Juukan Gorge is never allowed to happen again. If we continue to allow it to happen, it will be the way to incrementally devalue, destroy and eradicate the presence of the Aboriginal peoples of these lands.

Lidia Thorpe (Victoria, Australian Greens) Share this | Link to this | Hansard source

We welcome the government's response to the recommendations made in A way forward, the final report of the Juukan inquiry, which accepts seven out of eight of the recommendations and commits to working in real partnership with First Nations people—eye to eye and with free, prior and informed consent—in implementing these recommendations.

These reforms would see the introduction of national standalone cultural heritage legislation that is developed with First Nations people and acts as a minimum standard for state and heritage protections. As we know, these are highly inconsistent and are often ineffective or even skewed against protecting our heritage. The government's commitment to free, prior and informed consent is great, but we need to see how this will actually play out in reality. Unfortunately, government doesn't have a history of following the principle of free, prior and informed consent, although it often pretends that it does. We hope that this process can be one of setting an example of how FPIC can be pursued through government. FPIC is a key principle of the United Nations Declaration on the Rights of Indigenous Peoples and means that First Nations people receive all relevant information to make a decision well beforehand, have the means to consider it properly and can make a self-determined decision, a decision that is not predetermined by government or anyone else and can be made without being pressured one way or another.

The government also commits to reforming native title to address inequalities in negotiating positions that traditional owners face. This is a long overdue reform. Traditional owners need to have the final say on proposals affecting their cultural heritage. That is the essence of free, prior and informed consent, and it includes the right to veto—to say no. Put forward in recommendation 7 of the Juukan inquiry report, these reforms also need to address the role of prescribed body corporates and native title representative bodies. All too often these representative bodies do not represent the views of traditional owners, whose interest they should work in, and make agreements with mining proponents on their land. Going through representative bodies alone is not free, prior and informed consent. These bodies themselves need to comply with the principles of FPIC, and their accountability, governance and transparency mechanisms need to be strengthened.

Besides committing to seven of the eight recommendations, it is disappointing to see that the government has not—at least not yet—accepted the first recommendation of the Juukan inquiry, which is that responsibility for First Nations cultural heritage matters should sit with the minister for Indigenous Australians, instead of the minister for the environment, and the relevant shift of responsible portfolio agencies.

I was on the joint standing committee for the Juukan inquiry, and there is a reason for this recommendation to be the first recommendation of the final report. The government always talks about First Nations justice, while at the heart of First Nations justice lies self-determination. We are talking about the heritage of First Nations people, of the oldest cultures in the world. Country and culture are the essence of who we are, and yet, here, the government does not commit to transfer responsibility for our own cultural heritage to the Minister for Indigenous Australians. It is time for government at all levels to stop clinging onto the old colonial days, to stop making decisions for us, to stop controlling us. The government is talking about a voice to parliament, yet failing to take an overdue and necessary step to move responsibility for First Nations heritage to the Minister for Indigenous Australians, whose portfolio agencies are much better set up to engage with First Nations communities across the country. I hope that eventually your talks with First Nations cultural heritage alliance will conclude in also accepting this recommendation.

I also want to urge you to pursue the reforms you have committed to with urgency. We have no time to waste. Every year, month, week and day we are delaying action risks further cultural heritage being destroyed and part of our culture and our stories being lost. Traditional owners across the country are fighting every day to protect their sacred sites. Every day my office gets calls for assistance. The numbers of applications being sought under section 9 and 10 of the Aboriginal and Torres Strait Islander Heritage Protection Act are just giving a small insight into how many challenges traditional owners face to protect country and culture everywhere.

The government has given no indication on when these reforms will take place, and this clearly raises concerns that it might not be a priority for the government. We waited over a whole year since these recommendations were handed down before we even got a response, despite Labor being involved in developing these recommendations and endorsing them. How long is it going to take to finally see our heritage being protected?

In the Greens' additional comments to the Juukan report, along with a range of further recommendations based on the evidence of the Juukan inquiry which would further strengthen First Nations cultural heritage outcomes, we ask the government to pursue a treaty or treaties with this country's First Nations peoples. While it is incredibly important that we fix the cultural heritage protection framework in this country, we also need to address the underlying factors which have led to the destruction of so much of our heritage and culture and continue to do so every day. We can only do that through treaty. Treaty is the end to the war and leads the pathway to a better future. Treaty acknowledges First Nations sovereignty, protects First Nations rights and sets out the underlying terms for First Nations people to negotiate with the government moving forward. We need to protect First Nations heritage now, we need to follow self-determination now, and we need a treaty now.

Question agreed to.