Following the destruction of two heritage sites in Juukan Gorge by the Australian mining company Rio Tinto in May, Aboriginal communities are facing another threat to their quest to protect their heritage and culture. Western Australia’s Federal government has been asked to take a step back by Australian mining companies when it comes to legislation protecting Aboriginal heritage.
The Native Title Act (NTA) currently allows six months for Aboriginal communities to reach an agreement with mining companies over any projects that can harm indigenous territory, thus placing mining companies at a constant advantage by creating minimal concessions which, in the long term, have no impact on profit.
For the Australian government, the discrepancy between profit and heritage is a primary factor influencing legislation that favours mining companies.
In the aftermath of the Jukaan Gorge destruction, which attracted international scrutiny, BHP, Australia’s largest mining company, paused its plans to destroy approximately 40 Aboriginal heritage sites, pending consultations with the Banjima people. However, this decision was taken to avoid another public outcry against exploitation of indigenous territory – it is likely that no additional consultation would have been planned had the Juukan Gorge destruction not attracted such wide-spread attention. The focus, therefore, is not about preservation of indigenous heritage but rather about the company seeking public approval, even if temporarily.
The 1972 Aboriginal Heritage Act allows mining companies to apply for ministerial consent to destroy aboriginal heritage sites for mining projects. Calling the Jukaan Gorge destruction “an exception”, mining companies are pushing for less governmental influence and for the government to retain the Native Title Act as the basis upon which negotiations between the companies and indigenous communities take place.
However, such agreements not only work in favour of the mining companies due to commercial interests. Aboriginal communities are usually bound by a gag order to prevent any opposition to mining projects, or bring forth any details that might at the very least elicit any scrutiny.
The Jukaan Gorge case brought such gag orders to light through a parliamentary enquiry. In the agreements signed between native title applicants and Rio Tinto, the aboriginal people had to sign documents that included clauses “not to make any adverse public comment in relation to [Rio Rinto’s] Pilbara Iron Ore business.” In addition to the gag orders, aboriginal communities were also coerced into refraining from opposing any applications made by the mining company to the government regarding the destruction of aboriginal heritage sites.
Lawyers representing aboriginal communities have argued for stronger legislation when it comes to heritage site protection, which would allow Aboriginal communities an equal footing when it comes to land preservation. Currently, mining profits determine the outcome of any contention over a heritage site, while aboriginal communities and their rights are downplayed by companies, in a manner that degrades heritage preservation and dismisses aboriginal land rights. As Rio Tinto’s chief executive stated, “We are happy to have a conversation with the traditional owners but it is important that we still preserve the intent and purpose of the initial agreement that has underpinned billions and billions of dollars, not only from Rio but other mining companies.”
A conversation bears no legal significance and certainly offers no protection for aboriginal communities and their land. Native title royalties under the Native Title Act have been exploited to silence opposition over sites destined for mining – a monetary offer in return for relinquishing rights. Furthermore, the so-called right to negotiate with mining companies is just a veneer for exploitation – there is no clause that prevents mining companies from access to land in case of a disagreement within the six-month timeframe. Rio Tinto had four options to access the iron ore at Jukaan Gorge, but only the destructive option was considered and implemented. If heritage sites were recognised as inherently valuable, aboriginal communities would have a stronger legal case for land preservation.