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A way forward
The destruction of the Juukan Gorge Aboriginal heritage sites by Rio Tinto on 24 May 2020 was an event that shocked the nation. Australians were further disturbed to learn that the destruction was permitted under the Aboriginal Heritage Act 1972 (WA).
This tragic event, and the national condemnation of the actions of Rio Tinto has sparked action to address the legislative failings that allowed the destruction of the Juukan Gorge sites–and similar sites around the nation. The Juukan Gorge disaster is just one example of countless instances where cultural heritage has been the victim of the drive for development and commercial gain.
The legislative frameworks that govern the protection of Indigenous heritage are complex, comprising state, territory and Commonwealth laws and international treaties. However, none of these frameworks adequately encompass the complexity of Indigenous heritage which is living and evolving and is connected not just through historical artefacts, but through songlines, storylines, landscapes and waters.
This report primarily addresses the second set of issues referred in the Terms of Reference. However, Chapter 2 reviews the events that occurred at Juukan Gorge and the decision-making processes undertaken by Rio Tinto leading up to the event, and actions undertaken by Rio Tinto since the Committee’s interim report was tabled. Sadly the destruction of the heritage sites at Juukan Gorge was not an isolated event but the detailed examination of this incident and the multiple associated corporate, communication and legislative failures serves as a lesson for proponent industries, corporations and governments negotiating with Indigenous peoples globally.
Chapter 3 gives voice to the other destructive events that have occurred more broadly in Western Australia at the hands of the resources industry and inadequate cultural heritage protections.
Chapter 4 analyses the Aboriginal Heritage Act 1972 (WA) and its deficits that gave legal authority for the destruction of heritage sites at Juukan Gorge. It also considers the proposed Aboriginal Cultural Heritage Bill 2020 (WA) in this context.
Chapter 5 outlines the relevant legislation governing the protection of Aboriginal and Torres Strait Islander heritage in the states and territories and considers the benefits and critiques of each of these frameworks. A timeline of legislation governing Aboriginal and Torres Strait Islander heritage protection from 1955 to today is at Appendix F.
Chapter 6 discusses the Commonwealth legislative framework governing the protection of Aboriginal and Torres Strait Islander heritage and the international laws and covenants that bind Commonwealth obligations. A list of recent case law under the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 is at Appendix G.
Chapter 7 concludes the report with recommendations to guide the nation forward in its protection of cultural heritage, based on the Committee’s detailed examination of events that occurred in, and legislation being developed, in Western Australia. As will be made clear throughout the report, no state or territory legislative or policy framework is adequately protecting the interests and the heritage of Aboriginal and Torres Strait Islander peoples and it is past time that this is rectified.
The Australian government's response to this inquiry, released on 24 November 2022, is also available for download.
Never again https://apo.org.au/node/310049