Juukan Gorge ‘cop-out’: talk about protecting Aboriginal sites goes curiously quiet in WA

It’s a West Australian story, but most of the action took place in London. In May last year, Rio Tinto blew up a 46,000-year-old rockshelter in the Pilbara in order to access an additional $135m worth or iron ore. This week the company’s chairman, Simon Thompson, announced he was standing down, joining four other senior figures, including the former chief executive, who have left the company over the Juukan Gorge disaster.

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Photograph: PKKP Aboriginal Corporation/AFP/Getty Images

From an industry perspective, the response has been staggering. Never have so many corporate heads rolled over the destruction of an Aboriginal heritage site.

In the WA government, which has responsibility for the processes that approved the destruction of the site and thousands more like it dating back to 1972, the blast caused barely a ripple.

Responsibility for the damage was placed squarely on Rio, for detonating the blast, and on the previous government, which approved the destruction. Responsibility for fixing the problem has also been largely outsourced: demanding higher standards of mining companies is a matter for shareholders; funding Indigenous native title holders so they are able to negotiate on something resembling a level playing field is a matter for the federal government.

© Photograph: PKKP Aboriginal Corporation/AFP/Getty Images
If the draft heritage laws had been in place last year, Rio Tinto would still have been able to destroy Juukan Gorge, National Native Title Council boss Jamie Lowe says.

In the lead-up to Saturday’s election, protecting heritage has garnered barely a mention.

The WA government has underplayed the fact that it has, since its election in 2017, continued to approve the destruction of hundreds of sacred sites, and has not refused a single application by a mining company. Instead it emphasised that it was writing new heritage laws.

The debate has gone curiously quiet in WA, says the political commentator Martin Drum. He compares it to the campaign against the Adani coalmine during the 2019 federal election, which had more of an impact on progressive voters in Victoria than on seats in Queensland.

Related: Rio Tinto investors welcome chair’s decision to step down after Juukan Gorge scandal

“It seems to have resonated more outside of the state,” he says. “I’ve seen very little around that in the state election campaign – it’s been pretty much invisible.”

It is not the first time mining companies operating in WA have changed course not because of state laws but because of international and interstate pressure. In 2007, protests against the North West Shelf venture, which impacted upon the rock art at Murujuga or the Burrup Peninsula, took place outside the global head offices of some of the global joint-venture partners.

The international attention gave the fight to protect Murujuga legs in Australia, says the Greens MP Robin Chapple. “Because up until then, no one gave a rat’s.”

Last year the WA government submitted Murujuga for world heritage protection.

“The WA government has never required standards [of mining companies],” says Chapple, who is standing down at this election. “Go to London, to the board of Rio Tinto, that hurts. We’re talking lords and ladies basically … In their peer communities in Chelsea or wherever they are living, someone will say: what about this rock art that you’re destroying in Australia? And that’s where it resonates.”

WA’s new draft heritage laws, which had been in development for years before Juukan was destroyed, are still yet to be finalised and presented in parliament. A draft bill released for public comment last September contains some improvements: the right for traditional owners to be consulted is mandated, the minister will be allowed to grant a stop-work order if heritage is at “imminent risk”, and there are some rights of appeal.

But it also doubles down on some of the same processes the failed Juukan Gorge traditional owners the Puutu Kunti Kurrama and Pinikura people, such as making agreements directly with mining companies and allowing the minister of the day ultimate say over whether a site can be destroyed. It does not grant traditional owners a veto right.

In short, it does not require much more of mining companies than they are already doing under federal native title processes, and to fulfil their own corporate responsibility requirements. If the draft laws had been in place last year, says National Native Title Council chief executive, Jamie Lowe, Rio would still have been able to destroy Juukan Gorge. “And that doesn’t pass the pub test,” he says.

Lowe says the argument from the outgoing Aboriginal affairs minister, Ben Wyatt, that giving traditional owners the right to veto the destruction of their heritage would undermine consensus support for the laws is a “cop-out”.

“The WA government can’t farm out all the responsibility to mining companies,” he says.

In an editorial in the National Indigenous Times last year, Wyatt, who is resigning his seat to spend more time with his family, said a veto power “would be opposed by the mining industry and the upper house of the state parliament and we would be stuck with the discredited 1972 Act”.

He continued: “And I personally don’t think an enshrined Aboriginal veto would necessarily be a good thing. It would be a disincentive for agreement making, which underpins the proposed heritage protection system, and could discourage the development of positive relationships between Traditional Owners and land users.

“And let’s face it, modern expectations by shareholders and the broader community means that, now, Traditional Owners already have the power of veto. Juukan Gorge shows that it is almost impossible for a mining company to get a resource development happening if it is opposed by Traditional Owners.”

Lowe says those arguments make no sense. The Northern Territory Land Rights Act gave Aboriginal land holders veto rights in 1976, “and they’ve got roads, they’ve got development, they’ve got mining, so it’s something that can work with development”.

He says the WA government “never actually tried” to build support for a veto power.

“The heritage legislation has been on the agenda for three or four terms now,” Lowe says. “Is there some political will there or not? I am just tired of having the same merry-go-round conversation, and the people who don’t get looked after here are the traditional owners.

“So we can politics it and say [the law is] not going to get support from the upper house, and there may be some political realities, but the Labor party has got a fair bit of power over there. Just pull the trigger and do it.”

Labor is heading into next Saturday’s election with polling suggesting that opposition numbers in the lower house could reduce to single digits. It also has the potential of breaking the Coalition’s hold on the upper house, with Greens support.

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Asked about the laws in a pre-election interview, the premier, Mark McGowan, said both he and Wyatt had condemned the destruction of Juukan Gorge, and again stressed that approval for this specific act of destruction was granted by the then Liberal government in 2013.

He says the draft legislation is nearing completion. “It is incredibly complex and notoriously difficult to get to an outcome on this, but we think we have an outcome, we have legislation that is nearing finalisation, and if we are reelected we will bring it in,” he says.

The opposition leader, Zak Kirkup, has expressed support for reforming the heritage laws and says he spoke “regularly” with Wyatt throughout the reform process.

Asked if the Liberal party would support the laws as drafted, Kirkup said: “I don’t think Labor even supports the reforms that they brought forward.”

The refusal to consider a veto power meant some Aboriginal groups were offside, and the introduction of appeal rights had concerned some developers.

“The problem that we have, and I think the reason that ultimately it was abandoned … [is] this balance is going to be so complex,” Kirkup said. “I don’t think it should be political. I think we all understand that it’s important to see reforms to the act, but I want to make sure we get it right.”

That means further consultation, on a reform process that began a decade ago and has chewed through two ministers.

The Kimberley Land Council, the biggest land council in the state, says the proposed bill is “flawed” and “lacked genuine consultation and co-design with Aboriginal people”.

Chairman Anthony Watson says the bill should be scrapped.

“The new bill sees the state’s interests override the interests of traditional owners, and we see that as a major problem,” Watson says. “It’s imperative traditional owners still have the final say on heritage protection. We need to know that when we say ‘no’ this will be respected, and there isn’t a loophole for miners or other operators to get what they want, so there aren’t more disasters like Juukan Gorge or Kimberley Granite.”

Chapple says the WA government does not have the political will to rein in mining companies.

“The WA government, and I use the word government across all political divides, has not blocked a single application [to allow the destruction of Aboriginal heritage] since the act was established in 1972,” he says. “They have all been granted.

“We’re now going through a larger, broader operation of smoke and mirrors for exactly the same outcome.”