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AHC Submission.Juukan Gorge.July 2020 FINAL

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AHC Submission.Juukan Gorge.July 2020 FINAL Submission Joint Standing Committee on Northern Australia Inquiry into the destruction of 46,000-year-old caves at the Juukan Gorge in the Pilbara region of Western Australia July 2020 GPO Box 787 Canberra ACT 2601 ● Telephone 02 6274 1111 ● Facsimile 02 6274 1666 ● www.environment.gov.au Introduction The Australian Heritage Council (the Council) makes the following submission to the Joint Standing Committee on Northern Australia inquiry into the destruction of Aboriginal heritage at Juukan Gorge, Western Australia. The Council is a body of experts appointed by the Commonwealth Minister for the Environment under the Australian Heritage Council Act 2003 (Cth) (the AHC Act) and is the principal advisor to the Australian Government on heritage matters. In appointing members under the Act, the Minister must ensure that 2 members are Indigenous persons with substantial experience or expertise concerning Indigenous heritage, at least one of whom represents the interests of Indigenous peoples. The functions of the Council are set out in section 5 of the AHC Act. Of particular relevance to the Committee’s inquiry are the following functions: to advise the Minister for the Environment on national policies relating to heritage; to promote the identification, assessment, conservation and monitoring of heritage; to nominate places for inclusion in the National Heritage List and Commonwealth Heritage List; to provide advice directly to any person or body or agency either of its own initiative or at the request of the Minister. The Council has the functions conferred by Part 15 of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) regarding National and Commonwealth heritage listing and management, and Part 15A, which deals with the List of Overseas Places of Historic Significance to Australia. The Council has no statutory role under the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) (ATSIHP Act), which is the other main Commonwealth-level legislation relating to Indigenous heritage. In addition, the Council leads national heritage policy coordination through annual meetings of the Heritage Chairs and Officials of Australia and New Zealand (HCOANZ), and implementation of certain actions in the Australian Heritage Strategy. In undertaking its functions, the Council is supported by a Secretariat provided by the Department of Agriculture, Water and the Environment (the Department). With regards to the terms of reference for the inquiry, this submission provides detailed comments relating to Items (f) to (i). Destruction of the sites at Juukan Gorge and their significance to the Puutu, Kunti Kurrama and Pinikura people The Australian Heritage Council was dismayed to hear of the destruction of Aboriginal cultural heritage at Juukan Gorge. As the place is not on the National Heritage List, and has not been assessed by Council for potential inclusion on the List, the Council is not in a position to offer commentary on the specifics of the place, nor on the sequence of events leading to its destruction. The Council does not possess information on the consultation process undertaken by Rio Tinto with Traditional Owners. 2 The Council understands that the Western Australian Government is currently conducting a review of the Aboriginal Heritage Protection Act 1972 (WA), which has included public consultation and a review of legislation of other jurisdictions. The Juukan Gorge incident demonstrates the importance of this review, and of national legislation, to ensure such an incident does not happen again. In this regard, the Council further notes the following finding in the Interim Report of the independent reviewer of the EPBC Act by Professor Graeme Samuel AC: The current laws that protect Indigenous cultural heritage in Australia need comprehensive review. This review should explicitly consider the role of the EPBC Act in providing national- level protections. It should also consider how comprehensive national-level protections are given effect, for example how they interact with the development assessment and approval and regional planning processes of the Act.1 In this submission, the Council notes recent activities by the Council, working through Heritage Chairs and Officials of Australia and New Zealand (HCOANZ), to ensure better protection and management of Aboriginal and Torres Strait Islander cultural heritage according to the wishes of Indigenous peoples. It also seeks to ensure engagement with Indigenous peoples on heritage matters. It also makes recommendations for the reform of the EPBC Act and other Commonwealth legislation to improve outcomes for Indigenous cultural heritage. Best Practice Standards for Indigenous Cultural Heritage Legislation The Heritage Chairs and Officials of Australia and New Zealand (HCOANZ) comprises representatives of all statutory heritage bodies in Australia and New Zealand. In October 2019, the Chairs of Indigenous heritage councils of HCOANZ commenced work on a Vision for Aboriginal and Torres Strait Islander Heritage in Australia; and Best Practice Standards in Indigenous Cultural Heritage Legislation (the Standards). The Standards have been endorsed by the National Native Title Council. The document is based on the principles enunciated in the United Nations Declaration on the Rights of Indigenous Peoples. Among other things, the draft Standards make recommendations to jurisdictions to consider reforms to their legislation to provide: improved and consistent terminology; free, prior and informed consent of Aboriginal and Torres Strait Islander peoples before the approval of any project by governments that affect Indigenous peoples’ lands and their cultural heritage. adequate resourcing for Aboriginal and Torres Strait Islander representative organisations and communities for effective Indigenous cultural heritage protection and enforcement. The Council believes that the cross-jurisdictional work that has gone into the development of these draft standards is very encouraging for their adoption nationwide. One important element of the draft best practice principles is a call for consistent legislation in all jurisdictions that provides for high standards of protection for Indigenous cultural heritage. 1 Independent Review of the EPBC Act, Interim Report, 21 July 2020, p. 6 3 The Council recommends the Committee considers the Standards, once finalised, as a starting point for any consideration of improved regulation of the protection of Indigenous cultural heritage in Australia. Opportunities to reform the Environment Protection and Biodiversity Conservation Act 1999 The Council made a submission to the review of the EPBC Act being undertaken by Professor Graham Samuel. This submission in part repeats some of the suggestions the Council has made in that submission to the EPBC Act Reviewer. The Council notes the following finding by Professor Samuel in his Interim Report: The EPBC Act has failed to fulfil its objectives as they relate to Indigenous Australians. Indigenous Australians’ traditional knowledge and views are not fully valued in decision-making, and the Act does not meet the aspirations of Traditional Owners for managing their land.2 While a number of National, World and Commonwealth heritage places are listed for or recognise Indigenous cultural heritage values, the list does not comprehensively represent this heritage. A number of other matters of national environmental significance may also have particular significance as part of Aboriginal and Torres Strait Islander peoples’ heritage whether or not that significance is recognised in listings under the EPBC Act. The Council considers that the EPBC Act should make better provision for the recognition of Indigenous peoples’ heritage, improve processes for consultation with Aboriginal and Torres Strait Islander peoples about their heritage, and be better aligned with related legislation, such as the Native Title Act. Consultation with Indigenous peoples The provisions of the EPBC Act relating to public consultation do not make particular provision for consultation with Indigenous peoples, relating to matters of national environmental significance that may have cultural heritage significance. The effect is that some assessments may not be fully informed about the impacts of likely proposals on Indigenous cultural heritage, may be inconsistent with State and Territory processes, or may increase the likelihood of alternative processes being used to protect Indigenous heritage (in particular the processes under the ATSIHP Act). To better address this, the Council recommends that the EPBC Act be amended to require that all nominations to the National and Commonwealth Heritage lists should identify which Indigenous peoples have rights or interests and provide evidence of consultation on the nomination. Where Indigenous people have rights or interests, the nomination should include evidence of free, prior and informed consent3 of those Indigenous people. Processes already in place for consultation under the Native Title Act 1993, or processes in place under State or Territory heritage protection legislation, might be used for this purpose. In practice, the Council seeks to ensure that nominations, assessments of places and subsequent management of 3 The concept of ‘free, prior, and informed consent’ is contained in the United Nations Declaration on the Rights of Indigenous Peoples, including in Article 19 which provides that ‘States shall consult and cooperate in good faith with the
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