Australian Speleological Federation Inc. Incorporated in the ACT

PO Box 388 BROADWAY NSW 2007 www.caves.org.au ABN:15 169 919 964

Registered as an Environmental Organisation by the Department of Environment and Energy, Canberra

In reply please address correspondence to Nicholas White

Inquiry into the destruction of 46,000-year-old caves at the Juukan Gorge in the region of Western

Dear Sir/Madam

The destruction of the Juukan Gorge caves could have been avoided with relatively minor mine design changes. has destroyed its social licence in not looking to alternatives before destroying the sites.

The Western Australian Aboriginal Heritage Act 1972 appears to be unable to adequately protect the Aboriginal heritage of the state and is in need of revision to bring it up to the standards that society now expects.

The Australian Speleological Federation Inc (ASF) finds it disturbing that the Juukan Gorge Caves with recognised occupation use to at least 46,000 years ago could be destroyed by Rio Tinto.

The ASF has 24 member societies representing slightly more than 1,000 members. Its aims and objectives are to document, conserve and sustain the caves and karst of Australia.

Caves have values in their own right. These Pilbara caves and rock shelters formed from a combination of the action of water solution and wind abrasion over very long time periods. The contents of such caves and rock shelters are valuable and the conditions within such shelters preserve a record of the past. These include the fossil remains of animals (palaeontology), the biota present and the evidence of human occupation in the form of art, sediments containing artifacts, fireplaces or food materials.

As this inquiry is founded on the presumption that actions were taken despite the knowledge that a significant aboriginal heritage site would be destroyed the following questions need to be asked. Were there alternatives to the cave and site destruction? Where did the legal protections for aboriginal heritage sites fail in this instance?

The circumstances of the site destruction has been broadcast worldwide. The Juukan Gorge Cave destruction has been compared to the destruction of the Buddhas of Bamyan in Afghanistan by the Taliban in 2001. Rio Tinto has seriously affected its social licence. Rio Tinto should provide direct information to the inquiry on some of the terms of reference. However, the decisions, or lack of them, by the relevant State and Federal agencies related to this destruction need to be examined also, and better procedures for the assessment in a timely manner instituted.

Comment on the Terms of Reference are:

a. The Western Australian Aboriginal Heritage Act 1972 is not operating to protect the heritage for which it was established. All the procedural steps required for development proposals are loaded against the protection of the heritage which the Act was established to protect. The Aboriginal Cultural Material Committee considers development applications under Section 18 and provides advice to the Minister. The Minister then provides decisions about the advice. Such decisions are appealable by the landowner or Promoting conservation and sustainable management of Australia’s cave and karst resources

developer but no further process is available to the Aboriginal people (Native Title holders).

There is further complexity in that if the development application is deemed significant, it is referred to the Minister for the Environment and the Environmental Protection Authority under the Environment Protection Act 1986. Until this assessment is completed landowners can appeal but Aboriginal respondents cannot.

Non-aboriginal heritage in WA is provided for via a Heritage Act 2018 which covers buildings and other built heritage since settlement. Consideration could be given to providing for a more comprehensive heritage act providing for aboriginal and post- settlement heritage. The treatment of Aboriginal Heritage is therefore less equitable than for Non-aboriginal Heritage.

b. The timeline of events is pertinent to understand what led to the destruction of the Juukan Gorge sites. From 2003 until 2013 consultation with native title holders (Puutu, Kunti, Kurrama and Pinkura (PKKP) people, archaeological investigation, publication of findings, formal native title agreement entered into occurred. Permission to blast the site under Section 18 of the AHA 1972 was granted in December 2013 by WA Minister for Aboriginal Affairs, Peter Collier, provided further digs were carried out. In 2014 a retrieval/salvage archaeological trip by Scarp Archaeology to Juukan caves occurred, resulting in the site showing aboriginal occupation going back 46,000 yrs BCE. More than 7,000 items retrieved. This was funded by Rio and involved PKKP representatives. Nevertheless, it is not until five (5) years later in early 2020 that destruction of the site occurred. What was happening in that five years?

c. On May 15 2020: PKKP requested permission to access the Juukan site for NAIDOC Week and were informed it was laid with explosives and set to be destroyed. Rio Tinto halts the detonation but its experts advise that the charges cannot be safely removed. May 24 2020: Juukan caves blown up by Rio Tinto.

The 2013 mining approval was subject to the further investigative archaeological excavations. Despite the very significant evidence discovered, particularly the antiquity of use of the site and the evidence of a 4,000 year old human hair belt providing continuity and connection to the present day title holders, this was not considered material to review the existing approvals.

This was a serious failure of process within the WA Department of Aboriginal Affairs and within Rio Tinto’s executive and Pilbara operational management.

d. There was ample time for all parties to engage in productive negotiation. In particular, Rio Tinto did not formally recognise the “significance” of the sites. The Puutu, Kunti Kurrama and Pinikura people were either constrained due to the contracts with Rio Tinto or were not adequately represented in deliberations.

e. Rio Tinto, on a Hope Downs site in the Hamersley Ranges had a more recent investigation by a Griffith University team and in 2017 found, with the support of Karlka Nylyaparli traditional owners, some significant ochre artwork. These will be preserved by alterations to mining plans.

In respect of these Hope Downs findings, was this outcome a matter of timing or were the traditional owners more forceful or better represented than those involved in Juukan Gorge, in negotiating a successful preservation outcome? This was despite the sites involved having been discovered much earlier and the company having been approved under a Section 18 decision to mine in 2002.

f. The loss or damage to the traditional owners is significant. Attachment to country and place is an integral part of aboriginal culture. It is a denial for the future generations of the Puutu, Kunti Kurrama and Pinikura people.

g. Preservation of the actual heritage sites was not contemplated. Apparently excavated material from the sites is currently held in shipping containers on the Brockman tenements. They are not held in a “keeping place” by aboriginal custodians. Promoting conservation and sustainable management of Australia’s cave and karst resources

h. We are not aware of the state (WA) indigenous heritage matters interactions with Commonwealth laws and regulations. The protections which hypothetically can apply e.g. National Heritage Listing, or relevant State listing for the Juukan Gorge sites, do not appear to have been investigated. Are the processes for these far too slow and cumbersome for any real protection? Can mining companies be expected to have clearance on heritage site protection be more formally linked to the Commonwealth export controls?

i. There are development matters concerning indigenous heritage in other States. Political issues cross State borders and some of these flow into the Federal arena. State and Federal cultural heritage laws are neither adequate and nor are they complementary. Although there are some examples of better outcomes in WA as well as other states and territories on Aboriginal heritage matters, this is very piecemeal and dependent on the ability of the local groups and development pressure. However, without better and more equitable agreements between Aboriginal and State or Federal parties little will be advanced. At the Federal level the implication of the Mabo court case has led to a Native Title process which is still not resolved as there are many claims still in process. Some States have initiatives which will advance heritage matters e.g. Victoria has progressed significantly, but Federal level Native Title processes proceed very slowly. There were many sections of the Uluru Statement from the Heart which could be taken up by Government.

j. Without complementary legislation in the States and Territories the EPBC Act 1999 would appear to be a cumbersome way to provide for protection of aboriginal cultural heritage protection. As well there may be other political stumbling blocks to better protection mechanisms. However there are three other federal acts which relate to heritage matters, in particular the Aboriginal Torres Strait Islander Heritage Protection Act 1984 . The relationships between these acts and the state acts are unclear and complex.

k. Current staffing levels and budgetary constraints preclude the Federal Department of the Environment from being more than reactive to pressures arising under the EPBC Act 1999 where cultural heritage matters are dealt with. If there is an implicit agreement that heritage matters, including cultural heritage are important, then the Minister and Government are remiss in not supporting this with budgets and staffing commensurate with this responsibility. Matters such as this are part of the Review of the EPBC Act 1999. We will separately make representations as part of this review. For the present aboriginal cultural heritage matters do not reside in a satisfactory manner within the EPBC Act 1999.

State jurisdictions each have their own laws for protection of aboriginal cultural heritage sites. There is opportunity to improve laws and the Western Australian Aboriginal Heritage Act 1972 should be amended seriously and soon. A start could be made by deciding what constitutes “significant”.

Yours sincerely

Chair, Conservation Commission Australian Speleological Federation Inc 84 Saunders Street, Coburg, Victoria 3058 Phone 0427 110 143 [email protected]

July 2020

Promoting conservation and sustainable management of Australia’s cave and karst resources