yellow and black excavator on brown rocky mountain during daytime

 

Why have recent applications under section 18 of the Aboriginal Heritage Act 1972 (WA) attracted controversy? 

 

In May 2020, Rio Tinto, previously considered a leader in Indigenous relations by reconciliation groups, demolished a sacred cave in Juukan Gorge, Western Australia, in order to expand an iron ore mine. This cave contained evidence of 46,000 years of continual human occupation.

 

Although permission to destroy the site had been given in 2013 under section 18 of WA’s Aboriginal Heritage Act, an archaeological dig, performed a year later, discovered that the site was more than twice as old as previously thought and rich in ancient cultural artifacts, including sacred objects. Despite these findings, Rio was legally allowed to proceed because section 18 does not allow for mining consent to be renegotiated on the basis of new information.

 

The backlash against Rio Tinto has led BHP to delay blasting forty heritage sites at its South Flank iron ore mine, despite the process being approved in May, and despite a 2015 agreement with the traditional owners. Fortescue Metals has also attracted criticism for its plans to destroy sites on Spear Valley, which have been approved against the wishes of traditional owners.

 

Although Rio’s actions were completely legal, even if it had breached the Act, they would have only received relatively minor punishments, particularly for a multi-billion-dollar mining company. Under the Aboriginal Heritage Act, companies face a fine of $50,000 for a first offence, while individuals can be fined $20,000 and imprisoned for nine months.

 

Why is reform to this legislation being proposed?

 

In its current form, section 18 allows WA’s Minister of Aboriginal Affairs to bypass the native title rights of the traditional owners, giving him/her absolute power to grant permission for the destruction of sacred sites. Whilst, under the Act, an expert committee known as the “Aboriginal Cultural Material Committee” is to develop an opinion of the cultural significance of an area and submits a recommendation about whether or not permission should be granted, there are no requirements for the minister to follow said recommendation and notably there is no requirement for native title holders to agree to the permission being granted.

 

Ultimately, section 18 does not require an analysis of the full cultural significance of a site prior to the granting of permission. This reflects a highly Eurocentric view that the non-Indigenous groups know what is best for the Indigenous and it has plagued any attempts at true reconciliation. 

 

Additionally, Aboriginal groups have no right to appeal decisions by the minister. This is despite the fact that such rights are provided to section 18 applicants if their application is rejected.

 

sunset

 

What is the end goal for those calling for legislative change?

 

Ideally, proper legal processes would be put in place to protect major archaeological discoveries of global significance, but such processes must also strike a balance between protecting cultural heritage and the inevitable trade-off of the economic benefits brought by mining. In 2016, mining directly employed 6600 Indigenous people, mostly in regional and remote areas – a 150 percent increase over a decade. The Productivity Commission has estimated that services to the mining industry generated between $200 million and $350 million in income for Indigenous enterprises. The blanket moratorium of section 18 permission grants proposed by Labor senator Pat Dodson would paternalistically deny the agency of Indigenous people and deny them of the option to receive the benefits of mining in Western Australia.

 

Ben Wyatt, the current Aboriginal Affairs minister, who has been reviewing section 18 since 2018, has proposed the removal of the government from the existing process. Instead, he wants to empower traditional owners to exercise autonomously their hard-won native-title rights and reach commercial agreements with mining companies about projects on traditional lands. 

 

Furthermore, Mr Wyatt’s plan involves narrowing the definition of Indigenous heritage sites to protect more strongly sites of great cultural or spiritual importance to Indigenous people, as opposed to sites of purely archaeological significance. This recognises the fact that not all sites are of equal spiritual significance to the Indigenous people and engages them when assessing value as opposed to the western-centric way of measuring this.

 

Those who breach these new s18 requirements would be liable for native title compensation to Indigenous stakeholders. This, as of the 2019 Timber Creek decision, includes both economic and cultural losses, which accounts for the profound, spiritual and existential loss caused by the damage to the land.

About this article

This article is drafted by a member of our Yegal Paralegal network. We do not modify the content. We invite comments from the legal profession in the form of feedback to assist the author's learning.