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RUBY:

From Schwartz Media, I’m Ruby Jones, this is 7am.

Mining giant Rio Tinto’s destruction of the Juukan Gorge caves sparked a global backlash, and refocused debate over the relationship between traditional owners, large corporations and the government.

Now, a parliamentary inquiry is exploring what needs to change to stop something like the Juukan Caves explosion from happening again.

Today, national correspondent for The Saturday Paper, Mike Seccombe, on how the system locks out traditional owners, and the cross-party alliance of federal politicians agitating for reform.

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RUBY:

Mike, in May this year, mining company Rio Tinto destroyed a cave at Juukan Gorge in Western Australia. Can you start by telling me about the significance of the site?

MIKE:

Well, the cave was one of the most archaeologically significant sites in Australia and probably the world. They'd been occupied by the forebears of the traditional owners, the PKKP people, for 43,000 years.

Some 7400 artefacts were found at the site, including a belt made of human hair, which was four thousand years old and which genetic testing showed came from the ancestors of the current traditional owners. So tremendously significant.

But, of course, as the world now knows, on May 24 this year...

Archival Tape -- News Reporter #1:

“One of the rarest archaeological sites in Australia destroyed.”

MIKE:

...The mining company, Rio Tinto, destroyed the cave using explosives.

Archival Tape -- News Reporter #2:

“Rio Tinto blew up ancient Aboriginal rock shelters at Juukan Gorge in May to get access to high grade iron ore.”

MIKE:

The blast destroyed the most significant of the sites, probably completely. We don't know. They're trying to sort of dig it out and see if anything's left. And substantially destroyed a second also very important site.

Archival Tape -- News Reporter #2:

“Traditional owners were devastated and there was widespread public outrage.”

Archival Tape -- Unidentified Man #1:

“They shouldn't have been blasting on this area because of what was here. Goes to show how much respect the mining company got for people in the country.”

MIKE:

The blast sparked a global backlash.

Archival Tape -- News Reporter #3:

“The cultural significance of the Juukan Gorge caves shouldn't be underestimated. The site has been described by archaeologists as home to the dawning of humanity…”

MIKE:

Eventually, the blast took with it also the careers of three of Rio's senior executives.

Archival Tape -- News Reporter #4:

“John Sebastian Jaqcue, Rio Tinto chief executive, will step down. The statement that Rio Tinto has made to the stock exchange says that that has been decided by mutual agreement…”

MIKE:

And put a huge hole in the miners corporate reputation. And it also prompted a parliamentary enquiry.

Archival Tape -- Unidentified Woman #1:

“This is a very serious inquiry. We have not undertaken this lightly. We have undertaken it because there has been so much reaction to the destruction of cultural heritage…”

RUBY:

Ok so Mike, a lot has happened since that blast. Let’s talk a bit about this inquiry. It’s been holding sessions for the past few months, so who is involved in it and what sorts of questions are they asking?

MIKE:

Well, the enquiry is interesting because it's its cross parliamentary and encompasses a very wide ideological range, I might say. It has two Labour members, Pat Dodson and Warren Snowdon. It has from the Greens, Rachel Siewert. The chair is Warren Entsch. He's a liberal. And the interesting thing about it is that all of them appeared to be outraged.

Archival Tape -- Warren Snowdon:

“So Rio, they’ve done something horrendous. They deliberately, effectively deliberately blew up these caves.”

Archival Tape -- Rachel Siewert:

“It sends goosebumps up my spine just talking about, that’s their land!”

MIKE:

What was really interesting, though, was Warren Ensch’s perspective, because he told me that before the enquiry began, he was, quote, ambivalent, unquote, about what had happened there.

Archival Tape -- Warren Ensch:

“When I first read it, you assumed that the TO’s had signed it off, but obviously got quite a bucket load of money and now they were complaining about it. But nothing could be further from the truth.”

MIKE:

After seeing what he's seen and hearing firsthand what has happened. He was just outraged.

Archival Tape -- Warren Ensch:

“This is a historical site that belongs to every single Australian, it belongs to the world. I’ve got to say to you, as an Australian, I am absolutely outraged that they think it’s okay to destroy this bit of history…”

MIKE:

And the more he sees of this, the more outraged he gets.

RUBY:

Okay so what is it exactly that is outraging Warren Ensch and others in this way? What is the inquiry learning about the decisions that led up to the destruction of the Juukan Gorge caves?

MIKE:

Well, the first thing that needs to be said is that the PKK had every reason to believe that their heritage site was safe. In 2013, Rio’s then chief executive, Sam Walsh, gave an assurance that Juukan wouldn't be touched. The same year Rio funded the archaeological survey that collected those 7400 artefacts that I've mentioned.

Archival Tape -- Unidentified PKK Person:

“We are sad that we weren’t able to stop this mining from going ahead…”

MIKE:

The company even made a documentary that featured the PKK people and highlighted the significance of those rock shelters

Archival Tape -- Unidentified PKK person:

“But we hope this film will be there for the young people so they can see and understand why this place was and is important for us.”

MIKE:

So the mining company gave every indication that it was serious about not only preserving Aboriginal cultural heritage, but also it being, you know, being seen to be responsible in its management.

Despite this fact, despite the fact that PKK people hold native title over Juukan Gorge and the giant iron ore mine for which the caves were destroyed, and despite 43000 years of occupation and 4000 years of DNA demonstrated connection to country, Entsch told me that they, like other native title holders in Western Australia, don't actually own a square metre of the land.

And it's all perfectly legal under West Australians, ironically named, I must say, Aboriginal Heritage Act, which was passed almost 50 years ago.

RUBY:

How so? How is that legal, Mike? Can you tell me about the Aboriginal Heritage Act?

MIKE:

Sure. Under Section 17 of the act, it is made a crime to, quote, excavate, destroy, damage, conceal or in any way alter an Aboriginal site. And that sounds pretty tough and pretty cast iron. But then if you go under Section 18, there's a get out of jail free card that any landholder may apply for an exemption from Section 17 at any time, as many mining companies do regularly and as Rio had done in Juukan.

So Rachel Siewert told me that under the legislation, the traditional owners can't appeal.

Archival Tape -- Rachel Siewert:

“They did have concerns but of course under our legislation, you’re probably aware, TO’s can’t appeal…”

MIKE:

So anyway, this was one big factor in the destruction of Juukan. Another was a so-called participation agreement between the native title holders and the company, which prevented them from taking any action under federal law that might override the WA legislation.

Archival Tape -- Rachel Siewert:

“And the participation agreements they had with Rio meant that they had what we are calling gag clauses where they can’t use the various acts. You know, they can’t use the racial discrimination act…”

MIKE:

They couldn't go to the Environmental Protection and Biodiversity Conservation Act. They couldn't use the Heritage Act to complain.

Essentially, they were condemned to silence by this agreement that they'd signed.

Archival Tape -- Rachel Siewert:

“Basically the message I’m also strongly picking up from people is that we can’t get access to our country. We’re being locked out of our country by these mining leases.”

MIKE:

And this is interesting because while the the legislation that I mentioned is unique to Western Australia, versions of that approach proliferating all across Australia and taken in conjunction with sort of the weakened native title framework, making it easier for huge corporations working with governments to destroy Aboriginal heritage, essentially to dispossess them all over again.

RUBY:

We’ll be back in a moment.

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RUBY:

Mike lets talk a bit more about Native Title. It’s a legal mechanism that is supposed to enshrine the rights of traditional owners to the land that they’re connected to. But as you say, it’s becoming weakened. So, can you tell me how it is that Native Title isn’t able to protect sites like Juukan from destruction?

MIKE:

Well, it's a good question. And I've got to say, I think the destruction of Juukan blew up any remaining notion that Native Title means much at all when it gets in the way of moneyed interests.

According to Senator Pat Dodson, it never really meant anything in Western Australia. And it's being, as he calls it, whittled away.

Archival Tape -- Pat Dodson:

“So you’re finding that the concept of collective ownership of land and collective decision making is being rapidly taken away from the meaning of Native Title…”

MIKE:

He talks about piecemeal changes to legislation that give governments ever more power to direct the operations of indigenous land corporations.

And then, of course, smart lawyers for the big miners and the pastoralists who are gradually carving away at this fundamental concept of native title via these, you know, participation agreements, which go by slightly different names in different different jurisdictions, but is essentially get native title holders to cede that title permanently or temporarily and, you know, essentially in a lot of cases give up access to their land.

Archival Tape -- Pat Dodson:

“The law is moving away from what was found originally, and I think this is a cause for some concern…”

MIKE:

So in Dodson's view, the uniqueness, as he calls it, of Native Title is rapidly being lost. He told me that the original conception of it, of collective ownership of land and collective decision making by the native title holders, is rapidly being taken away from the meaning of Native Title.

Archival Tape -- Pat Dodson:

“There's enough material, I think, to say that this, the nature of the Act has been basically brought into disrepute by the capacity of those who are rich and powerful to maneuver in a manner to suit their purposes…”

RUBY:

OK, so Mike, the way that the law currently operates in terms of both Native Title and also specific laws around the protection of Aboriginal heritage, did not stop the destruction of these caves. But the company is still facing consequences for what took place. So can you talk me through how that happened?

MIKE:

Yeah, well, you're right. In this particular case, Rio came under huge pressure, public pressure once it hit the media after it was found out, you know, what had been destroyed when they detonated those explosives.

Most interestingly, I think, is that to a large extent, this was driven by some of its biggest shareholders, in particular, industry superannuation funds. They were the ones who said that there had to be consequences. And it was their pressure that eventually forced Jaque and his fellow executives out.

One big union fund, HESTA, which has $54 billion of assets under management, including about a quarter of a billion dollars in Rio shares and more than two billion in all mining companies across Australia also appeared before this committee.

Archival Tape -- Unidentified Man #1:

“I now, if I could invite you to make a brief opening statement before we proceed with the discussion. Over to you HESTA…”

Archival Tape -- Mary Delahunty:

“Thank you, it’s Mary Delahunty…”

MIKE:

And in its opening statement, the fund laid out its dissatisfaction with the current state of affairs, you know, both in relation to Rio's actions specifically, but also the broader approach of mining companies to native title.

Archival Tape -- Mary Delahunty:

“… rather than necessarily being company specific, there are larger systemic issues relating to how the mining sector negotiates agreements with traditional owners.”

MIKE:

And HESTA called for major reforms, quite sweeping reforms. It wanted an independent review of all agreements between companies and native title holders...

Archival Tape -- Mary Delahunty:

“It is imperative that they are reviewed to ensure they reflect contemporary, fair and equitable expectations…”

MIKE:

...but it also wanted consistency across state and federal laws with clear national standards. So, in other words, it wanted to ensure that maverick states like Western Australia, with this antiquated and appalling legislation that they have, were held to account at a federal level.

RUBY:

Given that, Mike, given that it was investor pressure, not the law that led to some kind of accountability, what is in place to stop something like this from happening again in the future, with Rio, or with a different mining company?

MIKE:

At the moment, legally, nothing. It could still happen. And it probably is happening with other sites of lesser significance or less publicity around them. So the destruction of Juukan can't be reversed, of course, but the focus should be on preventing another such catastrophe. It appears likely that the kind of reforms being called for by HESTA are something the committee will recommend when it reports.

Some members of the committee would like it to go further. Pat Dodson says, you know, the big issue here is the way powerful vested interests have whittled away at Native Title.

Archival Tape -- Pat Dodson

“...which has almost got to the point where I’m starting to think there needs to be probably a Royal Commission into the operation of the Native Title Act…”

MIKE:

He thinks there should be a Royal Commission. I have to say, I don't like the chances of that. But something along the lines of what Hester is calling for, I think is very much on the cards, which is a review of these participation agreements between big landholders and native title holders across the country, number one.

And number two, some kind of nationally consistent legislative framework that will have the capacity to override the more maverick states like Western Australia. So I think that's what's likely to come out of the committee. We'll see. We can only hope that that change comes as a consequence.

RUBY:

Mike, thank you so much for your time today.

MIKE:

My pleasure.

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RUBY:

Also in the news today...

The South Australian government has announced that everyone who tests positive for coronavirus will be moved from quarantine hotels into a separate medical facility.

The facility will be managed by police and security officers.

In NSW, the Premier has announced a further easing of coronavirus restrictions from the first of December.

Among the new rules, up to 50 people can be at an event at a person’s home, as long as the home has an outdoor space.

And the Queensland border will open to Victoria on December 1, after Victoria recorded another day with no new coronavirus cases.

I’m Ruby Jones, this is 7am, see you tomorrow.

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