I recently spoke to a meeting of Rio Tinto’s institutional investors in Britain who wanted an Aboriginal perspective on the company’s destruction of the 46,000-year-old caves at Juukan Gorge near the Brockman iron ore mine in the Pilbara region in Western Australia.
The meeting was convened by the influential Local Authority Pension Fund Forum, which holds £300bn in assets, including shares in Rio Tinto.
The forum had questions and concerns, as do I, about how this destruction could have happened. More than 50 investors, lawyers, consultants and activists joined the call.
I provided them with a summary of my extensive concerns about the matter.
The destruction of the Juukan Gorge by Rio Tinto at the beginning of National Reconciliation Week removed the last remaining evidence of the oldest site of human occupation on the continent and possibly in the world.
Despite objections from Puutu Kunti Kurrama and Pinikura (PKKP) people, Rio Tinto secured legal approval for this desecration in 2013 from Western Australian authorities under the state’s 1972 Aboriginal Heritage Act, which is currently under review by the Western Australian government.
The destruction of the sites was condemned by many in Australia, particularly Aboriginal native title and land rights councils, who formed a national coalition to seek reform to legislation such as the act in Western Australia which, far from protecting Aboriginal cultural heritage, provides a fast-track for mining companies to destroy it.
Archaeologists had protested too. A 2014 emergency excavation secured potent objects of worldwide importance, including a 4,000-year-old hair belt that made evident the physical connection between the current-day PKKP traditional owners and their ancestors, and the oldest example of bone technology known in Australia.
Rio Tinto’s response was typical of its cultural heritage practice: removal of important objects from their ancestral places and isolation in shipping containers on Rio Tinto mining lease areas. The company refers to this practice as “rescue”. But it contravenes globally acknowledged cultural heritage standards, especially human rights standards in relation to the cultural heritage of Indigenous peoples, their rights to practice their culture, to control their heritage and the right to free, prior and informed consent in relation to matters affecting them.
I do not believe that Rio Tinto has taken its legal responsibilities in relation to the cultural heritage matters of the PKKP traditional owners of the Juukan Gorge caves at all seriously.
The history of this kind of treatment of Aboriginal sacred sites in Western Australia by this company goes back a long, long way.
In 1991 at the Marandoo site, Hamersley mining – which Rio Tinto now owns – proposed to destroy 18,000-year-old sacred sites for an iron ore mine. The premier of Western Australia at the time passed the Aboriginal Heritage Act that enabled the company to destroy the sites. There was a very long, bitter feud between the company and the traditional owners, and it took many years for that relationship to improve. Part of the process of mending that relationship was negotiating the very agreement under which the Juukan Gorge caves were destroyed.
When Leon Davis became the chief executive of Rio Tinto in 1997, he recognised that its social licence to operate in Australia depended on respect for Aboriginal traditional owners, especially following the recognition of native title rights during the Keating government.
Davis took over Rio Tinto as it was striving to overcome the reputational damage of its disastrous handling of the Panguna mine on the island of Bougainville in Papua New Guinea in the 1980s, which led to a long civil war. The company then operated under the name CRA, but Rio Tinto maintains ownership of the Panguna lease and is seeking to reopen the mine.
Teams of experts negotiated agreements under the terms of the Native Title Act and set standards that were unprecedented in the Australian mining industry. These agreements were registered in the federal court and were binding. Surveys involving traditional owners marked out areas for cultural and environmental protection, new programs led to the employment of high numbers of Aboriginal people for the first time, and also business opportunities for Indigenous locals. This work was showcased internationally to obtain agreements to mine in Africa, Mongolia, south-east Asia and North America.
In 2008, with Prof Ciaran O’Faircheallaigh, I detailed good practice in these agreements in a report conducted jointly with traditional owners in the Pilbara, the native title representative body and Rio Tinto Iron Ore. We emphasised that protection of cultural heritage was a matter of great concern to Aboriginal people. Some company personnel and advisers failed to understand how critical the protection of cultural heritage is to the company’s social licence to operate.
It is clear to me that little has changed since 2008. The destruction of the Juukan Gorge caves demonstrates that in the implementation of Indigenous land use agreements, Rio Tinto has little regard for the formal provisions of agreement and little regard for the spirit of the agreement that establishes a “partnership” with the traditional owners.
In the 2010s, the company’s fortunes hit obstacles when a string of cases of corruption were exposed and bad investments in alumina increased its debt to levels that caused a major rethink. Community relations personnel in Australia were made redundant and the complex native title agreements were handed over to spin doctors to manage. The company’s leadership changed again in 2016 with the appointment of Jean-Sébastien Jacques as CEO.
Rio Tinto has now announced it will conduct an internal review.
I have spoken to the CEO of Rio Tinto, the chairman and others about their review. I declined to be involved in the review except to make a submission. I wrote to them with my concerns that the review appears to be restricted to internal matters only. The review will be inadequate if it does not take into account the legislative, policy and Indigenous rights environment, in which the agreement with the PKKP is just one of many.
The social licence of Rio Tinto to operate, and the future of relationships with traditional owners and the Aboriginal people of Australia who trusted that Rio Tinto leadership were sincere in their policy, are all at risk without a thorough reform of the implementation of these participation agreements.
I remain firmly of the view that Rio Tinto’s internal review should be transparent and involve the traditional owners in the PKKP, other traditional owners in the Pilbara and the National Native Title Council.
The report should be public and transparent, and the findings discussed with leaders in the native title sector upon completion.
Not just the reputation of Rio Tinto but also the once very good relationship with the native title sector should not be sacrificed to expedient operational issues.
The impact of Rio Tinto’s performance on the standards of the broader resource sector is a matter for concern.
One of the matters that ought to be raised is the desire of the traditional owners to have a keeping place in the Pilbara for their cultural heritage. Rio Tinto made a commitment to be involved in this and to help fund it, so that all of the groups in the Pilbara would have a keeping place for their cultural heritage. In some cases, instead of completely destroying a site, they have removed very precious cave paintings, ancient petroglyphs, and stored them in shipping containers near mine sites.
As well as keeping places, I believe that reparations are due to the traditional owners for the destruction of their sites, and for the lack of access to the cultural heritage that is stored in shipping containers around the Pilbara on mine sites.
The future location of the sacred material removed from the Juukan Gorge caves is a matter of great importance to the traditional owners, but it is also a matter of national importance to the nation. The care for such objects of world significance is the responsibility of the nation, and especially the national government.
The Australian government has been negligent in leaving these matters to a state that is economically dependent on iron ore royalties and has demonstrated again and again historically that Aboriginal cultural heritage will be sacrificed to secure the flow of mining royalties to the state’s coffers.
The Senate has established an inquiry as well in response to the destruction of the Juukan Gorge sacred sites, and we will see how that proceeds. I will make a submission to that as well.
The ability of Rio Tinto to be transparent, frank and cooperative with this Senate inquiry will be telling, not just for the company’s standing but also the impact on the mining industry.
I encouraged the investors to stay aware of these two inquiries, to find out as much as they can about the aspirations of the traditional owners, and explore how Rio Tinto can make some amends for an egregious act of vandalism, not just in relation to the sites of significance to the traditional owners, but to sites of significance for human history.
There is now a strong case to overhaul the WA Aboriginal Cultural Heritage Act to prevent outrages like this in the future.
There is also a strong case for action against the company for breaching the understanding of the agreement with the traditional owners.
A thorough investigation is required, and a mere apology just will not cut it.
