Australian mining heritage reform may be just around the corner

Ever since the Juukan Gorge crisis, the rights of the traditional owners of the land used in mining projects has become something of a heated topic, with many believing the aboriginal population of Australia should have more of a say in the mining that happens on their property.

A joint commission by the Australian Department of Agriculture, Water and the Environment (DAWE) and the First Nation Heritage Protection Alliance recently released a discussion paper looking at potential heritage reforms of the country's mining sector.

Read more: Rio Tinto still to pay traditional owners of Juukan Gorge

The traditional owners - sometimes referred to as "first nation" individuals - have long been concerned about what they consider a lack of protection over their cultural heritage.

Obviously, since this discussion began, they have always advocated in favour of reforms, while also wanting a greater say in the operations of mining companies.

While this debate has been raging for decades, the events of May 2020, where a 40,000-year-old cave system was blasted, ensured the topic became lodged in the public's consciousness.

Over the past 26 years, various reports have gone into detail about the feasibility of Commonwealth legislation protecting heritage reforms.

On 29 November 2021, Minister for the Environment Sussan Ley joined with aboriginal groups to sign the very first agreement with the First Nations Heritage Protection Alliance for reforms. This new white paper is a result of these talks.

It finally looked like the government would work with aboriginal groups to work towards protecting sacred sites and giving traditional owners more power over where miners can and cannot set up new projects.

Technically, the government has been able to intervene should a specific project infringe on a place sacred to the aboriginals under the Aboriginal and Torres Strait Islander Heritage Protection Act 1984, although the service must be specifically requested by a person involved with the specific group.

Since the crisis, several reports on the subject of first nation cultural heritage have been released, and while this has seen investigations on a federal level, state and territory governments are soon set to undertake their own reviews and implement their own legislation.

Many individuals or organisations associated with the traditional owners have already presented their views and submissions to the topic at hand which could guide future legislation or standards.

However, the joint committee has pledged to actively tackle the threat of future events from happening again.

"It should be made clear that this process is not about just identifying problems, which to a large extent have already been examined, but is about finding real and tangible solutions", the report claims.

Similarly, the traditional owners have highlighted the ineffectiveness of territory and state, as well as Commonwealth protections of cultural heritage sites.

The Australian government has also suggested reform may be necessary in order to protect the land and ensure future catastrophes do not occur in the future.

Various stakeholders have also expressed the importance of working together with first nations people and continuing dialogue, particularly during the scoping and design of new projects.

Perhaps the most immediate effect of the Juukan Gorge crisis was on Rio Tinto itself. The crisis sparked public outrage and the mining giant has continued to be embroiled in controversies involving traditional owners, and further controversies and past infractions continue cropping up.

Read more: Juukan Gorge: Aboriginal owners may refuse to work with Rio Tinto

The crisis saw a complete shakeup of its corporate structure, its CEO and two other executives were dismissed. A parliamentary inquiry was conducted into the events at Juukan Gorge and many major human rights legal firms threatened class-action lawsuits.

Naturally, the miner has come out in favour of heritage reforms. Since the crisis, it has publicly supported working with aboriginal groups to prevent similar crises.

However, aboriginal group reactions to this have been more mixed.

“We have heard the call for Rio Tinto to play a greater role in the strengthening of state and Commonwealth cultural heritage protection laws", Rio Tinto chief executive Kellie Parker said in a statement following the reveal of the white paper.

“This call has been made by the Commonwealth Parliamentary Committee that inquired into the destruction of the Juukan Gorge rock shelters, Traditional Owners, the National Native Title Council, the First Nations Heritage Protection Alliance, and our investors. The call is reinforced in the Dhawura Ngilan Vision Statement.

“We firmly believe a co-design process with Traditional Owners will strengthen cultural heritage management and protection to ensure it is valued and celebrated for its intrinsic worth.

“There are and will be differences in views on how this will be best achieved but we will continue to work in close consultation with Traditional Owners and their representative organisations to better understand and protect their cultural heritage and ensure mining is done in the right way.”

While overall action towards working with aboriginal groups has seen mixed results, some positives have come out of the crisis, in a way.

Australian iron ore group Fortescue partnered with the Wintawari Guruma Aboriginal Corporation (WGAC) in a contract that should give the traditional owners more of a say in the company's mining operations in Western Australia.

At the least, it could help the miner avoid potential cultural heritage zones during operations. 

Rio Tinto itself also claims to have reached an agreement with the Yinhawangka Aboriginal Corporation, which claims to "ensure the protection of significant social and cultural heritage values", and prevent another Juukan Gorge.

Read more: "Striking disconnect" between miners and sustainability, RMI report finds

The discussion paper is currently only at its first major stage. It is likely more reports will be released as discussions with traditional owners deepen.

- The full paper can be viewed here.

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