Peak mining body says federal laws protecting Aboriginal heritage do not need strengthening

The national body representing hundreds of mining and mineral exploration companies in Australia has told a parliamentary inquiry it would be “overreach” to strengthen federal laws to protect Aboriginal heritage.

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Photograph: PKKP Aboriginal Corporation/AFP/Getty Images

But at the same hearing into Rio Tinto’s destruction of a 46,000-year-old sacred site at Juukan Gorge, the Law Council of Australia argued the opposite, saying there was an “an urgent need” for federal government leadership on Indigenous cultural heritage protection.

© Photograph: PKKP Aboriginal Corporation/AFP/Getty Images
The Juukan Gorge in Western Australia before it was destroyed by Rio Tinto in May.

The law council said the commonwealth needed to ensure state and territory laws enshrined important principles such as self-determination and free, prior and informed consent of Aboriginal traditional owners.

Related: Rio Tinto kept loading explosives at Juukan Gorge after promising to stop, traditional owners say

The Australian Mining and Exploration Council (Amec), which represents more than 275 companies in regional and remote Australia, said the current legal system provided enough protection and could even be streamlined.

Amec’s chief executive, Warren Pearce, said the industry wanted to avoid duplication and the cost of complying with two heritage regimes.

But while Pearce said the federal government should take a hands-off approach to heritage legislation, he criticised its hands-off approach to supporting native title bodies, which has led to “chronic underfunding” and “suboptimal outcomes”.

Pearce was “very aware” that Amec members were reviewing all the current approvals they had been given by the WA government to destroy Aboriginal heritage after the Juukan gorge disaster, in order to re-engage with traditional owners.

“Juukan Gorge was an extreme example,” Pearce said. “In the vast majority of cases that does not take place.

“There are thousands of heritage sites under management, being avoided, and without disturbance, for which [section 18] approvals [which allow companies to interfere with heritage sites] have been given but not actioned.”

When asked whether hundreds of sites that are under s18 – about which traditional owners are unable to speak up due to legacy agreements which contain so-called gag clauses – may have been destroyed, or are still at risk, Pearce said: “I can’t deny that possibility.”

The law council said there was a “wide structural disconnect” between state and federal laws, which have “failed to incorporate recognition of the rights of First Nations peoples to land and waters”.

“These regimes have not kept pace with the paradigmatic change precipitated by the high court’s decision in Mabo,” its president, Pauline Wright, said.

The chair of its Indigenous committee, Tony McAvoy SC, said the commonwealth should “show leadership and adopt principles of free prior and informed consent, and acknowledge native title holders’ right to protect heritage” as a minimum.

But McAvoy also said it may be better to “start again with a dedicated piece of legislation that has that higher purpose”.

“We are talking about competing rights” between mining companies and Indigenous groups, McAvoy said, “and that needs a legislative response.”

Related: Letter reveals Rio Tinto urged transfer of powers to WA ahead of environment law review

Executive member of the Law Council and leading native title barrister Greg McIntyre SC told the inquiry there was “no real justification” for legacy agreements between mining companies and traditional owners to remain confidential.

Because the parties were not operating on a level playing field, the agreements should be revisited, he said, particularly where they may contain clauses which impinge on, or remove, other legal rights traditional owners might have.

“There should be statutory provision which prevents the contracting out of rights,” said McIntyre, who had the conduct of the Mabo case from 1982-1992.

He agreed that native title bodies were under-resourced.

“Some [prescribed body corporates] can barely afford a phone,” he said.

The inquiry was set up in response to Rio Tinto destroying the 46,000-year-old rock shelter at Juukan Gorge deemed to be of the highest archaeological significance in Australia.

The shelter was destroyed by the iron ore giant in May against the consent of traditional owners, and sparked global outrage, an international shareholder revolt, and the removal of three top executives, including the global chief executive, and cost Rio Tinto its gold chip status for working with Indigenous people in Australia.

The inquiry is due to hand down its final report on 9 December.