Australia Sacred Sites Seen Remaining Under Threat After Mine Law Reform

(Bloomberg) -- Looming legislative changes aimed at boosting protection for Aboriginal heritage sites in Western Australia are unlikely to prevent their destruction or stymie expansion by mining companies that are under intense pressure over their preservation practices.

Rio Tinto Group’s decision last month to carry out explosions that saw the destruction of a 40,000-year-old site in the centre of the nation’s iron ore industry has sparked widespread controversy, scrutiny from investors and calls for legal reform.

The new laws will include more precise legal definitions of what constitutes Aboriginal heritage, modified financial penalties for misdemeanors and the encouragement of agreements between Aboriginal people and other land use proponents, according to the state government.

While the proposed legislation embodies significant changes on paper, they will do little to prevent miners in practice from getting their way in land rights matters, according to Kate Galloway, an associate professor at Queensland’s Griffith Law School who specializes in land and property rights.

‘Be Realistic’

“We need to be realistic. I don’t think that is going to stop the destruction of sites,” Galloway said. “The framework of cultural heritage that is in Australia -- without a real shift in political will -- is not going to save these places.”

Investors have held meetings with Rio’s Chairman Simon Thompson and executives to raise questions over the producer’s actions, and Australia’s First State Super, which holds about $69 billion in assets, this month removed the company from a socially responsible portfolio option. A parliamentary committee is also scheduled to report to Australia’s Senate by Sept. 30 on Rio’s decision-making. The company reiterated its support for the reform of the legislation.

Also this month, rival BHP Group said it won’t disturb indigenous sites identified under a land use agreement at the South Flank iron ore mine without further extensive consultation with traditional landowners after it was granted permission to the land under the current act.

“The new Aboriginal heritage legislation that is expected to be released soon for final consultation will cement the rights of Traditional Owners to make their own decisions on their ancient sites,” Western Australian Aboriginal Affairs Minister Ben Wyatt said in a statement. “While there may be rare occasions where the interests of the state exceed those of the relevant Aboriginal people, I will continue to support agreements made by Traditional Owners.”

Draft Bill

Drafting of the Aboriginal Cultural Heritage Bill 2020 is slated for completion before the end of the year. Rio’s explosions were authorized by the state government under a system used to rule on situations where impacts on Aboriginal sites are deemed unavoidable.

Competing land rights, afforded to miners, and cultural rights, afforded to traditional landowners, share fundamental incompatibilities that make disputes difficult to reconcile, Galloway said. While landowners will be more involved in the decision-making process under the proposed legislation, miners can still refuse their requests because -- ultimately -- they still have the right to use that land, she said.

The issue of ownership rights to the land can’t be resolved “unless you say to miners -- these parts are quarantined, you can’t blast them,” she said. “I would be extremely surprised if there were a blanket prohibition on the destruction of these sites.”

Appeal Avenue

The controversial Section 18 of the original act -- that gives companies with mining rights permission to damage a site and prevents any avenue for appeal -- would have to be changed not only to give a right to appeal decisions, but to remove altogether the right to destroy sites, she said.

Rio, the world’s second-biggest mining company, has voiced support for state heritage law reform following the blasts in the Juukan Gorge area to facilitate mining at its Brockman 4 operation. Chief Executive Officer Jean-Sebastien Jacques also has apologized for distress caused to the Puutu Kunti Kurrama and Pinikura people, the traditional owners of the land.

Last week, the company launched a review into its heritage management processes within iron ore business, focusing on recommending improvements to the effectiveness of its internal processes and governance.

The proposed laws may introduce some procedural hurdles for miners -- if consultation processes with Aboriginal communities drag out, and if there is a greater requirement for more robust justification of destruction at cultural sites, Galloway said. “Companies are already doing that,” she said. “I don’t see that it will be that much much harder for them.”

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