Recommendation 1

1.53

That Rio Tinto:

Negotiate a restitution package for the destruction of the Juukan rock shelters with the PKKP

Ensure a full reconstruction of the Juukan rock shelters and remediation of the site at its own expense, with guidance and oversight from the PKKP, acknowledging Rio Tinto’s undertaking in this regard and the steps taken to date. The reconstruction should specifically include steps to mitigate water and other damage to the creek that flows in Juukan Gorge and protect the Sacred Snake-head Rock Pool

Commit to a permanent moratorium on mining in the Juukan Gorge area, negotiated with the PKKP, and that this is respected by all mining and exploration companies

Undertake an independent review of all its agreements with Traditional Owners to ensure they reflect best practice standards

Remove any gag clauses or restrictions on Traditional Owner rights under heritage and other laws

Commit to a stay on all actions under Rio Tinto’s current Section 18 permissions until they are properly reviewed to ensure that free, prior and informed consent has been obtained from Traditional Owners and is current

Commit to a voluntary moratorium on applying for new Section 18 permissions, pending either the passage of stronger heritage protections in Western Australia or the negotiation of a protocol with relevant Traditional Owners to establish an improved process for site surveys, cultural protection and work area clearances based on the principle of avoiding damage wherever possible

Return all artefacts and other materials held by Rio Tinto to PKKP and after negotiation and by agreement with PKKP, fund appropriate keeping places for artefacts and other materials to be supervised and controlled by the PKKP.

Recommendation 2

1.58

That the Western Australian Government:

Replace the Aboriginal Heritage Act 1972 with stronger heritage protections as a matter of priority, noting the progress already made in consultation on the draft Aboriginal Cultural Heritage Bill 2020. Any new legislation must as a minimum ensure Aboriginal people have meaningful involvement in and control over heritage decision making, in line with the internationally recognised principles of free, prior and informed consent, including relevant RNTBCs under the Native Title Act. Any new legislation should also include a prohibition on agreements which seek to restrict Traditional Owners from exercising their rights to seek protections under State and Commonwealth laws

Place a moratorium on the consideration and approval of new Section 18 applications until the new legislation is passed unless it can be established and verified that there is current free, prior and informed consent obtained from Traditional Owners

Strongly encourage mining companies with existing Section 18 permissions to not proceed with these approvals but to have them reassessed under the new legislation once it is passed unless it can be established and verified that there is current free, prior and informed consent obtained from Traditional Owners

Urgently establish new procedures to improve the quality and transparency of decision making by the Registrar and ACMC prior to any legislative change, including processes for appropriate escalation of urgent matters to the Minister

Adequately resource the ACMC

Institute rolling membership of the ACMC to ensure the involvement of Traditional Owners of the country that is the subject of any decision, as nominated by the relevant RNTBC

Investigate the large number of heritage sites de-registered since 2011 and ensure that proper procedures are in place for the removal of heritage sites from the register

Reinstate sites to the register where these were inappropriately removed

Undertake a mapping and truth-telling project to record all sites that have been destroyed or damaged pursuant to the AHA, including visual representations of the impact to country, with a view to establishing a permanent exhibition or memorial in the Western Australian Museum.

Recommendation 3

1.59

That all mining companies operating in Western Australia whether or not on Native Title land:

Undertake independent review of their agreements with Traditional Owners and commit to ongoing regular review to ensure consistency with best practice standards. In particular, companies should review final compensation clauses in recognition that free, prior and informed consent requires continuous review and engagement with traditional owners

Issue public confirmation that they will not rely on gag clauses or clauses preventing Traditional Owners from exercising their rights under state and Commonwealth heritage laws and remove these clauses from their agreements with Traditional Owners

Commit to a stay on all actions under currently held Section 18 permissions until they are properly reviewed to ensure that free, prior and informed consent has been obtained, and is current, from Traditional Owners for any damage or destruction to significant sites

Commit to a voluntary moratorium on applying for new Section 18 permissions, pending either the passage of stronger heritage protections in Western Australia or the negotiation of a protocol with relevant Traditional Owners to establish an improved process for site surveys, cultural protection and work area clearances based on the principle of avoiding damage wherever possible

Fund appropriate keeping places for artefacts and other materials to be agreed on with and controlled by the relevant Traditional Owners. Wherever possible, working together with other companies operating on country to jointly fund keeping places in agreement with Traditional Owners

Facilitate the sharing of all heritage information and mapping technology used by mining companies with relevant PBCs, to correct information asymmetry and ensure Traditional Owners have access to records of their cultural heritage and are resourced to set up their own mapping initiatives

Actively support and fund efforts by the Western Australian and Commonwealth governments to establish mapping and truth telling initiatives as recommended above

Work with Traditional Owners to ensure better access to country.

Recommendation 4

1.62

The Committee recommends that the Australian Government:

Seek to legislate a prohibition on agreements that restrict Traditional Owners from publicly raising concerns about heritage protection or exercising their rights under heritage legislation;

Implement and publicly publish improved procedures within the Ministers offices, the National Indigenous Australians Agency and the Department for responding to and recording heritage concerns raised by Traditional Owners, including protocols for communicating and escalating urgent concerns to the responsible Minister and their Department;

Work with Western Australia to implement the recommendation above for a mapping and truth telling project in relation to heritage that has been damaged or destroyed, and to extend this project at the national level in collaboration with other states and territories.

Recommendation 5

1.64

The Committee recommends to the Australian Government that ministerial responsibility for the administration of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 revert to the Minister for Indigenous Australians, and that the National Indigenous Australians Agency become the administering authority.

Recommendation 6

1.65

The Committee recommends to the Australian Government that the relevant Minister direct their office and department to more vigorously prosecute use of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 in Western Australia until such time as new legislation is enacted in Western Australia replacing the current Aboriginal Heritage Act 1972 (WA).

Recommendation 7

1.66

The Committee recommends that the Australian Government urgently review the adequacy of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984.

List of Recommendations