2.1
This chapter will explore the sequence of events in the lead up to the incident at Juukan Gorge, as well as several factors that contributed to the incident. In particular, it will examine the different perspectives of the Puutu Kunti Kurrama and Pinikura peoples (the PKKP) and Rio Tinto in relation to key events, the role of Rio Tinto and the PKKP.
2.2
A detailed chronology of events is included at Appendix D from Rio Tinto and the PKKP’s perspectives. Considerable detail is also available in their submissions and supplementary submissions.
2.3
The chronology of events at Appendix D demonstrates that rather than being a series of process and communication failures in early 2020, Rio Tinto had 18 years of engagement with the PKKP peoples, and eight years of technical and archaeological work on the Juukan Caves sites prior to their destruction.
2.4
This Chapter is not intended to be a reinvestigation of the Juukan Gorge events, but rather intends to summarise the events as an illustrative case of corporate and communication failures at the highest levels and the impact these failures can have on our valuable heritage.
2.5
The contributing legislative failures are discussed in detail in following chapters.
Different perspectives
2.6
The two main parties to the events at Juukan Gorge−Rio Tinto and the PKKP−give different evidence on several aspects of the events that led to the destruction of the Juukan heritage sites.
2.7
A critical difference of opinion between the PKKP and Rio Tinto is whether the PKKP knew or should have known that Rio Tinto was intending to destroy the caves as part of the expansion of Pit 1, and if there was opportunity to stop the blast after the blast charges had been loaded.
PKKP’s perspective
2.8
The PKKP maintained that the destruction of the caves was unexpected, with the PKKP’s heritage manager, Dr Heather Builth, arguing that obtaining a section 18 consent does not necessarily infer an intention to impact a site:
It is mining practice that a section 18 consent is sought as a precaution against future collateral damage from adjacent mining activity. This is what was produced in the situation by PKKP for the Juukan Gorge and its proximity to pit 1. They never thought it was going to go. That map is still in the admin building…showing that the gorge is excluded from pit 1. So it has come as a complete shock that this has occurred.
2.9
The PKKP also noted that the rock shelters were not situated within the 2005 or 2011 mine plans and the map provided to the DIA in support of the 2008 section 16 application showing sites Brock 20 - 24 were outside the pit and waste dump areas.
2.10
The PKKP also reference the conversation between Dr Builth and the Manager of Mine Operations in the field on 28-29 October 2019 as another reason why they did not expect the rockshelters to be destroyed:
We visited as part of the LIC [Local Implementation Committee] meeting, which only happens twice a year, on 29 October the B4 site. We asked for a site visit to Purlykuti, and while I was there I talked to the mine operations planning manager, pointed out the gorge and said, 'Can you please tell me how the situation is with those two rock shelters, Juukan?' and I proceeded to tell him how significant they were in not only the Pilbara but Australia and globally. I wanted to know what the plans were for any prospective mining, and he reassured me. He said, 'No, they are not in any danger. They are not on our mine plan. In fact, we are undertaking vibrational studies on them and we wouldn't be doing that if we wanted to blow them up.' That was 29 October 2019. And then we tried again the following March, 4 March 2020, because we knew they were safe. I told lots of people; there were witnesses to that meeting. We knew they were safe.
Rio Tinto’s perspective
2.11
Rio Tinto has maintained that the intention to destroy the caves was clear from the beginning, and that the PKKP knew or should have known this, with the Board Review stating that ‘there was clearly an awareness within the PKKP that the impact was imminent’.
2.12
As noted in the summary of events at Appendix D, on 16 July 2013 Rio Tinto gave a presentation to the PKKP at a LIC meeting on the potential of seven section 18 applications being submitted by September 2013. Rio Tinto submitted that its ‘understanding based on that meeting [was] that the PKKP supported the section 18 and the notion of further excavation, and that it was understood by the PKKP that the consequence of this would be disturbance to the sites in the future.’
2.13
Rio Tinto further argued that such significant discussion was held with the PKKP around the section 18 application, to the extent that the PKKP should have been aware that:
The approval did not come out of the blue and the records of engagement do not reveal any significant dissent or opposition to the section 18 process…The age of these sites, and the fact that they would be disturbed, was never hidden. It was discussed openly with the PKKP on a number of occasions. It was the subject of external papers and presentations to the wider archaeological community. The information was also shared with government agencies on multiple occasions. In 2014 we moved forward on the basis we had the necessary legal approvals and the salvage was complete.
2.14
Rio Tinto also submitted that the section 18 consent in relation to Juukan 1 and 2 states that it was anticipated the sites would be ‘fully impacted’ by the development of Pit 1.
2.15
Rio Tinto further contended that section 18 consents are generally only sought when impacting a site is expected and cannot be avoided:
By its nature, when a section 18 application is made, impact to a site is necessarily contemplated, given it is an offence to alter, damage or destroy an Aboriginal heritage site without a section 18 consent. Where sites can be avoided, in most cases, historically no further surveys or heritage research is performed on those sites and they are managed and preserved in situ.
2.16
In response to the PKKP’s claims that the rockshelters were outside of the mine plans, Rio Tinto stated:
The Juukan 1 and Juukan 2 rockshelters were not within the indicative or conceptual pit outline at that point in time but were very close to the edge of the pit outline, such that they could not be expected to have avoided impacts to the rockshelters from mining activities, including blasting. The EPA application materials, including the Public Environmental review document, expressly referred to the Juukan sites...
The initial plan map was created in 2005, based on a resource declared in 2004. As orebody knowledge increases, pit outlines can evolve and change a number of times as more information is received in relation to the nature and location of the relevant orebody. The likelihood that the original pit design would be amended over time and would more formally incorporate the areas on which the Juukan sites sat was apparent from at least 2008 when archaeological and ethnographic surveys were conducted having regard to the likelihood that section 18 consents would be required.
2.17
For example, the Williams ethnographic report of 2008 states that:
[Rio Tinto] will now apply to the minister for a conditional section 18 consent to fully excavate those [sites] with further research potential, to salvage artefacts from these and other sites (as recommended by Scarp 2008), and ultimately secure ministerial consent for the removal of [the relevant] sites to make way for the Brockman 4 mine and associated infrastructure.
2.18
Rio Tinto also denies the PKKP understanding that the Brockman 4 mine manager had stated that there was no intention to mine through the Juukan Gorge caves.
Mitigation efforts
2.19
The PKKP submitted that Rio Tinto had told them they were mitigating the effect of the blast on Juukan 1 and 2, stating that:
On 23 May 2020 PKKP representatives were told by a Rio Tinto employee that work was being undertaken at Juukan Gorge to reduce the effect of the blast. PKKP representatives were told that Rio Tinto was taking out the explosives from the holes over the top of the Juukan rockshelters.
… They were led to believe that the removal of these charges was to minimise the damage to the Juukan rockshelters.
2.20
The PKKP also claimed that Rio Tinto did not attempt to remove the charges over Juukan 1 and 2, and were only concerned with removing the charges relating to the three extra sites which did not have section 18 consent:
[The] fact is that Rio Tinto did unload a number of holes. It did so in order to mitigate possible damage to sites over which it did not have Section 18 approval to disturb.
2.21
Whilst Rio Tinto asserted they considered other options it denied that representations were made to the PKKP suggesting that the charges over Juukan 1 and 2 would be removed to protect the caves. Rio Tinto stated that the 226 holes that were loaded on 13 May were the ‘primary cause of damage, so subsequently loading the other holes would not have had a material effect on the outcome at Juukan 1 and 2’.
2.22
The PKKP contested this, and argued that based on the drilling and blasting timeline provided by Rio Tinto on 12 October 2020, that ‘it is difficult to understand how Rio asserts that the ‘unloaded holes’ (which were loaded on 16 and 17 May) would not have had a material effect on the outcome at Juukan 1 and Juukan 2’.
2.23
The PKKP contended that the continued loading of the blast holes contributed directly to the destruction of the Juukan shelters and that:
It is clear … that if Rio had stopped loading holes at the time PKKP raised its concerns on 15 May 2020 there would have been:
a.
Fewer holes to unload;
b.
Multiple ‘edges’ to work in from in unloading the holes; and
c.
More time and opportunity for Rio Tinto to undertake this difficult task.
2.24
The PKKP further added:
Rio Tinto did not need to remove all of the other charges to protect Juukan 1 and Juukan 2. However, notwithstanding its successful removal of these seven charges, Rio Tinto did not attempt to remove any of the charges most likely to damage the Juukan 1 and Juukan rockshelters.
Rio Tinto
2.25
The Committee received evidence about the organisational structure and internal culture of Rio Tinto that contributed to the decision to destroy the caves at Juukan Gorge. In particular, certain changes to the company’s corporate structure and its approach to relationships with traditional owners contributed to breakdowns in communication, both between Rio Tinto and Aboriginal groups and between different parts of Rio Tinto itself. Decisions at the board level triggered a downstream focus on latent management and minimising issue escalation rather than true engagement and genuine partnership.
The impact of structural and cultural changes in Rio Tinto
2.26
Several witnesses and submitters stated that restructuring implemented by Rio Tinto’s CEO from 2016 had the effect of changing lines of responsibility and accountability within the company, leading to changes in culture and personnel. New approaches to managing relationships with traditional owners and to obtaining approvals for damage to sites were highlighted as key contributing factors to the communications breakdown that preceded the destruction of the caves.
2.27
Professor Glynn Cochrane and Mr Bruce Harvey both argued that the changes in 2016 did away with the community relations system established in 1995 by Professor Cochrane and other senior figures at Rio Tinto, and handed functions for cultural relations management to those responsible for public relations.
2.28
Professor Cochrane described the system established in 1995 as follows:
[This system] operated on military lines – that is to say that the line management was responsible for cultural management and for all social performance functions. They were advised by advisers. They had to work closely with those advisers and take their advice into account. Had there been a well-qualified heavyweight archaeologist in the Pilbara who was working closely with the head of iron ore and a person that the iron ore head was familiar with, he would’ve listened to their advice…the system we had for 25 years was line management which was responsible and was advised by well-qualified advisers and took their advice because they knew the quality of the people and their experience.
2.29
Mr Harvey provided more detail about the changes of personnel in Rio Tinto and the different approach to community management that the new staff adopted. He observed that several long-term, experienced cultural heritage and social performance professionals have left Rio Tinto over the past 5 years during the restructure as part of a ‘switch out’ in which Rio Tinto recruited ‘into corporate positions a range of new people with skills in brand promotion, corporate marketing and internal relations’. The result of this, Mr Harvey argued, was that Rio Tinto’s previous strategy of ‘attempting to understand affected community concerns and respond to them was replaced in 2016 to one of ‘managing communities’, presumably to achieve their compliance with Rio Tinto’s imperatives’. He stated:
[T]he new strategy implemented after 2016 directly led to the destruction of the Juukan shelters because, among other things, it did not recognise that Social Performance and Corporate Affairs professional competencies and accountabilities are fundamentally different and cannot be substituted one for the other.
2.30
The Rio Tinto Board Review also identified changes in personnel as causing a loss of knowledge and awareness of the location and significance of the rockshelters among operating and senior management.
2.31
Mr Harvey submitted that the restructuring also affected accountability for cultural heritage and reduced the level of engagement between mine site management and local Aboriginal people:
…taking direct line accountability for Aboriginal engagement and heritage protection away from mine site leaders. This removed CSP [Communities and Social Performance] accountability and staff from day to day work at mine sites, resulting in reduced mine site engagement with land-connected Aboriginal groups, along with a focus on remedying issues after events occur rather then prioritising the identification of possible issues before they occur.
2.32
In particular, Professor Cochrane argued that the changed lines of responsibility adversely affected the quality of the company’s interaction with traditional owners, because there was a loss of understanding about traditional protocols, leadership and decision-making in Aboriginal communities:
Part of this system that we put in place was to create a baseline, initially, in order to understand how to consult with local people. We had to understand the local society−the way it ought to work and the way it actually was working. We had to understand the leadership patterns. We had to understand the values and the world view of those people and we had to work within that. That told us how we ought to engage with those people, when we ought to engage and how we would know when they had made a legitimate decision and when they hadn't. We would have to know the protocols, the things that made sense to them, because we had to do it in a way that was satisfactory to them. That is what has been lost, and I don't think that baselining is done anymore on a regular basis.
2.33
Part of the changed approach in Rio Tinto was a drive for expedient rather than thorough processes for the protection and management of cultural heritage. Professor Cochrane stated:
Rio Tinto has been following its own stripped-down version of Cultural Resources Management (CRM) in the Pilbara. The focus has been on the development of the skills and procedures needed to secure quick clearance – the removal of impediments to mining – something that too frequently results in the destruction of sacred sites. This clearance thinking would have encouraged Rio Tinto to think the caves could be destroyed without too much fuss.
2.34
Dr Mary Edmunds submitted that the focus on expedited approvals was a by-product of Rio Tinto’s site-focused as opposed to landscape or regional approach to cultural heritage protection. This is ‘less a cultural heritage protection and management approach and more an industry-focused approach to enable the expedient and efficient removal of cultural heritage from areas subject to exploration and mining.’
2.35
In particular, Dr Edmunds noted that, in the case of Juukan Gorge, there appears to have been a failure to properly implement the regional standard for life of mine planning.
2.36
Crucially, the Board review identified that there existed at Brockman 4 a:
…work culture that was more focused on ensuring that necessary approvals and consents were in place for ground disturbance of culturally significant sites, rather than also managing changing cultural heritage issues that could arise on sites where authorisation and consents for ground disturbance had previously been obtained.
Communication with the PKKP
2.37
Poor communication with the PKKP was identified as a key element in the chain of events that led to the destruction of the Jukaan caves. The following section details the breakdown in communication and its implications.
Failure to adhere to the spirit of agreements
2.38
Good communication is critical to the relationship between Rio Tinto and the Indigenous communities affected by its mining operations. This is highlighted in Rio Tinto’s Communities and Social Performance (CSP) standard, which is the company’s internal guidance on cultural heritage management, in accordance with relevant international standards produced by the International Finance Corporation (IFC) of the World Bank. Communication is also important for the proper implementation of the cultural heritage provisions under the various agreements requiring consultation by Rio Tinto with the PKKP.
2.39
For Dr Edmunds, the organisational and cultural changes in Rio Tinto discussed above led to communication issues that adversely affected the implementation of the agreements:
As … envisaged originally in the discussions, each of the groups would be involved from the beginning right through all the major developments in relation to any mines on their country. It seems to me that that’s where the process has fallen down in relation to the Juukan Gorge caves, because, although there were meetings about that, I understand, … the letter of the law has been followed but not the spirit of those original agreements.
…had the participation agreements been appropriately implemented in the way in which they were envisaged, I don’t think that the destruction would’ve taken place. Cultural heritage protocol and the life of mine planning processes, as they were set out and the in the spirit of the process, would have engaged the PKKP people very closely, and I very much doubt that that destruction would have taken place.
2.40
A key example of Rio Tinto’s failure to properly adhere to the terms and/or spirit of both the agreements and its own internal standards was its failure to share the 4 pit design options with the PKKP at the March 2013 LIC meeting. This was a critical juncture where the destruction of the rockshelters at Juukan Gorge might have prevented if the opportunity for communication had been taken up.
2.41
Under its Regional Framework Deed (RFD,) Rio Tinto is required to take all practicable measures to avoid sites of special significance, with Rio Tinto, acting reasonably, having the final decision in determining whether it was practicable to avoid sites of significance. In determining whether it was practicable, Rio could take into account several factors. One of these factors was ‘any views and concerns of the opt-in groups received by Rio’.
2.42
Under its Cultural Heritage Management Regional Standard, Rio Tinto committed to work with the PKKP through the Local Implementation Committee (LIC) to early identification of sites of special significance and sites of immediate concern to ensure such sites are considered by Rio Tinto in longer-term development decisions. Rio Tinto also committed itself to give consideration to the impact of their operations on Aboriginal sites, including their heritage values, and consult with the traditional owners on preserving the heritage values or minimising or mitigating the loss or diminution of those heritage values.
2.43
In failing to present to the PKKP and seek their views on the different pit options, Rio Tinto failed in fulfilling its obligations under the Regional Standard to consult with the PKKP on preserving the heritage values or minimising or mitigating the impact on the caves.
2.44
Mr Harvey argues that Rio Tinto was in breach of its own internal standards and guidance on cultural heritage management, because ‘If Rio Tinto had operated at Brockman 4 according to its own CSP standard, it would not have proceeded with the destruction of the shelters’.
2.45
In particular, the failure of Rio Tinto to present ‘full context of the mine design options considered’ at the 28 March 2013 LIC meeting was specifically found by the Board review to be inconsistent with the CSP and internal guidance on cultural heritage management and Rio’s commitment to IFC PS7.
Failure to communicate with the appropriate PKKP representatives
2.46
Another key communication failure by Rio Tinto that may have directly contributed to the destruction of Juukan Gorge is their decision to send the draft copy of the section 18 application notice for Juukan 1 and Juukan 2 to the Yamatji Marlpa Aboriginal Corporation (YMAC) instead of directly to the PKKP Aboriginal Corporation (PKKPAC). The role of the YMAC and its failure to appropriately communicate with the PKKPAC is discussed further below.
2.47
On 3 October 2013 the draft section notice was sent to YMAC, and confirmation that the notice was lodged was sent to PKKP LIC members care of YMAC by letter dated 17 October 2013. Rio stated in both their submission and supplementary submission that they have not located a response from the PKKP LIC members or YMAC.
2.48
As noted previously, the Performance Agreement requires Rio Tinto to send draft notices of section 18 applications to the LAC which, as YMAC noted in their submission, was the PKKPAC as of 18 July 2012. The Cultural Heritage Management Regional Standard also requires Rio Tinto to consult with PKKP LIC members on the section 18 application.
2.49
Consequently, by sending the draft notice to YMAC and not the PKKP, Rio Tinto failed to adhere to the terms of the agreement to send the draft notice to the correct body.
2.50
Crucially, the draft section 18 notice set out in the clearest terms that the Juukan rockshelters were going to be ‘fully impacted’ by the expansion of Pit 1.
2.51
By failing to send the draft notice to the PKKP, Rio Tinto denied the PKKP the clearest indication that the Juukan rockshelters were going to be impacted. It also denied them an opportunity to review the application documents and verify the accuracy of the information provided by Rio Tinto to the Aboriginal Cultural Material Committee (ACMC) and Department of Aboriginal Affairs.
2.52
Indeed, the PKKP have since obtained the draft notice and have discovered that the section 18 application ‘omitted or misrepresented a number of details of significance’. These included:
a.
in its summary of the sites within the Juukan complex, the ethnographic significance of those sites was listed as ‘N/A’;
b.
in summarising Dr Builth’s 2013 survey, the submission recorded ‘No new ethnographic sites were recorded during the ethnographic survey’;
c.
the recommendation of Dr Slack in relation to the preservation of Juukan 2 was omitted; and
d.
the ‘major omission’ of not providing information under section 39(2) –(3) of the AHA connecting the traditional owners to either site by their knowledge of and connection with it, thereby giving it ethnographical significance.
Failure to pass on new information relevant to section 18 consent
2.53
With respect to the 2013 Builth report and 2014 Slack preliminary reports, Rio Tinto admitted that:
In light of the material new information which was provided as a result of ethnographic and archaeological reports from 2014 (and after the granting of the section 18 consent in December 2013), a more explicit engagement by Rio Tinto with the PKKP on the implications of the new knowledge, especially in terms of its ongoing consent to the impacts on the Juukan 1 and Juukan 2 rockshelters that had been foreshadowed for a long time, would have resulted in better alignment with Rio Tinto’s FPIC aspiration.
2.54
Indeed, the PKKP noted that after the section 18 notice, there was no effort by Rio Tinto to discuss the findings of the Slack report(s), stating there was ‘just silence’.
The lead-up to the blast
2.55
The Rio Tinto Board review has also identified communication issues with the PKKP in the time leading up to the destruction of the caves on 24 May 2020, in which ‘the effectiveness of the engagement between Rio Tinto and the PKKP appeared to diminish’.
2.56
More specifically, the Board review notes:
Lines of communication became blurred. Flows of information were not always clear and timely. Informal interactions suggesting evolving views within the PKKP about the significance not only of the Juukan 1 and Juukan 2 rockshelters but other sites in the Juukan Gorge were not followed up in a formal way nor escalated to appropriately senior levels within the Rio Tinto organisation. Stronger indications of changing perceptions (as reflected in Dr Bruckner’s Social Surroundings survey and reports in early 2020) were not assessed as a matter of urgency at the appropriate level of seniority within Rio Tinto in order to clarify the implications for the PKKP’s attitude to the imminent impact of mine operations on the Juukan 1 and Juukan 2 rockshelters. Furthermore, although there was clearly an awareness within the PKKP that the impact was imminent, the precise timing of the blasting that would impact the Juukan 1 and Juukan 2 rockshelters was not conveyed to them with the clarity and advance notice that it warranted.
2.57
Communication issues also appear to have continued to plague Rio Tinto during the crucial days prior to the blast, with Rio Tinto failing to discuss with the PKKP regarding both the drilling and the loading of the holes, as well as failing to provide clear information around efforts to mitigate the impact of the blast on Juukan 1 and 2.
2.58
The PKKP stated that on 13, 16, 17 and 19 May 2020, Rio Tinto loaded blast holes and but did not inform the PKKP on any occasion. On 15 May the PKKP had been informed that all of the holes had been loaded, when in fact only 226 of the 382 holes had been loaded.
2.59
With respect to the removal of the charges, as noted previously, the PKKP maintained that efforts by Rio Tinto to remove charges only occurred after Rio Tinto discovered that the blast would damage three additional sites for which they did not have a section 18 consent over.
2.60
PKKP contended that Rio Tinto did not inform the PKKP of their discovery that the blast would impact these additional sites, nor did Rio Tinto inform them that their efforts to remove charges from the blast were only directed at protecting the three additional sites, not the rockshelters. It was only through this Committee process that the PKKP found out the full details:
We met with Rio Tinto on the morning of 23 May, and our understanding from that discussion was that they were attempting to remove blasts so that it would mitigate the impact on the rock shelters. We had no knowledge that they were trying to remove blasts from the three sites that they did not have section 18s over. We only knew that after, when we saw the submission. Through the whole time, we were under the impression that they were trying to exercise mitigating actions to save or lessen the blast impact on the shelters.
Communication within Rio Tinto
2.61
Communication problems within Rio Tinto led to information – including new information about the cultural significance of the Jukkan Gorge – not being passed on between the relevant parts of the company, leading to uncoordinated decisions that contributed to the blast.
Failure of Rio Tinto to act on new information highlighting the significance of the caves
2.62
As seen in the summary of events at Appendix D, during the period 2013-2020, in particular the period 2013-2014, more information came to light on the significance of the rockshelters which should have prompted a reconsideration of the decision to mine Juukan 1 and 2, but failed to occur. This has been acknowledged by the Rio Tinto Board Review:
The new insights provided by ethnographic and archaeological research and reports in the period from 2013 provided a basis for re-assessment by Rio Tinto of its mine planning for Brockman 4, and in particular the impact of the mine design on the Juukan Gorge.
2.63
The reasons given for this failure by the Rio Tinto Board review are ‘shortfalls in linked-up decision-making within the Rio Tinto organisation, and standards of governance and accountability, which call into question aspects of the work culture and priorities at Brockman 4’.
2.64
In particular, the Board Review notes that:
…there was insufficient flexibility in our operating procedures in terms of responding to material new information about the cultural heritage significance of the Juukan Gorge area reflected in the reports of Dr Builth in July and September 2013 and the preliminary archaeological reports of Dr Slack in 2014.
2.65
With respect to linked-up decision-making, the Review acknowledged that:
[There was a] significant gap between the granting of [the] section 18 consent in December 2013 for impacts at the Juukan 1 and Juukan 2 rockshelters, the increased understanding of the exceptional significance of the site arising from the salvage operations in 2014, and the timing of the actual impacts in May 2020. During that period, consistent with Rio Tinto’s Risk Management Standard and its Communities and Social Performance Standard…risks should have been reviewed and updated regularly…[A]fter the section 18 consent had been granted in December 2013, and after confirmation had been received from the archaeologists working on the site in 2014 that, as agreed with the PKKP, all heritage artefacts had been salvaged at the Juukan 1 and Juukan 2 rockshelters, active management or assessment of the site from a cultural heritage perspective was no longer regarded as required. This view neglected the reality that cultural heritage sites for which required approvals had been granted and all agreed mitigation and salvage work completed are not necessarily ‘low risk’ and that there are situations in which cultural heritage issues evolve in ways that require them to be reassessed, as indeed was the case at the Juukan Gorge from 2014.
2.66
Fundamentally, the systems were not in place to either communicate to the PKKP or within Rio Tinto to prevent this disaster, despite the many years of archeologically and ethnographic assessment undertaken:
There were no discussions. One of the failings of this whole issue, which was identified in our board review, was both the lack of joined up decision-making between heritage and the operations team, and, secondly, that our systems weren't helping us. I'll give you a very specific example. Because we believed that Juukan 1 and 2—that we had consent to mine through that area—were removed from the mine planning system as sites per se. So there was no trigger to alert the mine planning staff who planned the drilling, the loading of the blast, and so on and so forth, to actually identify there was an issue. They believed that they were, if you like, authorised by the system that flags heritage sites, because these weren't identified any longer as heritage sites. I'm not saying that's correct, but that is the fact that led to the start of this misunderstanding. So there was no flag to talk to traditional owners about the fact that we were approaching those sites.
2.67
Crucially, the Board review identified that the previously-mentioned culture-related issues at Brockman 4 meant that ‘from 2014, different parts of the Rio Tinto organisation had different access to data about the location of heritage sites in mine operations areas where all agreed mitigation and salvage plans had been completed, thereby inhibiting linked-up decision-making’.
2.68
This led to a number of erroneous assumptions, such as the failure of the technical services team to arrange for loading to cease after deciding to reschedule the blast. Rio Tinto stated that the technical services team assumed the blast had been fully loaded, when in fact it had not. The loading of the remaining 40 percent of the blast continued, making any efforts to save the rockshelters much harder.
Failure to escalate information to appropriate higher levels
2.69
Part of the internal communication problems within Rio Tinto appears to be a failure to escalate issues to the proper level or inform people higher up the chain of command of issues relating to the significance of the caves.
2.70
The Board Review noted that:
Systems and processes designed to provide layered governance and oversight did not work effectively in terms of responding to changing understanding of the cultural heritage significance of the Juukan Gorge area after 2014. In general, the Standards and internal guidance that Rio Tinto set for itself on heritage protection issues established appropriately high benchmarks and responsibilities.
2.71
Mr Bruce Harvey agreed:
The accountability for execution lies with people in the line of command. So the fact that, for whatever reason, senior people who were in advisory roles had left does not resile from the fact that the line accountability was neglected and that, for whatever reason, particularly subsequent to the excavation of the site, people were either not aware of the importance of it, having not made themselves aware of it, or…were aware of it and went ahead anyway.
PKKP and its representatives
2.72
The PKKP held a number of views and good faith working assumptions that became an impediment to progressing their opposition to the blast proceeding. They were also let down during the process by those who were meant to be working in their best interest.
Views and assumptions in the lead up to the incident
2.73
In the lead up to the incident, the PKKP held two main views and assumptions:
a.
That the Juukan rockshelters were not going to be impacted by the planned expansion of pit 1.
b.
That Rio were attempting to remove the blast from the loaded holes directly impacting the rockshelters.
Assumption that the rockshelters would not be impacted
2.74
The PKKP believed that the Juukan rockshelters would not be impacted by the expansion of Pit 1, due to mine plans and maps showing the rockshelters were located outside of the mine zone, and their experience that section 18 approvals are often sought as a precautionary measure in case of damage from nearby mining activities.
2.75
On Rio Tinto’s assertion that it had consulted with the PKKP, through the YMAC, at a community meeting in 2008, making clear that the Juukan sites were within the pit design and therefore unavoidable, the PKKP stated:
PKKP understands Rio Tinto to be asserting that, as a result of the Juukan sites not being included in the Rights Reserved Area, PKKP had given its free, prior and informed consent to the inclusion of the sites within the pit design subject to Rio Tinto undertaking mitigation works.
PKKP totally rejects that proposition.
In this respect, Rio Tinto’s submission ignores the grossly unequal negotiating position of the parties, a matter Rio Tinto was acutely aware of.
It also indicates how, with the prime purpose of securing certainty of mining, Rio Tinto turned a blind eye to the difficulties and complexities of securing certainty of heritage protection.
2.76
This assumption was further reinforced by Dr Builth’s aforementioned conversations with the mine manager in October 2019 and with Rio Tinto’s heritage specialist and archaeologist in early 2020. In both instances Dr Builth came away thinking the Juukan rockshelters were safe.
2.77
The EPA Assessment process for the Brockman Syncline proposal, including Daniel Bruckner’s social surroundings preliminary advice, also reinforced the PKKP’s view that the sites would be protected:
PKKP’s Culture and Heritage Unit felt actively encouraged by this process and that Rio Tinto had a genuine appetite to protect Juukan Gorge. PKKP’s heritage team felt that Rio Tinto gave a clear impression that it, Rio Tinto, was willing to consider the areas of significance.
2.78
The PKKP relied in good faith upon conversations that were had outside the formal forums with Rio Tinto officials:
PKKP, in its negotiations, relied on Rio Tinto’s representations about Rio Tinto’s values, which included the recognition of culture and protection of heritage. PKKP trusted that Rio Tinto would approach the concept of ‘practicability’ in good faith, having regard to the information PKKP would give to Rio Tinto in relation to the significance of each site.
Assumption that Rio Tinto was attempting to remove blasts from the shelter
2.79
The PKKP were also under the assumption, after discovering that the rockshelters were going to be destroyed and notifying Rio Tinto that they wanted them protected, that Rio Tinto were doing everything possible to protect the caves in the lead up to the blast on 24 May.
2.80
This assumption appears to have developed firstly due to initial conversations between Dr Builth and Rio Tinto’s heritage staff on 17 May, as he told the Committee:
…on 15 May when they told me that it was going to be blown up in two days’ time, they asked for that information, and they said – well, on the 17th; we had another phone call on the 17th – “Give us this information and we will see if it is of high enough significance that we could stop the blast”.
2.81
It also appears to have developed due to conversations between the Dr Builth and Rio Tinto’s strategic manager, Scott Edwards and superintendent of communities and communications, Ainslie Bourne:
The blast was initially set to go on Sunday 17 May. It was then put off to the 19th, then the 20th – the 20th was a Wednesday – and then to the Friday. It was put off again on the Friday. We had a meeting on the Saturday with Ainslie [Bourne] about this, and we were told that they were taking out blast holes, emptying them. We thought that was the case, but it was the 3 sites.
2.82
This is further reinforced by the fact that the PKKP were seemingly not made aware of the potential impact to the other three heritage sites until after the destruction of the rockshelters on 24 May when Rio Tinto released their submission to this inquiry.
2.83
Consequently, the PKKP were again relying in good faith upon conversations had with Rio Tinto officials, this time on the assumption that as the PKKP had highlighted the significance of the rockshelters to Rio Tinto, it was the rockshelters that Rio Tinto were working to preserve by removing some of the charges.
Impact of agreements
2.84
The Agreements between the PKKP and Rio Tinto contain various clauses which restrict the ability of the PKKP to protect their cultural heritage. These include ‘non-objection’ clauses which prevent the PKKP from voicing opposition to Rio Tinto projects, and clauses which prevent the PKKP from seeking a state or federal heritage protection declaration without Rio Tinto’s consent.
2.85
The PKKP argued that the effect of these clauses was that they were afraid to clearly express their opposition to the destruction of the caves:
We wanted to approach [Rio Tinto] and talk to them about [the section 18 application]. I’m sorry, but all I can remember is that we felt that we couldn’t do anything. When we wanted to talk to them about it, YMAC told us that we couldn’t face them because of the clauses in the agreement telling us that we couldn’t say anything to them as traditional owners – because we had to follow the agreement…We couldn’t talk to anybody, not even Rio, because there’s a clause in there that say that we cannot talk about anything to anyone – because there’s a non-disparagement clause in there. That was something that was always told to us. I remember it clearly, because when I heard about this, and everybody wanted to focus on doing something about it, I said: ‘hang on a minute. In that agreement, there’s a clause. We can’t. That stops us’.
2.86
Asked whether the PKKP people who signed the agreements may not have fully comprehended what they were signing, the PKKP told the Committee:
At the time, because we were meeting all the time with Rio Tinto and YMAC, people had a little bit of an understanding. But, when it came down to talking about the agreement and people understanding it a bit more clearly, I don't think they did understand it when it came to signing it…
2.87
PKKP representatives explained that the sheer size and complexity of the agreements was a major reason for the lack of understanding. Ms Meredith told the Committee:
The other thing I'd like to point out is that, when Donna talked about whether or not our mob understood what they were signing, the depth of the agreement is shown in front of me—a 740-page document. At the same time, they signed a regional framework deed of 330 pages. You can see, graphically, the amount of information they were required to process during that negotiation period.
2.88
Affirming this view, Ms Meyer added:
It wasn't given out to the members to read and go over. A lot of our members wouldn't have read it because it was too big and time-consuming.
2.89
The Agreements also prevented the intervention of Commonwealth protections. On 19 May 2020 the PKKPAC directed its lawyers to seek an emergency declaration pursuant to section 9 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) (ATSIHP Act).
2.90
The ATSIHP Act will be discussed in detail in Chapter 6, but, in summary, the role of the ATSIHP Act allows Aboriginal and Torres Strait Islander peoples to make an application to the Minister for the Environment to make a declaration protecting an area or object of ‘particular significance in accordance with Aboriginal tradition’, where it is under threat of injury or desecration.’
2.91
PKKP submitted that the ATSIHP Act failed the PKKP peoples in two key ways:
1
The Act does not contain any provisions which prevent traditional owners from contracting out their right under the Act to seek a protection declaration. Consequently, the terms of the Claim Wide Participation Agreement (the CWPA) signed with Rio Tinto restricted the PKKP from making a protection application under the ATSIHP Act unless they had first provided Rio Tinto with 30 business days’ notice before making the application, and received Rio Tinto’s consent.
2
A failure of governance in the implementation of that Act, specifically the failure relevant staff being available, to provide timely advice to the PKKP’s legal representation about claim processes.
2.92
Given the advice from both the PKKP’s blast consultant and Rio Tinto’s independent consultant regarding the limited sleep time of the charges before they had to be detonated, it was not possible for the PKKP to provide enough notice to Rio Tinto of its intention to make a protection application under the ATSIHP Act. After advising Rio Tinto that the protection application under the ATSIHP Act was to be pursued, notice was received by the PKKP from Rio Tinto’s counsel that this was not an option under the CWPA.
2.93
The PKKP’s legal representation (Mr Richard Bradshaw) noted difficulties in attempting to flag an application under the ATSIHP Act. In the first instance, he was not aware that responsibility for the administration of the ATSIHP Act lay with the Minister for the Environment (who has administered the Act since 1998 except between September 2013 and December 2013) and thought that responsibility for the Act lay with the Minister for Indigenous Australians.
I first contacted Jarrod Lomas, in Minister Ken Wyatt's office, on the morning of 20 May, on instructions, to flag the potential application for an emergency declaration under the Aboriginal and Torres Strait Islander Heritage Protection Act. He advised me that the matter was within Minister Ley's scope, rather than Minister Wyatt's, and that I should contact her office. He also advised that I should contact the National Indigenous Australians Agency to advise them. I contacted Minister Ley's office and spoke to someone there and I advised as to the possible application that would be made. I provided a substantial outline of what the circumstances were of the potential destruction by Rio of 46,000-year-old rock shelters, and I was informed that someone would contact me. They would get back to me. I provided a telephone number. Someone called James would contact me later in the day. I certainly wasn't told that he was on leave. The minister indicated that, I think, in a radio interview.
I then contacted NIAA and spoke to two people, one in the Pilbara office, in Port Hedland, and the other in the Perth office, and provided them with details, as Mr Lomas had advised. Later in the day, I contacted Minister Ley's office again, because I hadn't been contacted, and expressed concern that I still hadn't been contacted. By that time, the postponement from the 20th to the 22nd had been advised to us, from Rio, through Carol and Heather, so we knew we had a couple of days and there was time for the PKKP's explosives expert to provide advice for the purposes of the land committee that was meeting. The land committee, as I understand it, was meeting throughout this period and being provided with legal advice, as well as some advice from the independent experts.
2.95
The Department of Agriculture, Water and the Environment told the Committee that Mr Bradshaw was advised to put his query in writing. Mr Bradshaw denies this claim.
At no stage was I ever told to put anything in writing. I was simply told I would be called back and, after the 20th, the matter would proceed on the basis of what should be done in light of the independent explosives expert—what his advice was as to particular safety issues, about the removal and safety for the people on the ground around the site. Decisions were made in light of that advice. The issue of an application for an emergency declaration was not proceeded with for that reason. Of course, during that period, before that decision was made, there was a discussion via a zoom conference with the in-house legal advisers and the external legal advisers. That information was being provided to them about what the PKKP Aboriginal Corporation's intentions were and that the matter was on hold, regarding any application. It was at that time, as paragraphs 226 and 227 of the submission made clear, that we were advised of specific gag provisions in the participation agreement.
2.96
Notwithstanding the PKKP’s decision to opt against making a declaration under the ATSIHP Act, even if the PKKP had wished to proceed with making an application, these governance issues, particularly the fact that no relevant adviser was available to speak with Mr Bradshaw may have denied them time crucial for making an application.
2.97
The PKKP were let down by their legal representation. Mr Bradshaw was also not aware of important aspects of procedure for lodging an application for an emergency declaration under the ATSIHP Act. He also stated that his instructions were to ‘flag the matter with the Minister’s office’ which is why he did not pursue the matter beyond awaiting return telephone calls.
2.98
The Department of Agriculture, Water and the Environment noted to the Committee that there is a checklist available on the Department’s website that sets out the procedures for making applications. The fact that the PKKP’s legal representation was not aware of this process would have been a problem, because had an ATSIHP Act protection application been available, it would have adversely delayed the process.
YMAC
2.99
Yamatji Marlpa Aboriginal Corporation (YMAC) is the Native Title Representative Body (NTRB) for the Yamatji and Pilbara regions of Western Australia, in accordance with s11 of the Native Title Act 1993.
2.100
YMAC acted as the legal representative of the PKKP until the PKKP Aboriginal Corporation (PKKPAC) became the Registered Native Title Body Corporate in January 2016. YMAC accordingly represented the PKKP people in relation to the negotiation and execution of the several agreements between the PKKP and Rio Tinto, including the Binding Initial Agreement (BIA), the Preliminary Advice, (PA) and the Indigenous Land Use Agreement (ILUA). YMAC also represented the PKKP in the negotiation and execution of the CWPA dated 18 March 2011.
2.101
YMAC also acted as the Heritage Service Provider under the agreements until 30 June 2019, in which it was responsible for organising and facilitating the surveys undertaken by Rio Tinto and PKKP.
2.102
The PKKP were particularly critical of YMAC’s role in representing them during the negotiation process:
Having gone through all of those meetings over those years, I think that PNTS—now YMAC—always negotiated on our part. When they came back to the table, they'd say, 'We've been talking to these people, and this is the result.' So any time we had a meeting, they'd already had the meeting and they brought it to the table to let us know. And we would bring to their attention that, 'You're our lawyers, you should be going to them to talk and negotiate on behalf of us and saying what we want.' So I felt that they were working on behalf of the mining company and getting results for the mining company.
2.103
The PKKP also asserted that YMAC did not distil the information in a manner that the PKKP representatives could easily understand, and that whilst ‘plain English’ versions of the agreement were produced, these and other documents were not provided to the PKKP representatives prior to their meetings with YMAC, contributing to their lack of understanding when signing the agreements.
2.104
PKKP further claim that the only reason why Juukan caves were not included as Rights Reserved Areas was due to advice from YMAC that Rio Tinto would not accept the agreement if there were too many Rights Reserved Areas, and that given the late stages of negotiations between Rio Tinto and PKKP, there were severe time constraints, and there would be only one opportunity to present the proposal to Rio Tinto.
2.105
The PKKP are also critical of YMAC for failing to either forward on the draft section 18 notice to the PKKPAC or inform Rio Tinto that the draft notice should instead be sent to the PKKPAC as the LAC under the PA. This is despite YMAC knowing that Rio Tinto had incorrectly sent the notice to them. This failure denied the PKKP a crucial moment in which they would have been clearly informed of Rio Tinto’s intention to impact the Juukan rockshelters.
State administrative failures
2.106
The Aboriginal Heritage Act 1972 (WA) (the AHA) will be discussed in full in Chapter 3. However for the purposes of this Chapter, it is worth noting a number of administrative failures that prevented the PKKP from fully protecting the Juukan Gorge heritage sites at even an early stage of the project.
2.107
Several individuals raised concerns with the approvals process for section 18 applications, and the apparent conflict of interest the State government faces in being both the facilitator of mining and the protector of Aboriginal cultural heritage. Section 18 approval involves both the Department of Aboriginal Affairs (WA) (DAA) and the ACMC.
2.108
Cedric Davies argued that the mining industry desires an expedited approvals process, and that there is an ‘eagerness within Government to accommodate the industry by ignoring its own procedures to the point that the industry has significant influence not only over the process as a whole, but individual bureaucratic decisions’. Mr Davies submitted that he had been interviewed for a government position to assess section 18 applications and a representative from Rio Tinto was on the selection panel, which appears to be a clear conflict of interest for an assessment role.
2.109
Mr Davies further observed that there is often a lack of rigour applied to issues raised during the approvals process, to the extent that ‘there appears to be a culture whereby the rules can be bent if the normal approvals process cannot keep up with the demands of the mining industry’.
2.110
Evidence provided to this Committee in relation to Juukan Gorge supports these concerns.
2.111
The PKKP noted several issues with the Heritage Information Site Forms (HISFs) as part of Rio Tinto’s section 18 application, including incomplete or erroneous information. These issues were not identified by the assessing department, the DAA, nor the ACMC.
2.112
Indeed, it appears that both Departmental staff and members of the ACMC failed to verify for themselves the accuracy of the information in the forms against the supporting submissions, and seemingly accepted the information provided by Rio Tinto as both accurate and complete.
2.113
There also appears to have been a failure of the department and ACMC to conduct basic due diligence in assessing the risks to the Juukan rockshelters. In particular, the PKKP argue the ACMC and the Department of Planning, Land and Heritage (WA) (DPLH) failed to correctly apply the precautionary principle in assessing the risks to the Juukan rockshelters, and that ‘if the precautionary principle had been adequately utilised, as it should have been, the Juukan rockshelters would have been better protected, and less likely to be destroyed.’
2.114
Notwithstanding the inaccuracies in the HISFs, and despite the information provided in the application noting the high archaeological significance of Juukan 1 and 2, and the recommendation in Dr Slack’s report that Juukan 2 be protected, there was only one condition placed on the consent – to report on the extent of the impact to the sites after completion of ‘the purpose’.
2.115
State administrative processes also failed the PKKP by failing to adequately perform its role to seek full and accurate information, instead abdicating its assessment roles to Rio Tinto.
Update on Rio Tinto: Responses to Juukan Gorge and Never Again
2.116
Rio Tinto has responded to most of the recommendations of the Committee’s interim report. In relation to the restitution and reconstruction of Juukan Gorge, Rio Tinto actively approached this task. Rio Tinto engaged with the PKKP to determine the best remedy process for the destruction of the shelters but admit that the ‘remediation of the Gorge will be a challenging project’. Sadly the Juukan 2 rock shelter is likely irreparably damaged but Juukan 1 appears to be largely intact and despite damage to the water flows feeding the Sacred Snake-head Rock Pool the pool has been repaired. Rio Tinto is collaborating with the PKKP to understand their vision for the future of the rockshelters and the Juukan Gorge area in the restitution process.
2.117
The Committee is pleased that Rio Tinto has agreed to a moratorium on mining in the Juukan Gorge area. This action demonstrates to the Committee a commitment to restoring not only Juukan Gorge but the company’s relationship with traditional owners. The Committee had sought for this moratorium to be respected by other mining and exploration companies, and is disappointed that Fortescue has applied for a mining licence for an area 10km from Juukan without informing the PKKP.
2.118
A significant issue for the Committee throughout the inquiry is the issue of inappropriate agreements which utilise clauses that restrict the ability of traditional owners to raise concerns about cultural heritage maters. Rio Tinto had been guilty of this practice in their relationship with the PKKP, as ‘gag clauses’ had restricted the PKKP’s ability to prevent the destruction of Juukan Gorge. Fortunately, Rio Tinto have pursued the modernisation of agreements with traditional owners, not just with PKKP but with other traditional owners of the Pilbara.
2.119
In relation to the final recommendation of the interim report relating to Rio Tinto, the company has moved artefacts and other materials extracted during archaeological excavations to a purpose-built conservation facility. Rio Tinto is in a process of discussion with the PKKP on the provision of an appropriate, permanent keeping place. It is important that Rio Tinto ensure that all artefacts are returned and or placed in a keeping place as directed by the PKKP.
2.120
The Committee also acknowledges that Rio Tinto, in September 2021, issued its first Communities and Social Performance Commitments Disclosure Interim Report. While Rio Tinto should be commended on the form of the report and the honesty in reporting traditional owner feedback, it is noted that traditional owners are largely critical of the company’s progress, indicating more work needs to be done.
Other industry responses
2.121
The resources industry expressed broad dismay at the events at Juukan Gorge and the process failures within Rio Tinto that led to these events and considers that the events reflected poorly on the industry as a whole. It is noted that BHP has released traditional owners from gag clauses and that the Peak industry group, Minerals Council of Australia (MCA), has expressed its view that gag clauses and other restricting clauses should not be used by the resources industry.
2.122
The MCA made this statement recognising Reconciliation Week 2021:
Over the past 12 months the minerals industry has deeply reflected on its own relationships with First Nations.
It has been a time of listening and learning.
Industry is grateful for the openness and willingness of First Nations landholders, communities and organisations to share their experiences of mining – to share what has worked well, what has not and their visions for the future of mining partnerships.
We have heard that industry must do more to be a better, more engaged partner in many circumstances while further demonstrating industry’s deep respect for the cultures, histories, knowledge and aspirations of the diverse First Nations communities with which it partners.
Industry is taking action to do so, at sites, at companies and together.
It will take time, and industry is committed to putting strong relationships at the forefront of its engagement approach.
2.123
A number of companies submitted that they had reviewed their own processes as a result, for example:
Roy Hill has completed an audit within the last four weeks to review the status of all heritage sites across our operating footprint, as well as reviewing the escalation process for such matters internally. This audit was requested in recognition of the importance of ensuring there is a clear line of communication for concerns raised within the business by our heritage experts, that they can be heard by leadership team members in a timely manner prior to key decisions being made.
Roy Hill can confirm there are and always have been clear lines of communication from the heritage professionals working within Roy Hill and the Roy Hill Leadership team and we are confident that we have a practical system for the escalation of issues.
2.124
The MCA has continued to respond to the events at Juukan Gorge and has developed, and is reporting on, a ‘multi-year work program’ in the following core priority areas:
Supporting stronger heritage protection laws and systems
Increasing industry transparency and accountability
Improving land use agreement implementation
Further developing industry capability, systems and engagement.
2.125
The Committee notes that FMG proceeded with an application for mining leases over part of the moratorium area agreed with Rio Tinto, causing distress to the PKKP. The PKKP and FMG expressed different views about whether the decision to apply for the leases had been communicated during a sensitive time. FMG declined to rule out mining in the moratorium area, but stated that the company had no present plans to do so and that any further moves could only be conducted by ‘working with the PKKP’.
Committee comment
2.126
This Chapter provides a case study in, at best, corporate incompetence or, at worst, deliberate corporate misdirection leading to the deception of a group of Aboriginal peoples and the destruction of their sacred heritage.
2.127
The evidence presented to the Committee suggests that a combination of factors was responsible for the destruction of the heritage sites at Juukan Gorge. State and Commonwealth legislative frameworks enabled Rio Tinto to exercise excessive power over the PKKP peoples in negotiation, but it was Rio Tinto’s internal processes that made the destruction of the Juukan Gorge heritage sites almost inevitable.
2.128
Changes to the corporate structure of Rio Tinto introduced in 2016 by the then CEO saw appropriately skilled and experienced staff replaced with less experienced and unsuitably qualified replacements, resulting in a drop in adherence to internal standards and an organisational culture focused around securing quick and easy approvals. Certain community relationship responsibilities were taken away from mine managers who were on the ground and redistributed to corporate roles. The Committee heard arguments that the company’s priority became one of ‘managing’ communities rather than understanding their concerns. Such changed priorities undermined the relationships with local Aboriginal people to which former Rio Tinto staff told the Committee they had been committed.
2.129
The structural changes also created issues around internal communication and decision making, resulting in important information not being communicated properly to relevant parts of the business, or issues were not escalated up the chain of command when they should have been.
2.130
Rio Tinto’s corporate deficiencies contributed to the company’s failure to share the pit design options with the PKKP, and its failure to send the draft notice onto the PKKPAC as the LAC. These deficiencies may also have contributed to Rio Tinto’s omission in not accurately informing the PKKP that the company had discovered that the blast was also going to damage three additional sites not covered by section 18 approvals, and that they were only removing charges from these three sites, not from Juukan 1 and 2.
2.131
Given their weaker legislative and contractual position, the PKKP relied on upon Rio Tinto’s good faith in adhering to the terms of the agreements. In particular, PKKP depended on Rio Tinto to consult thoroughly with them in relation to cultural heritage matters and to provide them with full, consistent and accurate information at all times.
2.132
Rio Tinto’s failure to do so resulted in the PKKP forming assumptions (particularly on the basis of verbal conversations) that, despite various documents clearly stating otherwise, the caves were safe, and that Rio Tinto was doing everything possible to save the caves once the company had discovered they were about to be destroyed.
2.133
The agreements which severely restricted the PKKP’s ability to protect their own cultural heritage were facilitated in large part by inherent weaknesses in the existing Native Title framework (see Chapter 6). These agreements contained clauses denying the PKKP access to heritage protection provisions under both state and federal legislation, were used to restrict PKKP’s ability to raise concerns in an effective manner, and limited their capacity to protect the caves once they discovered they were going to be destroyed.
2.134
Finally, the government bodies tasked with ensuring the protection of Aboriginal cultural heritage in Western Australia – the Aboriginal Cultural Material Committee and the Department of Aboriginal Affairs – failed to conduct due diligence and verify the accuracy of the information provided by Rio Tinto in the section 18 application forms against what was actually provided in the accompanying ethnographic and archaeological reports.
2.135
These are monumental failings in a legislative scheme that, as discussed in Chapter 4, was forward-thinking in its intent to protect cultural heritages sites when it was originally enacted.