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Rio Tinto and Juukan Gorge: Executive purge should be the first, not last, step towards reform and remedy

Since Rio Tinto’s destruction of the 46,000-year-old Juukan Gorge caves in Western Australia in May, the ongoing parliamentary inquiry and news of forced executive departures at the company, the Australian public has gotten an insight into the kind of injustices which are unfortunately everyday reality for Australia’s Traditional Owner groups.

Cultural heritage is destroyed by mining companies on a regular basis, often against the will of Traditional Owners, because Australia’s laws do not allow them to protect and manage it. It’s little wonder Rio Tinto thought it would get away with it. Mining companies usually do.

However, something was different this time. Perhaps it was the coinciding Black Lives Matter movement, which quickly spilled over into Australia, importing a spotlight on racial injustice against First Peoples. Persistent shareholder advocacy by First Nations groups, investors and prominent Indigenous Australians was tireless and ramped up following Rio Tinto’s highly questionable admissions made to the Juukan Gorge parliamentary inquiry.

The possibility that the company may have misled the Australian parliament made a bad situation worse for the Rio brand, once thought to have sector-leading human rights standards. Either way, Rio learnt the hard way that this isn’t how business is done in the year 2020. As shareholder pressure mounted and the bad publicity did not subside, the Rio board finally grasped the extent of its brand and operational crisis. Talk about not reading the room.

Taking stock of the catastrophe now, it’s easy to see how to it all happened. It’s a combination of Australia’s legislative failures and a sense of entitlement from the mining sector, who for decades have operated with free rein and few consequences. Australia is a profitable place to do their business with little incentive for reform.

When a mining company wants to do works on an Indigenous group’s traditional lands (and only if that land has been given ‘native title’ recognition by the Federal court), they sign an ‘Indigenous Land Use Agreement’ (ILUA). Some agreements are favourable to both parties, but some are not, and can contain so-called ‘gag clauses’ which silence Traditional Owners from speaking out.

The mining industry and some politicians claim that the capacity of Traditional Owners to be able to negotiate their own agreements is a kind of ‘self-determination in action’. However, this is a gross misrepresentation. The agreements are signed under a federal law, called the Native Title Act (NTA), which has no requirement for ‘free, prior and informed consent’- the global human rights standard for Indigenous agreement-making. So, if the company wants to expand a mine or any other development, and the Traditional Owners do not consent, the company can simply make an application to a government body called the National Native Title Tribunal, which almost always rules in the company’s favour. This is not self-determination, and it’s certainly not true consent.

State laws that govern cultural heritage are also inadequate, particularly in Western Australia (WA), where the Juukan Gorge caves once stood.

Perhaps this is no coincidence, since the mineral-rich soils of regions like the Pilbara make WA well and truly Australia’s mining state. And the Pilbara is where Rio Tinto makes the vast majority of its global income; out of Rio’s $29 billion in earnings last year, $22 billion came out of the Pilbara.

Since the Juukan Gorge furore, the WA Government has released a new draft Bill to update and improve existing cultural heritage legislation. The new draft Bill still falls significantly short. It still fails to recognise the right of Indigenous people to maintain, protect, control and develop their cultural heritage and it fails to ensure that their cultural heritage cannot be interfered with without their free, prior and informed consent. It also does little to redress the significant power imbalance that exists between mining companies and Traditional Owners that led to the destruction of Juukan Gorge.

Australia also needs strong cultural heritage protection laws at the federal level, which we are currently lacking. These must hand some decision-making power to Traditional Owners, and give them the right to veto, to say no, to the destruction of their most significant sites.

As for Rio Tinto, the purging of the CEO and senior executives who oversaw this egregious act must be the start, not the end, of the matter.

There must also be a thorough and transparent review of Rio Tinto’s company culture and processes by an independent body. This will require more Indigenous staff in leadership roles, among other changes.

Finally, there must be a review of the entire mining sector’s agreement-making processes. Australia is lacking any kind of governing body with the power to review the legality and ethics surrounding these private agreements and issue a last-resort ‘stop works’ order. It is highly unethical that Traditional Owners are too terrified of legal repercussions if they speak out about the destruction of their sacred sites, which is why so much destruction has historically gone unnoticed. This is an enormous public interest matter.