The people responsible for protecting Aboriginal heritage in Western Australia did not know until this year that mining companies used “gag orders” to silence objections from traditional owners, a parliamentary committee has heard.
The registrar of Aboriginal sites, Tanya Butler, told a federal inquiry into the destruction of Juukan Gorge that neither she, nor the committee responsible for considering applications to destroy heritage, nor the WA Department of Planning, Lands and Heritage, was aware that traditional owners might be restricted from raising objections about the destruction of their heritage.
And she said her office would not ask a mining company if such an order was in place, because it would be part of a confidential agreement.
Non-disparagement clauses, or gag orders, are a common feature of the multimillion dollar agreements struck between mining companies and traditional owners in WA’s iron ore rich Pilbara region.
The traditional owners of Juukan Gorge, the Puutu Kunti Kurrama and Pinikura people, were under a non-disparagement clause with Rio Tinto when they publicly condemned the mining company for destroying the 46,000-year-old heritage site in May.
The Labor MP Warren Snowden said it was difficult to believe the 10-member Aboriginal cultural materials committee (ACMC) would not know about gag orders.
“I find it very difficult to believe … that any one or a number of those individuals, who were informed about the way in which prescribed body corporates operate, [and] about agreements between mining companies and Aboriginal people, that no one was aware that there were such things as gag orders,” Snowden said. “It raises the question of how much consultation takes place between the ACMC and your office and traditional owners around sites.”
Butler said her office was not allowed to undertake consultation under the current Aboriginal Heritage Act. Section 18 of that act allows developers to apply to destroy a heritage site and appeal against that decision, but gives no rights to Aboriginal people.
The only avenue for input is through the common law requirement for procedural fairness, through which interested parties may make a written submission.
“We have a current act that we need to work within,” Butler said. “We encourage Aboriginal people to engage in the procedural fairness process so that we can get a direct input from them about their concerns about the Aboriginal heritage that is potentially going to be part of a land use development application.”
Snowden said the ACMC could not meet its requirements for procedural fairness if a gag order was in place.
“How can you consider a section 18 application as being fair and reasonable … you have been contemplating s.18 proposals where Aboriginal people have been silenced, regardless of your inquiries, as a result of their agreement with mining companies,” he said.
Since the federal inquiry began, BHP and Rio Tinto have written to traditional owners releasing them from the gag orders. The Banjima people told the ACMC in April that while they “in no way support the continued destruction” of their heritage in a section 18 application concerning BHP’s South Flank mine, they were legally unable to object.
Butler said concerns about the fairness of the system had been raised before, which was why the laws had been redrafted. The new heritage bill will be put before parliament after the state election next year.
Under the current system, a recommendation on whether to destroy heritage is made on the basis of a desktop assessment of information provided to the committee, usually from the mining company or another developer, Butler said.
Applications are introduced and finalised in the one meeting. Asked how many section 18 applications the committee could approve in a sitting, Butler said: “It could vary from three, it could be 15 to 20, it depends.”
Once permission to destroy a site is granted, it cannot be revoked even if new information about the significance of the site is discovered, as happened with Juukan Gorge.
“Once a section 18 has been granted by the minister it cannot be amended unless there is a new application presented to the committee,” Butler said.
“So the successful applicant of the s.18 has absolute rights to do what they wish with a site once granted, is that correct?” WA senator Pat Dodson asked.
“That’s correct, yes,” Butler said.
The inquiry is due to hand down its interim report on 9 December.
