Rights afforded to traditional owners and custodians are not being upheld due to deficiencies in the legislation, an inquiry has heard.
Rights afforded to traditional owners and custodians are not being upheld due to deficiencies in the legislation, an inquiry has heard.
Consultancy group Australian Heritage Specialists (AHS) provided submissions to a parliamentary inquiry sitting in Queensland on Tuesday into Rio Tinto's destruction of indigenous heritage sites at Western Australia's Juukan Gorge.
The incident devastated the traditional owners, the Puutu Kunti Kurrama and Pinikura people, and prompted a global backlash.
In Queensland, the Aboriginal Cultural Heritage Act recognises that groups who have been shown by the native title process to have no traditional connection still have standing to give advice on traditional knowledge.
The AHS believes the Act contains gaps in basic rights and equality and has identified where it says certain upgrades are necessary.
AHS managing director Benjamin Gall says traditional custodians are resources-depleted when facing large companies who use the Act's guidelines as "weapons against Aboriginal people" on native title sites.
"The conduct by a very small number of players in our profession who are experts at using the deficiencies in the Act and the guidelines, and the connection through the federal acts such as the native title, that are expert at using this as a loaded weapon against Aboriginal people," he said.
Ann Wallin, cultural heritage adviser to AHS, says native sites are vulnerable until Aboriginal people are consulted properly under stricter guidelines .
"We've seen very significant places that have been destroyed, because the duty of care guidelines were inappropriately applied," she said.
Under the Act, Aboriginal cultural heritage is considered anything in Queensland that is a significant Aboriginal area, or object, or where there is evidence of archaeological or historical significance of Aboriginal occupation.
Those definitions take into account tangible and intangible traditional heritage, but the AHS wants the guidelines to express an equal emphasis on both.
In what is known as the Nuga Nuga decision in 2017, a central Queensland Aboriginal group took the state to court and showed the Cultural Heritage Act was deficient.
The case in the Supreme Court highlighted deficiencies in the Act, but only upgraded one particular provision.
"The [government] promised a review and nothing concrete has come out of it," Ms Wallin said.
"There have been reviews, we've done endless submissions for reviews, but it has not been finalised in a way that fixes the problem."
The Cape York Land Council had been expected to provide evidence on Tuesday but withdrew.
In a rare video interview released on Tuesday, PKKP Aboriginal Corporation spokesman Burchell Hayes said traditional owners felt robbed of the opportunity to share their heritage with future generations.
"You felt the emptiness that something was taken from you, something that was so significant to you and our community," he said.
"It's proof that our ancestors occupied this area for 46,000 years and for that to be taken away, it's hard to understand why that happened."
Mr Hayes said the voices of traditional owners had too often been silenced and the PKKP wanted "co-management" of projects on its country.
"We're not opposed to mining, however we want to ensure that we're around the table when it comes to decisions about making an impact on our country," he said.
"We're not going to let this happen again."
Expert reports commissioned by Rio had outlined the caves' outstanding archaeological and cultural significance long before they were blown up.
A scathing interim report by a parliamentary inquiry last year described Rio's actions as "inexcusable".
Rio has repeatedly apologised but said none of its executives were aware the caves would be destroyed until days before the blast when explosives had already been laid.
The company's Australia chief executive Kellie Parker said it was working with traditional owners to better manage and protect cultural heritage.
"Partnering and developing genuine relationships will guide how we do business in the future, supported by stronger governance to ensure we never repeat what happened at Juukan Gorge," she said in a statement.
Rio this month told shareholders it was reassessing 1,300 heritage sites in the Pilbara in consultation with traditional owners.
About 54 million tonnes of iron ore - less than two per cent of its Pilbara iron ore reserves - have been quarantined to protect heritage sites.
Rio this month copped a "first strike" protest vote against its remuneration report, which included a substantial payout to former chief executive Jean-Sebastien Jacques.
A second strike next year would force a possible board spill.
A moratorium on mining has been placed on the Juukan site and the two parties are working to establish what compensation will be provided.
Mr Hayes said "no amount of money" would ever replace the sacred caves.
"I'd rather have the rock shelter back than you write me a cheque. That's how I feel," he said.
