Lessons not learned: Western Australia in clash with indigenous peoples’ rights

In the wake of the inquiry Rio Tinto threw its support behind the Commonwealth cultural heritage protection law reform process. It was a decision that has resulted in it breaking ranks with the WA Chamber of Minerals and Energy; last December, the WA Legislative Council in Perth passed an Aboriginal Heritage Bill that is widely seen as putting the interests of mining companies above the wishes of traditional owners.  

The new law ensures mining companies can still damage or destroy Aboriginal sacred sites. In any decision by the minister for Aboriginal affairs regarding potential damage to or destruction of heritage sites, non-Aboriginal “proponents” —namely mining companies and developers – can appeal if the result is not in their favour. Aboriginal groups, however, have no such right of appeal if the minister rules against them.  

The imbalances here are obvious, and in September 2021, the West Australian First Nations people formally contacted the United Nations Committee on the Elimination of Racial Discrimination. 

The Australasian Centre for Corporate Responsibility (ACCR) welcomed Rio Tinto’s move against the Aboriginal Heritage Bill. The centre opposes the heritage protection law on the grounds that it is “needless duplication,” alongside its imbalanced conditions.  

“By breaking ranks with the WA Chamber of Minerals and supporting the Commonwealth cultural heritage law reform process, Rio Tinto has demonstrated positive industry leadership of a kind we haven’t seen from the mining industry in First Nations affairs for well over a decade,” said James Fitzgerald, legal counsel at ACCR. “Rio Tinto’s support is a significant first step towards addressing the identified regulatory failures exposed by the Juukan Gorge Caves destruction. 

“It signals to First Nations Australians as well as to current and potential host communities globally that the company is genuinely trying to improve its culture, outlook and social performance. The proof will be in Rio Tinto’s support for the final package of amendments later this year."   

It is a challenge that many First Nation groups as well as environmental lobbyists believe the mining industry would do well to take up. During last year’s debate of the WA Cultural Heritage Act 2021 the big WA miners, among them Rio Tinto, BHP and FMG, were widely accused of remaining silent.  

As Fitzgerald puts it, “it is time for other mining companies to follow Rio Tinto’s lead and support the Commonwealth cultural heritage protection law reform process".

Although it is still too early to be definitive, the outcome of the 21 May federal election, which brought a Labor government to power under the premiership of Anthony Albanese for the first time in ten years, could yet provide a boost to environmentalists’ hopes nationwide. Labor has pledged to set up an independent environmental protection agency in a bid to restore ”trust and confidence” in the sector.  

Labor has also pledged to pursue world heritage listings for sites such as Murujuga in northern Western Australia and the Flinders Ranges, and should the party follow through on these pledges, they could help set a precedent for more proactive First Nations protection in WA. 

Meanwhile, the outcome of protests concerning the development of a proposed uranium mine at Yeelirrie, near Wiluna in the northern Goldfields, could indicate the way in which the wind is blowing. Yeelirrie is the site of Australia's largest uranium deposit, which the Canada-based Cameco Corporation spent $430m ($$617m) acquiring in 2012.  

But earlier this year, the project's approval expired due to a failure to commence work, and in April, WA environment minister Reece Whitby denied the firm's application to have the approval extended. This decision came as a relief for traditional owners and conservationists who had spent after 50 years campaigning against the project. Cameco said it has also had a similar application for its Kintyre project in the Pilbara knocked back.  

However, jubilation about the denial of the deposit’s environmental approval extension could yet prove short lived. Cameco has since confirmed that it remains committed to the long-term prospect of mining the mineral in WA.

In an interview with the ABC, communications director Jeff Hryhoriw said, "Cameco remains committed to the project, the future development of which remains contingent on further improvement in the uranium market commensurate with the level of investment that would be required to move it forward."  

He argued that uranium could provide an opportunity for cleaner energy, if the state was willing to take that up. "As a source of carbon-free, baseload electricity, nuclear power is proving increasingly important as countries and companies around the world commit to ambitious net-zero emission targets,” argued Hryhoriw, pointing out the potential environmental benefits of uranium mining. “What potential role West Australia might play in this domain remains to be seen.” 

This is particularly significant considering the role Australia plays in the global uranium sector, exporting 7,000 tonnes a year from its two producing mines, accounting for 10% of the global total.  

Meanwhile, work at the Mulga Rock mine, also in the Goldfields region, is pushing forward with a proposed $658m (A$944m) merger between mining companies Vimy Resources and Deep Yellow expected to be approved.   

The Mulga Rock mine is expected to produce an additional 1,500 tonnes of uranium a year, valued at $209m (A$300m). The mine was granted environmental approval by the former Liberal National government prior to the ban, along with three other projects, approval with which Labor has said it will not interfere. 

Deep Yellow's managing director, John Borshoff, is the proposed chief executive of the merged group, and his potential appointment has caused some disquiet within the Australian Conservation Foundation.

Its nuclear policy analyst, Dave Sweeney, said he was concerned about governance issues over projects in Malawi and Namibia, operated by mining company Paladin Energy, when Borshoff was one of Paladin’s senior executives, a state of affairs that threatens to undermine much of the positive work done in the wake of the Juukan Gorge disaster.  

For his part Borshoff has described the Juukan Gorge incident as a "terrible disaster" that highlighted the importance of heritage management, community relations and environmental and social governance (ESG). "Community relations and ESG are front and centre of all our strategic decisions at Deep Yellow and we see ourselves as a sector leader when it comes to driving positive change and impact in the communities we operate in,” he said in a statement.  

But there is a native title claim over the site of the planned uranium mine in WA's central desert and Upurli Upurli Nguratja Native Title claimant Debbie Carmody said Vimy had not met with the group since the claim was lodged in 2020. "We're concerned that the work that they've been doing there damages our cultural heritage. It actually destroys important habitat for the endangered sandhill dunnart, and we're concerned about the long-term legacy of radioactive tailings," she said.  

This year could well prove pivotal for the Australian mining sector and the native peoples in whose lands they operate.