Juukan Gorge Caves Inquiry—serial and cumulative failings

The Australasian Centre for Corporate Responsibility​ (ACCR) welcomes the interim report of the Parliamentary Inquiry into the Destruction of the Juukan Gorge Caves by Rio Tinto Ltd in May 2020. The report is entitled “Never Again”.

Commenting on the findings, James Fitzgerald, Legal Counsel/Strategy Lead at ACCR said:

“This is a story of serial and cumulative failures.

“The Inquiry’s diligent work has thrown a long-overdue light on the atrocious treatment of First Nations Australians by governments and mining companies. No one has escaped censure.

“Rio Tinto’s behaviour and culture may have remained largely without sanction but for the admirable and unprecedented intervention of the company’s own shareholders, who demanded more than the token consequences first proposed by Rio Tinto’s board. Senator Entsch has this evening praised shareholders’ response, saying investors have sent a clear message, Not In My Name.

“Rio Tinto’s culture and leadership have been found to be seriously deficient. It is worth recalling that only a few short months ago Rio Tinto was not even prepared to apologise unconditionally to the PKKP.

“It is clear though that there is still much to do. Senator Entsch has previously commented that Rio Tinto’s version of events presented to the Inquiry “beggars belief”.  The Inquiry’s final report is likely to delve further into the  deficiencies of Rio Tinto culture and leadership.

“Shareholders will need to continue to play an active role in righting this ship given Rio Tinto’s failings across this whole horrid saga.”

Key Findings and Recommendations

The Inquiry has found:

• The Puutu Kunti Kurrama and Pinikura People (PKKP)  “faced a perfect storm, with no support or protection from anywhere. They were let down by: Rio Tinto;  the Western Australian Government; the Australian Government; their own lawyers; and Native Title law”.
• “Rio Tinto’s role in this tragedy is inexcusable. Rio knew the value of what they were destroying but blew it up anyway. It pursued the option of destroying the shelters despite having options which would have preserved them.”
• “Severe deficiencies in [Rio Tinto’s] heritage management practices, internal communication protocols and relationship practices with the PKKP... these deficiencies have not been fully grappled with in Rio Tinto’s Board Review.”
• “Rio Tinto’s conduct reflects a corporate culture which prioritised commercial gain over... meaningful engagement with Traditional Owners... This corporate culture belied Rio Tinto’s public rhetoric of working in partnership with First Nations people, as reflected in the company’s (now dis-endorsed) Reconciliation Action Plan”.

The Inquiry has made wide-ranging recommendations directed at Rio Tinto, the mining industry, the Western Australian Government and the Australian Government.

These include:

• Restitution to the PKKP; restoration of the Juukan Caves;
• a stay on all of Rio Tinto’s current s.18 approvals to disturb cultural heritage;
• a moratorium against seeking further s.18 approvals where free, prior and informed consent cannot be demonstrated;
• industry-wide review of agreements with Aboriginal communities;
• urgent replacement of the Aboriginal Heritage Act 1972 (WA) with stronger protection; and
• urgent review of the adequacy of the Commonwealth Aboriginal and Torres Strait Islander Heritage Protection Act 1984.

Inquiry Chair Senator Warren Entsch has warned that the Inquiry’s final report, to be published in 2021, will look more closely at the role of Rio Tinto, the Western Australian Government and applicable laws. In the meantime, Entsch says, “Other resource companies need to take note: governments, investors and the community will no longer tolerate such tragedies.”

Media coverage of these statements

• The Guardian, 10 December 2020, Mining companies told to ‘wake up’ or risk relationship with shareholders in wake of Juukan Gorge inquiry
• AAP / Yahoo News, 10 December 2020, Calls for probe as Rio faces heat on gorge