A Way Forward After Juukan Gorge

*This blog discusses the grief and loss experienced by Aboriginal people due to the destruction of sacred sites, erasure of history and culture, and the impacts of legislative systems on Indigenous land rights in Australia. Some readers may find this content distressing. Reader discretion is advised.

In 2020, we published a blog about Section 18 of the Aboriginal Heritage Act 1972 (Act) following the destruction of Juukan Gorge, an event that sent shockwaves around the world. This devastation exposed the failings of the Act, which enabled the loss of the 46,000-year-old sacred sites. In response, the Joint Standing Committee on Northern Australia, before its dissolution, released an interim report titled ‘Never Again’, and the following year, published recommendations for ‘A Way Forward’. This led to the creation of the Aboriginal Cultural Heritage Act 2021. However, this legislation was short-lived, heavily criticised for its complexity, and was ultimately repealed, reverting back to a revised version of the Aboriginal Heritage Act 1972, which remains in place today.

Juukan Gorge was a painful and confronting display of the reality that what is legal, is not always ethical. It exposed the outdated and inadequate laws protecting cultural heritage and raised serious questions about the moral responsibility of mining companies in Australia. While the revised Act attempts to address some of the most glaring loopholes identified in our original blog, real change requires a fundamental shift in priorities—one where profit is not placed above the world’s oldest living culture.

“Destruction of our cultural heritage like that suffered by the PPP [sic] People at Juukan Gorge is, tragically, a daily event, endured by First Nations Peoples across this country. When it comes to a choice between protecting cultural heritage and economic development, in Australia economic development has always held the trump card.”

Kado Muir, Traditional Owner from Western Australia
Quote taken from Directions Report - First Nations Cultural Heritage Reform

So, what changes have been made to the Aboriginal Heritage Act 1972? We break down the key reforms below.

New information about sites must be disclosed by law before action is taken

“The Juukan Gorge tragedy occurred because new information about the caves was not disclosed and with our important amendments to the 1972 legislation, we will ensure it can never happen again.”

Tony Buti, Former Aboriginal Affairs Minister
Quote taken from Laws overturned: Aboriginal cultural heritage legislation replaced

The destruction of Juukan Gorge has been largely attributed to the fact that new information regarding the sacred sites came to light after the Section 18 approval, and that details about alternative mining plans that could have preserved the sites were not disclosed. Under the revised Aboriginal Heritage Act 1972, it is now a legal requirement to report any new information about a site, even after a Section 18 consent has been granted. If new details emerge regarding an Aboriginal site under an existing consent under the Act, the Minister of Aboriginal Affairs must be notified by the Section 18 applicant so that a transparent and informed assessment can be made.

An Aboriginal Cultural Heritage Committee has been reinstated

The revised Act has reinstated an Aboriginal Cultural Heritage Committee, which meets twice a month to make recommendations to the Minister on Section 18 applications and to the Registrar for Section 16 applications, among other matters. While this reform is welcomed by most communities, it also highlights the ongoing imbalance of power. Indigenous communities can advise and recommend, but ultimately, authority over the outcomes remain with a State representative—leaving Mob to watch from the sidelines as decisions about their own heritage are made. 

This calls into question how we define progress—if it still excludes Indigenous authority over Indigenous heritage.

New guidelines for Section 18 consulting available

Historically, the process for Aboriginal consultation lacked clarity. There was insufficient detail surrounding who should be consulted and the level of consultation required. Published in November 2023, the Department of Planning, Lands, and Heritage put forward the Consultation policy for section 18 applications, which has provided much-needed information on expectations. While not part of the legislation, it still has weight.

The policy outlines that Native Title parties and Aboriginal people with knowledge and rights in relation to sites are to be engaged. This engagement is a critical component of the application process. The Minister or the Registrar of Aboriginal Sites may defer making a decision on an application until appropriate consultation is carried out. 

If you are a government agency or resource company that needs assistance knowing which entities you should consult with, Winyama’s product, Ngurra Portal, may be suitable for you. Ngurra Portal is an innovative mapping dashboard for organisations to use which lets them visualise native title data. This user-friendly tool simplifies native title information and includes contact information for appropriate parties. Ask us about Ngurra Portal today. 

Right to appeal decisions has been extended to Native Title parties and other entities

Before the updates to the Aboriginal Heritage Act 1972, Traditional Owners had no rights to challenge Section 18 decisions. While aggrieved landowners could seek a review through the State Administrative Tribunal (SAT), Indigenous parties—despite being directly impacted—had no such avenue for appeal.

The recent reforms address this gap by enabling a wider range of parties, including regional corporations, native title body corporates, among others, to appeal Section 18 decisions, thereby offering a more just and participatory process for those directly involved.

However, further consideration remains regarding the lack of authority for Indigenous Australians to decide the outcomes of such appeals, that directly impact their land and culture.

If a site on your Country is subject to a Section 18 application, cultural mapping can help you demonstrate its significance. Get in touch with Winyama to yarn about your options.

Visibility must be provided regarding decisions made that pertain to the Indigenous land estate

In an effort towards public accountability, all Section 18 applications and outcomes are now legally required to be visible to the public. They can be viewed through the Aboriginal Cultural Heritage Committee webpage.

But amongst this, have we forgotten ‘Never Again’ already?

Despite these reforms, we continue to see blatant disregard for Australia's Indigenous peoples and culture. In early February 2024, iron ore mining company, Equinox Resources, moved forward with a Section 18 application without seeking consent or consulting with Wintawari Guruma Traditional Owners. Similarly, the public response to the Western Australian landholder found guilty of breaching the Aboriginal Heritage Act 1972 revealed the persistence of racism and a lack of understanding of Indigenous culture in Australia. These incidents highlight the challenge Mob face in advocating for stronger cultural heritage protections when it is clear that many of the broader public still do not understand our rich cultures.

This raises a confronting truth, Never Again seems to come with unspoken conditions. Never Again (if it’s easy). Never Again (if it’s convenient). Never Again (unless the profit is too great). 

If Juukan Gorge was meant to be a turning point, what direction have we turned? 

If Australia is truly committed to Never Again, we need a serious review of how we currently operate. 

Western Australia in particular, is undeniably rich in minerals, but we are also rich in culture. Our future should never come at the expense of our First Peoples. The recommendations outlined in A Way Forward offer a path, with mapping playing a key role.

How mapping can support legislative initiatives

Mapping can bring a level of transparency to critical conversations surrounding developments on Country. It is a thorough way to communicate Indigenous cultural values, land use and priorities. A native title organisation that has a spatial strategy, has undertaken cultural mapping and then more extensive heritage surveys, is empowered to speak and make decisions on applications like a Section 18 application. 

To mining and resource companies:

There is no longer an excuse for failing to engage and acknowledge First Nations communities and their connection Country. Rio Tinto themselves have noted “a work culture that was too focused on business performance and not enough on building and maintaining relationships with Traditional Owners.” To be a leader in this space, it is essential to review and begin implementing recommendations outlined in A Way Forward. We’ve already highlighted key recommendations here.

Some actions that you should consider are: 

• To fund cultural mapping projects before developments are ever brought to the table. This alleviates pressure and means that there is enough time for proper consultation and review. Doing it this way aligns with the principles of Free, Prior and Informed Consent. 

• Create a clear process for identifying the appropriate people to speak to about cultural heritage. Winyama’s spatial tool, Ngurra Portal can assist here, but it’s not the only option. 

To Mob:

If your land isn’t mapped, you're left behind a wall of ignorance by others. Heritage registers alone can’t tell our stories. Hosting the information yourself gives you power and sovereignty over your information. 

If you would like somewhere to begin, consider: 

• Applying to our annual Indigenous Mapping Workshop, which offers free in-person geospatial training. 

• Applying to IMW On Demand, which offers free online geospatial training. 

• If neither of these options are suitable, Winyama happily provides paid training options through our Supported IMWs.Get in touch to find out more.

If you’d like support in mapping your cultural heritage or would like to discuss how you can support the Indigenous communities you work within, get in touch with our team. We’d love to yarn.