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Legal loophole could save Sandfire over destruction of Aboriginal artefacts

David Prestipino -

The WA Government's probe into Sandfire Resources over the destruction of Indigenous cultural artefacts will likely be thwarted by a statute of limitations law.

The copper miner revealed to the Australian Securities Exchange last month it had destroyed Aboriginal artefacts at two sites on several occasions at its now shut-down mine at DeGrussa, 150km north of Meekatharra in WA's Mid-West.

The admissions, and failure to report the disturbances to the state government outraged WA Premier Roger Cook, who immediately ordered a probe into the revelations.

A heritage survey in 2016 by Traditional Owners Yugunga-Nya who identified two sites with more than 90 designated artefacts. The Yugunga-Nya native title lands cover about 21,305sqkm in the Mid West, including DeGrussa.

All Aboriginal sites are protected under the Aboriginal Heritage Act 1972, whether registered or not, until assessed and can be disturbed only with a section 18 permit.

While Sandfire did not obtain a section 18 permit, a 12-month statute of limitations from when the disturbances happened to the commencement of prosecution could spare the copper miner.

The majority of artefacts were likely destroyed during 2017 and 2018 but new documents obtained by The West Australian suggested a road over the sites cleared in those years was still operational as late as October 2022.

A lawyer for the Yugunga-Nya said the continued disturbance of the site meant the statute of limitations could have expired just one month prior to Sandfire's public disclosure.

"It could be argued the statute of limitations may recognise the cumulative damage caused and commence at the last known date of the cumulative damage," lawyer Franklin Gaffney told The West.

"Sandfire sat on the information for over 12 months after becoming aware of the destruction they caused.

"It would be natural to question whether this was a deliberate strategy."

Last week Yugunga-Nya traditional owners demanded restitution from Sandfire over the destruction of the artefacts and the sacking of CEO Brendan Harris for his lack of concern over the incident.

Yugunga-Nya Elder and Native Title holder, Andrew Gentle Snr said traditional owners wanted the Sandfire board - Jenn Morris, Robert Edwards, Sally Martin, Sally Langer, Paul Harvey and chair John Richards - to sack Mr Harris and engage with them.

"If I destroyed something of yours that is important and valuable to you, you would want to be compensated," Mr Gentle Snr said.

"I would have thought that the days of willy-nilly destruction of Aboriginal sites are over by now."

Sandfire last year could not sell its DeGrussa asset and further efforts now appear scuppered by its disclosure of the destruction, with only parts of the now-shut mine on the market.

Australia's management of Aboriginal heritage is being closely watched after Rio Tinto destroyed historically significant rock shelters in 2020.

WA, which had strengthened its cultural heritage protection in response to the incident, agreed to repeal them earlier this year after an outcry from farmers and miners.

Sandfire did not immediately respond to a request for comment but said at its annual general meeting last month it would continue with a "discreet asset sales process" of DeGrussa.

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