The destruction of Juukan Gorge by Rio Tinto was "not unique" but "an extreme example of the destruction of Aboriginal and Torres Strait Islander cultural heritage which continues to happen in this country", the final report of a parliamentary inquiry has found.
The Commonwealth Parliament's Northern Australia Committee found that the 2020 demolition of the ancient and culturally significant site in Western Australia made clear the urgent need for legal reforms at Commonwealth and State and Territory levels to protect Aboriginal and Torres Strait Islander heritage.
Tabling the report on Monday, committee Chair Warren Entsch MP said the destruction of the caves "was a disaster beyond reckoning for the Puutu Kunti Kurrama People and Pinikura people, and Aboriginal and Torres Strait Islander cultural heritage as a whole".
"This disaster was a wakeup call that there are serious deficiencies in the protection of Aboriginal and Torres Strait Islander cultural heritage. What is needed now is a way forward, for both Aboriginal and Torres Strait Islander people and industry," he said.
In a statement, the PKKP Aboriginal Corporation RNTBC said it would "take time to consider the report and its recommendations".
"Almost 18 months after the destructive blast at Juukan Gorge the great sense of sorrow and loss remains for our people. There continues to be much written and said both about what happened leading up to the destruction of the Juukan caves and the priceless artefacts within them, and what should be done to stop such behaviour from happening again.
"For the PKKP, actions not words will be the true test. It was never our wish or choice to be in this position but the response by Rio Tinto, other mining companies and government decision makers to the events at Juukan Gorge will be a test case for First Nations people throughout Australia and internationally."
During the inquiry, the Committee heard about "a great number of Aboriginal and Torres Strait Islander cultural heritage protection issues".
"Each incident of heritage destruction or threat that was discussed compounded the clear need for change," the committee noted.
"Aboriginal and Torres Strait Islander people have been let down by the Commonwealth, State and Territory governments as well as industry," Mr Entsch said. "Failures to protect Aboriginal and Torres Strait Islander heritage must stop here."
The report made eight recommendations. It found there is a need for a Commonwealth legislative framework, developed in partnership with Aboriginal and Torres Strait Islander peoples, to protect Indigenous heritage. It also recommended that responsibility of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 and the Environmental Protection and Biodiversity Conservation Act 1999 should be transferred to the Minister for Indigenous Australians at the national level.
The committee also found the Australian Government should review the Native Title Act, and should endorse and commit to implementing Dhawura Ngilan: A Vision for Aboriginal and Torres Strait Islander Heritage in Australia.
"There is a need for the development of a model for cultural heritage truth telling. There is a need to establish an independent fund to administer funding of prescribed body corporates under the Native Title Act 1993," the committee stated.
The Puutu Kunti Kurrama People and Pinikura (PKKP) Aboriginal Corporation said that at the "core" of the case of Juukan Gorge "are the rights of traditional owners when it comes to what happens on our lands".
"Our focus therefore continues to be working in good faith with the leadership of Rio Tinto to ensure that the attitudes and processes which resulted in the Juukan blast are truly replaced by a genuine partnership and respect. Part of achieving that shared approach is a role for us in decision making, and we believe this can be achieved through the co-management of mining activities on our lands. Put simply this means early, meaningful and ongoing engagement through all stages of mining activity," they said.
The committee's report - A Way Forward - was highly critical of both Rio Tinto and the Western Australian government.
Committee members noted they were "disappointed with the level of engagement" from the WA government, which has been urged to rewrite its new proposed Aboriginal heritage legislation to strength protection for Aboriginal heritage.
"States have failed," the committee said on Monday. "Time and time again, states have prioritised development over the protection of cultural heritage - including through the enactment of site-specific development legislation intended to further dispossess Aboriginal and Torres Strait Islander peoples."
Western Australia's Aboriginal Affairs Minister Stephen Dawson said "the destruction of the 46,000-year-old caves at Juukan Gorge was a tragedy", adding that "the WA Government is working hard to ensure better legislative protections are afforded to our sacred cultural heritage sites".
"Better protection for Aboriginal cultural heritage will absolutely be achieved once the new Aboriginal Cultural Heritage Bill becomes law... The central foundation of the Bill is consultation, negotiation and agreement making between Aboriginal parties and proponents... It also legally protects Aboriginal people from being silenced, requires proponents to provide full disclosure of all possible options for their operation and mandates voluntary consent of the traditional owners," he said.
Mass protests have taken the concerns of Traditional Owners to the steps of WA's parliament, with critics describing the proposed bill as continuing the "cultural genocide" that has gone on for many decades.
In September it was announced that five Aboriginal leaders, Slim Parker, Kado Muir, Dr Anne Poelina, Clayton Lewis and Dr Hannah McGlade, have requested that the United Nations Committee on the Elimination of Racial Discrimination (UNCERD) review the draft Aboriginal Cultural Heritage Bill 2020.
The submission argues that the emphasis on Ministerial discretion in the bill would likely "reproduce the structural racism that has already led to the destruction of cultural heritage in WA".
The authors said that without the clear requirement for the Minister for Aboriginal Affairs to protect sites of significant cultural heritage, the bill is at odds with Australia's UN treaty obligations, including the United Nations Declaration of the Rights of Indigenous Peoples (UNDRIP).
The Commonwealth inquiry into Juukan Gorge found that Rio Tinto's actions were "inexcusable and an affront, not only to the PKKP but to all Australians".
West Australian senator Dean Smith and Nationals MP George Christensen issued their own comments within the final report, calling the miner's actions "disgraceful, negligent and wilful".
They said Rio's executive leadership had not been properly held to account and called for a judicial inquiry that could lead to criminal charges.
"More than a year has passed, yet Rio Tinto and its board have fundamentally been let off the hook for obliterating the 46,000-year-old site in WA's Pilbara region," they said.
However, they rejected the call for Commonwealth oversight of Aboriginal heritage protection regimes.
In May Rio faced a shareholder revolt over the Gorge, with 61% of votes cast at its annual meeting being against the firm's executive remuneration package.
On Monday Jakob Stausholm, Rio Chief Executive, said the company "cannot change the past" but "can continue to seek out, listen to and respect different voices and perspectives, to ensure that in the future, cultural heritage sites of significance are treated with the care they deserve".
The company said it has "taken action to strengthen" their "processes and approach to cultural heritage management by revising internal practices, policies and governance".
"The archaeological and ethnographic reports received in 2013/14 should have triggered an internal review of the implications of this material new information for the mine development plans. Such a review did not take place... Both the Board Review and the Inquiry of the Joint Standing Committee on Northern Australia (the Parliamentary Inquiry) make it clear that the events at Juukan Gorge represented a breach of our partners' trust and a failure to uphold our values as a company," they said.
By Giovanni Torre