The Federal inquiry into Juukan Gorge recently handed down its findings and recommendations and have laid down a best practice roadmap for Government and Industry to follow when dealing with proposed destruction of Sacred Sites.

According to Labour Senator Pat Dodson, the destruction of Juukan Gorge highlighted the abuse and unequal nature of the relationship that the State of Western Australia has with Traditional Owners and Native Title Holders.

It is important to note that the inquiry took an unconventional position in its first report by directing recommendations at the State Government, Mining Industry and the Federal Government.

However, none of the recommendations are binding on the WA Government led by Mark McGowan.

If the McGowan Government thumb their nose at it and carry on with their own agendas, it will be time for First Nation people to look to the Federal Government – as Federal laws override State laws.

In the dissenting report Senators Dean Smith and George Christensen have called for a judicial inquiry. They’ve pushed for possible criminal charges to be laid against Rio Tinto employees for actions and inactions leading up to the blasting and destruction of Juukan Gorge.

While the National Indigenous Times wholeheartedly support any form of accountability and punishment, it has to be acknowledged that Rio Tinto have issued numerous apologies and committed to righting the wrongs.

The mining giant have sacked a number of its executives and committed to embarking on a journey to rehabilitate its relationship with its most important external stakeholders – Traditional Owners.

When one looks closer, there remains one participant in this tragedy who continue to remain unscathed; one who continues to accept no responsibility.

Yamatji Marlba Aboriginal Corporation (YMAC), the federally funded Native Title Representative Body (NTRB) for the Pilbara and the lead negotiator for the PKKP in the negotiations with Rio Tinto.

YMAC commanded huge influence and operated from a position of trust while representing the Puutu Kunti Kurrama people (PKKP).

When YMAC is performing its agreement making function, it must have regard to the matters covered by the agreement, consult with, and have regard to the interest of, persons who hold or may hold native title in relation to the land in the agreement area.

This is a statutory function under section 203BH of the Native Title Act.

According to Senator Dodson, the negotiations created a dangerous culture where the company required the Traditional Owners to enter into an agreement, an agreement they called a binding initial agreement.

This meant that before Rio Tinto went on the ground to ascertain what heritage sites there were and the type of ground disturbance. Rio Tinto, YMAC and PKKP had to agree to the processes that enabled the use of Section 18 under the WA Aboriginal Heritage Act.

Section 18 makes it legal with the Minister’s consent to destroy Aboriginal heritage sites.

The agreement that was finalised and recommended by YMAC meant Traditional Owners would be barred from using any rights they have as citizens of Australia to raise any concerns or objections at the Federal or State government level, or in the media, if they believed the company was doing something wrong, destroying their sites.

The agreements required the Traditional Owners to get permission from the Mining Company to raise their concerns on heritage or any issues under the agreements. This is commonly called “gag provisions”.

Given the level of resources YMAC received from Government in taxpayer grants and commercial fees for service – how, or on what basis, did YMAC authorise agreements that enabled the destruction of sacred sites at the sole discretion of Rio Tinto?

In the inquiry’s report there is a damning condemnation by PKKP of YMAC and its behaviour in relation to how it conducted itself in the negotiations with Rio Tinto and its failure to notify PKKP of the imminent destruction of Juukan Gorge.

Specifically, page 34 and 35 of report raised questions that the Traditional Owners were of the opinion that their rights and interests wasn’t supported or protected by YMAC.

Page 33, 34 and 35 of the ‘A Way Forward Final report into the destruction of Indigenous heritage sites at Juukan Gorge’. Images screenshot from report..

Read the full report here.

For some time the National Indigenous Times has been calling for YMAC and its CEO Simon Hawkins to be held accountable for its actions and inactions in relation to the destruction of sacred sites in the Pilbara.

The National Indigenous Times have highlighted that YMAC received extraordinary amounts of money to ensure that they were properly resourced to conduct negotiations with Rio Tinto on behalf of the Traditional Owners.

Federal Minister for Indigenous Australia’s Ken Wyatt has initiated representative body reviews in the past which have not gone deep enough to understand whether YMAC is exercising and discharging its NTRB functions to an appropriate standard.

When you consider PKKP’s damning statements to the Senate Inquiry and their pain and loss one would think that YMAC would, at least, apologise.

Instead YMAC has refused to accept accountability for its actions and omissions.

The negotiations between Rio Tinto, YMAC and PKKP was not an example where the Traditional Owners legal representatives (YMAC) lack sufficient resources to negotiate a fair and equitable agreement with Industry. An agreement where PKKP should have made a decision based on free, prior and informed consent when they signed off on the Agreement with Rio Tinto.

YMAC as a taxpayer funded Statutory Body must be held to account.

The public and the Traditional Owners deserve honest answers and explanations from YMAC and Simon Hawkins as the CEO.

The public and Traditional Owners deserve to know why YMAC failed so miserably to enhance and protect the rights and interests of the Traditional Owners when they were paid a fortune to do so.

Questions also need to be asked of YMAC’s Executive Committee both past and present.

Why aren’t they demanding accountability from Hawkins who has sat in the CEO position for almost two decades?

Have they also got something to hide?

By Wayne Bergmann and Clinton Wolf

Wayne Bergmann and Clinton Wolf are the owners of the National Indigenous Times.