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The legacy of Juukan Gorge for lawyers

Last Thursday, 10 December 2020, was Human Rights Day.

The date marks the anniversary of the United Nations General Assembly's adoption and proclamation of the Universal Declaration of Human Rights on 10 December 1948.

What I have been thinking about recently on the human rights front is Indigenous rights.

The afternoon before this year's Human Rights Day, the Parliamentary Joint Standing Committee on Northern Australia released its interim report of its inquiry into the destruction of 46,000 year old caves at the Juukan Gorge in the Pilbara region of Western Australia.

As so many know by now, the perpetrator of the destruction was Rio Tinto. The caves were on the traditional lands of the Puutu Kunti Kurrama people and the Pinikurra people (the PKKP). The blast occurred on 24 May 2020, at the start of National Reconciliation Week, when Rio Tinto intentionally detonated charges in Juukan Gorge to expand one of its iron ore mines in the Hamersley Ranges.

The picture below shows the gorge before the blast. Out of respect for the PKKP (and consistent with their submission to the Parliamentary inquiry), I am not posting a picture of the destruction following the blast.

The Parliamentary Inquiry held 11 public hearings. It received 142 submissions and many supplementary submissions. The grief, anger and distress that emanated from those pages - from the PKKP, from Aboriginal individuals and groups around the country, from Indigenous organisations in other parts of the world, and from members of the public who felt moved to write - were palpable.

Because the Inquiry’s terms of reference were so ambitious, the Joint Standing Committee’s first report only scratched the surface and will be followed by several more. The factors to blame for the destruction include:

  • the culture and institutional structure of Rio Tinto,

  • the out-dated and unfit for purpose Indigenous heritage laws of Western Australia,

  • gaps and shortcomings in Federal law,

  • Australia’s failure to meet our international human rights covenants, and

  • the attitudes of government and industry towards the rights of Traditional Owners.

Much more will be written and analysed about the factors that caused the destruction and how we can do better, there is no doubt.

I have found myself reflecting in the last few weeks about not just the inexcusable ongoing infringements of Indigenous rights in this country, but what we as a nation have forgone in causing our First Peoples to lose access to their heritage, traditional knowledge and connection to country.

I am no expert on Indigenous heritage and culture, but as a lawyer I am increasingly curious about what knowledge of customary law and Indigenous culture could contribute to our current laws and legal processes. Not only in land and water management, which are obvious examples, but in other ways - in governance, dispute resolution and contract-making, for example. A culture of 65,000 continuous years surely has a lot to teach us.

As Bruce Pascoe wrote in Dark Emu:

For a model to remain sufficiently coherent and flexible, and appeal to a large population spread over a large area for a lengthy period of time, requires our serious regard. It must have appealed to the vast majority of Aboriginal Australians as having an internal logic and fairness; otherwise it would not have survived.

Internal logic and fairness! That should sound attractive to any lawyer. I am currently looking from anyone with knowledge of Aboriginal customary law who might be interested in better educating me on it - to the extent permitted by traditional rules - as I’d be eager to listen and learn.

The legacy of what happened at Juukan Gorge is incredibly sad. It would be a small consolation if Australian lawyers could be one of the many groups who learn and build something from the devastation.


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