Mining giant BHP has told a federal inquiry it has found a way to save 10 of the more than 40 significant Aboriginal sites it has permission to destroy under Western Australia’s outdated heritage laws, by changing its plans for the South Flank iron ore mine extension, after consultation with the Banjima traditional owners.
BHP said it is reviewing all 57 of the permissions it has been granted to destroy heritage sites in the Pilbara, in the wake of the Juukan Gorge disaster, in which Rio Tinto blew up a 46,000-year-old significant site to access higher-grade iron ore.
Three of Rio’s senior executives, including the global chief executive Jean-Sébastien Jacques, have been sacked after sustained global condemnation and shareholder revolt.
BHP’s president of minerals Australia, Edgar Basto, told the inquiry the company will not act on any of the permissions it has “without further extensive consultation with traditional owners”.
Under section 18 of WA’s heritage laws, mining companies can apply to destroy sites and are rarely refused. Traditional owners have no right of objection or reply.
“Juukan Gorge has had everyone’s focus on cultural heritage,” Basto said. “It was a tragic event and we all need to learn from it, and we are determined to ensure that is the case.”
But BHP’s WA heritage manager, David Bunting admitted the company was aware that the Banjima people did not want any of their sites disturbed, before the section 18 application was lodged.
Bunting said a new heritage advisory council will work directly with Banjima elders on future mine plans. Not every s18 application was acted upon, he added.
In June, Guardian Australia revealed that the WA minister for Aboriginal affairs, Ben Wyatt, approved BHP’s South Flank expansion three days after the destruction of Juukan Gorge made global headlines.
BHP “necessarily paused” at that point, the company’s head of Indigenous engagement, Libby Ferrari told the senate inquiry.
“We made the decision quite rapidly,” Ferrari said. “It was perhaps within a week that I was in touch with the Banjima native title corporation and we made that decision very quickly. We didn’t have detailed consultation, we were treating it in the same way as we would treat a safety incident.
“We had got this approval and we clearly wanted to make sure we stopped and thought clearly about what we wanted to do before we continued on.”
BHP also said that if new information that materially changes the significance of a heritage site comes to light, it will “not undertake any activity that would disturb that site without agreement”, and will not enforce the “gag clauses” in its agreements that prevent traditional owners from speaking publicly about heritage concerns.
“We cannot get this wrong and we are committed to doing anything we can to achieve that,” Ferrari said.
But Kimberley Land Council (KLC) chairman, Nolan Hunter later said the issue was “not about consultation” between parties, but the lack of legislative protection for Aboriginal traditional owners under state and federal heritage regimes.
When asked if the KLC would support laws giving traditional owners the right of veto over developments on their lands, Hunter replied: “In a word? Absolutely.”
Hunter said the Native Title Act also needs reform because it forces Aboriginal people to go through the “trauma of having to continually prove their identity” and rights to country.
“What does it take for Aboriginal people to get proper recognition of their heritage rights?” Hunter said.
CEO of the WA Chamber of minerals and former NT chief minister, Paul Everingham, said the Pilbara is the “engine room” of the Australian economy, accounting for 70% of exports worth between $294 and $300bn in value.
“Does it reflect poorly on us? Absolutely. Do we need to do better? Absolutely.”
“[At Juukan] a very big mistake was made. We need to remedy that and be better and do better.”
But Everingham said he did not consider a right of veto under the WA Aboriginal Heritage Act was necessary.
“Veto is a contentious term,” Everingham said. “We believe the act that is out for circulation at the moment by Minister Wyatt strikes the appropriate balance. It provides a circuit breaker, where traditional owners can go to the minister to appeal.”
He said there was “no evidence” that federal legislation would help prevent another Juukan Gorge, and might make heritage protection “more complicated”.
The inquiry is ongoing and chairman Warren Entsch has said it is very important that they be able to travel to the Pilbara to meet and talk with traditional owners in person.
It is due to report in early December.