Minister flags law review after Rio blows up 46,000-yr-old Aboriginal site

Federal Indigenous Affairs Minister Ken Wyatt has flagged an urgent review into state and federal heritage-protection laws after mining giant Rio Tinto destroyed a 46,000-year-old Aboriginal cave site in Western Australia.

Mr Wyatt on Friday expressed sadness at the loss of the ancient rock shelters last week when Rio Tinto detonated explosives at a site near Juukan Gorge in the Pilbara, saying legal frameworks had failed and stronger safeguards were needed.

The mining giant had secured all the legal approvals and state ministerial consent in 2013 to conduct the blasting for a mine expansion, following consultation with the traditional owners and archaeological surveys. Rio said it had a "long-standing relationship" with the Puutu Kunti Kurrama and Pinikura people (PKKP) spanning two decades and believed it had obtained their consent for the blast to go ahead. After archaeological missions in 2014 found the site was more significant than previously thought, the miner said it had been working with traditional owners to retrieve artefacts from the site and ensure their protection in storage.

The caves are the only inland site in Australia to show evidence of continual human occupation through the last Ice Age.

The PKKP said they had applied to visit the sites and negotiate to stop the blast or limit the damage but were told explosives had already been laid and it was impossible to remove them. The Age and Sydney Morning Herald have been told Rio Tinto was previously unaware that traditional owners wanted the blasting works not to proceed.

"We are sorry that the recently expressed concerns of the PKKP did not arise through the engagements that have taken place over many years under the agreement that governs our operations on their country," Rio Tinto said in a statement.

Mr Wyatt on Friday said WA's Aboriginal Heritage Act had proven inadequate. "It is clear, in this instance, that the state legislation has failed. That is what we need to look into in the first instance," he said.

"What this does show is that the interaction between state and federal indigenous legislation is not optimal at present."

He said the blasting, which has sparked an international outcry, may form part of the Morrison government's review of federal laws, namely the Environment Protection and Biodiversity Conservation (EPBC) Act, and would also prompt scrutiny of the Aboriginal and Torres Strait islander Protection Act.

"I think she [Environment Minister Sussan Ley] will also look closely at the Aboriginal and Torres Strait Islander Protection Act, which is already the subject of extensive legislation, to ensure that it is achieving its purpose," Mr Wyatt said.

Section 18 of WA’s Aboriginal Heritage Act outlines a process that companies can undertake to obtain ministerial consent to destroy or alter heritage sites.

In WA Parliament, a week before the Juukan Gorge issue came to light, state Environment Minister Stephen Dawson revealed that since mid-2010 there had been 463 approvals granted on mining leases and none had been denied.

WA Aboriginal Affairs Minister Ben Wyatt, cousin of Mr Wyatt, said the state was developing new laws that would remove the Section 18 process and provide avenues for parties to appeal. "It will provide for agreements between traditional owners and proponents to include a process to consider new information that may come to light, and allow the parties to be able to amend the agreements by mutual consent," he said. "The legislation will also provide options for appeal should either party not be compliant with the agreement."

Mr Wyatt, the federal minister, told ABC Radio he was made aware of the blasting plans in the days prior when his office was contacted by a legal representative of the PKKP. The representative was encouraged to pursue their concerns under Commonwealth processes, Mr Wyatt said, but that appeared "not to have eventuated".

Separately on Friday, another dispute between a miner and traditional owners in the Pilbara was heard in Australia's Federal Court. Fortescue Metals, backed by the billionaire Andrew 'Twiggy' Forrest, was refused leave to appeal a verdict that gave a traditional owners group exclusive title rights to land at the company's Solomon Hub iron ore mine. The court ruled in favour of the Yindjibarndi People in a claim over 2700 square-kilometres of land used by Fortescue to mine iron ore, opening the door to the prospect of a major compensation claim.