Thread by @callapilla

The inquiry into Juukan Gorge is holding remote hearings of Western Australian witnesses today. First up is Cedric Davies, a geologist with long experience in the Pilbara.

He said he was "shocked" by the destruction of Juukan Gorge, with Rio usually expected to be a leader.

But he said he was not surprised that the WA government approved its destruction.

"I think I would have been more surprised had the state not approved the s.18 to destroy the Juukan rock shelters."

Davies: "The events at Juukan Gorge exposed Rio behaving like the East India Company mark II".

Davies has worked for both mining companies and native title organisations. He says the difference in response from government agencies, depending on who you are working for, is marked.

It's shown in "a willingness to respond". "If I ask for a map if it's for a mining company I usually get a map back within 1 or 2 days with an apology if it's later than that. If I'm acting on behalf of an Indigenous group it's usually after follow up emails weeks later."

Davies was asked for his view of the federal heritage legislation, and he echoed the same sentiment of most West Australian witnesses so far: "It's a point of last resort. It's rarely used and it rarely works."

George Christensen says that should not be the case – the legislation is SUPPOSED to work. Applications are reviewed annually, why didn't the PKKP apply to protect Juukan Gorge?

Davies says a. they probably don't have the resources and b. they didn't ]think Rio would blow it up.

Woodside is giving evidence now. Daniel Kalms, Senior Vice President Corporate and Legal, starts by talking about Woodside's activities in the 1970s, when they moved 1,793 petroglyphs to a fenced compound. He describes it as a salvage effort – not how the Murujuga TOs describe it

Here's what the Murujuga Aboriginal Corporation said about the removal of those petroglyphs, in its submission to the inquiry. It's one of the darkest moments in the recent history of the Burrup.

Woodside are reticent to support federal heritage legislation, saying they support the update of the WA legislation and that needs to be on the ground first before federals come over the top.

They say that they support "time-bound and expedient" rights of appeal.

Woodside heritage manager and Meriam/Cape York man Adam Lees says Woodside hasn't impacted heritage since it built the Pluto plant in 2007. "Our policy is to aim to avoid impacting heritage and we propose to keep it that way for our future developments where possible."

(this statement is ignoring the impact of industrial emissions on the rock art, but that's a whole other can of worms and indeed a whole other senate inquiry)

Kalms makes the point that it's easier for Woodside to avoid damage because they're just placing things in the landscape – laying a pipe, building a plant. Not digging stuff up. He says they can do surveys and avoid sensitive sites.

That was in response to a question from Siewert about what they meant by a "time bound" right of appeal. "In terms of developing a project, a proponent needs a certain level of certainty that they have the support of the traditional custodians and the state in order to invest."

The Yinhawangka Aboriginal Corporation has been giving evidence. Lorena Allam and I wrote about their submission to the inquiry back in August:
theguardian.com/australia-news…

Yinhawangka heritage manager Dr Anna Fagan, an archeologist, says Rio is currently surveying sites in the western Hamersley Ranges. She says there are 327 heritage sites in that area, "124 of those will be destroyed by the western range expansion process by Rio Tinto".

The Yinhawangka say they have had fresh communication from both BHP and Rio Tinto, who operate on their country, since the parliamentary inquiry began. They thank the inquiry for basically putting the wind up the companies.

They got a letter from BHP last week that essentially lifted the gag clause and promised to renew their agreements.

They got a letter from Rio on Friday granting permission to talk about their agreements with that company at this hearing only. Haven't heard back on reviewing it.

Halloway Smirke, a director of the Yinhawangka Aboriginal Corporation, on the signing of the clan-wide participation agreement with Rio Tinto: "The people were aware of what they were signing, it was just a rushed process and we thought everything was going with goodwill."

CEO Grant Bussell is more blunt. "You know when it [informed consent] is not there. It might be harder to pinpoint when it is there. You can take my word for it, Mr Christensen, that it was not informed consent when it happened."

Bussell says the draft new Aboriginal Heritage Act WA is not strong enough.

"I don't see a single thing that would stop Juukan from happening again. This is Western Australia. The mining industry is powerful."

Cont: "It's a very good force for the country and for WA but when you bring it up against Aboriginal people and this remarkable heritage we have… you guys know as well as I know who is going to come out on top. The minister in my view should not have a discretionary power."

Very difficult for Yinhawangka Aboriginal Corporation to explain to the committee how little power they have.

For example, on the western range sites, of which 126 will be destroyed. for 26 of the 126 sites, Rio Tinto has s.18 approval to destroy. Some of the others aren't recognised under s.16. That means the WA govt doesn't recognise them as a thing that requires consent to destroy.

Anna Fagan: "Now we are just reliant on the goodwill of Rio Tinto. And a lot of these sites are where they want to put pits or mining infrastructure… should they have to change their pit design that would be very expensive from them."

Bussell is asked if they objected to the s.18s. He says they legally can't, and also, it all happened when Yinhawangka interests were managed by YMAC, the regional native title body. Yinhawangka don't even have all the appropriate records.

Bussell: "It's a bit hard to convey to you the difficulty of understanding where each site is, the importance of each site and the consultation efforts in the past… one of our real weaknesses is our ability to handle information."

BHP (as they told the inquiry on Friday) is reviewing all their active but not executed s.18 approvals. Rio hasn't made such a commitment but Bussell says he's hopeful that they might – they have a meeting with them on Wednesday to discuss one specific s.18 approval.

Robin Chapple, a WA Greens MP who knows the history of many of these agreements, is the final witness today.

He starts by fact-checking Woodside - the Maitland Industrial estate agreement, between MAC and the WA government, contains significant gag clauses, he says.

Chapple argues that the s.18 approval to destroy Juukan Gorge was "invalid" because it was decided at a meeting of the Aboriginal Cultural Materials Committee with three ex-officio members. Act specifies they can only have two ex-officio members in a quorum of five.

Chapple says that is is not suggesting the then Aboriginal affairs minister, Peter Collier, was aware of that. "He was not aware that the committees recommendations, because of their requirements under the act, were invalid."

(I'll request the documents on this)

Chapple says Juukan Gorge was a clusterfuck.

(He used a much longer way of saying this, I'm summarising)

Chapple says that request for compensation is a matter for traditional owners, but adds that: "if it can be proven, and I contest that it is… then the state also, because it carried out a process that was invalid in granting consent, should compensate the PKKP".

Again, this is an assertion that I suspect the WA government will challenge and new information before the committee this arvo.

Chapple says there are elements of the draft Aboriginal Heritage Bill that give him "great concern". It is VERY long and complicated.

"I've been briefed by the department and they sort of give me the impression they don't even know what it's doing either."

He says there should be an independent authority, it shouldn't be done by the minister. Raises issues of perceived conflict with Ben Wyatt being Aboriginal affairs minister, treasurer, and lands minister. "I am not saying he is personally conflicted but it's not a good look."

Chapple is talking about the function of the Aboriginal Cultural Materials Committee meeting on 18 Dec 2013, when Juukan was considered.

"That committee, in 50 minutes, dismissed 124 sites. That's an average monthly meeting of the ACMC. It just goes on and on and on."

He says the issues are administrative, as much as they are legislative. The Aboriginal Heritage Act 1972 was drafted with the best of intentions, he says. But those good intentions were eroded by administrative processes and the legislation was never updated.

George Christensen suggests that someone senior in Rio MUST have known the significance of Juukan Gorge. Chapple is not sure that they would have, saying "I don't think that there was that chain of command."

That's what Rio said too. Their processes were that bad.

Chapple: "They thought that maybe nobody will notice if we blow it up"

Christensen laughs, disbelieving.

Chapple: "You have got to remember that we have lost hundreds of caves and nobody jacked up…. because of these agreements, for fear of upsetting their benefactors."

[The difference with Juukan Gorge is not that it was so archeologically significant – though it clearly was. It's because the PKKP spoke up and the world has moved on to the point where it now listens.]

Christensen goes back to the issue of agreements between mining companies and TOs being signed before full information about sites is known.

"There needs to be a mechanism to pick up those unknowns later and deal with it rather than just let the original agreement stand."

Warren Entsch says Rio approved archeological surveys, a documentary, etc, about Juukan. That's not a cheap process - surely an executive would have to know that it got approved?

Chapple says no, not under the processes Rio had in place at the time.

Chapple: "It would certainly be at the level of [Chris] Salisbury [CEO Iron ore] but I doubt it would have gone higher up the food chain that Mr Salisbury. If it had been under the old processes that existed in Rio it would have gone further up the tree."

Sorry that was Warren Entsch who laughed and said it sounded like something from Monty Python, not George Christensen. Hard to tell everyone apart on the phone.