Rio Tinto has been in the news again for its egregious disregard for Aboriginal heritage and sites of cultural significance. Rio Tinto’s long list of alleged human rights violations had another addition with the blasting of Juukan Gorge in Western Australia (WA). The blasts were a part of Rio Tinto’s expansion of iron ore mining. The mining giant was fully aware that the site was 46,000 years old. The permission to carry out the blast was granted under Section 18 of the Aboriginal Heritage Act, 1972, which neither requires consultation with traditional owners of the land nor a review of the permission at a later stage. Subsequent to the granting of permission, archaeologists had discovered rich assemblage of ancient artefacts that stood testimony to the fact that the rock shelters were invaluable. The outrage against the wilful destruction was followed close at heels with the revelation that the federal minister for Indigenous Affairs was aware of Rio Tinto’s decision to carry out the blasts. After a long silence, Rio Tinto finally apologised for the ‘distress caused’.
As irony would have it, Rio Tinto’s actions overlapped with the National Reconciliation Week and the third Anniversary of the Uluru Statement from the Heart. The reassertion of settler-colonial arrogance in the form of Rio Tinto’s actions has now cast a shadow on the reconciliation process and any attempt to remedy past injustices. The decimation of the caves was carried out with the blessings of the law, and consequently the State. While this moment reflects poorly on the archaic laws, which have been perpetuating structural injustices against the First Nations, this is neither a one-off instance nor an exceptional moment in the history of the settler-colonial state. Rio Tinto’s actions speak of a continuing and systematic erasure of Indigenous identities that lie at the heart of the settler-colonialism and the capitalist logic on which the State has been founded. Even as the anger and resentment against the mining company are raw, we must make use of this hour to redraw the boundaries of our ideas of Indigenous environmental justice. More specifically, the destruction of Juukan Gorge has yet again demanded that we deliberate on environmental justice and Indigenous sovereignty simultaneously.
Admittedly, the blasting of ancient rock shelters is an incommensurable loss to the Puutu Kunti Kurrama and Pinikura people. The impunity with which Rio Tinto has carried on its actions extends this sense of loss to other traditional owners of Australia and the Indigenous peoples elsewhere in the world. For that matter, Rio Tinto has long been criticised for having a massive environmental injustice footprint that has been scattered all around the world. In 2000, residents of Bougainville sued Rio Tinto under the Alien Tort Claims Act in the US federal court, accusing it of crimes against humanity, racially discriminatory labour laws, and a prolonged violation of environmental laws that left both Bougainville’s economy and environment shattered. Although the claimants were unsuccessful, the case hinted at a seething discontent against the mining company’s profile. Rio Tinto has not been alone in its actions. Rather, it encapsulates the unbridled powers and privileges enjoyed by the frontrunners of extractive industries. Similarly, Shenhua mining company’s pre-construction activities on the Watermark coal mines in New South Wales have threatened cultural heritage of Gomeroi people. The traditional custodians of the Gomeroi community have sought a review of the Environmental Minister’s decision, to not declare cultural sites as protected heritage, before the Federal Court.
The minister for Indigenous affairs, Ken Wyatt, emphasised that the blasting of rock shelters in WA must have been a ‘genuine mistake’ and that it would never happen again. The minister’s expression of regret is as vacuous as that of Rio Tinto’s apology. Given Australia’s feeble Indigenous rights framework, incidents such as these will repeat themselves until we address the deep-seated maladies within the state-devised Indigenous rights jurisprudence. Elements of participation and recognition are vital to the conception of justice. Enabling Indigenous communities to have a voice in the legal processes is a non-negotiable element in the idea of environmental justice. The key factor of ‘duty to consult’ has not taken root in Australia as much as it has in other settler-colonial states. For instance, Canada or New Zealand, the concept has evolved as extensions of constitutional and treaty obligations. Although the consultation processes with the Indigenous communities in Australia is a formal part of several state and federal legislation, its role as a legal principle remains piecemeal at best. The vestiges of consultation process embodied by Australia limits itself to procedural compliance and does not resist the tenets of settler-colonial conceptions of due process.
Recognition in Indigenous environmental justice goes over and beyond identifying who has a place at the table of decision making. It ought to provide weight to the different kinds of evidence and concerns the First Nations may bring to the discussion. Therefore, the demand for Indigenous voice to the parliament becomes just as crucial as statutory consultations, if we must avoid consequences of poorly drafted and dated Aboriginal Heritage laws. The Supreme Court of Canada’s decision in Mikisew Cree First Nation (“Mikisew Cree”) in 2018 decided against the fact that the duty to consult extended to legislative acts, and limited it to executive acts alone. However, the minority opinion in the decision was more thoughtful. It observed that the honour of the Crown governs the relationship between the Government of Canada and Indigenous peoples. The opinion emphasised that this honour mandates that any government conduct that adversely impacts the asserted or established Aboriginal and treaty rights must invoke the duty to consult. Such duty extended to legislative acts as well, for law-making was one of the ways through which the government interacted with the indigenous people. While the minority opinion in Mikisew Cree leaves the avenue open for future manoeuvring of the idea of ‘duty to consult’, Australia has many lessons to learn from this decision. While it is convenient to pin the blame on inept laws, without a robust mechanism for listening to Indigenous voices, we can only hope to traipse towards Indigenous environmental justice.
Glen Coulthard writes that the settler-colonial formations covets for hegemonic power as well as spatial territories. Coulthard suggests that “the settler-state stability and authority is required to ensure ‘certainty’ over Indigenous lands and resources to create an investment climate-friendly for expanded capitalist accumulation”. In effect, the State always has the incentive to maintain the status quo in favour of capitalist expansion. The rule of law under these circumstances must be differently configured to make it less of a conduit for racial capital even though it can never be fully atoned. The settler-colonial past and present of Australia behove a more self-conscious approach to law-making and design of the rights framework. If traditional owners have no avenue to challenge innate unjustness of alienating rights over traditional land except under measly provisions of administrative law, the idea of Indigenous environmental justice is nothing more than synthetic. Truth and justice remain fundamental and indispensable to the idea of reconciliation. The former cannot be achieved through patchwork remedies to state or federal legislation. The government must commit to listening to the First Nations if there is any willingness to avoid Rio Tinto-like disasters in the future. Without a robust Indigenous voice to the parliament, any measure to set right the actions of the executive, the legislature, or even the private mining companies are disingenuous at best.