A legal lacuna : betweencultural heritage and native title

In May 2020, mining giant Rio Tinto attracted global attention for its destruction of caves in the Juukan Gorge in Western Australia while blasting in the area as part of its mining operations. The caves contained archaeological treasures evidencing human occupation spanning some 46,000 years. As such, they represent globally significant sites — sites far older than Stonehenge and the pyramids of Egypt. But more than that, the caves held ongoing spiritual significance for the traditional owners of the area, the Puutu Kunti Kurrama and Pinikura.

To the astonishment of the general public —including a shareholder backlash — in destroying the obviously special caves Rio Tinto did not break the law. It had obtained the necessary permissions to destroy the culturally significant site under the Aboriginal Heritage Act 1972 (WA). The company has since indicated that there was a “misunderstanding” with traditional owners about the future of the site. Misunderstanding or not, the incident highlights a reality that the framing of cultural heritage is not one that comprehends substantive rights for Indigenous custodians and as such, will inevitably leave a miner in charge of decisions concerning land over which it holds an interest.

This article canvasses the standing of Aboriginal and Torres Strait Islander people to speak for their lands within two paradoxically intersecting yet separate legal frameworks: of native title and Indigenous cultural heritage. While recognising the poverty of the common law’s conception of land and its fragmentation in particular relative to First Nations’ holistic conceptions of land, in light of the Juukan Gorge caves example, this article focuses on tangible, fixed cultural heritage — referred to generally here as “significant sites”. These sites are, for the common lawyer, readily comprehensible as part of the land and serve as a useful case study for the analysis of Indigenous cultural heritage laws within the dominant legal framework. Through this focus, this article contends that in addition to the contingency of rights afforded to Indigenous people within each legal domain, the failure of native title and cultural heritage to mesh together creates a lacuna within the law that silences traditional owners at the very point their voices would — and should — hold the most authority within the common law.

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