text: Bloomberg• September 26, 2020
  (Bloomberg Opinion) -- The most shocking thing about Rio Tinto Group's demolition of a 46,000-year-old Aboriginal site in Australia's remote Pilbara region is how commonplace it was.
  The Pilbara is source of about half of the world's traded iron ore, worth about $65 billion a year. It's also a crucial area of world heritage, home to the world's largest collection of art from before the last ice age — a complex of thousands of sites and hundreds of thousands of individual rock carvings. Digging iron ore out of the ground and carrying it to port inevitably involves conflicts between miners and the Aboriginal traditional owners. So far, the miners have won every time.
  Since 2010, mining companies have applied to the Western Australian state government to carry out works 463 times, using the same 1972 Aboriginal Heritage Act that Rio Tinto relied on to lay waste to Juukan Gorge in May. As of that month, none of those proposals had been rejected. BHP Group was granted permission to destroy 40 sites just days after the demolition.
  Despite the resignation of three of Rio Tinto's top executives earlier this month over their handling of Juukan Gorge, the destruction itself wasn't illegal. Indeed, it was only unusual because of the measured antiquity of the site and the willingness of the Puutu Kunti Kurrama and Pinikura traditional owners to speak out.
  "It's a farce, it's non-existent rule of law," says Nolan Hunter, a member of the Bardi people and chief executive officer of the Kimberley Land Council, representing Aboriginal traditional owners northeast of the Pilbara. "The law's meant to be about heritage protection. But there is no protection."
  Changing the 1972 Act has been a key priority of Ben Wyatt, a descendant of the Pilbara's Yamatji people who's the state's first Indigenous Treasurer. Earlier this month, he published legislation to remove the most controversial aspects of the law, promising it would reset relations between traditional owners and industry and empower landowner groups.
  Already, though, the process is falling apart. An ongoing inquiry into Juukan Gorge has brought to the surface many of the ways in which Aboriginal groups have long been disadvantaged — for instance, through gag clauses in agreements with mining companies, which prevent public criticism or objections under the heritage laws. It's not clear that these issues would be resolved by the new legislation. The Kimberley Land Council and South West Aboriginal Land and Sea Council have declared Wyatt's proposed changes "pointless," since despite new appeal channels the final decision would still rest with the relevant minister.
  That issue is fundamental. As we've written, the core of most mining disputes comes down to a zero-sum battle between miners, governments and landowners about who should receive the economic benefits from developing a pit.
  Income from mining royalties provides about one-fifth of Western Australia's state budget, or close to one-third of the amount raised in-state after grants from the federal level are taken into account. In that context, ministers are hardly impartial observers of disputes between miners and traditional owners — they're interested parties, who can be expected to come down on the side of development, and resultant royalty revenue, at every turn.
  "Our people don't really have a choice, because if they don't agree then the proponent can go to the minister," says Hunter. "Is there really ability for people to give consent when it's under these sorts of conditions?"
  A just resolution shouldn't be impossible. As evidenced by the large number of existing agreements with mining companies, traditional owners are happy for development to go ahead provided they have a proper say in protection of their heritage and due compensation for the digging of their land. Miners' images have been tarnished by what happened at Juukan Gorge; it's in their best interests now to support a solution that genuinely works for all sides.
  The problem with the current and proposed laws is that they deny Aboriginal people a level playing field in negotiation. The agreements already in place were often made under duress. Traditional owners "had no real choice but to take the deals that were offered or take nothing," as the Pilbara-based Banjima Native Title Aboriginal Corp. wrote in a submission to the Juukan Gorge inquiry last month.
  A better system, oddly enough, would return to the spirit of the original 1972 law. That legislation gave the final say in heritage questions to a panel of archaeologists, anthropologists and Aboriginal experts, before being amended in 1980 to give that power to the minister.
  What's needed is an independent commission to decide these issues, made up of traditional owners, mining representatives, and academic experts. Its work should be done in public, and Aboriginal people should hold the majority. That could be the honest broker to settle these disputes in a way that works for all parties. A heritage system that never protects heritage isn't worthy of the name.