Norton Rose Fulbright LLP

10/21/2021 | News release | Archived content

A Way Forward, Juukan Gorge Final Report

'Girawaa' © 2020 Jordan Ardler. We are grateful for Jordan's permission to use this artwork. Please respect the story of Girawaa it depicts and the artist's rights, and do not use or reproduce it.

This article was written by Gavin Scott, Leanne Collingburn, Rosie Evans and Trilby Donald with support of Norton Rose Fulbright's pro bono practice and RAPWG.

"It is time for the legislative frameworks to catch up to the nation that now understands its Aboriginal and Torres Strait Islander heritage in a way that it perhaps never has before. It is time to get rid of the multiple, complex and confusing legislative regimes referencing Aboriginal and Torres Strait Island heritage - particularly those that cover this heritage as part of the environment, harking back to a time when, offensively, Aboriginal and Torres Strait Islander people were classified as 'flora and fauna'. It is time to recognise and protect the Aboriginal and Torres Strait Islander past, present and future cultural heritage as a unique and valuable part of our nation."1

The Joint Standing Committee on Northern Australia (the Committee), released its Final Report into the destruction of Indigenous heritage sites at Juukan Gorge (the Report) on 18 October 2021. Our legal update and analysis below identifies the key recommendations and some of the key findings.


3 Key Findings & 8 Recommendations

The Report makes the following 3 key findings and 8 recommendations:

3 key findings 8 Recommendations2

National framework:The Australian Parliament should legislate for an overarching Commonwealth legislative framework based on the protection of Heritage, rather than its destruction, and in-line with the principles set out in section 7 of the Report. State and territory legislation should also be required to meet these principles.

1. Minister for Indigenous Affairs to be responsible for all Aboriginal and Torres Straits Islander cultural heritage3 matters

2. Australian Government ratify Convention for Safeguarding of the Intangible Cultural Heritage 2003
3. New national framework for cultural heritage protection
4. Review of Native Title Act 1994 (Cth) to address Future Act negotiation inequalities for Aboriginal and Torres Strait Islander peoples

Heritage standards: The Commonwealth, state and territory governments should endorse a set of standards that set best practice in the management of Heritage sites and objects and the development of cultural heritage management plans.

5. Australian Government endorse & commit to Dhawura Ngilan: A Vision for Aboriginal and Torres Strait Islander Heritage in Australia
6. Australian Government develop cultural heritage truth telling model (for all Australians) for engagement with Aboriginal and Torres Strait Islander peoples and their cultural heritage

Economic benefits: The economic benefits of protecting and celebrating Heritage sites should be promoted (Recommendations 7 and 8).

7. Australian Government establish independent fund for Prescribed Body Corporates (PBCs) and Native Title Representative Bodies (NTRBs)
8. Australian Government increase transparency for PBCs & NTRBs

About the Report

The inquiry, the subject of the Report, is a response to the destruction of the 46,000+ year old Juukan Gorge rock shelters in the Pilbara region of Western Australia on 24 May 2020. The inquiry centred on the immeasurable cultural and spiritual loss, as well as profound grief for the Puutu Kunti Kurrama and Pinikura peoples (PKKP) and highlighted, among other things, the inadequate protection afforded by the Western Australian Aboriginal Heritage Act 1972 (AHA)for traditional owner groups.

The Committee's terms of reference for the Report focused not only on the events of and leading up to the destruction of Juukan Gorge, but also included an inquiry into the interaction of state indigenous heritage regulations with Commonwealth laws, the effectiveness and adequacy of state and federal Heritage laws, how Heritage laws might be improved to guarantee protection of culturally and historically significant sites, and opportunities to improve Heritage protection through the Environmental Protection and Biodiversity Conservation Act 1999 (EPBC Act). The Report primarily addresses these last terms of reference, with the focus of the Interim Report on Juukan Gorge more specifically.

Despite the COVID pandemic preventing much on-country consultation, the inquiry held 23 public hearings, and received 175 submissions, 64 supplementary submissions and 41 exhibits. Submissions were received from a broad range of key stakeholders including individuals, Indigenous groups (including Land Councils and Aboriginal Corporations), government departments, the National Native Title Tribunal, Reconciliation Australia, mining and energy companies, law firms, law societies, law councils, and law centres and academics.

The Committee described the inquiry as a "journey of enlightenment" and noted the exceptional privilege we have as a nation to have the continuous cultural knowledge of Aboriginal and Torres Strait Islander peoples and their living understanding of sacred sites of such historical significance.

The Committee noted, and we echo, that the loss for the PKKP peoples is a loss for our nation, and the world, as a whole.


1 See Schedule 1 for more detail.
2 Herein "Heritage".
3 Herein "Heritage".