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‘Cutting our culture up’: outrage after WA decides not to prosecute over alleged destruction of sacred site

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Calla Wahlquist
·6 min read
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Traditional owners say they are outraged by the Western Australian government’s decision not to prosecute a mining company for allegedly destroying a sacred site in the Kimberley and exporting granite from the site to China.

The Garnkiny and Jawaren site near Halls Creek in the East Kimberley was allegedly damaged in 2019 by mining company Kimberley Granite Holding, which has a mining exploration licence over an area of Springvale Station where the sacred sites are located.

The Labor state government said on Friday there was “no reasonable prospect of successful prosecution” under the state’s current Aboriginal heritage laws.

Related: Juukan Gorge 'cop-out': talk about protecting Aboriginal sites goes curiously quiet in WA

The Kimberley Land Council, which acts for the Malarngowem traditional owners, said the decision not to prosecute was deeply concerning and undermined confidence in the government’s willingness to enforce its new proposed Aboriginal heritage laws.

“Traditional Owners must have the final say, and Aboriginal disempowerment must not be a cornerstone of the new legislation,” chief executive Brian Wilkinson said. “Kimberley Granite Holdings must be held to account.”

Unlike the destruction of Juukan Gorge by Rio Tinto, which made global headlines in May last year, Kimberley Granite Holding Pty Ltd did not have permission under WA’s Aboriginal heritage laws to destroy the site.

The site was also not formally registered as a heritage site with the department of planning, land and heritage at the time the damage was done.

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The department of planning, land and heritage said the site was not registered under the Aboriginal Heritage Act 1972 until May 2020.

It also said the company provided evidence which “confirmed that consultation was undertaken with traditional owners prior to works commencing in the area. Consultation included several discussions and details of agreements between the parties, site visits, photographic evidence and signed documentation.”

The KLC said there was no consultation with the proper custodians, and argued that a site does not have to be registered to be protected under the act.

Douglas D’Antoine, deputy chief executive of the KLC, said he visited the site and viewed the damage in 2019 after locals in both Warmun Community (Turkey Creek) and Halls Creek said they had concerns.

The two sites represent the snake dreaming and moon dreaming and are significant to the Gija people. There are also burial sites within the area.

D’Antoine said when he visited the site, he saw the Garnkiny dreaming had been carved up. He said the damage to the sites was like “the destruction of a church”.

“This particular dreaming is a serpent dreaming, a snake dreaming, and it’s manifested by granite and it undulates on the surface of the ground,” he said.

“That dreaming, the granite – high grade granite – had been cut up into blocks. Those blocks were taken, put on the back of a truck, and taken via the Wyndham port to China.”

D’Antoine said the senior custodian for the Garnkiny site and Malarngowem traditional owner, Mr R Peters, who lived in Warnum, saw the blocks being trucked out of town.

“They were able to see the trucks going past with the blocks of granite on it. That was their dreaming, that was going north to the Wyndham port off to China. So that’s the source of much distress, of becoming just so obscenely upset.”

Before Mr Peters died in July, he provided a statement to the KLC.

“When I first heard about the mining I was shocked. I didn’t know about it. I didn’t give the company permission,” he said. “I didn’t give anyone authority to make this decision for me. I thought it had stopped. This makes me very worried as I have to give permission for such things to happen on Darrajayn country. I’m not going to stop worrying, white people cutting our culture up.”

Mike Elliot, a director of Kimberley Granite Holdings, released a statement on Friday saying the company had been notified by the department that the investigation had been closed.

“We acknowledge that actions in the past were not consistent with Kimberley Granite Holdings’ approach to Aboriginal cultural heritage, and we unreservedly apologise for the hurt and damage caused by these actions,” he said.

“We are committed to conducting all future activities in accordance with the heritage protocols required by the Malarngowem people. We look forward to building our relationship with the traditional owners and local stakeholders so that we may explore the possibility of together building a new type of industry to deliver new skills, long-term jobs, and contribute to economic independence for the East Kimberley.”

Under WA’s outdated Aboriginal heritage laws, most heritage sites are not registered with the state until an application has been made under section 18 of the act for permission to destroy or damage heritage. The decision about whether a site should be registered as an Aboriginal heritage site, and whether it is able to be destroyed, are usually made in the one meeting.

Kimberley Granite Holding applied for retrospective permission to damage the site in 2020, but the then minister, Ben Wyatt, refused his consent.

It is the first time the WA government has refused a section 18 application from a mining company in more than 10 years.

The current WA Aboriginal affairs minister, Stephen Dawson, said the investigation by the department was independent of his office, and the director general of the department had the final decision making authority.

“I’m advised that the investigation determined there was no reasonable prospect of a successful prosecution under the Aboriginal Heritage Act 1972,” Dawson said.

Dawson said he was advised the site was not registered under the act until after the alleged damage occurred; and that no works have been conducted in the area since the section 18 application was refused last June.

Dawson said replacing the outdated Aboriginal heritage act with new laws was “a priority”.

“Improved protection is one of the key components of new Aboriginal cultural heritage legislation,” he said. “This includes new offences, penalties of up to $10m or imprisonment and stronger enforcement options.”

Related: Rio Tinto investors welcome chair's decision to step down after Juukan Gorge scandal

Asked if the WA government placed more importance in its relationship with the mining industry than its relationship with traditional owners, Dawson said: “No.”

D’Antoine said he was not confident the proposed new laws would offer any greater protection to Aboriginal people, given the decision not to prosecute what the KLC maintains is a clear breach of the current law.

The department has launched just one prosecution under the Aboriginal heritage act since 2015.

D’Antoine said the response to the destruction of Juukan Gorge, which included a federal parliamentary inquiry and Rio Tinto parting ways with its most senior leadership, had created a sense of optimism that damage to Aboriginal heritage would be taken seriously in future.

“I saw that that would be a possibility that things would improve but overarching, it’s a mining state that we live in,” he said. “That bit of optimism was short lived.”