Unexplained Ordnance: Missile in the Western Desert Sparks a Landmark Case

Culturally significant Aboriginal heritage sites continue to be put at risk in Australia, despite the international outcry following Rio Tinto’s destruction of the 46,000-year-old caves at Juukan Gorge.

The culprit this time is the Australian Defence Force, which undertakes live-fire training exercises and weapons-testing activities at the Woomera Prohibited Area (WPA). Within range of falling missiles and mortars there is evidence of sequential spiritual engagement spanning centuries in rock engravings, heritage artefacts, tool-making sites, and also sites of mythological importance for Indigenous people.

Andrew and Robert Starkey are Kokatha Badu (respected senior figures, or lore men) from the Western Desert region of South Australia who have devoted decades to registering and protecting heritage sites on their land. Their ancestors have occupied the area for more than 11,500 years.

Part of the WPA cuts across Kokatha land, and BHP’s Olympic Dam Mine sits in its north. The area is known for its spectacular salt lakes, which Andrew says are an integral part of the Indigenous cultural landscape, important in Dreamtime stories that criss-cross the country.

In January 2021, a group of Kokatha traditional owners conducting heritage-site inspections discovered an unexploded high-tech missile in a location where Defence says it does not test weapons. This secretive department has refused to explain how the missile, manufactured by Saab, came to be at Lake Hart West, a registered heritage site.

‘Within a one-kilometre radius of the missile there are more than 20 heritage features, with priceless rock engravings only a couple of kilometres away’, said Andrew.

It took 12 months to remove the missile. A Defence Department spokesperson confirmed it was recovered on 18 January 2022, adding that Defence had, ‘worked closely with Traditional Owners to locate and recover the war materiel’.

The beautiful salt lake has the misfortune of being located inside the red zone (most often used) of the WPA. A video from 2018 and a tweet from 2019 show Defence undertaking live-fire training with Saab missiles over Lake Hart. Such testing is permitted over the lake; the heritage sites are close by and are off-limits.

In September 2021 the Starkeys lodged a complaint about the missile with the Australian National Contact Point (AusNCP) of the Organisation for Economic Cooperation and Development, which administers OECD guidelines for ‘responsible business conduct’ by multinational enterprises. In so doing, the Starkeys have taken their complaint direct to Saab, the missile’s manufacturer. It’s an original and gutsy move.

Andrew says they did this because, ‘previous efforts to fix this with Defence were unsuccessful’.

The Starkeys’ tenacity in seeking protection for their heritage is understandable. Evidence given to the Juukan Gorge inquiry revealed just how threadbare Australia’s protective laws are. Inquiry committee chair Warren Entsch noted ‘serious deficiencies’ in the protection of Indigenous cultural heritage in Australia. ‘We struggled to find any Indigenous cultural sites that are actually being adequately protected’, Mr Entsch said. ‘Clearly the system as it is, isn’t working.’

Add to that the array of conflicted interests embedded in this missile situation—a cosy ecosystem of ‘mates’ advancing economic and military interests over a thin commitment to Indigenous heritage protection—and you quickly get a sense of the scale of the task facing the Starkeys. But they aren’t giving up, and now there’s some impressive international human rights law talent sitting in their team.

‘A culture of impunity’

The Starkeys’ oral evidence (29 June 2021) and written submission (No 42) to the Juukan Gorge inquiry highlighted the destruction and desecration of many significant Kokatha heritage sites and, startlingly, exposed the danger of unexploded ordnance on their country.

For decades, the ADF has conducted its warlike activities in the WPA with scant regard for the loss of this heritage and culture—and, apparently, similarly scant regard for the health and safety of Kokatha people, as Andrew’s evidence made plain. This absence of institutional respect and care has made the Starkeys’ heritage-protection role extremely difficult.

For its part, Defence says it manages its activities in a manner consistent with the Commonwealth heritage legislation, but as the Juukan Gorge inquiry found, legislation in Australia currently provides little protection.

Andrew told the inquiry: ‘Our country and our environment are suffering because of the adverse impacts of Defence… We have to manoeuvre ourselves around unexploded ordnance; areas are permanently fouled with all sorts of defence materiel… The legacy for us will be handed down from generation to generation’.

Defence is notorious for refusing to answer questions about its activities at Woomera, but its activities may soon be brought to account via this new avenue.

Representing the Starkeys in the OECD complaint is Dr John Pace, a globally recognised expert in human rights law with more than fifty years’ experience, including at the United Nations, and John Podgorelec, a lawyer with more than twenty years’ experience in international human rights law.

In evidence to the Juukan Gorge inquiry Dr Pace noted, ‘There is a very wide gap between the [Australian] domestic legislation and these international standards… This situation has helped create serious cases of devastation of indigenous heritage and a culture of impunity’. He said Australia needs to urgently tackle this gap and bring its domestic legislation into line with its international obligations.

The world recoiled in shock at Australia’s ‘culture of impunity’ towards Indigenous heritage, laid bare by the Juukan Gorge disaster. The same culture exists within Defence in its activities in the WPA, yet, apart from glamorous glimpses released for promotional purposes, Defence manages to keep its activities hidden. The photos the Starkeys submitted to the inquiry offered a rare window into the reality on the ground, becoming the catalyst for the OECD complaint.

The Starkeys first and foremost want their lands made safe and their heritage sites preserved intact for future generations. As the complaint process is still under way, the Starkey legal team cannot provide specific details. A summary appears on the OECD website. It lists a request for mediation, including an impact assessment, financial compensation and, intriguingly, ‘a temporary cessation of the company’s supply services’. It is likely this means they are asking Saab to cease supplying missiles to Defence until the Starkeys can be sure their heritage sites will be safe.

Australia hasn’t seen anything like this case before. In fact, in the world of OECD complaints, it’s a first.

‘Although arms manufacturers have been pursued via the OECD guidelines in the past, the complaint in the current context is unique’, says Mr Podgorelec. “And, if successful, it could reverberate through the international community of multinational weapons manufacturers.”

There would undoubtedly be reverberations in the halls of power in Australia too. A win by the Starkeys at the OECD would put Defence under pressure to end the cavalier way it deploys and discards its weaponry on their land. Multinational weapons manufacturers are unlikely to risk the reputational damage flowing from a complaint upheld by the OECD.

The OECD guidelines say that even if a country fails to act in line with its international human rights obligations, multinational enterprises are still expected to honour human rights to the fullest extent possible.

Saab AB in Sweden has pledged to apply the UN Global Compact’s ten principles and integrated them into its code of conduct. Its largest shareholder, owning a 30 per cent stake of Saab, is Investor AB (a historic and sizeable Swedish investment holding company). Its investment guidelines dictate that companies must sign up and adhere to the UN Global Compact, the Universal Declaration of Human Rights, and the OECD Guidelines for Multinational Enterprises.

Corporate pressure on Defence to clean up its act would not only increase the safety and accessibility of the land for Indigenous people and preserve Indigenous heritage, it would also put pressure on the federal government more broadly to bring its actions into line with its undertakings on human rights.

Conflicted interests and the ‘revolving door’

Andrew Starkey told the Juukan Gorge inquiry: ‘I’ve been in the game of site protection most of my life, and I cannot recall that anyone has ever been prosecuted under [the SA Aboriginal heritage act]. We’ve lodged complaint after complaint that go nowhere… A lot of mining companies, and indeed Commonwealth departments, such as Defence, operate on the premise that it’s easier to ask for forgiveness than it is to ask for approval, and we’re left wanting’.

The long line of conflicted interests brought to light by this missile situation is astounding.

The conflicts start at the top in South Australia, where Premier Steven Marshall is the responsible minister for both the Aboriginal affairs portfolio and the defence industry portfolio.

Defence industry is important to South Australia’s economy and receives generous political support. South Australia is the only state to have a stand-alone government agency for defence matters, called Defence SA. The combination of unprecedented federal spending on arms procurement under the Coalition government from 2016 onwards ($270 billion over a decade, on top of the usual large defence budget) and the election of Marshall’s Liberal state government in March 2018 means business is booming for defence industry in South Australia.

One beneficiary has been Saab, which federal finance department Austender records reveal has been awarded $1.4 billion in contracts by Defence since 2016.

This missile problem makes the ‘revolving door’ of senior executives between Defence SA and Saab relevant and noteworthy.

Saab’s current managing director, Andy Keough, a former Australian submarine commander, was CEO of Defence SA from 2015 to 2017 before he was poached by Saab.

In 2017, Mr Keough was replaced as CEO of Defence SA by Richard Price, who had worked in a senior role at Saab in Stockholm from 2013 until he joined Mr Keough’s team at Defence SA in 2016. Before Mr Price moved to Stockholm in 2013 he had been Saab’s Australian managing director.

As the current CEO of Defence SA, Mr Price is now an ex officio member of the WPA advisory board, the primary governance body for the WPA ‘coexistence framework’.

While the government proclaims a commitment to coexistence with Indigenous people inside the WPA, the aspiration is little more than a sham, with the WPA advisory board compromised by conflicted interests. This board, charged with implementing ‘coexistence’, has never included formal Indigenous representation. Nor has the government in ten years created the Reference Group of WPA stakeholders originally proposed as the key mechanism for stakeholder feedback into the advisory board.

Equally egregious is that the board continues to disregard its most basic requirement: an independent chair. The WPA advisory board has not had an independent chair since it was established. Its current chair, former Howard government minister Amanda Vanstone, is a board member of the Australian subsidiary of Lockheed Martin, the world’s largest weapons-maker. Lockheed Martin is the manufacturer of the RAAF’s F-35 fighter jet, tested at Woomera, where it has also tested hypersonic weapons and much else. Currently, Lockheed is partnering with Saab to supply sophisticated combat systems for several naval shipbuilding projects in South Australia.

When asked for his response to this web of conflicted interests, Mr Podgorelec said, ‘Our complaint is directed solely at Saab. However, if Defence SA or the WPA advisory board have communicated with the OECD about our complaint, directly or indirectly, it would have been prudent to identify perceived or actual conflicts’.

Even in the wake of Juukan Gorge and the extensive evidence of ongoing destruction of Indigenous heritage provided to the subsequent inquiry, Defence’s WPA advisory board continues to flout the basic requirement for an independent chair; Ms Vanstone was recently re-appointed for a further two-year term.

Dr Pace has long experience of human rights coming up hard against global business interests.

‘This “revolving door” phenomenon and related appointments to public bodies in South Australia is ultimately bad for business and more so for the protection of indigenous heritage’, he says. ‘Such bodies create a false impression of respect for international standards of accountability but serve to neutralise the purpose for which they were set up. Investors should be aware of such un/ethical realities’.

As an aside: Australia’s former long-serving finance minister Mathias Cormann now heads up the OECD, while his ‘close friend’ Peter Dutton MP is currently Australia’s defence minister.

Never again!

The interim report issued by the Juukan Gorge inquiry stated: ‘Never again can we allow the destruction, the devastation and the vandalism of cultural sites as has occurred with the Juukan Gorge—never again!’

In a piece for Arena Online in December 2020, Jon Altman and Dan Tout said, ‘there is little in this interim report, hyperbole aside, that fills us with any confidence that such destruction will not occur again.’

Given the management of the WPA, the chance of another disaster remains strong. In the meantime, there is the ongoing health and safety risk to Kokatha people of unexploded ordnance.

Mr Podgorelec says European nations and corporations typically show greater respect for international law and agreements. If the investor base of European conglomerates such as Saab become aware that international laws are being flouted, investor pressure is often brought to bear. Australia has already experienced this. The disaster at Juukan Gorge resulted in international condemnation, with repercussions for Rio Tinto as a result.

The AusNCP’s initial assessment of the Starkey complaint could be made public by early March, however a spokesperson from the Treasury Department (which provides secretariat support to the AusNCP) did not confirm this, saying only that the report, ‘will be published in due course following consultation with the AusNCP Governance and Advisory Board and the parties to the complaint.’

Note: The Defence Department (including the WPA Coordination Office) and Premier Steven Marshall were contacted for comment. The premier did not respond. Defence did not answer the questions asked, but provided the information noted in the piece.

Michelle Fahy acknowledges the investigative reporting of SBS News/NITV who first broke this story.

Again and Again: Settler-colonial extractivism and the Juukan Gorge inquiry’s interim report

Jon Altman, Dan Tout, 17 Dec 2020

…it seems the First Nations of Australia will be left with another empty promise that governments and mining companies, together so invested in their ongoing dispossession, will act in good faith to ‘protect’ them and their heritage. Surely nobody can reasonably believe this by now.

About the author

Michelle Fahy

Michelle Fahy is a researcher and writer investigating the close connections between the weapons industry and the Australian government. Her work has appeared in various independent publications including Progressive International, Declassified Australia, Consortium News and Michael West Media. She is on twitter @FahyMichelle and her archive is at Undue Influence

More articles by Michelle Fahy

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