3.1
The evidence presented to the Committee indicates that conflict over the protection of Aboriginal and Torres Strait Islander peoples’ heritage and the loss of Aboriginal and Torres Strait Islander peoples’ heritage is not isolated to Juukan Gorge.
3.2
Australia’s mining boom has largely taken place in Western Australia but the failure of its cultural heritage laws has resulted in widespread destruction of tangible and intangible cultural heritage assets with Aboriginal and Torres Strait Islander people being left without assistance in dealing with developers.
3.3
The Hon Robin Chapple MLC, a long-standing advocate of Aboriginal and Torres Strait Islander peoples in Western Australia, observed that:
The issues around destruction of Aboriginal, archaeological and cultural heritage have been ongoing for many years with consultants being threatened, having their reports modified by mining corporations, and being dismissed for refusing to amend reports in favour of the proponent’s desires.
3.4
This Chapter tells the experiences of Aboriginal and Torres Strait Islander peoples dealing with the resources industry and how some in the industry approach agreement-making in Western Australia. It also highlights some of the state arrangements, including specific legislation and national park agreements that both harm and protect heritage sites.
3.5
Ms Sara Slattery of the Robe River Kuruma (RRK) Aboriginal Corporation stated:
RRK are not anti-mining. RRK are for self-determination. We are for protecting our beautiful RRK country for our children and grandchildren. And we are for an economic and culturally secure future for Australia and our RRK people that means they reach their full potential.
Aboriginal and Torres Strait Islander peoples’ experiences
3.6
The Kimberley Land Council (KLC) submitted that:
Sadly, damage to and destruction of cultural heritage occurs far too frequently in the Kimberley region and opportunities to stop such destruction are limited, expensive, onerous on native title parties, and are available in the context of legislative schemes that presume mining and exploration, and other economic activities, should always be prioritised over cultural heritage.
3.7
This claim is evidenced by the following Aboriginal and Torres Strait Islander peoples’ experiences which demonstrate failures in the governing legislation and the power disparity between Aboriginal and Torres Strait Islander groups and large mining companies. It should be noted that these experiences are just a few of the many destructive events that have occurred throughout Western Australia, causing irreparable harm to cultural heritage sites.
Banjima people
3.8
The Banjima Native Title Aboriginal Corporation (BNTAC), representing the Banjima people of the Pilbara, stated:
Banjima People have a long and sometimes difficult relationship with mining companies on our lands, and the cumulative destruction of our country is something which sits uneasily with our people.
3.9
Banjima country is a clear example of the sheer number of developments that Aboriginal and Torres Strait Islander peoples have to manage. Developments on Banjima country have included:
Rio Tinto Koodaideri development
Hancock Mulga Downs development
Numerous smaller mines and developments
Hundreds of active exploration tenements
Hundreds of kilometres of rail line.
3.10
During the inquiry the Committee travelled to the Pilbara and met with both the Banjima and BHP at the South Flank Mine. In the time spent with the group the Committee witnessed a reasonably constructive relationship between both groups. It was apparent that BHP was aware of the importance of cultural heritage and that the company respected the Banjima’s heritage and interests.
3.11
But despite laudable efforts by BHP to improve its relationship with the Banjima, there were still apparent problems. For example, in the centre of a mine pit was an untouched ravine with a significant rock shelter used by the Banjima. The Banjima expressed concerns that the ravine would end up an island in the centre of the pit, and the fact that there had been little investigation relating to the site itself.
3.12
There were also concerns that at certain sites, pits had been excavated to allow for archaeological assessments in consultation with the Banjima. However, the Banjima took issue with the fact that they had not been filled in for over a year, an affront to Banjima culture as the sites looked like graves.
3.13
Other issues related to the storage of artefacts. The Committee and the Banjima were shown BHP’s keeping places for artefacts. A repository room for artefacts also had random equipment and a shipping container was filled with boxes of artefacts. Understandably the Banjima were upset about the storage of their artefacts.
3.14
Discussions on these issues took place between the Banjima and BHP. It was apparent that BHP was listening to the Banjima’s concerns and that they would seek to rectify these problems in collaboration with the Banjima.
3.15
In a joint decision with the Banjima, BHP has established a heritage council comprising elders from the Banjima and senior people from BHP. BHP believes that this will provide extra certainty for the Banjima as BHP has agreed to not impact sites unless the council has agreed to decisions. The heritage council will ensure that BHP has people within the operations, general and mine managers to work directly with Elders on future mine plans.
3.16
The Committee noted with concern that, in January 2021, a rock fall occurred at the South Flank project. BHP stated that the cause of the fall was unknown. BHP and Banjima Elders commenced a joint investigation into the fall. Banjima Native Title Aboriginal Corporation (BNTAC) chairperson and Banjima Elder Maitland Parker said:
Our Heritage Council was convened to ensure open lines of communication between BHP and Banjima on heritage issues and other matters — something that is now happening. BNTAC and our Heritage Council, alongside BHP, will continue this investigation to ascertain the exact causes of the impact on the site.
Guruma country
3.17
The Wintawari Guruma Aboriginal Corporation (WGAC), which oversees the native title lands of the Eastern Guruma People, noted that ‘more than 93 per cent of Eastern Guruma country is covered by mining tenements, and it is one of the most heavily explored and minerally prospective locations in Australia’. A recent review of the effects of mining within Eastern Guruma country found that:
More than 20,000 drill holes have been drilled
At least 434 heritage sites have been destroyed through mining activity
A further 285 are in very close proximity to current mining operation areas.
3.18
In addition, WGAC was aware ‘of major expansion plans that will see more and more country irreparably destroyed, and with it sites of cultural importance and significance’.
3.19
Rio Tinto Iron Ore (RTIO) and Fortescue Metals Group (FMG) are the two main companies operating on Eastern Guruma country, with seven mines (six owned by RTIO) and three rail lines (RTIO), and new railways and mines under construction. WGAC noted that:
Within two generations, Eastern Guruma people have seen their country change from a remote place teeming with wildlife, fresh water and unbroken sacred narratives that networked through the Pilbara, to a heavily industrialised mining hub, now dissected by railways, dry and devoid of animals.
3.20
Located on Guruma country is Marandoo. Located 35 km northeast of Mount Tom Price, it is an important cultural area for the Eastern Guruma people for a range of cultural, spiritual, historical and familial reasons. Marandoo is on the southern flanks and lowlands of Punurunha-Mount Bruce, the mountain from which Law stems and all songs are stored. Punurunha is one of a collection of several prominent hills and mountains that form a complex of sacred sites, with each hill an embodiment of different aspects of Law and spiritual practice. The Law that flows from Maradoo is sacred to the Guruma people, and neighbouring Aboriginal groups. It is considered to be the place where Creation was started, and where all of Creation is regenerated.
3.21
Plans to mine Marandoo began in 1975 but it was not until 1992 that the Western Australian Government allowed the project to proceed. In that period there were efforts by industry to ensure the mine went ahead while the Eastern Guruma, Banyjima and Yinhawangka people formed the Karijini Aboriginal Corporation (KAC) to fight the mine. Ultimately the Minister for Aboriginal Affairs ruled in favour of the mine going ahead.
3.22
As detailed in Chapter 4, in 1992 the WA Parliament passed the Aboriginal Heritage (Marandoo) Bill 1922 to safeguard the Marandoo project and to prevent future legal challenges, as well as enshrining the existing section 18 consent over the area in law in order to enable the mine to continue. An effect of the Act was to remove areas of the Marandoo section 18 consents from the operation of the AHA (WA). This meant that Hamersley Iron Pty Ltd (later Rio Tinto Iron Ore) was not required to uphold the requirements of the AHA.
3.23
It should be noted that currently Rio Tinto is actively working towards the repeal of the Marandoo Act through discussions with the State Government and the Eastern Guruma. The Committee has outlined in greater detail below its concerns with the Marandoo Act and other state and territory legislation exempting certain areas from general heritage protections. The Committee urges Rio Tinto and the WA Government to progress work to repeal the Act as a matter of urgency.
3.24
There were four conditions that Rio Tinto was required to comply with as part of the Marandoo section 18 consent. The company was required to avoid the Rock Art Complex in the area and maintain the integrity of the Thoongari Burial Complex, a place of deep significance to the Eastern Guruma. Rio Tinto was also required not to damage Punurunha-Mount Bruce, but this condition did not contribute a useful protective mechanism as there has been no section 18 application over the area.
3.25
The fourth condition provides for the salvage of sites. Hamersley Iron was required to engage an accredited archaeology firm to undertake a salvage and management program of the area. The programme had to be implemented with the participation of KAC and relevant government agencies. However, KAC was not afforded much of a role in this process.
3.26
Kinhill was contracted by Hamersley Iron to undertake this task immediately after the Marandoo Act was passed. Kinhill engaged archaeologists to conduct the work, a team from Western Australia and a team from the Northern Territory University (NTU). It is understood that at least 28 sites were salvaged as part of the program, including samples from the Manganese Gorge which contained material dating back 18,000 years. The materials were taken to NTU for further analysis.
3.27
The analysis was undertaken by highly qualified archaeologists who separated the material into three categories: material to be returned to Hamersley Iron; material to be taken to ANU which was later returned to Hamersley Iron; and material to be disposed of. Rio Tinto’s current review of the process was not able to confirm if the process was consistently applied, due to a lack of records, as heritage had not been considered important enough to keep records on. As a result Rio Tinto has not been able to determine the potential archaeological value of the materials.
3.28
A 1996 letter from NTU to Kinhill delivered the shocking news that the cultural material excavated from the 18,000 year old rock shelter had accidently been taken to the Darwin tip. There is no record of what was discarded.
3.29
In 1997 NTU prepared a brief report for Rio Tinto that detailed the university’s failures in keeping the Marandoo cultural materials. Cultural materials had been poorly stored, mislabelled and allowed to sit for a prolonged period in a rusted-out sea container and, more importantly, other cultural material had been discarded.
3.30
The Committee received conflicting evidence about Rio Tinto’s handling of the cultural materials in 1997. WGAC submitted that there was evidence that Rio Tinto had expressly approved the disposal of some materials held by NTU. On the other hand, Rio Tinto told the Committee that it had ‘not identified any evidence that Rio Tinto directed any disposal of artefacts.’ Rio Tinto’s position was subsequently criticised by WGAC, who submitted that the company’s evidence to the Committee was ‘extremely disappointing’ and ‘sought to downplay the importance of the cultural material disposed and lessen Rio’s involvement and responsibility for what occurred.
3.31
The Committee was not successful in its efforts to obtain further information or explanation about the events from NTU (now Charles Darwin University).
3.32
The Eastern Guruma believe that the dumping of material affected at least 20 of the 28 sites salvaged. For some of these sites the material was the only remaining proof of the sites existence, due to no reports, data or photographs being produced as part of the salvage program.
3.33
The Eastern Guruma were not made aware of this loss at the time and only became aware this year (2021). What happened to Marandoo was devastating for the Eastern Guruma people, the losses of cultural sites on an unprecedented scale and their treatment at the time made them feel powerless against the Aboriginal heritage approvals system. Their discovery this year that their cultural materials had been lost was deeply distressing. They were angry that this information had been kept from them. To this day, the Eastern Guruma do not have proper access to Marandoo sacred sites.
3.34
The Committee urges Rio Tinto to work with the Eastern Guruma in relation to their ongoing concerns about the destruction of the material excavated at the Marandoo sites. At a minimum, the Eastern Guruma must have appropriate access to these sites.
Yinhawangka country
3.35
Yinhawangka country stretches from the Beasly River to the Great Northern Highway and the Karijini National Park to the Ashburton River. Twenty-five percent of their land is covered by mining leases, which is considered underrepresented in the National Reserve System. The Yinhawangka have numerous heritage agreements and negotiate multiple new agreements each year. They are resourced jointly by Rio Tinto and BHP, through a legal trust, to support this agreement-making process.
3.36
One of the most important archaeological sites to the Yinhawangka is Yirra. Yirra is the largest of a series of rockshelters situated along the rock face at Rio Tinto’s Channar Mine. A section 18 consent has been in operation since 2000. Since this time, testing has revealed significant amounts of cultural material and there is strong evidence of occupation dating back 23,000 years. The Yirra site itself is not accessible to traditional owners and is not protected in a culturally appropriate manner.
3.37
Future work is planned near the site and the Yinhawangka have not been informed how this will happen in a way that will keep the Yirra site safe. This is extremely concerning to the Yinhawangka people.
3.38
The Yinhawangka Aboriginal Corporation submitted that Rio Tinto is currently planning the Western Range expansion project in the last remaining area of the Hammersley Ranges subregion. Of the 327 sites in the area, 124 are at risk from the project. Currently, 26 of the sites have had section 18 approval with the rest scheduled. The only thing protecting the sites is the goodwill of Rio Tinto.
3.39
The Yinhawangka have a participation agreement with Rio Tinto. The document is 300 pages long with accompanying schedules, deeds and summarised forms. The CEO of Yinhawangka Aboriginal Corporation, Mr Grant Bussell told the Committee that the agreement does not explicitly say ‘”'In return for getting these payments from the mining of your land, you don't have any rights in protecting your country'”, but he inferred that the document did create pressures to comply with Rio Tinto’s wishes.
Murujuga Aboriginal Corporation
3.40
The Murujuga Aboriginal Corporation (MAC) consists of traditional owner and custodian groups, the Ngarluma, the Mardudhunera, the Yaburara, the Yindjibarndi, and the Wong-Goo-Tt-Oo. Murujuga is the language name for the entirety of the area, encompassing the Burrup Peninsula and the off-shore islands of the Dampier Archipelago.
3.41
MAC was established in 2006 to administer the Burrup and Maitland Industrial Estates in collaboration with the Department of Biodiversity, Conservation and Attractions (WA) under an agreement that secured the development of the Burrup and Maitland strategic industrial areas in exchange for freehold title of Murujuga. Mr Peter Jeffries, Chief Executive Officer of MAC, explained that:
A condition of the agreement was the withdrawal of native title claims over the Burrup and that freehold title was to be transferred back to the state government and managed as a national park. Murujuga Aboriginal Corporation is in a unique position where the land and the culture are managed without any legal native title rights or interest but where the traditional custodians have legislated, administrative and traditional responsibilities for its protection.
3.42
MAC is not a Prescribed Body Corporate (PBC) for the purposes of the Native Title Act, and it does not receive any mining royalties. Instead MAC holds the freehold title to the Murujuga National Park which is co-managed with the Department of Biodiversity, Conservation and Attractions.
3.43
In MAC’s experience the AHA (WA) has not prevented the destruction or removal of sites and cultural objects For example, during the construction of Woodside’s North West Shelf facilities during the 1980s, 1828 pieces of rock art were removed from their cultural context and stored in a fenced compound for 30 years. These pieces were finally returned in 2014.
3.44
The MAC expressed fears that there might be financial repercussions following their statements in the hearing with the Committee. This is an important example of the unacceptable power imbalance between Aboriginal groups and proponents.
Yindjibarndi country
3.45
The Yindjibarndi Aboriginal Corporation (YAC) representing the Yindjibarndi people have experienced serious issues with Fortescue Metals Group’s (FMG) Solomon Hub project which has proceeded without proper consent since 2008. Two important rock shelters have been destroyed in this time, one dating over 50,000 years and the second in the 46,000-48,000 range.
3.46
In 2008 FMG sought to obtain mining leases for the Solomon Hub Project, resulting in negotiations with the Yindjibarndi. FMG insisted on terms that aligned with other agreements made in the Pilbara. These agreements would have allowed FMG broad control, including allowing joint ventures with other mining companies without consultation with the Yindjibarndi. Their agreement terms were refused by YAC.
3.47
In response, YAC claims that FMG engaged an anthropologist who encouraged a group of dissenting Yindjibarndi to establish Wirlu-Murra Yindjibarndi Aboriginal Corporation as a rival corporation to the YAC which FMG then engaged with. YAC considers that the dissenting Yindjibarndi were not adequately knowledgeable about the Native Title Act 1993 and associated processes, resulting in their agreement to every application FMG has made for ministerial consent to destroy sites.
3.48
FMG stated that it ‘categorically rejects the allegation that Fortescue encouraged or orchestrated the creation of the WMYAC’ and cited a National Native Title Tribunal finding in support of this contention. The Federal Court nevertheless found that FMG had played a ‘significant role’ in promoting a meeting of WMYAC members that would have defeated the Yindjibarndi claim for exclusive native title over their lands and ‘orchestrated the convening of the meeting and the voting procedure to a considerable degree’.
3.49
Research conducted by YAC based on reported financials on the ORIC website suggests that Wirlu-Murra have received $120.6 million from FMG since its establishment.
3.50
YAC has attempted to object to the existence of Wirlu-Murra to the Aboriginal Cultural Material Committee (the ACMC), but there has never been a response to their objections.
3.51
Restrictions from visiting their own country and no communication from FMG mean that it is unclear to the YAC what has been destroyed on their land.
3.52
Yindjibarndi spent 26 years trying to achieve Native Title over their lands. In 2017 a Native Title determination was finally made for the Yindjibarndi. But the determination was contested by FMG, and it took until 2020 for FMG’s appeal to be dismissed. Despite now being the Native Title holders, the YAC has seen no change from FMG’s behaviour. FMG has not communicated with it and there has been no effort to negotiate an Indigenous Land Use Agreement (ILUA).
Burden of administration of legislative protections
3.53
As was the case with Juukan Gorge, and discussed throughout the report, many Aboriginal and Torres Strait Islander peoples have identified the lack of protection provided by the Aboriginal Cultural Heritage Act 1972 (WA) (the AHA) as a critical issue in the destruction of Aboriginal and Torres Strait Islander peoples’ cultural heritage. Dealing with the administrative processes involved in protecting cultural sites can be an onerous burden.
3.54
BNTAC highlighted the disconnect between the decision making body, the Aboriginal Cultural Material Committee, and the people affected by its decisions:
There is currently no role for Traditional Owners in the assessment and approval of any section 18 application. The Aboriginal Cultural Materials Committee (ACMC), which meets to consider applications under the Act and provide non-binding advice to the Minister. The ACMC has no cultural authority or connection with the Banjima People and is not considered representative of the Banjima People.
3.55
WGAC noted that since 2017 it had ‘responded to 15 statutory applications for mining purposes made pursuant to the AHA (WA) by RTIO and FMG, all located within Eastern Guruma country’:
Of the 123 sites affected by the approvals sought for mine expansion, 12 sites were identified by Eastern Guruma people to be of great cultural importance, being sites where customary law originated, birthing places, rockshelters dating back to earlier than 40,000 years ago, ceremonial sites, sites for storing sacred objects and rock art sites.
3.56
WGAC observed that where cultural sites will be adversely affected by proposed land use, WGAC made ‘full use of the processes available through the AH Act, which involves writing submissions’. It also engaged the Minister and his office, ‘the Minister being the primary point of decision-making’, and corresponded ‘articulating the views and concerns of Eastern Guruma Elders and Traditional Owners’. WGAC noted that it regularly invited the Minister ‘to meet to discuss various cultural heritage preservation. The Minister is yet to take up the offer to meet with WGAC. Mining companies seemingly meet with the Minister at will.’
3.57
The consequence of this, WGAC stated, was that:
…any outcome that sees the preservation of culturally important sites is the result of WGAC’s own initiative and perseverance, through negotiating directly with the mining company, making use of any tool available (including media) and without any support, involvement, intervention or dialogue with the Minister, the ACMC or the DPLH.
3.58
WGAC has focused its efforts on building its capacity through dedicating time of the Board and its Directors, engaging full time staff, commissioning legal advice and building data management systems. However, WGAC notes that:
Influencing and informing mining company decision and mine planning is a labour-intensive, full time pursuit that requires determination, dedication and constant vigilance. For WGAC, it requires a team of people with different skillsets and expertise, a unified and highly functional board and a consistent drive to keep mining companies accountable.
3.59
WGAC submitted that the greater power of the mining companies, and the conflict inherent in the administration of the AHA directly resulted in the loss of cultural heritage sites:
FMG has secured many section 18 approvals from the Minister of Aboriginal Affairs to use land within the Eastern Guruma native title determination area, and to permanently modify the land and destroy significant Aboriginal sites.
It is Wintawari’s [WGAC] experience that FMG chooses each time it applies for section 18 consent to precipitate a contest between Wintawari and FMG about destroying Eastern Guruma sites and relies on the government being the arbiter and decision-maker under section 18. It is Wintawari’s view that FMG use to their advantage the fact that successive Aboriginal Affairs Ministers in WA have not declined a section 18 notice on mining tenure for over ten years.
Registration of cultural sites
3.60
There were mixed views from submitters about the effectiveness of the Registrar for Aboriginal sites, established under the AHA (WA). Accusations were put to the Committee that bureaucrats arbitrarily amended the Register to make way for mining applications. It should be noted that there were some misconceptions that a site had to be registered to be protected, however sites are in fact protected regardless of whether they are registered or not. Nonetheless, this misconception fuelled a number of fears for traditional owners.
3.61
The Yindjibarndi were dissatisfied with the fact that over 3,000 sites from the Pilbara were removed from the Register, including 172 that belonged to the Yindjibarndi. They have never received an explanation for the removal but, given the sites were in the Pilbara, they suspect that the removal was due to mining.
3.62
Robe River Kuruma have experienced a number of issues with the registration of sites, in particular that the process is long and drawn out. They also note the fact that the process is quicker when lodged under the process of a section 18 application, and a site is ultimately to be damaged or destroyed.
3.63
Some Aboriginal groups submitted that there was reluctance to register their sites due to concerns that it only led to destruction of the sites. There was concern that registering previously unknown sites would allow outsiders to pursue their destruction.
3.64
Clearly the current Register process has flaws. Registration of heritage sites should not be a drawn out process and should be a matter for traditional owners to identify sites they wish to be registered and to inform the relevant department. Registered sites should also not be removed without good explanations to affected Aboriginal and Torres Strait Islander groups.
3.65
The new Aboriginal Heritage Act Bill proposes to replace the register with a new process that will allow traditional owners to identify sites of significance, with the intention that other groups, including landholders, will not be able to dispute this fact.
Agreement making
3.66
Agreement making between Aboriginal peoples and resources companies is a central part of mining development in Western Australia. Key criticisms of the Agreement between the PKKP and Rio Tinto was its complexity as well as gag clauses that prevented the PKKP from discussing the terms of the agreements and from seeking heritage protection, without first advising Rio Tinto. Other traditional owners reported similar gag clauses that only served to protect the interests of the resources company.
3.67
Agreements with traditional owners are a standard part of resources development in Western Australia. The Chamber of Minerals and Energy observed that:
Resource projects undergo a wide variety of extensive and complex approvals processes in order to gain the requisite permits, permissions and approvals to undertake exploration, construction and operations in Western Australia. Stable, life-of-mine access to land is fundamental to the long-term success of operations. Agreement making with Traditional Owners is a critical component of project development, with complex negotiations often extending for years prior to signing of an agreement.
3.68
The Chamber of Minerals and Energy (CME) further noted that:
Land tenure for mining is tightly linked to Native Title and project tenure is generally not granted for mining purposes until Native Title negotiations conclude, and heritage protocols are in place. In practice, this means that Traditional Owners are involved in major mining projects from their inception.
3.69
Critically, the CME highlighted the importance of certainty of tenure to mining investment, stating:
The grant of tenure for the purpose of a mining lease does not give the proponent freehold rights to the land. Mining tenure is a finite right with a limited timeframe: all time is critical. Long-term certainty of tenure is also crucial for sovereign risk and investment purposes.
3.70
The central importance of agreement making to set a base for land use was highlighted in the evidence received by the Committee from the resources sector.
3.71
Roy Hill highlighted the importance of native title agreements to its operations, stating that:
Roy Hill considers its relationships with native title groups an integral part of the Roy Hill community, with the foundation of these positive relationships anchored in native title agreements with the Kariyarra, Nyiyaparli and Palyku people… [our approach] is to engage in understanding the broader cultural landscape as well as support activities of recording and preserving Aboriginal knowledge and culture for future generations’
3.72
Critical to Roy Hill’s approach was that:
…under those agreements the Nyiyaparli and Kariyarra people retain the right to object to heritage issues. To be clear, the agreements do not require the Nyiyaparli or Kariyarra people to waive their right to object to heritage issues.
3.73
The Fortescue Metals Group (FMG) advised the Committee that it had:
…built excellent relationships with Aboriginal People across the Pilbara region of Western Australia built on deep engagement, mutual respect and the agreement-making process of seven comprehensive Native Title Agreements.
3.74
The agreements facilitated:
…identification and protection of significant Aboriginal cultural heritage through Aboriginal Cultural heritage surveys. FMG and native title holders had ‘surveyed 2.5 million km2 of land and identified and protected over 5900 cultural heritage places’.
3.75
FMG argued that it was only due to their presence that heritage sites were mapped and protected. FMG observed that ‘many of these places were estranged to the contemporary [native title claimants] until they were rediscovered during the Aboriginal Heritage Survey process funded by Fortescue’. In addition:
Fortescue has extensive mechanisms in place that identify, promote and protect Aboriginal cultural heritage across our operations. These mechanisms, combined with the close on-the-ground relationships between Fortescue team members and local Traditional Knowledge Holders provide a number of fail-safes to ensure the protection of, and mitigate the risk of ill-considered damage to, important Aboriginal cultural heritage.
3.76
FMG argued that it worked to ensure that native title parties had appropriate legal representation and understood agreements:
We work very closely to make sure that there is appropriate legal representation and that these agreements are known and understood, and, importantly, we have processes in place to establish working groups and to establish heritage subcommittees. So, there are a range of programs and processes. As I said, we seek to ensure that the native title party is fully informed of the agreement.
3.77
FMG also stated that they did not have ‘gag orders’ in agreements:
The distinction between our agreements and other agreements is that there is no requirement to consent. Under our land access agreements, our native title partners are actually free to consent and oppose. They're also able to speak publicly about their views.
3.78
In broad terms, FMG stated that its agreements include:
Governance structures established to regularise ongoing and continuous communication between Fortescue and the Native Title party about all matters that are included in agreements.
Processes and procedures for the consultation and disclosure obligations related to the submission of section 18 applications. Fortescue’s Land Access Agreement’s do not hinder nor restrain the Native Title parties from opposing section 18 consents or from seeking relief under federal law or making public comments.
Environmental management and protection processes, and the ability for Native Title parties to make representation to environmental authorities on any of Fortescue’s approval applications.
Agreement to compensate the Native Title party for the effect that the grant and use of mining tenure will have on the Native Title party’s ability to use and enjoy their Native Title rights and interests.
Native title party consent to the future grant of Fortescue mining tenure and to execution of State Deeds when required.
3.79
FMG emphasised that a key element of their agreements was economic opportunities for traditional owners. The native title agreements provided ‘a range of benefits including vocational training and job opportunities with Fortescue, commercial contracting arrangements and compensation in return for the temporary suppression of Native Title rights during mining’. FMG noted that:
Fundamental to the provision of meaningful employment is the ongoing development of our Aboriginal workforce through sustainable career opportunities. Since 2006, over 900 Aboriginal people have been offered full-time employment through our pioneering Vocational Training and Employment Centre program. Currently, almost 50 per cent of our apprentices are Aboriginal. Since the inception of our Billion Opportunities Aboriginal procurement program in 2011, Fortescue has awarded contracts and sub-contracts worth over A$2.5 billion to over 120 Aboriginal businesses and joint venture partners.
3.80
Woodside, alongside a number of other resource companies, submitted that it had reviewed its processes in response to the Juukan Gorge incident, and acknowledged its previous failings:
The Juukan Gorge incident prompted Woodside to review the risks associated with our current and future activities, to ensure that our management is thorough, transparent and underpinned by close engagement with Indigenous stakeholders and communities.
Woodside acknowledges that our approach to managing and protecting cultural heritage has improved over time. Cultural heritage impacts were managed differently in the 1980s, and those practices did not meet the standards that we now set ourselves and that the community expects today.
3.81
Woodside reiterated the benefit of the resources industry presence in Western Australia:
Indigenous communities including Traditional Custodians continue to benefit from our operations. We believe that our host communities value our presence and our contributions through financial benefit agreements, social investments, direct and indirect employment and Indigenous contracting opportunities. Woodside is clear that support for our operations and developments from our host Aboriginal communities is contingent upon caring for Country, improving economic and social outcomes and supporting the transmission of cultural knowledge from old people to young people.
3.82
BHP, when asked by the Committee if it supported traditional owners having a right to veto activities, stated that:
BHP recognises that agreements entered with traditional owners on the protection and management of cultural heritage must be sought with the free, prior and informed consent (FPIC) of those traditional owners. Consistent with this approach to FPIC, BHP looks to reach agreement with traditional owners in relation to the conduct of BHP’s business on the relevant lands, including in respect of the areas where BHP can and cannot undertake its business.
3.83
The Committee acknowledges that while some companies have committed to review and modify their agreements with traditional owners in light of the Juukan disaster, there is very limited public information about whether that has occurred and what changes have been made.
Aboriginal and Torres Strait Islander peoples’ perspectives
3.84
The agreement process looked a little less positive from Aboriginal and Torres Strait Islander peoples. BNTAC noted that:
Many (if not all) Pilbara Traditional Owner groups are signatories to ‘Claim Wide Agreements’ which dictate the manner in which the Aboriginal Heritage Act 1972 (WA) is to be applied and administered by the relevant mining company within the subject agreement area(s).
…
Claim Wide Agreements place traditional owners in a position of being expected to trade away their heritage for mining interests. In this regard, the contribution that Aboriginal people make to support the prosperity of this nation is significant, and largely goes unrecognised.
3.85
The Kimberly Land Council (KLC) agreed:
The KLC recognises that there are good agreements between native title holders and proponents that are negotiated in a spirit of mutual respect and understanding, and there are proponents who are genuinely committed to ensuring their activities are only done with the free, prior and informed consent of native title holders including in relation to heritage. However, the KLC submits that these agreements are made despite and not because of the NTA future act provisions, in particular the operation of the right to negotiate.
The extremely high likelihood that proponents will obtain the necessary approvals even if they don’t reach agreement with and obtain the consent of native title parties means that the playing field for agreement-making is never level and native title parties participate in the future act process knowing that if they don’t reach agreement with a proponent there is an almost 100% chance the proponent will have its interest granted if it makes a future act determination application.
3.87
Ms Sara Slattery submitted that resource industry agreements are only one component of land use, and that there are multiple other land users that are not required to seek agreement with the traditional owners prior to using traditional lands:
We have many other companies mining and exploring in our country too. Nearly all our country is covered by mining leases or exploration licences or if it is not, it is affected by pastoral leases.
We have an ILUA [Indigenous Land Use Agreements] with Rio Tinto. And we have agreements with other mining companies too. Some are better than others and all have their ups and downs. Our agreements are only as good as the good faith and the effort that both parties put into the relationship – this must incorporate fair processes and honest communication.
We hold exclusive native title to some areas, and non-exclusive native title to the rest of our determinations. However, we have no national parks, Aboriginal reserves or land tenure holding where we can make decisions and exercise true self-determination.
Our land access, our traditional rights and our cultural sites are all at risk from mining, pastoralism and decisions of the State. And we do not yet have an agreement with the State about our country or any legislation that allows us to take our rightful place at the centre of decision making. Indigenous people need to be treated as partners in the management of our country, to better protect our heritage, assert our cultural obligations and rights, and to ensure development is culturally appropriate.
3.88
The WGAC told the Committee that FMG had been:
…withholding our royalty payments, an amount of $1.9 million, since February 2020 because we have simply asked for information about their plans for some mining leases they have applied for. These mining lease areas contain numerous sacred sites. We have asked FMG to reconsider their position, and they have advised us they will not; they will only pay the royalties when we sign off on the mining leases. We know that if FMG is granted their mining leases then we'll have no power to stop them destroying our sites and causing damage to the places we care about.
Committee comment
3.89
The events at Juukan Gorge were not one-off. Rather, as evidenced by the Aboriginal and Torres Strait Islander experiences outlined in this Chapter−which only highlighted a few−the destruction of cultural heritage sites is an alarmingly common occurrence.
3.90
The power held by the mining industry over negotiations and agreement making is concerning, particularly claims about companies funding the establishment of rival groups to seek compliance with development requests. Failure to identify and require engagement with organisations that have cultural and statutory authority, such as PBCs, leaves groups vulnerable to exploitation.
3.91
The Committee is heartened to see that in the reckoning over the events at Juukan Gorge, some companies in the resource industry are reflecting on their previous relationships with traditional owners and trying new models of engagement that are more culturally appropriate. Nevertheless, while commitments have been made to review and modify agreements, there is little transparency about how this is being done.
3.92
The Committee is dismayed to hear reports that some companies continue to endanger critical heritage sites. It calls upon those in the industry who are improving their processes, to hold their peers to account for these inappropriate actions. The mining industry peak bodies also have a role in driving change. The Committee feels too that it is incumbent on shareholders, particularly institutional investors, to hold publicly listed companies to account for their actions or inaction in regard to improving relationships with traditional owners. After the destruction of the Juukan caves it is clear that Aboriginal and Torres Strait Islander heritage is intertwined with Australia’s heritage and that its destruction is the destruction of ancient Australian heritage.