Investors coalition puts Australia's miners on notice over Indigenous rights

The Juukan Gorge disaster have shone a spotlight on a power imbalance.

$14 trillion investor coalition puts Australia's miners on notice over Indigenous rights

https://www.smh.com.au/business/companies/14-trillion-investor-coalition-puts-australia-s-miners-on-notice-over-indigenous-rights-20201028-p569fe.html

28 Octboer 2020

A coalition of global investors managing a collective $14 trillion has written to Australia's biggest mining companies describing Rio Tinto's destruction of Aboriginal rock shelters as a wake-up call and demanding assurances about their relationships with First Nations peoples.

In a letter circulated on Thursday, the investor group which included America's Fidelity, the Church of England Pensions Board and several top local super funds said their long-term investments meant they needed to have confidence in how miners obtained and maintained their "social licence" with the traditional custodians of their land on which they operated.

The push comes after traditional owners were left devastated and investors shocked and outraged at Rio Tinto's ill-fated decision to blast through two culturally significant 46,000-year-old rock shelters at Western Australia's Juukan Gorge to enlarge an iron ore mine. Over several weeks, some of Australia's largest superannuation funds applied pressure for greater accountability for the disaster that eventually forced the resignations of Rio's chief executive Jean-Sebastian Jacques and two of his deputies last month.

"The events at Juukan Gorge have shown this is a significant risk for investors and have prompted us all to take a deeper look at how relationships between companies and First Nations and Indigenous peoples are formed and function," said the letter, whose signatories also included HESTA, Cbus Super, the Australian Council of Superannuation Investors (ACSI), Aviva Investors, Legal & General, AXA, and the California State Teachers' Retirement System.

"We believe that investment risk exists where there is a mismatch between a company's stated approach to relationships with First Nations and Indigenous communities and what happens in practice."

The letter was mainly addressed to miners with operations in Australia, such as BHP, Glencore, Fortescue Metals Group, South32, Oz Minerals, Newmont, Anglo American, and Northern Star. Recipents also included foreign giants, such as Brazil's Vale, US gold miner Barrick and Pan American Silver Corp.

Ever since traditional ownership rights were recognised in Australia, Indigenous groups have been entering into legally binding native-title agreements with mining companies, which provide valuable royalty streams in exchange for the impact to their cultural heritage and wealth derived from their land.

However, the Juukan Gorge disaster and subsequent federal parliamentary inquiry have shone a spotlight on a power imbalance underpinning negotiations between resources giants and Indigenous groups, including the use of "gag clauses" in land use agreements that prohibit traditional owners from publicly objecting to mining activity. Rio Tinto has also conceded multiple failures in its heritage-protection processes and engagements with traditional owners – the Puutu Kunti Kurrama and Pinikura (PKKP) people – in the lead-up to the blasting of the gorge.

"This issue has exposed material investment risk for investors," ACSI chief executive Louise Davidson said.

"We want to understand how companies across the industry are managing these risks and working to ensure that a disaster like the Juukan Gorge never happens again."

The investors said in the letter they were committed to working with the mining sector to support the development of processes and standards that would ensure disasters such as the destruction of the Juukan Gorge caves were never repeated. "To do so, we need to better understand your approach to management of cultural heritage and First Nations and Indigenous community relations," it said.

The group said it intended to gather responses from the companies before "initiating a dialogue" involving input from community representatives and mining executives.

Debby Blakey, chief executive of $52 billion super fund HESTA, said the Rio Tinto disaster had been a "wake-up call" for miners – and investors making long-term decisions – about the importance of managing the risks associated with Indigenous heritage appropriately. "Not only so we can mitigate financial risk for our members' investments, but also so we can ensure there are fair and sustainable outcomes for indigenous communities and companies," Ms Blakey said.

Juukan Gorge traditional owners given 'gag order' warning by lawyers for Rio Tinto, inquiry hears

Eliza Borrello and Karen Michelmore

https://www.abc.net.au/news/2020-10-12/juukan-gorge-blast-inquiry-told-of-rio-tinto-gag-clauses-warning/12754100

12 October 2020

Lawyers for mining company Rio Tinto warned traditional owners trying desperately to save the 46,000-year-old Juukan Gorge rock shelters that they could not speak publicly about the issue, an inquiry has heard.

They were also told they could not apply for a federal emergency halt to works without first asking Rio Tinto's permission and giving 30 days' notice, according to Puutu Kunti Kurrama and Pinikura (PKKP) Aboriginal Corporation chief executive Carol Meredith.

The caves were destroyed in May on the traditional Pilbara lands of the Puutu Kunti Kurrama and Pinikura people, as part of Rio's bid to access $135 million worth of iron ore.

Speaking via teleconference, Ms Meredith said Rio was applying pressure to the group as they tried to stop the works.

"What we were reminded of by Rio's lawyers was that we were not able to engage seeking out an emergency declaration that perhaps would have stopped proceedings, because of our claim-wide participation agreement," she said.

"We were hamstrung and we were reminded that we were not to speak about this publicly, that we had the gag clauses and we needed to remain compliant.

"If we were to proceed to seeking an emergency declaration. we were required to seek permission from Rio before we took that option, and we had to give 30 days' notice and table every document we were going to use in that application.

"So for us in the time span available, it was not in fact an option."

Financial payments left at risk, PKKP says

Northern Territory MP Warren Snowden asked Ms Meredith what the PKKP people would have lost if they breached the agreement.

She replied that they would have lost out financially.

"We are in danger in fact of losing all the benefits that come with the agreement … which is a very serious outcome from our people," she said.

"It wasn't an equal partnership then and it certainly isn't now."

The PKKP people have made little media comment since the blast.

In the context of discussion about the gag clause, Northern Territory MP Warren Snowden asked if the PKKP people would be able to speak to a media organisation if one approached it after the hearing.

Several PKKP members responded by saying "no".

Later, PKKP Aboriginal Corporation chief executive Carol Meredith added the organisation did not want the examination of the blast to turn "into a media circus".

"We are not anti-mining," she said.

Rio Tinto accused of packing explosives despite concerns

The hearing also heard evidence from the PKKP people's cultural and heritage manger, Heather Bluith, that even after the they had protested about the imminent destruction of the caves, Rio kept loading explosives.

"We were having all these high-level meetings [and] at the same time they were having these discussions, they were still loading up the blast holes," she said.

In a statement a Rio Tinto spokesman said the company "reiterate" that what happened at Juukan Gorge was "wrong."

"We are determined to ensure that the destruction of a heritage site of such archaeological and cultural significance never occurs again at a Rio Tinto operation," he said.

Fears for artifacts taken from caves

Concerns were also raised about the safety of significant ancient artefacts collected during archaeological surveys at the site.

The PKKP's group's cultural and heritage manager, Heather Bluith, said many artefacts were held by Rio Tinto in shipping containers at the Brockman mine site, with others on display in the administration building.

She said the traditional owners did not have access to the artefacts without permission from Rio Tinto.

"They have been out in a sea container going from 7 degrees [Celsius] to 60C on a daily routine, and we are really worried about their condition," she said.

Rio Tinto said some artefacts were stored in a secure air conditioned room at a company building in Dampier, and a new storage facility would be installed on site that could be used to house them.

A Rio spokesperson said the firm was working with the PKKP on how they would like the artefacts stored.

FMG applies for nearby mining lease

The inquiry also heard the PKKP people were "pretty upset" Andrew Forrest's Fortescue Metals Group recently applied for a mining licence.

Ms Meredith said the PKKP had worked with Rio Tinto after the Juukan Gorge destruction to secure a temporary moratorium for six months on any further work in areas of high cultural sensitivity.

But in the past three days, she said traditional owners had become aware FMG had a prospecting licence in the moratorium area and was now seeking a mining licence.

"We agreed on a moratorium area and we weren't told by anyone that there was potential for FMG to come in from the side and actually apply for a mining licence," she said.

FMG issued a statement saying it had held prospecting licences since 2012 over an area 10 kilometres away from Juukan Gorge.

"As the Prospecting Licenses are reaching the end of their term, Fortescue submitted a Mining Lease application over this area which is consistent with normal practice," the company said in a statement.

"Fortescue has commenced discussions with the PKKP Aboriginal Corporation regarding conducting extensive heritage surveys of the area and confirms that there are no current plans to mine the area.

"We take our relationship with traditional custodians very seriously and we will continue to work with the PKKP to survey the area and understand areas of cultural significance."
Push to let committee visit WA

PKKP traditional owner John Ashburton became emotional as he appealed for exemptions so the inquiry's hearings could happen in person.

"We think a physical site [visit] is necessary of the committee to appreciate the extent of the disaster," he said.

"And to fully respect the trauma and the pain being experienced by PKKP people."

Both the PKKP and committee chairman, Queensland MP Warren Entsch, have written to WA Premier Mark McGowan calling for the inquiry to be given permission to visit the Pilbara.

Mr McGowan said applications for travel exemptions amid the state's hard border were managed by the WA Police Commissioner.

He also said the border rules were in place to protect Aboriginal communities from COVID-19, because they were particularly susceptible to the virus.

"All I'd say to Mr Entsch and other members of the committee is [to] continue to work with the State Government on the exemption process, but we're not going to compromise the health of Aboriginal people for something they might want," he said.

Rio Tinto still has 1,780 approvals to destroy Aboriginal sacred sites, Juukan Gorge inquiry told

In tense exchanges with MPs, executives take responsibility for ‘poor decisions’ that led to the destruction of the 46,000-year-old caves.

Lorena Allam

https://www.theguardian.com/australia-news/2020/oct/16/rio-tinto-still-has-1780-approvals-to-destroy-aboriginal-sacred-sites-juukan-gorge-inquiry-told

16 October 2020

The mining giant Rio Tinto still holds 1,780 approvals to destroy Aboriginal sacred sites in the Pilbara, senior executives have told a parliamentary inquiry into the company’s destruction of a 46,000-year-old sacred site at Juukan Gorge in May.

The 1,780 approvals remain valid while Western Australia’s outdated Aboriginal heritage laws are being reviewed, which means the company can legally destroy the sites. But the executives said every one of them was being reviewed for their “potential impact”, in partnership with the traditional owners.

Rio’s global chief, Jean-Sébastien Jacques, its iron ore boss, Chris Salisbury, and its corporate affairs boss, Simone Niven, gave evidence to the Australian inquiry for a second time on Friday under very different circumstances from their first appearance in August.

All three are stepping down over the company’s handling of the destruction of a 46,000-year-old rock shelter at Juukan Gorge, deemed to be of the highest archaeological significance in Australia – an example of industry conduct the WA Labor senator Pat Dodson labelled “incremental genocide”.

Jacques said none of them had been aware of the site’s “extreme archaeological and cultural significance” until after it was destroyed, although “they should have been”. But he said others in the company had known since 2005.

In tense and awkward exchanges with MPs, Jacques, Salisbury and Niven took responsibility for “missed opportunities” and “poor decisions” over several years that led to the destruction of the caves.

“The explosion should not have occurred,” Salisbury said. “[The caves] should not have been included in the mine plans. There was no intent of deception, but clearly mistakes have been made.

“We have no precise clarity about who made that decision [to include the caves in the the mine plan]. It was a poor decision and it was wrong.”

Salisbury said Rio hadn’t told the Puutu Kunti Kuurama and Pinikura peoples about its blast plans because “we believed we had consent”. After the PKKP pleaded at the 11th hour to stop the blast, Salisbury said it had been his decision to go ahead because removing the charges would have been too dangerous for employees on site, and “the safety of my employees is always my highest priority”.

The WA Greens senator Rachel Siewert said she found it “mind-boggling” that the company could “just write off 46,000-year-old Aboriginal heritage like that, just write it off. Just unbelievable.”

Rio’s general manager, Brad Welsh, said there was a moratorium on a 57sq km area around the Brockman 4 mine site, which would be an area of “perpetual protection”.

Niven, responsible for Indigenous community relations since 2017, admitted that she had never once visited the site and had visited “maybe three or four” of Rio’s other Pilbara sites. She also revealed that the only meeting she had sought or held with the PKKP was after they had made a submission to the inquiry in late September.

The explosion was a source of “great regret”, Niven said, about which “we did drop the ball”.

The WA Liberal senator Dean Smith interrupted: “I think that understates the significance of what happened.

“Do you take full responsibility or part responsibility for what happened?” he asked.

Niven replied: “As I said, I’m stepping down. I take responsibility for the part I played, senator.”

This week the PKKP spoke about how the blast had left them “devastated”.

“Myself, my family, our elders and our ancestors are in mourning at the desecration of our sacred site,” said a traditional owner, Burchell Hayes. “The disaster has now left a gaping hole in our ability to pass on our heritage to our children and grandchildren.

“When I heard, I was driving to Port Hedland with two of my grandsons. It felt terrible as a grandfather that I was not able to preserve the heritage that was on loan to me.”

In August Rio Tinto told the inquiry it had considered three options for the mine that would have avoided damage to the rock shelters but had chosen a fourth to pursue an additional $134m in high-grade iron ore.

On Friday Salisbury called that decision “a mistake”.

The company confirmed it was working with the PKKP to set up a keeping place for artefacts and objects salvaged from the site, including a 4,000-year-old belt of plaited human hair that shows a direct genetic link to modern-day PKKP people. They are now being housed in a non-air conditioned shipping container on site.

At the end of Friday’s session, Dodson was scathing in his assessment.

“Anyone that’s been listening to this inquiry clearly gets the impression that the industry – and you’ve typified it to some degree – the lack of free prior and informed consent, the forcing of people into contracting out their rights, the management of culture that ties traditional owners and takes advantage of weak laws, would have to draw the conclusion that this is a form of incremental genocide, and the destruction of sites which is the evidentiary base of the oldest living culture in this country,” he said.

“As an international company do you have any recollection that this is what you are currently, and have been, participating in?”

After a pause, Jacques replied: “Senator, I can only restate how sorry we are. It should have never happened.”