Article by Michael Bennet for The Australian Financial Review
Mining and Indigenous heritage protection can happily “co-exist” despite Rio Tinto’s Juukan Gorge scandal highlighting problems, so long as companies lift their game and governments enforce new laws, according to the chief executive of the National Native Title Council.
At a National Aboriginal Press Club event in Perth, National Native Title Council (NNTC) chief executive Jamie Lowe said it remained to be seen how the West Australian government’s new Aboriginal Cultural Heritage Bill 2021 – which removes the controversial Section 18 approvals process – was implemented and protected Aboriginal rights.
But with WA being the “richest state in the country” that also had “such inequality”, the state government had to “raise the bar and enforce the law and ensure the wealth is shared”.
The 2020 blasting of Juukan Gorge caused international outcry. PKKP Aboriginal Corporation
“And there’s a role for the industry to lift their game. Your mob have had it pretty good for quite a while now,” he said.
It comes as the WA government prepares to hand down its state budget next week, expected to be another multibillion-dollar budget surplus boosted by the commodity price boom.
Continuing the government’s pre-budget announcements with $14.6 million for a new “Aboriginal empowerment unit” to improve policymaking, WA Mines and Energy Minister Bill Johnston acknowledged many Aboriginal communities did not support its new heritage legislation, but vowed their input would go into the ensuing regulations.
“The new legislation, we believe, strikes a balance and creates a respectful approach,” he said.
Heritage legislation slammed
Rio’s destruction of the 46,000-plus-year-old Juukan Gorge rock shelters in the Pilbara in 2020 rocked the company, but also reverberated across the industry.
A scathing final parliamentary inquiry report into the company’s failings released in October slammed Rio but also blamed Western Australia’s Aboriginal Heritage Act 1972 and found “serious deficiencies” in other cultural heritage legislative frameworks across the country.
It is an evolving space, with the Commonwealth and the First Nations Heritage Protection Alliance in March progressing work on strengthening state and federal laws after the parliamentary report called on the Morrison government to take charge of Aboriginal cultural heritage by legislating minimum standards for state regimes.
Mr Lowe said the NNTC had experienced a surge in institutional investors trying to understand how companies make agreements and engage with First Nation peoples on cultural heritage since Rio’s destruction of Juukan Gorge.
He said most Aboriginal people were not anti-mining, and companies were typically “presented with people who are willing and able and waiting to negotiate”.
“So when the media, government and industry say that, operating at a higher level, it means … mining will be shut down over the country, this is just scaremongering. It’s like when the Mabo decision was handed down by the government in the ’90s,” he said.
Companies reflecting on practices
Mr Lowe noted that Fortescue Metals Group CEO Elizabeth Gaines had been questioned at a conference in Sydney this week about why it had not ramped up mining at a project not far from the Juukan Gorge incident. She explained it related to ongoing work with native titleholders on heritage management.
He said it was a sign of how miners were “reflecting their current practices and how they need to change”.
“Aboriginal people are not about shutting down mining. Aboriginal people are calling for a greater say on their country,” he said. “In many, if not all cases, mining and heritage protection can naturally co-exist and sometimes, when it cannot, maybe the miners and the government who have had it good for so long and have extracted trillions of dollars from this country need to sit back and accept that decision.”
In the future, [Indigenous Australians] also must play an increasingly prominent role in the senior leadership ranks of mining companies.
— Allan James, BHP head of Indigenous engagement
BHP head of Indigenous engagement Allan James conceded the relationship between the industry and Indigenous people remained a “work in progress” with several complicated issues to work through, and said having greater representation in senior leadership would help.
“Indigenous Australians must have a strong voice when it comes to development on their country. In the future, they also must play an increasingly prominent role in the senior leadership ranks of mining companies,” he told the event.
“How else can we create genuine cultural change and raise the level of awareness and cultural competency, if we don’t have this level of representation?
“There is an enormous opportunity to create prosperity for generations to come, but we have to get this right.”
Meanwhile, Mr Lowe backed calls for a structured national framework for the negotiation of native title compensation claims. It follows the High Court’s historic decision in 2019 to award the Ngaliwurru and Nungali Peoples of the Northern Territory town Timber Creek $2.5 million for the loss of their rights, including $1.3 million for cultural loss.
It sparked expectations of a wave of claims, and Rio director and former WA Aboriginal Affairs Minister Ben Wyatt has warned of a large potential liability for governments and companies.
But it is playing out differently in the states, raising uncertainty over timing and where liability lies.
“I know the WA government is actually handling some compensation matters at the moment,” Mr Lowe said.
“One of the questions we get asked at the moment is what a good agreement looks like … [and] I think we’ll start getting a better understanding of what good looks like [as more cases are resolved].”
WA has already settled two native title claims, and Mr Johnston said the government was continuing to negotiate with several groups. He said unlike other states, Aboriginal people owned the bulk of WA, with 90 per cent of its land and sea mass subject to a native title claim or determination, which partly explained the different approaches.
“[We] hope to be able to do more settlements with Aboriginal people to recognise their cultural and other rights”, he said, adding they would factor in “actions of the past”.
“Native Title is a law of the Commonwealth, but of course, Western Australia has to respond to it. We are trying to be respectful to Aboriginal people.”