Given the deep connection First Nations peoples have to the land, it makes sense that the sectors and industries built upon land, water and natural resources should establish close and productive relationships with Traditional Owners.
But mining and Aboriginal land rights have often been in tension since European settlement, with recent flashpoints underscoring how all businesses can do better.
In this article we look for a way forward, and learn that it involves access, consultation and embedding First Nations perspectives at all levels – starting with the board:
- Governance at the heart of reconciliation
- Partnering with Aboriginal people
- The role of government and legislation
- Reconciliation Action Plans
- Can mining and land rights ever be reconciled?
In May 2020, Rio Tinto detonated a 46,000-year-old indigenous sacred cave site, Juukan Gorge, to access iron ore for export.
The incident drew widespread condemnation and was likened to the Taliban’s 2001 destruction of the world’s tallest standing Buddhas in the Bamiyan Valley in Afghanistan, an act globally decried as vandalism of a historically and culturally significant site.
As for the Traditional Owners of the land, the Puutu Kunti Kurrama and Pinikura (PKKP) people, they told a Senate inquiry the incident caused them "immeasurable cultural and spiritual loss and profound grief".
In a world where companies are rushing to sign up to reconciliation action plans (RAPs) and moving on diversity and inclusion targets that tick the right ESG boxes, how could there be such egregious oversight at a top-tier mining corporation?
As it turned out, it wasn’t just mining giants who had a case to answer.
A year after the Rio Tinto scandal, communications behemoth Telstra was ordered to pay $50 million in penalties for breaching Australian Consumer Law when it signed more than 100 indigenous consumers up to onerous mobile phone contracts they could not understand or afford.
Some of the public outrage that followed these incidents reflected the idea that, as a nation – following decades of awareness ushered in by the Mabo land rights case in the 1990s, the Stolen Generations report, and the Apology by the Rudd government a decade ago – reconciliation between Aboriginal and non-Aboriginal people should have evolved past blowing up sacred caves and exploiting vulnerable Australians.
Governance at the heart of reconciliation
Ian Hamm, a Yorta Yorta man who has been involved at high levels in public policy and regulation for decades, including as head of Aboriginal Affairs in Victoria during a time of reform around heritage and native title, thinks the issue is one of governance.
“There is a need for Aboriginal people to be involved in governance across all sectors and at all levels, and to be present in greater numbers on boards,” Hamm, who now sits on a number of different boards as a non-executive director, said.
“Boards need to have Aboriginal people on them and be clued into the fact that as organisations they need to understand that part of their role is to think about the contribution their organisation makes to the wider society that they operate in.”
Hamm thinks that the Banking and Aged Care royal commissions and the Rio Tinto case brought corporate responsibility to the fore. “They ripped the scab off what we thought was a healing process and exposed the question: ‘did they really understand what they were doing?’,” he said.
The incident showed that Rio Tinto, once regarded as a leader and exemplar in reconciliation, had shifted away from what it was doing well – changing its corporate structure, shifting Aboriginal engagement away from core mining and putting it in stakeholder relations.
“By doing this they showed they regarded the Aboriginal community not as part of their core mining group but rather stakeholders to be managed,” Hamm said. "And then much of that was managed out of their headquarters in London.
"The problem stemmed from having a board that was predominantly not even Australian and a CEO that was from Europe, notwithstanding that the bulk of their business happened to take place in remote Australia – talk about knowing your customers!”
Partnering with Aboriginal people
The situation has improved following the Juukan Gorge incident – not that it could have got any worse.
“I think things have improved not only for Rio Tinto but for the mining sector as a whole, or particularly those sectors that intersect with Aboriginal people around land, because there is this realisation that they cannot simply operate in the vacuum of not engaging with Aboriginal people or seeing them as a problem to be solved or a problem to be managed," Hamm said.
“If the Juukan Gorge example did one thing, it encouraged mining companies to see Aboriginal people as partners to be worked with. That’s what you have to do. And if you don’t do it you’ll end up in the same situation as Rio Tinto."
To that end, Rio Tinto and Woodside appointed an Aboriginal person to their boards – Ben Wyatt, an accomplished and high-profile Yamatji man who was a former WA state treasurer and the minister responsible for Aboriginal affairs who administered the Aboriginal Heritage Act.
Wyatt’s place at the table will surely start a conversation among mining executives. “It’s a reminder that all mining people need to be thinking about their board composition, now that ESG is overtaking every part of governance,” Hamm said. “It is embedded and part of how you work.”
“Include Aboriginal people as part of your decision making – not just as part of the decision-making process but as decision-makers sitting around the boardroom table.”
The role of government and regulation
Where there are failures in corporate governance, or it appears that companies are not moving in the right direction, should governments get involved and make legislation that compels companies to do ‘the right thing’?
“Government can’t and should not prescribe to companies who they should have around their board table,” Hamm said. “But they should heavily let it be known that their legislation is built around not favouring one side or the other or indeed if it does it’s probably not going to favour the industry per se.”
“Given that the High Court found that native title exists, that’s not going anywhere, you’ve got to learn to live with it, you can’t object to it – I think the role of government is to remind companies of this.”
As for the role of legislation, it should be to protect Traditional Owner interests without excluding others from being engaged.
“The implementation of regulation needs to be around how we support people coming together,” said Hamm. “In this case miners and traditional owners. How does the use of legislation help them come together and help them find common ground and help them find a way forward. And not in a winner takes all situation, but something where everybody gets a bit of something.”
Hamm, who administered the Victorian Traditional Owner Settlement Act as head of Aboriginal Affairs, saw his job as “not to blindly prosecute the regulations, but to help people use the regulatory structure, which had been crafted in a way that would help people find a way forward”.
In terms of how companies address their governance issues and engagement issues, all government can do is provide useful tips – that’s about it.
Hamm’s advice for mining executives is to meet people on the ground that they’re comfortable on and within the timelines that they are on and the way that they do business.
“Don’t expect Aboriginal people to get into line with your pre-agreed contracts with overseas customers – factor them in first,” he said. “That’s not putting one over the other, that’s just treating people with respect.”
Reconciliation Action Plans
One of the key planks of any company’s ESG framework is usually a RAP – a reconciliation action plan – which sets out how a company intends to embed the principles of reconciliation with Aboriginal and Torres Strait Islander peoples into its work and the life of its employees.
Three fundamentals of any RAP are relationships, respect and opportunities, and at their most effective, RAPs can increase economic equity and support First Nations' self-determination.
Similarly, a poorly executed RAP is not worth the paper it’s written on. Both Rio and Telstra had RAPs at the highest level of engagement – a status that Telstra was later compelled to rescind following a discussion with Reconciliation Australia.
“Particularly for bigger companies it’s almost like a sprint to get to the top of the RAP structure, without understanding the purpose of a RAP,” said Hamm. “They’re simply a tool to bring about reconciliation between peoples that may or may not work for your organisation.”
“If a RAP really works it transforms how your organisation does business and not just in relation to Aboriginal people but in relation to everything because an Aboriginal understanding of the world is different to a non-Aboriginal understanding and some of that permeates right throughout your organisation.
“It’s about your organisation’s place in the wider society in which we operate, their obligation to everyone and everything, rather than just profit maximisation and shareholder value. Because that’s how we think conceptually as a people – we’re a point in a greater network rather than an individual.”
Can mining and land rights ever be reconciled?
In a similar way to its relationship with the environment, mining may always be in tension with land rights.
From the mining perspective, a deeper and better understanding of Aboriginal people will help resolve some of the tension. And from the Aboriginal community’s perspective, a better understanding of what makes mining companies and people tick.
“I don’t think there’s a perfect resolution,” said Hamm. “The best thing you can do is reach an imperfect balance because there’ll always be a degree of tension – it’s how you reduce the scope of that tension.
“We often find, though, that we have far more in common, and mutual outcomes, than we have disagreements, which form the tension. I think we are moving more towards that.
“Mining companies, if they understand reconciliation and Aboriginal people better, will want to have the least amount of impact on the landscape that they can.
“But equally for Aboriginal people – we don’t want to live in poverty. And if mining is a way to participate in that as equals and as respected partners, we won’t have to live in poverty.
“I think there are things we have in common, bearing in mind there will always be moments of tension. And that’s okay – it’s fine, that’s the real world.”