Joint Standing Committee outlines future for Cultural Heritage

This week the Joint Standing Committee of Northern Australia released its final report on the Inquiry into the destruction of 46,000 year old caves at the Juukan Gorge in the Pilbara region of Western Australia.  The report contains eight recommendations aimed at strengthening legislative frameworks, decision-making processes and industry practices to align with international standards and improve the protection of Indigenous cultural heritage in Australia. While the Senate inquiry recommendations remain under consideration by the federal government, they may have significant implications for mining companies and all other industries operating on or in proximity to Indigenous land.

As we move towards Reconciliation, Closing the Gap, finding a Path to Treaty and supporting a Voice to Parliament it is timely to reflect on some of the key lessons and emerging trends resonating from Juukan Gorge.

In response to the ongoing media coverage and resulting Senate Inquiry, mining companies have commenced urgent reviews of cultural heritage management policies, procedures and controls. The overwhelming public response to the blast also highlighted that lack of Indigenous community consent has become a significant risk for mining companies, a view consistent with KPMG’s Mining Risk Forecast 2021-22, which identified community relations and social licence as the second highest current key industry risk.

Many companies recognise the need to better understand the rapidly changing landscape relating to cultural heritage management and their relationship with Indigenous Australians more generally, as longstanding demands for recognition of Indigenous rights are increasingly reflected in the expectations of investors, International actors, and a growing proportion of the Australian public.  Concurrently, diverse stakeholders are seeking assurances over the industry’s adherence to international Indigenous human rights commitments and standards such as the United Nations Guiding Principles on Business and Human Rights (UNGPs)[1] and the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). [2]

The rise in reporting requirements around the social dimensions of ESG, has increased scrutiny of how companies embed respect for fundamental Indigenous rights such as self-determination through processes of Free, Prior and Informed Consent (FPIC) and the elevation of Indigenous voices in project decision-making.  These themes require a more considered and diligent approach to Indigenous engagement and a strengthening of relationships with Indigenous communities affected by mining operations.

There is also a much broader reform agenda at play, with a growing confluence of opinion expressed through a number of recent regulatory reviews.  The Independent Samuel Review of the Environment Protection and Biodiversity Conservation Act 1999 (Cth)  recommended a new National Environmental Standard for Indigenous engagement and participation in decision-making, changes to better support the incorporation of Indigenous views and knowledge into regulatory processes, and a comprehensive review of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) to provide stronger national protection of cultural heritage.

The Productivity Commission Report into Resources Sector Regulation similarly highlighted the inadequacy of Indigenous heritage protection regimes and the importance of early engagement with Traditional Owners during project assessment processes, centring Indigenous voices in decisions affecting their heritage.

The sector has also seen increasing scrutiny and due diligence from investors, with numerous examples of shareholder resolutions and collective investor action demanding assurances about mining company approaches to cultural heritage protection and engagement with Indigenous communities. Maintaining social license from Indigenous communities was identified by Moody’s as a rising credit risk[3] and the growing focus on ESG and investment stewardship will continue to drive change, requiring greater transparency in how the sector is addressing social risk.

Perhaps the biggest learning for companies wanting to maintain their social license to operate is that regulatory requirements are clearly out of step with societal expectations, and a ‘beyond compliance’ approach is now required.  Without significant legal reform, simply following the law is no longer enough to maintain effective relationships with Indigenous Australians. Engagement needs to be genuine, ongoing and deeply relational rather than purely transactional in nature.  Strengthened relationships will be the key to maintaining social license and mining companies will need to focus on improving their cultural competency in order to work more effectively alongside Indigenous Australians.

Fundamental to these relationships will be an acknowledgement of the power imbalance experienced by Indigenous Australians engaging with mining companies and others around land use, particularly during native title and cultural heritage negotiations.  Reaching the required standards of Indigenous consultation and consent demands a more open and concerted approach and appropriate timeframes need to be reflected in mine operational planning to accommodate this.

If your business is looking to respond to the changing social risk landscape by taking a more holistic view of your organisation’s activities and their intersection with the fundamental human rights of Indigenous Australians, the Australian Business Guide to implementing the UNDRIP produced by the UN Global Compact, KPMG and the University of Technology, Sydney provides leading practice guidance on how you can understand, respect and support the rights of Indigenous Australians and embed them into your business practices.

Thanks to Christine Crispin and Nicole Petrilli in the preparation of this article.

[1] ‘Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework,’ United Nations OHCHR, 2011
[2] ‘United Nations Declaration on the Rights of Indigenous Peoples’, United Nations General Assembly, 2007
[3] Sector In-Depth Report, Moody’s Investor Service, 29 June 2021.

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