A series of events playing out in Western Australia's Pilbara region at the moment looks set to have a significant role in changing the way both social and official mining licences are granted. The story thus far involves a large corporation and 48,000 years of indigenous heritage. Ironically, the Goliath involved in this tussle has been warning the industry for years, or ever since its current CEO took office at least, about the very real consequences of validating Avatar's portrayal of mining. In fact, he used the movie as a graphic metaphor as recently as 2018 to demonstrate just why "Our industry is one of the least-trusted on the planet."

For those who haven't seen Avatar, it portrays the often unscrupulous quest to dig up a mineral called 'unobtainium' on the planet Pandora. In the process of doing so, the miners displace indigenous peoples who live there, and inflict untold destruction on the local environment.

Therefore, it wasn't surprising when the company under the control of this CEO blasted 2 ancient indigenous Australian rock shelters in the Juukan Gorge in the Pilbara in May 2020, it sent shock waves through the industry. The reason? A company that advocates developing more trusting relationships and working closely with local indigenous peoples to come to mutually agreeable outcomes around mining historically significant land, had just knowingly destroyed a couple of sites with deep historical and cultural significance for indigenous Australians and through them, for Australian cultural history in general. 

Here's the thing though – under current legislation the company was perfectly entitled to do what it did. Legally that is. Western Australia's Aboriginal Heritage Act 1972, and more specifically Section 18 of said Act, gave the company full permission to blast Juukan Gorge 1 and Juukan Gorge 2. Morally and ethically however ….! 

Section 18 goes something like this: "For the purposes of this section, the expression the owner of any land includes a lessee from the Crown, and the holder of any mining tenement or mining privilege, or of any right or privilege under the Petroleum and Geothermal Energy Resources Act 1967, in relation to the land."  Section 17 of the same Act further exonerates the company legally because, whilst they certainly did destroy Aboriginal sites, they did so with "the consent of the Minister under section 18".

The Company Says…. 

According to a statement on their website the company has been in negotiations with the traditional owners of this land for over a decade. They've followed the required heritage approval process and duly obtained all the relevant permissions. In 2014, after their OWN research found that the sites were more significant than anyone realised, they helped the traditional owners safely remove and relocate over 7,000 prized cultural heritage artefacts from the sites. From their perspective, the way was clear to proceed. And….legally it was. Legally and even ethically to a point, the company had followed their own core principles about dealing fairly with local traditional landowners and culturally significant sites. 

BUT

Surely some sites are so culturally and socially significant their preservation ought to trump monetary gain! A growing number of people both inside and outside the industry believe they are. There's a mounting groundswell of opinion that conversations around this very topic must become mandatory inclusions in social licences to operate. 

When that happens it will mark a significant change in how social licences to operate are negotiated, renegotiated, and granted. We've seen mining companies increasingly enter into valuable social arrangements like contracts with local communities around improved water quality and use, and providing access to infrastructure and amenities those communities wouldn't have otherwise had. However, the increasing expectation clearly is that the industry should, can, and must do more, particularly in the area of sensitive land use.

Galvanising Public Opinion

Needless to say, the saga has galvanised public opinion both in Australia and globally, and exposed some of the mounting pressures that have been lurking within the mining industry for decades. It also, in the few seconds it took those explosives to do their destructive job, undid years of work spent trying to improve the industry's image as an ethically and morally responsible corporate citizen! Damage it may take years to fully repair, if it ever can be.

Furthermore, it has become very clear that when it comes to legislation like Native Title Acts traditional owners are, more often than not, only legally granted a seat at the negotiating table for compensation purposes. As once commentator put it "It's a right to sit at the table, not a right to say 'no'". 

Regrettably, the non-mining populace in general is largely ignorant about much of this unless they've bothered to read the various Mining Acts. What they see on the surface is traditional owners agreeing to be 'bought out' by mining interests and then contrarily protesting about the often-destructive use of their land by those interests. It's not until one delves a bit deeper that it becomes apparent all isn't quite as it seems on the surface, at least in Australia.

Australia's Recent Native Title History

Before Mabo, native title didn't exist in Australia. After Mabo, the introduction of traditional land ownership rights gave native titleholders the right to compensation in exchange for the use of their traditional lands. Today a range of Acts across Australia's states and territories govern the processes by which native title is recognised and how other stakeholders must proceed if they want legal permission to use those lands.

However, significantly, and unfortunately, none of these various Acts provide traditional owners with the right to reject projects that will, or have the potential to, harm important sites and/or artefacts. Further, the legislation in Australia's largest mining state does not provide traditional landowners with the right to review a decision once it's been made either! In other words, once they've agreed to compensatory deals, which invariably include lucrative ongoing royalty payments, the expectation (requirement?) is that they will then remain quietly on the sidelines when it comes to the development of that land.

Granted, these Acts do give relevant ministers the authority to say 'yay' or 'nay', and the powers to dictate how development must proceed, and what necessary steps the developers must take to preserve artefacts and sites. However, once a minister has made his or her decision, that's generally 'it' as far as traditional landowners are concerned, especially in Western Australia.

Nevertheless, in relation to Juukan Gorge the question now being asked is – did the company receive and ignore a formal request from the traditional owners to spare the sites themselves once their greater significance was discovered? 

The company denies knowing about any such request and realistically, under WA's current Act it legally didn't have to consider such a request anyway. As we've mentioned, there is no provision within the WA Act for traditional owners to ask for a review after a decision has been made. Nonetheless, the company is now reviewing its own internal handling of the matter. Several other majors have also suspended their approved plans to expand or develop operations that would involve the destruction of sacred sites.

What can we likely expect as part of the fallout from Juukan Gorge?

Community and investor attitudes to mining have changed significantly over the past few decades. For one thing, there is an increasing expectation that businesses generally should be managing their affairs and their risks more effectively when it comes to environmental, social, and governance (ESG) responsibilities. The investment community in particular is asking hard questions about how companies plan to do this and how well they've factored risk fallouts into their operating budgets. Ultimately, ESG poses a significant financial risk for investors, and companies that can't prove they have appropriately considered them risk losing out on investment dollars.

To date ESG pressure, particularly in mining, has been largely focussed on the 'E'. Accordingly, to keep those dollars flowing in from an increasingly 'green' investment community, the industry has spent billions cleaning up its act and proving it does care about issues like climate change. More and more companies for example are switching to clean, renewable energy sources and ditching reliance on heavily polluting fossil fuels so they can meet their commitment to reduced or zero carbon emission goals. That's good news for the environment!

However….although environmental commitment obviously remains important, community and investor focus is shifting beyond it to things like corporate social responsibilities. They are expecting companies to go above and beyond the water use agreements, the provision of amenities and infrastructure, and similar arrangements. There is growing demand that issues like native land title rights and the preservation of environments that are culturally and historically significant become standard and mandatory discussions at negotiating tables.

Indeed, the Juukan Gorge incident could well be the catalyst that finally rockets the tacit inequities in the power balance between traditional landowners and the mining industry to the surface. It's always been there, silently simmering away under the surface and causing a lot of distress and heartache. In Australia, some commentators have likened it to the banking royal commission a few years back that provided the trigger needed to get regulatory action happening in that industry. 

It's therefore refreshing to know that a parliamentary inquiry in Australia will be looking at the current legal frameworks in that country that are supposed to be protecting such sites but are clearly failing. As we've pointed out, they're failing because this framework has never really been about NOT mining these sites per se, but about striking compensatory arrangements with the traditional owners in exchange for mining them. Those are 2 very different objectives!

We've also come to see that traditional owners in reality have very little protection in these discussions. Their sacred sites have even less if they happen to be sitting on top of a commercially valuable commodity. That in turn begs the question we asked earlier – at what point does preserving something of historical and cultural significance become more important than any amount of money. 

It will be interesting to see the outcome of this inquiry and the recommendations it makes but one thing is very likely. The various Acts will undoubtedly include clauses under which some sites can be permanently protected, effectively preventing anyone from ever mining them without the express consent of the traditional owners. It's also clear that many in the industry are going to have to re-negotiate their social responsibilities, and that native title considerations and dealing with culturally significant sites will form a major part of those discussions.