Juukan disaster causes FMG change

FORTESCUE Metals Group has modified its development processes to including formally notifying Native Title holders when it is about to disturb land covered by a Section 18 approval.
Juukan disaster causes FMG change Juukan disaster causes FMG change Juukan disaster causes FMG change Juukan disaster causes FMG change Juukan disaster causes FMG change

FMG is giving Native Title parties notice before it disturbs land covered by a Section 18 approval.

The controversial Section 18 approvals under the Western Australian Aboriginal Heritage Act clear the way for a miner to begin operations. Once the approval is in place only the miner can act to stop any mining activities on the land it covers.

FMG CEO Elizabeth Gaines told the Joint Standing Committee on Northern Australia's inquiry into the destruction of the Juukan Gorge rock shelters that FMG changed its processes in July to include a step where Traditional Owners were formally notified that work was about to start on an area covered by a Section 18.

Under that notification the Traditional Owners would be invited to present any additional information of cultural significance in the area.

Gaines told the inquiry that the nature of iron ore mining was such that it often involved long lead times.

It can be several years between a Section 18 approval being granted and mining actually starting in the area.

In the case of the Juukan Gorge, where Rio Tinto set off a blast that destroyed two 46,000 year old rock shelters, the Section 18 approval for those works was obtained in 2013.

The blast itself was only conducted in May this year, about seven years after the Section 18 was granted.

Over those years the archaeological significance of those caves was discovered - through a study Rio Tinto commissioned - however, that information was not conveyed to senior management.

Gaines said FMG's upgraded process had not been put to the test yet.

She said the company would act on any information it received from Traditional Owners regarding any Section 18 areas it was about to disturb.

FMG has 121 Section 18 approvals and another five pending.

Of those 29 have been closed in terms of their purpose.

FMG also has its Aboriginal heritage staff embedded with its mining staff to try to ensure important cultural heritage information is communicated.

Gaines said FMG's site general managers - the people in charge of its mines - also met and engaged with Native Title partners.

"We make sure our mining operations meet regularly on country with our Native Title partners," she said.

"Our approach is one of integration."

The company uses land access agreements to manage its access to its mining sites.

It has seven land access agreements over its mining areas.

Gaines said those LAAs did not give it automatic right to mine those areas, there were a whole other range of processes that had to be concluded before that could happen.

Rather the agreements set up:

  • Governance structures to regularise ongoing communication between FMG and the Native Title party about all matters arising under the LAA;
  • Processes and procedures for identifying Aboriginal cultural heritage and prescribed consultation and disclosure obligations relating to the submission of Section 18 applications;
  • Environmental management and protection processes including consultation on the preparation and submission of environmental approvals and other specified mining approvals;
  • Agreement to compensate the Native Title party for the effect the grant and use of mining tenure will have on the Native Title party's ability to use and enjoy their Native Title rights and interests;
  • Preferential access to contracting opportunities through FMG's Billion Dollar Opportunities procurement program;
  • Preferential access to FMG's Vocational Training and Employment Centre program; and
  • Native Title party consent to the future grant of Fortescue mining tenure and execution of state deeds when required.

Gaines said the LAAs did not stop Traditional Owners from opposing Section 18 consents over any culturally, spiritually or scientifically significant places, nor from making representations to environmental authorities on any of FMG's approval applications.

"Our agreements don't contain gag clauses," she said.

"There is no requirement [for the Traditional Owners] to consent to Section 18s. We don't have the same agreements as others that have appeared before the inquiry."

FMG director of community, environmental and government Tim Langmead said the LAAs also involved the establishment of working groups that involved senior members of the Native Title group and FMG people.

He said those working groups would meet at least three times a year.

Those groups also cover cultural heritage surveying, and, more importantly, who the Native Title group believes is best qualified to conduct that.

"There is an agreement in our LAA that we won't disturb unless it has been surveyed by Aboriginal people," Langmead said.

"It's on the basis of these survey reports that FMG conducts its planning for future activity."

It was the approving to state deeds aspect of the LAAs that led to FMG not paying $1.9 million in compensation payments to the Wintawari Guruma Aboriginal Corporation.

Gaines FMG had been requesting the WGAC to sign relevant state deeds since September 2018 and it was its non-compliance with the contractual obligation that led to the monies being withheld.

"It's the first time Fortescue has done this [withhold monies]," she said.

"We've asked for them to meet with us and are waiting to hear from them."

Gaines was also asked about FMG applying for a mining lease over Puutu Kunti Kurrama and Pinikura country.

The PKKP are also the Traditional Owners of the Juukan Gorge land.

The land FMG has applied for a mining lease over is in an area Rio Tinto put a moratorium on mining on in response to the Juukan Gorge incident.

Gaines said the mining lease application was a procedural one.

What FMG is doing is converting part of the land it had an exploration licence over to a mining lease.

If it does not, another company can come and take over that ground.

Gaines said applying for the mining lease did not mean mining was going to take place there.

She said there were a number of processes FMG would have to go through before that could occur.