MAC: Mines and Communities

Fortescue accused of 'bullying' Aboriginal groups in Australia

Published by MAC on 2020-11-18
Source: The Guardian

Letters submitted to the Juukan Gorge inquiry show the mining giant threatened legal action.

The Wintawari Guruma Aboriginal Corporation has published letters from Fortescue’s lawyers in which the company threatened to take legal action if its application for permission to destroy Eastern Guruma sacred sites was not progressed. Good to see the Rio Tinto federal inquiry unearthing and publicising this type of evidence.

The country of Wintawari Guruma people is one of the most heavily explored areas in Australia, with more than 93% covered by mining tenements, the Wintawari said. The group estimates at least 434 heritage sites have already been destroyed by mining operations on their lands.


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Fortescue accused of 'bullying' Aboriginal groups to allow destruction of sacred sites

Letters submitted to the Juukan Gorge inquiry show the mining giant threatened legal action if it was not allowed to destroy Eastern Guruma sites.

Lorena Allam and Calla Wahlquist

12 November 2020

Aboriginal traditional owners in the Pilbara have accused mining giant Fortescue Metals Group, of “bullying, dismissive, disrespectful behaviour” they say is “inconsistent with their published values and the expected behaviours of an ASX Top Ten company”.

The Wintawari Guruma Aboriginal Corporation has published letters from Fortescue’s lawyers in which the company threatened to petition the Aboriginal affairs minister or take legal action if its application for permission to destroy Eastern Guruma sacred sites was not progressed.

The letters, addressed to the Aboriginal Cultural Materials Committee from Fortescue’s lawyers Green Legal, describe the Eastern Guruma’s concerns about trying to minimise these impacts as “irrelevant” to the progress of the application, because the traditional owners have “no entitlement” to do so under Western Australian law.

The allegations were made in a submission to a federal inquiry into Rio Tinto’s destruction of a 46,000-year-old rock shelter at Juukan Gorge. Fortescue is due to appear before the inquiry next week.

Under section 18 of the WA Aboriginal Heritage Act, companies can apply to disturb or destroy sites and traditional owners do not have a right to object or even be consulted. A new draft bill, under which traditional owners must be consulted and will have rights of appeal, is currently under public consultation.

“In Wintawari’s view the attached documents highlight FMG’s historical approach to the section 18 application process approval, which WGAC considers to be bullying, dismissive, disrespectful, and inconsistent with their published values and the expected behaviours of an ASX Top Ten Company,” they said.

The Aboriginal cultural materials committee (ACMC) is a departmental group which assesses section 18 applications and makes recommendations to the Aboriginal affairs minister, Ben Wyatt, for approval.

“It is Wintawari’s view that FMG use to their advantage the fact that successive Aboriginal Affairs Ministers in WA have not declined a section 18 notice on mining tenure for over 10 years,” WGAC said.

“A major concern for Wintawari is that FMG’s approach and behaviour will revert once the commonwealth inquiry is over and been forgotten.”

Fortescue’s chief executive, Elizabeth Gaines, said the company “disagrees with Wintawari’s characterisation of Fortescue’s behaviour and approach to Aboriginal heritage”.

In a short statement in response to detailed questions from Guardian Australia, Gaines said Fortescue’s “primary objective is to avoid significant Aboriginal cultural heritage places, and our activities are carried out in consultation with Traditional Knowledge Holders”.

“Fortescue has at all times consulted closely with Wintawari in relation to section 18 applications and heritage management,” she said.

In December last year, Fortescue lodged an application to destroy Eastern Guruma sites at Weelamurra Creek to expand its Solomon operations, despite knowing that WGAC had only recently been granted permission to conduct cultural surveys there.

In February this year, WGAC did fieldwork and recorded it as a culturally significant site with engraved rock art and two rock shelters. One rock shelter contained a sequence of cultural occupation dated to 47,800 years ago, while the second indicates occupation that may date to older than 60,000 years ago.

“These early findings show the Weelumurra Creek rock shelters are amongst the oldest and most culturally important sites in the Pilbara,” they said.

Fortescue has since committed to “protect and avoid” those two rock shelters.

In February, the ACMC resolved to defer consideration of the section 18, recommending Fortescue consult further with the Eastern Guruma organisation.

But in April the ACMC received a letter from Green Legal on behalf of Fortescue, advising that it “does not intend” to comply with the request to consult with WGAC. Instead, it advises the ACMC that if it does not make a recommendation to the minister “forthwith” then it will compel the ACMC to do so, including taking legal action against it.

It said it would excise the area around the rock shelters to allow time for further research.

“The ACMC does not have power under the [Aboriginal Heritage] Act, or otherwise, to direct or compel FMG (or any owner of land) to complete any action,” the letter read.

“FMG hereby demands that the ACMC perform its Function, including delivering to the Minister both the S18 Notice and a written recommendation as to the matters referred to in s 18(2) AH Act.

“Unless the ACMC confirms in writing on or before 19 May 2020 that the Function is complete, FMG intends taking steps to compel the ACMC to perform its Function, including petitioning the Minister and/or commencing legal proceedings to that effect. FMG reserves its rights.”

A second letter from Fortescue’s lawyers, Green Legal, related to another section 18 application, concerning roadworks along a track known as Mt Brockman Road at Fortescue’s Western Hub development. Fortescue lodged the section 18 notice in February 2019, and the ACMC invited the traditional owners to make submissions. WGAC said Fortescue’s original application relied on “old, incomplete and inaccurate heritage information”.

The ACMC then requested Fortescue commission a cultural heritage survey. But in an April letter to the ACMC, Green Legal said that Fortescue did not have a “duty” to commission ethnographic surveys and it was “improper” of the ACMC to require it. It said there was no requirement under law for traditional custodians to make submissions on applications to destroy their heritage.

The letter then told the ACMC that Aboriginal people have “no entitlement” under the act “to develop measures to mitigate, manage and minimise impacts of any place on the land. Accordingly, whether they have, or have not, done so is irrelevant to the function of the ACMC.”

It said the ACMC had a “duty” to make a recommendation to the minister and requested it do so within 14 days.

The minister for Aboriginal affairs granted section 18 consent to Fortescue on 13 May 2020, but WGAC believe that approval has been placed on hold while the parliamentary inquiry continues. The minister, Ben Wyatt, has been contacted for comment on the status of both applications.

The Eastern Guruma confirmed Fortescue still has not paid $1.9m in mining royalties it has been withholding from them since January. They told the inquiry in October that royalties were being withheld because they have asked Fortescue about its plans for nine leases in areas that contain numerous sacred sites.

But they said they received an email “from an FMG employee” last week, saying that Fortescue has prepared a “roadmap” for progressing the outstanding royalty payment and “that she would like to meet with WGAC to discuss it”.

“The so-called roadmap was not included in the email correspondence. The email did not say when or if the outstanding royalty payment would be made,” WGAC’s chairman, Glenn Camille, said.

The royalty and funding payments are a means of compensating people for their loss of access to their country, he said.

“Currently, FMG are not paying anything for the mining and destruction of Eastern Guruma country,” Camille said.

Aboriginal group says Fortescue withholds royalties on mining leases


October 13, 2020

MELBOURNE - An Australian Aboriginal group said on Tuesday that Fortescue Metals FMG.AX is withholding nearly A$2 million ($1.4 million) in royalty payments until it signs off on mining leases that cover areas containing many sacred sites.

The country of the Eastern Guruma, or Wintawari Guruma, people is one of the most heavily explored areas in Australia, with more than 93% covered by mining tenements, the Wintawari Guruma Aboriginal Corporation (WGAC), said.

The group estimates at least 434 heritage sites on their land have already been destroyed through mining, while 285 more are close to mining operations and inaccessible to traditional owners.

Fortescue’s Solomon Hub, which has production capacity of 75 million tonnes per annum, or about 40% of the miner’s production, is on Eastern Guruma land, along with some 90 kilometres of its Eliwana railway.

The group has asked for more information before they approve new leases Fortescue has applied for, WGAC director Joselyn Hicks told an Australian parliamentary inquiry on Tuesday.

“These mining lease areas contain numerous sacred sites.... (Fortescue) have advised us that they will only pay the royalties when we sign off on the mining leases.” The payments amount to A$1.9 million, she said.

Fortescue said it has “been working closely with Wintawari to assist them in meeting the obligations under the Native Title Agreement,” including a variation to include new exclusion zones and additional benefits last year.

“We are committed to open and transparent engagement to facilitate the outstanding royalty payment, in accordance with the contractual agreement and the obligations of both parties,” Chief Executive Elizabeth Gaines said in a statement.

Hicks said the people’s agreements with the world’s fourth biggest iron ore miner contain no legal provisions to protect their cultural heritage, leaving them reliant on its discretion to safeguard their interests.

The inquiry is looking at how Rio Tinto RIO.AX legally destroyed sacred rock shelters showing 46,000 years of human habitation as part of an iron ore mine expansion in Western Australia in May.

Hicks said traditional owners had not known the level of destruction of their country that would result when they signed agreements with miners Fortescue and Rio Tinto.

“We did not know that over 400 of our sites would be destroyed. We did not know that our sacred springs would dry up. We did not know that we would be locked out of our own country.”

($1 = 1.3902 Australian dollars)

Reporting by Melanie Burton; Editing by Jan Harvey

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