Mining giant Fortescue Metals Group has said it regrets the offence caused by a letter it sent threatening legal action if an application for permission to destroy Aboriginal heritage sites in the Pilbara was not progressed.
Fortescue’s chief executive, Elizabeth Gaines, told a federal parliamentary inquiry the letter concerned “points of law” to be considered by a Western Australian government committee and “did not reflect Fortescue’s close consultative approach with Aboriginal people”.
Western Australia’s Aboriginal Cultural Material Committee (ACMC) assesses section-18 applications to disturb or destroy Aboriginal sites and advises the state minister Ben Wyatt.
In April, the ACMC received a letter from Green Legal on behalf of Fortescue, advising that it did not intend to comply with a request to consult the eastern Guruma traditional owners on the application. Fortescue told the ACMC that if a recommendation was not made to the minister “forthwith”, then it would compel the ACMC to make one – including by taking legal action.
Fortescue’s letter described the eastern Guruma peoples’ concerns about minimising the impact on their sites as “irrelevant” to the progress of the application because traditional owners had “no entitlement” to protect the areas under Western Australian law.
“That letter from an external legal adviser does not reflect Fortescue or our views or our conduct,” Gaines said on Tuesday. “If that letter did cause offence, I regret that.”
Eastern Guruma said it was “bullying, dismissive, disrespectful behaviour inconsistent with their published values and the expected behaviours of an ASX top 10 company”.
Gaines and Fortescue’s director of community, environment and government, Tim Langmead, appeared before the federal parliamentary inquiry into Rio Tinto’s destruction of Juukan Gorge in the Pilbara in May. He said Fortescue had 121 section-18 permissions, with five pending approval by the minister. Some 29 have been “closed”, he said, meaning the purpose for which they were granted is complete.
WA Greens senator Rachel Siewert asked if that meant the areas in question had been destroyed. Langmead replied that not all section-18 permissions ended in the destruction or salvage of cultural heritage.
“There is an important distinction there,” he said. “The assumption that the existence of a section 18 is that all cultural heritage would be removed from the land is not accurate.”
Gaines on Tuesday confirmed that Fortescue was withholding $1.9m in royalty payments from the Wintawari Guruma Aboriginal Corporation (WGAC).
WGAC previously told the inquiry their royalties were being withheld because they had been asking questions about Fortescue’s plan for nine leases in areas that contain numerous sacred sites. Fortescue had subsequently sought a meeting, via email, to discuss a “roadmap” for resolving the matter, WGAC said.
“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.
But Gaines told the inquiry on Tuesday that WGAC had failed to comply with a contractual obligation over a prolonged period and withholding the payment was the “first time in FMG history we have done this”.
“We are working to facilitate the payment … as quickly as we can,” she said.
Earlier on Tuesday, one of Australia’s biggest superannuation funds told the inquiry it wanted Rio Tinto to conduct an independent review of all the agreements it has with Aboriginal traditional owners in the Pilbara.
Hesta said Rio Tinto’s conduct was indicative of “larger systemic issues” about how the mining industry negotiates with traditional owners which needed to be managed to provide certainty and consistency for investors.
“Whilst we might make an assessment of a company by what we can see in their public commentary, the way they act is actually in those agreements,” Mary Delahunty, Hesta’s head of impact, said.
“If those agreements in any way erode the rights of parties … they probably shouldn’t be relied upon.”
Hesta has $54bn worth of assets under management, $2bn of which is invested in the Australian mining sector on behalf of its 870,000 members. It currently has $244m worth of Rio Tinto shares.
Hesta has a formal process for divestment which it may look at but “at this point, we’re still working across the mining resource sector to continue to exert the influence we believe can have a positive impact on the way this sector operate”, the fund’s senior responsible investment adviser, Claire Heaps, said.
The explosion of Juukan gorge had been a “devastating blow” to Rio Tinto’s social licence, Heaps said. “What we need as investors is a clear plan from Rio on how they are going to rebuild that trust.”
In May, the company blew up a 46,000-year-old significant site against the wishes of traditional owners to access higher-grade iron ore. The act triggered international condemnation and prompted a federal parliamentary inquiry.
An interim report is expected in mid-December.