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

File photo of conveyor belts transporting iron ore at a Fortescue mine south in the Pilbara
File photo of a Fortescue mine in the Pilbara. Traditional owners have accused the mining giant of ‘bullying, dismissive, disrespectful behaviour’. Photograph: David Gray/Reuters
File photo of a Fortescue mine in the Pilbara. Traditional owners have accused the mining giant of ‘bullying, dismissive, disrespectful behaviour’. Photograph: David Gray/Reuters

Last modified on Thu 12 Nov 2020 11.32 EST

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.