Indigenous Engagement – learning from Juukan Gorge

Margarita Escartin, Non-Indigenous Practitioner and Cassie Lang, Indigenous Practitioner

Early this year I was interviewed on the subject of Indigenous engagement for the Bowen Basin Mining Club’s Crib Room Podcast series. This was shortly after the destruction of the Juukan Gorge by Rio Tinto, while the industry as a whole was still considering potential ramifications.

Since then, there has been considerable global public backlash to that event for both Rio Tinto and other major mining companies. Some of the world’s largest institutional investors increased pressure to provide more information about their management of Indigenous cultural heritage, approach to Indigenous and First Nations community engagement and to justify their social licence.

It’s no wonder EY’s Top 10 Business Risks and Opportunities for Mining and Metals 2021 lists ‘Licence to Operate’ as the number one issue for miners.

My intent is to ensure this article provides instructive insight for resource and energy companies and practitioners. Co-contributor, Cassie Lang has made some significant contributions to this piece from both her legal and Indigenous viewpoints.

From conversations I’ve had with colleagues and clients, it’s fair to say the aftermath of Juukan Gorge has created general nervousness. People were surprised at the extent of the consequences, and perhaps are still contemplating investor activism and broader stakeholder expectations in the future.

I have reflected heavily on my own practice and engagement frameworks over the last few months, not only to ensure that I can continue to facilitate compliance with Indigenous land and access issues, but also to assist clients with how they might address the expectations of investors, lenders and the broader community.

This incident has also created a clear opportunity for internal reflection so that companies can be confident that they have sought consents and permissions from Indigenous stakeholders based on fair and transparent transactions and to assess the foundations of company community relationships. Overall, it’s about our relationships with our communities.

Having a robust relationship founded on mutual respect with the Indigenous Peoples on the lands on which we all work should generate positive and lasting social impacts and help companies and communities.

These three fundamental elements are essential to establish and maintain strong relationships with Indigenous stakeholders and their broader communities:

Time

Take the time to build rapport and trust so you may be given the opportunity to understand the aspirations, vision and issues of their broader communities. Regulatory and legal frameworks, such as the Native Title Act 1993 (Cth) or environmental approvals, are often the trigger for first-time engagement which can place parties into an adversarial context.

Determining when to engage can be difficult, particularly as early feasibility stages are still shaping a project. That said, exploration and early geo-technical investigations through cultural heritage processes can be an opportunity to start a relationship. Have an initial meeting, share your company’s plans and advise people you will come back to them when you are more advanced in your planning.

Understanding

Understanding should start with the most detailed knowledge of what a project looks like over five to ten years and the capacity of the company to do and deliver.

Often engagement and negotiations default to education, training and jobs, which is absolutely appropriate as this can be achieved. However, the question is whether your business has the internal resources and cultural capability to implement and manage an Indigenous training and employment strategy? If it doesn’t, that’s okay, and there is nothing wrong with communicating that to your Indigenous stakeholders.

Build your capability with your Indigenous communities as a partner, taking input from them on their specific community needs and how your business can address those as the project gains momentum. Most importantly, take the time to listen and really understand what Indigenous community representatives are saying to you.

Don’t assume you know what communities need and want. Let communities lead their own aspirational or development agenda, then assess whether your business can support this through project opportunities or broader social investment initiatives. I am a strong advocate for a people-centred and open dialogue approach to engagement with Indigenous communities, where the community is given the time and space to identify their social, natural and economic capitals and build pathways towards sustainable positive social outcomes.

Communication

Any long-term relationship can only work if there is robust, honest and transparent communication between parties. It’s important to ensure project agreements have thorough communication protocols and that parties communicate regularly.

Cultural heritage agreements generally provide for regular meetings to discuss the results of heritage surveys and updates on project construction and operations, and these regular engagement opportunities can also be used to discuss other issues. Equally, project agreement should have communication at the core of agreement governance so that all parties can be held to account for the commitments and project outcomes.

Open, honest and transparent communication is key in helping each party manage and understand their own expectations and those of the other side.

All negotiations should be underpinned by sharing full technical and planning information with Indigenous community representatives, then permitting them time to comprehend and interpret this information and enable further consultation with their communities if required. They need to be able to make thoroughly informed decisions.

In current times, where investors and lenders are also looking to strong Environmental Social Governance (ESG) systems, it’s in a company’s best interest to satisfy themselves they have done everything possible to create an environment where documented, informed decisions are made.

Don’t be afraid to say no, and only agree to things you know you can do. My ‘no, but…’ conversations have often led to creative and out-of-the-box thinking, which in turn has generated collaborative and innovative approaches to mutual challenges. You may find that shared outcomes with shared responsibilities are often the most enduring and lead to the development of genuine partnerships.

Finally, understand it’s okay to speak up when there’s an issue or something goes wrong. In the same way that safety or environmental incidents are reported, if there is ever an incident on site involving cultural heritage and or Indigenous personnel, communicate it immediately. This strengthens the relationship between you and the group as it demonstrates your integrity, honesty and willingness to work together, not just when things are easy but also when things get hard.

To some this may all be self-evident, to others overwhelming. Where you are new to the space and/or wanting to review engagement frameworks, initiatives or better understand the cultural competency of your organisation, seek specialist advice. A good advisor should work with you to lay the foundations and or suggest improvements, but ultimately leave your organisation to own and manage the relationship with your Indigenous stakeholders. At the end of the day, these are the parties who will be at the table for a very long time.

While Indigenous engagement processes have been a feature of the mining and resources sector for some time, it is important that we all revisit the way we work on a regular basis. The industry must be as focused on continuous improvement of relationships with its Indigenous stakeholders as it is on productivity and safety.

An approach that considers the importance of compliance and relationships has a better chance of achieving mutually beneficial and sustainable outcomes and enduring relationships between companies and communities.