“The native title applicants and the LAC must sign all documents and do all things that are reasonably required or requested by a [Rio Tinto] entity to facilitate the matters agreed and consented to under this document,” one clause reads.
“The Native Title Applicants … agree not to make any adverse public comment in relation to [Rio Tinto’s] Pilbara Iron Ore business to the extent that such comments are inconsistent with the [applicant’s] representations and obligations under this document or the participation agreement.”
In its submission to the inquiry, the National Native Title Council raised concerns about the legality of the agreements.
“A large number of agreements between mining companies and Traditional Owners, have provisions that prevent Traditional Owners from objecting publicly about any action of the company, and further provisions release the company from any actions, objections or claims of any kind under Commonwealth and State laws,” the council said.
“There has been a long-standing concern amongst legal advisors to native title groups in Western Australia that these kinds of restrictive contractual obligations are unlawful or that inclusion of them in a contract may itself be an offence.”
At the inquiry’s public hearings on Friday, Rio Tinto revealed there were clauses in a broader agreement signed in the 2000s that released the company from actions or claims from the PKKP under several acts including the Native Title Act and Aboriginal Heritage Act.
Rio Tinto vice president corporate relations Brad Haynes said the agreement included “processes” that restricted the PKKP from opposing applications to the state government to destroy heritage sites, known as Section 18 applications.
Not signing an agreement isn’t an easy solution either. If an agreement between miners and traditional owners can’t be met, it will go to the Native Title Tribunal for arbitration.
WA-based native title lawyer Greg McIntyre conducted the Mabo case and has been involved in negotiations for many other land use agreements on behalf of Aboriginal groups since then.
He said Aboriginal corporations were not on level playing fields with miners during negotiations because they knew if they did not reach an agreement it would go to the tribunal, which has always favoured the miner.
“You can say, ‘Well we are not agreeing to those conditions’. You can do that and you get absolutely no benefit from the fact that the mine is going to proceed anyway,” he said.
Mr McIntyre said when it came to destroying significant sites there had not been proper recognition of the heritage as a value in itself and there needed to be better legislative organisation, from a federal perspective.
“It’s not been given a comparative value to the value of the iron ore,” he said.
“We need a stronger piece of national legislation, part of the problem is we have got this mishmash of various states with different sorts of legislation.
“The Commonwealth rarely intervenes. I think the Commonwealth needs to adopt a proactive role in recognising things which are of national heritage in the Aboriginal arena.”
WA Greens upper house MP Robin Chapple has been trying to highlight the overreach of these agreements for more than a decade and described the PKKP’s move to publicly condemn the Juukan Gorge destruction public as “brave”.
He said the agreements would become more problematic as time moved on and mining activity increased.
“Back in 2011 when these things were being signed there were three or four mines, the perception of what was going to happen wasn’t there,” he said.
“Now reserves are down and satellite mines are popping up, it was never in the thinking that this was going to mean a whole country was going to be mined.
“I think that realisation is certainly coming to a head, not just within PKKP but with other groups.”
At the parliamentary inquiry, Rio Tinto chief executive Jean-Sebastien Jacques said the agreements were signed between 10 and 25 years ago, but times had changed and he flagged potential reviews.
“We are happy to have a conversation with the traditional owners but it is important that we still preserve the intent and the purpose of the initial agreement that has underpinned billions and billions of dollars, not only from Rio but other mining companies,” he said.
“We are open to engage with traditional owners to see how we look at those partnership agreements in a broad manner and see how we can provide them with a greater voice in the management of the mining of the land.”
Ms Jacques said they did not intend to take any legal action against the PKKP.
The PKKP declined to comment while the parliamentary inquiry was ongoing.
Hamish Hastie is WAtoday’s business reporter.