Raising the bar on First Nations cultural heritage protection

Business and investment leaders have taken a pivotal step by committing to a new best practice standard in the management of Aboriginal and Torres Strait Islander cultural heritage.

The Dhawura Ngilan Business and Investor Guides were launched in Canberra on March 19 by the First Nations Heritage Protection Alliance (FNHPA).

Dhawura Ngilan means ‘Remembering Country’ in the Ngunnawal Language.

The Guides are inspired by, and take the name from, the Dhawura Ngilan Vision, drafted by Heritage Councils across the country with the backing of the FNHPA. This Vision sets the course for First Nations heritage over the next decade.

Dhawura Ngilan offers practical steps for the mining industry to integrate local knowledge and cultural heritage practices throughout a mine’s lifecycle.

FNHPA co-chair and Ngalia cultural and community leader Kado Muir says the launch of “the Dhawura Ngilan Business and Investor Guides heralds a new period in Australia’s business relations, with commitment from the private sector to reach beyond legislative standards and implement leading practice for cultural heritage as defined by First Nations peoples”.

With businesses and investors stepping up to integrate the Dhawura Ngilan Vision within their operations, over the next 12-18 months key businesses and investors, including BHP, will implement the Guides to put the First Nations-led advice into action.

BHP president Australia Geraldine Slattery says “we are grateful to the First Nations Heritage Protection Alliance for their leadership in this Initiative and we look forward to working with Aboriginal and Torres Strait Islander partners to further embed the Dhawura Ngilan vision”.

BHP is providing $1.2m in funding to support the Initiative’s workplan, with Lendlease, HESTA, KPMG Australia and Perpetual also supporting.

Federal Environment and Water Minister Tanya Plibersek delivered a keynote speech at the launch.

The FNHPA is currently working with the Federal Government to co-design new national cultural heritage legislation due to serious deficiencies in the current legislative framework.

The Minerals Council of Australia (MCA) welcomed the launch in a statement.

“The Initiative underscores the importance of collaboration between industry and Traditional Custodians in preserving, protecting, and promoting at least 65,000 years of cultural heritage,” the statement said.

“The MCA embraces the principle that effective heritage management requires both relationships and regulation.

“The Dhawura Ngilan Initiative represents a unique opportunity for the sector to contribute to the vision of preserving Aboriginal and Torres Strait Islander heritage for future generations.”

The Dhawura Ngilan Business and Investor Guides comprehensively outline the steps businesses should take to uphold the principles of Free, Prior and Informed Consent (FPIC).

They also address the due diligence investors should undertake to manage the legal, financial and reputational risks associated with First Nations cultural heritage destruction.

The Guides were drafted by Terri Janke & Company, a 100% Indigenous owned and run law firm, in consultation with First Nations, business and investment groups.

Led by FNHPA, in partnership with the UN Global Compact Network Australia (UNGCNA) and the Responsible Investment Association Australasia (RIAA), the Dhawura Ngilan Business and Investor Initiative supports the private sector to have meaningful and rights-respecting engagement to protect Aboriginal and Torres Strait Islander cultural heritage.

Q&A with National Native Title Council chief executive Jamie Lowe

The National Native Title Council (NNTC) is the peak body for the native title sector.

Its members are made up of the Traditional Owners of Australia’s lands, waters and resources and their representative bodies.

The Council advocates for the rights and interests of Traditional Owners through strong advocacy, targeted networking and by providing opportunities to members to develop their professional skills to engage across the native title sector.

The Australian Mining Review speaks with NNTC chief executive Jamie Lowe about the importance of fostering meaningful partnerships between mining companies and local Traditional Custodians.

How do native title, the mining industry and ESG intersect within Australia?

For mining to take place on native title land, a mining company generally needs to negotiate with native title holders in relation to the impact of mining activities and reach agreement on the protection of significant cultural heritage sites, financial compensation, and employment and training, amongst other things. For the NNTC, socially and environmentally responsible mining involves respecting First Nations peoples’ right to true self-determination – their right to speak for and manage their own Country, to govern their own communities, to participate fully in decision-making and to self-determine their own social and economic development. This right is protected under the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). Environmental, social, and governance (ESG) criteria are a set of principles that investors use to assess companies’ performance through the lens of sustainability, including to assess companies’ social licence to operate. Businesses are increasingly focussed on these metrics as they can be crucial to receiving loans, grants, and other funding. The integration of ESG into the operations of businesses can encourage better engagement with First Nations communities and protection of their heritage as ESG frameworks directly impact how mining projects are planned, financed, constructed, operated, and decommissioned.

What is the First Nations Heritage Protection Alliance?

The First Nations Heritage Protection Alliance is a coalition of member organisations representing First Nations peoples from across Australia – including major Native Title, Land Rights, Traditional Owner and Aboriginal and Torres Strait Islander community-controlled organisations. It seeks to strengthen the laws policies and procedures around the recognition, respect, protection and celebration of First Nations Cultural Heritage in Australia. The strength of the Alliance comes from the breadth and diversity of our membership and the unified position we seek on heritage protection matters. It strives to enhance the capacity of First Nations peoples to fully manage and control their Cultural Heritage, fostering self-determination to benefit culturally, spiritually and economically.

What is the impact on business of not addressing cultural heritage risks?

Businesses and investors can face grave consequences, including financial, legal and reputational damage if they fail to adequately address cultural heritage risks. The destruction of First Nations cultural heritage has a deep and often irreversible impact on communities and to the world’s heritage. Respecting the right of First Nations people to decide what happens on their Country in accordance with their right to Free Prior and Informed Consent (FPIC) and building long-term constructive relationships with First Nations communities is directly linked to a mining company’s long-term success. Significant financial costs stem from project cancellations, delays, legal fees, reputational damage etc. Investors need assurance that the companies in which they invest are mitigating this risk by respecting First Nations heritage.

FPIC is a specific right for Indigenous Peoples, enshrined under the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), to give or withhold consent to a project that may affect them or their territories. FPIC enables Indigenous Peoples to negotiate the conditions under which the project will be designed, implemented, monitored and evaluated.

Who are the partners and supporters of the Dhawura Ngilan Business and Investor Initiative? How do you envisage the Initiative being rolled out?

The Dhawura Ngilan Business and Investor Initiative is led by the First Nations Heritage Protection Alliance. We are working on this Initiative in partnership with responsible in investors and businesses, including the Responsible Investment Association Australasia (RIAA) and UN Global Compact Network Australia (UNGCNA). We enlisted the support of Terri Janke and Company to draft the guidance through consultation with various stakeholders. BHP, Lendlease, HESTA, Perpetual, and KPMG have provided financial support to the Initiative.

Over the next 12-18 months key businesses and investors will implement the Guides to put the First Nations-led advice into action. The ultimate goal is for sustainable “business as usual” implementation of the Dhawura Ngilan Vision. We hope the Australian mining industry will integrate the Principles and Guides including in their policies, strategies and operations throughout a mine’s lifecycle. The Guides are also important for governments, particularly when they act as project proponents and funders, and we are engaging with government departments and financing agencies to discuss implementation of the guides. Finally, the Guides are important for First Nations communities as they provide a tool for them to hold companies and investors to account on the steps that need to be taken regarding free, prior and informed consent.

For further information about the Initiative, visit: https://culturalheritage.org.au/how-we-work/

Jamie Lowe, a proud Gundjitmara Djabwurrung man, first joined the National Native Title Council (NNTC) as Chair in 2017. Two year later, he was appointed CEO, charged with supporting First Nation’s people’s right to true self-determination in advocating for their right to speak for and manage their own Country; to govern their own communities; to participate fully in decision making and to self-determine their own social and economic development.

In 2021 he was appointed as the Indigenous Specialist Representative for the Australian Heritage Council – the principal adviser to the Australian Government on heritage matters.

In July 2018 he joined the Victorian Heritage Council as an Indigenous Specialist Representative and is a joint council member of the Coalition of the Peaks.  Jamie was instrumental in the Closing The Gap Agreement with the Federal Government, that came into effect July 2020.

Prior to joining NNTC Jamie was CEO of the Eastern Maar Aboriginal Corporation in South Western Victoria, awarded Native Title in 2011. Today he represents the Eastern Maar People as an elected representative on the historic First Peoples’ Assembly of Victoria, the representative elected body tasked with negotiating a Treaty with the Victoria Government.

Internationally, Jamie is the NNTC representative on the United Nations Permanent Forum on Indigenous Issues (UNPFII) – a high level advisory body to the New York based UN Economic and Social Council.

As a key influencer, Jamie firmly believes that creating economic independence and maintaining and growing cultural identity are vital in creating a self-determining nation of First Nations peoples, and will continue to tirelessly advocate for a national Treaty whilst remaining a strong advocate for Traditional Owners and communities across Australia.

Highly regarded by the media, Jamie is regularly interviewed across all ABC, SBS and NITV platforms, The Financial Review, The Age, The Sydney Morning Herald, The Australian, The Western Australia, WA Today and Indigenous media platforms.