Why agreements matter

  • Well-designed and implemented agreements with traditional owners reduce transaction costs by providing greater legal certainty and by defining ‘rules of engagement’ for dealing with disagreements and disputes, reducing the likelihood of future legal and political challenges.
  • Companies that have a poor reputation for how they deal with Indigenous peoples will find it more difficult to secure access to new resources and new geographies than those companies that can demonstrate a successful track record of agreement making and implementation.
  • It is in the long-term interests of companies to be able to demonstrate to communities, governments and others that mining can deliver long-term benefits to Indigenous communities. Well-designed agreements are one of the key ways of achieving this.
  • Agreements can help companies meet obligations under cultural heritage laws and have the potential to contribute to improved environmental management practices (e.g. by drawing on Indigenous environmental knowledge and involving local people in environmental management).

The Ngarluma people and Rio Tinto Iron Ore

Rio Tinto’s Iron Ore operations in the Pilbara region of Western Australia span 15 active mines, 1,700 kilometres of railway and four independent port terminals. The company has participation agreements with the nine Aboriginal groups that are traditional owners of the land where mining and infrastructure are located.

In 2012, the Iron Ore business was in the midst of a massive expansion of its operations. This included development of new mines and expansion of existing mines and associated infrastructure. The port and rail infrastructure critical to the expansion program were situated within the traditional lands of the Ngarluma people, who had already been significantly impacted by mining developments in this area since the 1960s.

The cultural heritage surveys and site clearance assessments required to progress with the expansion program involved an unprecedented volume of work within short time frames. The existing participation agreement provided a platform to discuss implementing new cultural heritage practices to meet these work demands. Negotiating under special circumstances required robust relationships that would support joint efforts to find a solution and allow all parties to benefit from positive market conditions.

The Ngarluma people

The land of the Ngarluma people includes a section of the Pilbara coast and extends inland towards the Chichester Ranges. When mining operations were established in the inland Pilbara during the 1960s and 1970s, railway and port infrastructure was created within this land. An initial construction workforce was later followed by a permanent residential population in the newly established towns of Dampier, Wickham and Karratha. These developments had an enormous impact on the land and society of the Ngarluma people.

Despite this, the Ngarluma people have retained a strong cultural identity and connections to their country. In 2005, these connections were formally recognised in a native title determination, one of the first for the Pilbara region.

The mining boom in 2012 required significant expansion of the existing Cape Lambert port and the rail infrastructure running through Ngarluma country.

For the Ngarluma people, many of whom had lived through the societal changes that came with the original mining development of the Pilbara, these expansions were viewed as a potential source of further upheaval to their existing ways of life, their cultural lands and identity.

Facilitating engagement on cultural heritage

In 2011, Rio Tinto Iron Ore and the Ngarluma people finalised a comprehensive participation agreement. This provided a formal governance structure to discuss the proposed port and infrastructure expansion, as well as the necessary cultural heritage surveys over this land.

Cape Lambert expansion.

In negotiating the agreement, a key concern for the Ngarluma people was to ensure that comprehensive cultural heritage surveys would be undertaken by the Ngarluma people in conjunction with cultural heritage professionals prior to any mining activities taking place. Furthermore, the agreement recognised that some places were of such significance to the Ngarluma people that they would be excluded from mining or other development impacts. Acknowledging this point was key to finalising the agreement with the Ngarluma people.

The agreement also included a cultural heritage protocol which set out the processes for notifying the Ngarluma people of heritage survey requests, how these surveys would be conducted and the recommendations for managing cultural heritage identified during the survey.

Agreeing special terms for cultural heritage surveys

The Iron Ore business's Heritage team determined that all necessary cultural heritage surveys needed to be completed within an 18 month timeframe. Added to the challenge was that Rio Tinto was not the only developer proceeding with expansion at this time, meaning other companies were also seeking involvement from Ngarluma representatives on project planning. The resulting demands on the Ngarluma people’s resources were significant.

Both parties agreed that the steps and process surrounding cultural heritage surveys should not change where this could compromise the quality of the work undertaken. The health and safety of all people involved in the surveys was of paramount concern and no changes in the survey model could compromise health and safety. It was also agreed that previously identified significant cultural heritage places would continue to be protected; and the expansion would remain within the levels of ‘acceptable change’ determined in the agreement.

Two full-time cultural heritage survey teams were established as a result of these discussions. These teams included Ngarluma people, independent heritage consultants and Rio Tinto’s Heritage employees who would work on a regular roster program to complete the required cultural heritage surveys.

This approach benefited both parties; providing certainty for the company that the work would be completed within a specific timeframe and certainty around employment opportunities for Ngarluma people, rather than standard cultural heritage survey practices, which were more sporadic and shorter in duration.

In all, the equivalent of 20 full-time positions were devoted to conduct the cultural heritage surveys by Rio Tinto and Ngarluma people over a 16 month period with 116 surveys completed during that time. The number of days spent conducting cultural heritage surveys more than doubled from the previous year. This was only possible because of the streamlined roster approach.

Furthermore, there was no lost time due to injury or any significant medical treatment cases and no unauthorised impacts to cultural heritage

Good relationships enable benefits to be shared

The agreement provided the necessary governance structure to enable the initial discussions between the Iron Ore business and the Ngarluma people for determining the terms under which cultural heritage surveys were to be conducted. The strengthened relationship enabled the cultural heritage surveys to continue over the 16 month period relatively unimpeded, which meant the land clearance requirements for the expansion program were met.

During and immediately following this period, a regular flow of information about the expansion plans was provided to the Ngarluma people. In turn, the results and recommendations resulting from the cultural heritage surveys were implemented as construction began to proceed.

By following this process, Rio Tinto was able to gain the necessary land access within the preferred timeframes.

By working through the logistical challenges, all parties were able to make the most of the positive market conditions. Going forward, the requirements of the agreement continue in respect to cultural heritage survey requirements. The improved relationship and flexibility shown by both parties under these special circumstances provides a solid framework for ongoing engagement.

Western Cape communities’ coexistence agreement – logistics and other challenges

Agreements require ongoing commitment to the ‘big issues’ and attention to the ‘small stuff’ to ensure they are effectively implemented over time. Much of this work relates to process, including the logistics involved in holding meetings.

The Western Cape Communities Coexistence Agreement (WCCCA), signed in March 2001, governs Rio Tinto’s engagement with the traditional owners of the land on which Rio’s key bauxite mine leases are situated in far north Queensland.

The Agreement was signed by 11 traditional owners groups – the Alngith, Anathanangayth, Ankamuthi, Peppan, Taepadhighi, Thanikwithi, Tjungundji, Warranggu, Wathayn, Wik and Wik-Waya, and Yupungathi peoples.

The 11 traditional owner groups are each represented by two committee members. Meetings with these 22 members (or their proxies) involve coordinating multiple movements across remote north Queensland simply to get people ‘around the table’.

Distances are significant, with more than 800 kilometres between some family groups. Several representatives are completely cut off in the wet season and are only able to attend if charter flights are arranged. Other logistics include arranging long distance road transport, accommodation and meals while members attend meetings.

Steven Hall, Maryann Coconut and Rio Tinto employees engage in community consultation at Weipa, Queensland. Copyright © 2017 Rio Tinto.

These matters can be complex under any circumstances, but more so when communities live in areas that are exposed to extreme weather conditions that include monsoons and cyclones.

Family commitments and other cultural aspects can also increase the degree of difficulty in ensuring that meetings have the required quorum. It’s vital that the company and the WCCCA Executive Office work together with representatives and others on these matters.

Experience suggests that close co-ordination between all parties is essential if meetings are to take place so that agreement implementation can proceed. Likewise, communication is no simple task. Access to mobile phones and other technology has certainly made the challenge easier in recent years, but not everyone has access to technology.

Notices of committee meetings are still communicated by word of mouth and posted on every community noticeboard to ensure that all bases are covered. Regular scheduled community visits by the Weipa Communities team are essential for both relationship-building and communication about agreement implementation and its outcomes.

Image 1: Cape Lambert expansion. Copyright © 2017 Rio Tinto.
Image 2: (L-R) Steven Hall, Maryann Coconut and Rio Tinto employees engage in community consultation at Weipa, Queensland. Copyright © 2017 Rio Tinto.

Images copyright © Rio Tinto 2017

Text copyright © Rio Tinto March 2016. Reproduced with permission from Rio Tinto. This content comprises excerpts from Why Agreements Matter: a resource guide for integrating agreements into Communities and Social Performance work at Rio Tinto.