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A matter of trust

Tom Zaunmayr -

NIT Editorial

Major iron ore companies Rio Tinto, BHP, FMG and Roy Hill are being heavily scrutinised at the moment regarding heritage agreements with Traditional Owners in WA's Pilbara region.

These heritage provisions, which are often contained within Native Title compensation or Impact Benefits Agreements, may prohibit Traditional Owners from objecting to Section 18 applications to disturb or destroy a site deemed significant under the Western Australian Aboriginal Heritage Act 1972.

Yamatji Marlpa Aboriginal Corporation (YMAC) is the Native Title Representative Body for WA's Pilbara region. They receive millions of Australian taxpayer dollars annually to represent Native Title Traditional Owner groups.

YMAC operates under the Native Title Act 1993 to uphold Native Title rights and interests. Part of the Object of the Act in Section 3 is to provide for the recognition and protection of Native Title, to establish ways in which future dealings affecting Native Title may proceed and to set standards for those dealings.

It is clear that the role of Land Councils is challenging; Traditional Owners place huge trust in staff, consultants and advisers to secure the best deals and protect common law and Traditional Owners' rights and interests.

It also clear, from the information that has come to light, that not only did Rio Tinto fail to have proper checks and balances in place, but YMAC, as the representative body, failed to fulfil its responsibilities to ensure proper processes were in place to protect Juukan Gorge.

In the spirit of fairness, transparency and accountability, why isn't YMAC and its CEO Simon Hawkinsâ€"who managed and negotiated the Rio Tinto agreementâ€"being compelled to appear before the Senate's Joint Standing Committee and subjected to the same level of scrutiny as these mining companies?

After all, as CEO, Simon Hawkins allowed Traditional Owners to enter into an agreement which allowed Rio Tinto to legally destroy the Juukan Gorge sites, all without a right to objection.

It appears there are two sets of rules here: one for the mining companies and one for Mr Hawkins, who has been CEO of YMAC for nearly 20 years.

When the deal with Rio Tinto was completed, Hawkins trumpeted triumphantly about the breadth and scope of the agreement. Not once did he mention that YMAC's lawyers and consultants had structured the deal in such a way that the Traditional Owners had in effect signed away their right to object to Section 18 applications, therefore removing any right to protect their cultural sites.

Questions must be directed at Mr Hawkins by the Committee, without fear or favour in the glare of the public spotlight, as to how he allowed this to happen under his leadership. Especially when millions of dollars of Australian taxpayers' money were paid to YMAC by the then Federal Government to facilitate these negotiations with Rio Tinto.

It would be the expectation of the Australian taxpayer that these monies were spent wisely and that the Traditional Owners were given the best possible advice in relation to cultural, social, commercial and financial issues contained within the agreement.

Is this a widespread practice of YMAC to agree to Traditional Owners having no rights to objection? This would be nothing short of a breach of trust by a Native Title representative body.

If there is nothing to hide, then YMAC and Mr Hawkins should step forward and explain why they made the decision to insist on an area agreement and not the project by project approach Rio Tinto originally wanted.

Mr Hawkins should also explain why he was comfortable authorising an agreement that denied Traditional Owners the right to object to a Section 18 application regardless of how significant the site was.

This is of grave concern when considering YMAC has statutory functions under the Native Title Act 1993 and the Act's objective is to provide for the protection of Native Title.

It's time for some clarity and honesty from YMAC. While the Juukan Gorge incident has captured the attention of the world and resulted in unprecedented scrutiny of a mining giant, YMAC and Hawkins, key players in the Rio Tinto agreement, have shown no inclination to accept any responsibility or make any public statements about why these decisions were made.

YMAC's silence has been deafeningâ€"as has the lack of accountability. Rio Tinto have had the courage and humility to apologise for their actions. Let's have a full examination of YMAC and Mr Hawkins' role in this matter and understand why these decisions were made and how they were supposed to benefit the Traditional Owners. It's a matter of trust.


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