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On 24 May 2020, mine blasting occurred in the Rio Tinto Brockman 4 iron ore mine in WA. There is nothing unusual in using explosives to move rock in mining. But this explosion was different.

 

These particular explosions destroyed some natural rock shelters within the Juukan Gorge that held unique cultural heritage of national and international significance, providing evidence of a 46,000-year history of continuous occupation on our continent. In fact six years earlier, in 2014, an assessment identified the cave site as one of the most archaeologically significant sites in Australia.

 

The loss of the caves was a disaster. While a report by the Federal parliamentary committee examining the case found the destruction could – and should – have been avoided, I want to draw attention to some of the learnings. The destruction of Juukan Gorge throws a spotlight on the operational risks that companies face in respecting and protecting land title and cultural heritage.

 

First, the law in this area is complex, and demands specialist advice. There is a national scheme of native title, as well as many state and territory schemes that govern or convey land title to First Nations people. Some of these title schemes co-exist with other forms of title, including pastoral and mining leases.

 

In addition to these title questions, all Australian jurisdictions have a legal protection mechanism for cultural heritage, in some cases specific to Aboriginal and Torres Strait Islander heritage. Cultural heritage can include objects found on land (e.g., spear tips), fixed to land, such as vegetation (think scar trees from which canoes were hewn) or even specific landforms themselves, such as a creek bank used as a traditional birthing place.

 

So, respecting and preserving First Nations cultural heritage is not always able to be achieved by mere strict compliance with applicable laws. The damage done to Juukan Gorge did not breach the applicable legal approvals that were in place. According to the parliamentary committee’s report into Juukan Gorge there was an incomprehension of the site’s cultural significance. That report recommended new laws to protect thousands of sacred sites across Australia. This demonstrates why the current legal protections are simply not sufficient to prevent the primary damage of heritage destruction, nor the consequent reputational damage that comes with being associated with that damage.

 

Finally, we have to shed assumptions that these issues are relevant only in the bush or remote Australia. Sydney, for example, is Australia’s largest and oldest urban settlement yet has many cultural heritage sites within the greater urban area (see inset). Not to mention the majority of Aboriginal and Torres Strait Islanders live in Australia’s cities in towns.

 

My personal journey to becoming better informed has benefitted from our business – the Clean Energy Finance Corporation (CEFC) – participating in Reconciliation Australia’s Reconciliation Action Plan (RAP) process. The RAP has enabled the CEFC to bring a more considered approach to our relationship with First Nations peoples, and our role in national reconciliation. It was an important driver in our decision to include First Nations’ social engagement as a material factor in our ESG policy. This means First Nations’ considerations are now central to our thinking as an organisation.

 

With a deeper understanding of that connection to country from the RAP process, and taking my steer from our ESG policy, I set about looking for a best practice guide to give life to our ESG ambitions.

 

The CEFC is not a project operator, we are investors and financiers. Unfortunately, there is very little Australia-specific, Australia-wide guidance available covering the range of our financial interests, and governments tend to publish guides that only cover their own specific state, territory or federal jurisdiction. Everyone I spoke to was alive to the issue but looking for their own guidance, and none was to be had. Operating nationally as we do, in light of Juukan Gorge, I thought it would be better to pick up the pen and start sooner rather than later.

 

The result – after much consultation and drafting, both inside and outside the business – is our First Nations Investment Screening tool. The tool:

 

– Identifies the relevant legislation, providing us with the minimum standard from which we can ask the questions of our investee or borrowers with respect to First Nations considerations

– Moves us beyond the statutory minima by asking about whether free, prior, and informed consent has been obtained in respect of agreements and approvals

– Lifts our game on impact assessments, including both positive and negative factors and sponsor plans for items like economic empowerment or proactive mitigation of risks or amelioration/remediation

– It also gives our transactors permission to “ask the question” about positive benefits – about what could be done to positively impact Aboriginal and Torres Strait Islander peoples. If you don’t ask, you never know!

 

The CEFC tool is useful in settling market expectations about our expectations of co-investors, and provides indicators of good practice and governance in this area.

 

The document will continue to evolve, benefiting from the feedback of First Nations peoples, our co-investors as well as the broader market. I want to thank my CEFC colleagues, expert reviewers and First Nations representatives who contributed to it.

 

It is humbling that the tool is receiving interest from RIAA members, and we are pleased to be able to share this work for others to pick up and incorporate into their own practice. I think this is a testament to the appetite of the investment community to use the extraordinary power of finance to do good, while doing well.

 

Simon Every is Head of Government and Stakeholder Relations at the Clean Energy Finance Corporation (CEFC). Simon leads the CEFC’s relationship with the Australian Government, which is the CEFC’s sole shareholder. In addition, Simon oversees the CEFC’s relationship with the State and Territory Governments, business, industry and community stakeholders. Simon holds a Bachelor of Arts in Politics and History and is a Graduate Member of the Australian Institute of Company Directors.