Legal loophole fail: compliance won’t dodge risk: FS SUSTAINABILITY


HESTA and BHP are set to pilot a new First Nations-led plan under development for the private sector, as the group behind the scheme works with Canberra to update cultural heritage laws.

Investors face financial, legal and reputational risk if they fail to navigate due diligence, disclosures, engagement, and stewardship expectations appropriately.

But current policies and legislations are unsuitable to protect and conserve Aboriginal and Torres Strait Islander cultural heritage, the Dhawura Ngilan (“Remembering Country”) Business and Investor Initiative (DNBII) says.

DNBII has put out two new guides to help the private sector achieve best practice as it works with the federal government to co-design new national cultural heritage legislation in line with international agreements and community expectations.

Investors have a responsibility to protect Australia’s Indigenous cultural heritage for future generations and uphold free, prior, and informed consent (FPIC) – a right enshrined in the UN Declaration on the Rights of Indigenous Peoples (UNDRIP) alongside the right to self-determination.

Drafted by Terri Janke & Company, a 100% Indigenous owned and run law firm, the guides are spearheaded by the First Nations Heritage Protection Alliance (FNHPA) in partnership with the Responsible Investment Association Australasia (RIAA) and the UN Global Compact Network Australia (UNGCNA).

The initiative is supported by HESTA, Perpetual, KPMG Australia, Lendlease, and Allens.

BHP provided $1.2 million to the initiative and alongside HESTA a pilot program is under development to implement the guides over the next 12-18 months.

Kado Muir, co-chair of the FNHPA and Ngalia cultural and community leader, said the new guides mark a new period in Australian business relations.

Merle Ashburton, chair of the PKKP Aboriginal Corporation and representative of the Traditional Owners of Juukan Gorge, said it is encouraging to see companies going “beyond legislative compliance.”

“The private sector must not wait for laws to catch up to community expectations regarding the right of Traditional Owners to FPIC,” Ashburton said.

By implementing the guides, the private sector commits to “reach beyond legislative standards and implement leading practice for cultural heritage as defined by First Nations peoples,” Muir added.

RIAA co-CEO Estelle Parker said investors are increasingly aware that the destruction of First Nations’ cultural heritage poses legal, reputational and operational risks.

“These are the only First Nations-Led guides on the protection of Indigenous Cultural Heritage in our region,” Parker said.

“Unfortunately, the destruction of precious cultural heritage against the wishes of the Traditional Owners occurs on a daily basis.

“The guides are comprehensive and very practical, and we’re looking forward to seeing strong uptake across many sectors. We all have a responsibility to contribute to the protection of First Nations’ cultural heritage protection instead of its destruction.”