The Murujuga Cultural Landscape and the Strategic Agreement-Making Project

In the heart of Western Australia's Pilbara region lies Murujuga, a land steeped in ancient history and cultural significance. Home to a gallery of an estimated 1 – 2 million ancient petroglyphs (rock engravings), Murujuga, encompassing the Burrup Peninsula and Dampier Archipelago, stands as a testament to millennia of Indigenous presence and stewardship. Recognising its unparalleled cultural and archaeological value, efforts have been underway to secure World Heritage listing for the Murujuga Cultural Landscape (see World Heritage listing nomination).

Supporting this process is the Strategic Agreement-Making (SAM) Project, spearheaded by the Murujuga Aboriginal Corporation (MAC) and assisted by the legal expertise of Gilbert + Tobin. The SAM Project is designed to establish a negotiation and collaboration framework among stakeholders, emphasising the pivotal role of First Nations peoples in decision-making. Historically, the development of industry in the Burrup Peninsula has not adequately respected the rights of First Nations peoples, nor placed them at the centre of the decision-making processes. The SAM Project aims to chart a new course towards a shared future, addressing past oversights and fostering a values-based partnership.

Setting the stage for collaboration

At the heart of the SAM Project lies a commitment to self-determination guided by a framework outlined in a Statement of Intent. The Statement of Intent aims to establish a strategic framework for collaboration among MAC, industry, and government stakeholders. This framework is intended to safeguard the integrity and authenticity of the Murujuga Cultural Landscape, ensuring its preservation through values-based partnerships and adherence to principles that support the protection and conservation of this exceptional cultural and natural site. The Statement of Intent sets out 13 guiding principles on which the parties agree to come together to negotiate the terms of a strategic heads of agreement (Agreement). 

On 29 February 2024, the Statement of Intent was signed by Commonwealth Environment and Water Minister Tanya Plibersek, Western Australian Premier Roger Cook, Aboriginal Affairs Minister Dr Tony Buti, Environment Minister Reece Whitby, MAC Chairperson Peter Hicks and representatives from Rio Tinto, Woodside, Yara Pilbara, Perdaman Industries, the City of Karratha and Horizon Power. 

Statement of Intent: 13 principles

  1. Engage in good faith for the purpose of a respectful negotiation in a manner that is transparent, honest and promotes open communication.

  2. Recognise the universal right of MAC to self-determination and freedom from discrimination (UNDRIP, Free Prior Informed Consent, Dhawura Ngilan and Terri Janke’s True Tracks).

  3. Acknowledge and learn from mistakes of the past to move forward together and evolve towards ethical outcomes.

  4. Be equipped with the relevant knowledge (including appropriate cultural training), expertise, resources and authority to engage and communicate effectively in agreement-making.

  5. Act in a cooperative and fair manner amongst all parties.

  6. Commit to making available individuals with the required level of decision making authority to represent organisations in negotiations to allow for proper and robust negotiation and decision making.

  7. Ensure that these individuals act cooperatively in scheduling meetings and negotiations, arrive prepared and able to progress outcomes and actions promptly as to not cause delay to the delivery of the Agreement.

  8. Build positive relationships based on respect and equality for the purpose of fostering longevity.

  9. Afford equal opportunity for all parties to participate and for all voices to be heard.

  10. While recognising contributions made under existing agreements, to collectively find innovative approaches for equitable sharing of economic benefit derived on Country to support MAC to build capacity and support cultural, economic and social outcomes.

  11. Commit to the principles of environmental sustainability, protection of cultural heritage, valuing Cultural Authority and MAC’s Indigenous Cultural and Intellectual Property (ICIP) particularly recognising and incorporating Indigenous knowledge and ways of working with landscapes and people.

  12. Recognise the potential Outstanding Universal Value of the Murujuga Cultural Landscape and the significance of a United Nations World Heritage Listing.

  13. Strive towards a mutually beneficial outcome which reconciles the respective interests and rights of all parties and creates values-based partnerships.

Aligned with the principles of the United Nations Declaration on the Rights of Indigenous Peoples, the Statement of Intent principles emphasises the importance of obtaining free, prior, and informed consent (FPIC) from First Nations people before proceeding with any developments on their lands.

Free, prior and informed consent

The principle of FPIC is derived from the right to self-determination and the right to be free from racial discrimination. Self-determination is a fundamental right of all people enshrined in article 1 of the International Covenant on Civil and Political Rights and article 1 of the International Covenant for Economic, Social and Cultural Rights. FPIC ensures that Indigenous peoples can participate meaningfully in decisions affecting their lands, territories, and resources, providing a safeguard against coercion and manipulation. 

The realisation of this principle in the context of Indigenous peoples has been reinforced by specific United Nations instruments, including the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).

FPIC involves several key elements: 

  • ‘free’ implies that consent is given voluntarily without coercion; 
  • ‘prior’ indicates that consent is sought before any activity commences; 
  • ‘informed’ means that all relevant information is provided in a comprehensible manner; and
  • ‘consent’ signifies that permission is granted in accordance with Indigenous peoples' cultural practices. 

In the Australian context, although domestic law does not currently mandate FPIC as per UNDRIP, there is increasing pressure from investors, financial institutions, and other stakeholders for its implementation. Effective operationalisation of FPIC not only mitigates legal and reputational risks but also fosters stronger, more respectful relationships with Indigenous communities, ensuring their rights and interests are upheld in project developments.

The International Council on Mining and Metals (ICMM), an organisation representing a third of the global metals and mining industry, is reviewing its approach to FPIC and supporting companies in applying its recommendations. Since its initial position statement in 2008 and its update in 2013, ICMM has committed to six principles that respect the rights, interests, and meaningful participation of Indigenous peoples in mining projects. As stated by the director of social performance and co-chief operating officer at ICMM: 

“[W]e recognise the need to work harder to achieve greater equity and involvement of Indigenous peoples in decision-making. We are therefore in the process of reviewing the position statement to assess where it could be strengthened further.” (See article on new FPIC guide)

The Statement of Intent within the SAM Project aligns with this evolving global perspective by integrating FPIC principles into its framework. This commitment not only sets a precedent in Australia but also acts as a trailblazer for international adoption of similar concepts. By emphasising the pivotal role of First Nations peoples in decision-making and fostering values-based partnerships, the Statement of Intent could inspire global industries to adopt more equitable and inclusive practices, enhancing the protection and management of Indigenous lands worldwide.

Expanding horizons

In tandem with the progress made in the SAM Project, the Western Australian Government's decision to transfer undeveloped sites in the Burrup to Murujuga National Park signifies a tangible step towards environmental conservation. These sites, originally reserved for industrial use, will now contribute to the expansion of the Murujuga National Park, further safeguarding Murujuga's cultural and environmental heritage.

The SAM Project and the accompanying Statement of Intent represent a pioneering approach to agreement-making, setting a powerful precedent for similar initiatives across Australia and potentially on an international scale. By embedding the principles of FPIC and fostering genuine collaboration between Indigenous communities, government, and industry, this model not only addresses historical injustices but also paves the way for more equitable and sustainable development practices. 

The success of the SAM Project could inspire and inform future frameworks, ensuring that Indigenous voices are central in decision-making processes worldwide. This approach highlights the potential for transformative change, demonstrating that respecting Indigenous rights and integrating their knowledge can lead to mutually beneficial outcomes, fostering trust, stability, and economic growth. The SAM Project serves as a blueprint for future agreements, showing how inclusive and respectful negotiation can protect cultural heritage while promoting responsible development.