ACSI: Improving standards of company engagement with First Nations people

Give a brief overview of your initiative, its objectives, and why you decided to undertake it.

The impact of companies on First Nations people’s lands, communities, and cultural heritage presents an increasingly recognised investment risk. Unfortunately, there are many examples, over many years, of destruction of cultural heritage and contravention of the rights of First Nations people by companies globally.

ACSI and its members established a Working Group on Rights and Cultural Heritage Risk Management to better understand the financial risks that can arise in company engagement with First Peoples, and to chart a path towards improved risk management. The Working Group is comprised of ACSI members, who are institutional investors.

The Working Group aims to see the risks of harm to cultural heritage effectively mitigated and managed through constructive engagement between companies and First Peoples. To achieve this, the Working Group does the following:

1. Educate ourselves and other investors on the investment risk: The Working Group clarified our understanding of better practice, making sure investors are aware of the risks and have tools to guide investment decisions and engagement with companies. ACSI developed a research paper that outlines the investment risk of poor company engagement with First Nations peoples, and advises companies and investors on how to improve practices. The research paper was deliberately made publicly available, so as to drive awareness right across the market. We were informed by First Nations organisations.
2. Set out clear expectations of companies: To be transparent in our expectations of companies, ACSI published its Policy on Company Engagement with First Nations People. This sets out the clear baseline expectations our members have for companies engaging with First Nations people.
3. Engage with companies: Based on our Policy and Research Paper, we developed a framework for engagement with companies, which we use to encourage better practice.
4. Advocate for policy and law reform: ACSI and the Working Group contribute to legislative reform processes to ensure that the rights and cultural heritage of First Peoples are protected and that companies maintain their social licence to operate.
5. Work with international investors to advance standards internationally: Discussions with international investors have highlighted a gap in expectations of companies engaging with First Nations people. ACSI is working with international investors with the aim of developing a set of standards that investors could apply globally to their investee companies.

We strive to ensure that our work is based on robust research, and is balanced, practical and implementable on the ground.

 

Describe how your initiative is aligned to Active Ownership 2.0.

A company’s long-term success is intrinsically linked to effective engagement with the people it impacts. Companies interacting with First Nations people have opportunities to shape their engagement constructively to mutual benefit. Respecting and protecting the rights and cultural heritage of First Nations people is crucial to align markets and societies globally with international human rights standards, and is in the best financial interests of investors over the long term. In Australia, as in many other countries, domestic legal frameworks do not protect Indigenous rights to the degree required by international standards, including the UN Declaration on the Rights of Indigenous Peoples (UNDRIP) and the UN Guiding Principles on Business and Human Rights (UNGPs).

Approximately 46% of global extractive companies’ reserves lie on land inhabited by First Nations people, so this risk applies across markets globally. Through this initiative, we have come to understand that destruction of Indigenous cultural heritage and contraventions of Indigenous rights are not isolated events. Rather, with current standards of company behaviour, there is a systemic risk that Indigenous rights will continue to be undermined, which is not limited to extractive companies.

Our stewardship activities seek real-world outcomes in two ways:

1. Encouraging companies to improve practices and protect rights (even where this goes beyond legal requirements), by establishing investor expectations that companies align with international standards.
2. Advocating for law reform to fill the gaps and ensure that legal frameworks in Australia reflect international standards for the protection of rights and cultural heritage.

Stewardship tools

The initiative draws on various stewardship tools, including engagement with companies, research, and public policy advocacy. ACSI and its members have developed a comprehensive framework for assessing companies’ engagement with First Nations peoples. It includes, for example, indicators relating to risk assessment, governance, and board oversight, as well as whether a company’s policies and practices are aligned with international standards.

We use the framework to guide and set a baseline for our engagement targets for 11 higher-risk Australian-listed companies, to understand how they are managing the issues. We will measure progress over time and adapt engagement targets accordingly. Over the coming years, we will expand the number of companies and sectors we engage. Our engagement will continue to be informed through input from First Nations people.

The knowledge gained through this initiative has also enabled ACSI to strengthen its analysis for proxy voting recommendations on resolutions that relate to First Nations people and cultural heritage.

ACSI and its members also advocate for changes to Australian law to improve company practices. We drive the investor voice in government consultations at federal and state level, strongly emphasising the importance of Australian law in adequately protecting Indigenous rights and cultural heritage.

An understanding of the issues cannot come solely from company interaction - investors must also learn how First Nations communities experience companies’ activities. This is why we are working with one of Australia’s peak Indigenous representative organisations, the National Native Title Council (NNTC), to strengthen relationships with Indigenous groups and ensure we integrate their perspectives into our analysis. The NNTC acts as an advisor to our initiative, participating in working group meetings and providing invaluable guidance.

At an early stage of this process, ACSI also conducted international research in collaboration with the Church of England Pensions Board and 64 institutional investors. This group co-signed a letter to 78 mining companies globally, requesting information on how they were managing risk and protecting cultural heritage. The responses demonstrated that poor management of relationships is not isolated to a few companies; it exists across markets globally.

Theory of change and real-world outcomes

Some companies demonstrate good practice, and the Working Group seeks to ensure that better practice becomes the minimum operating standard. We are pushing companies to align their practices with international standards, as set out in UNDRIP and the UNGPs. Carefully planned and transparent engagement with First Nations people, integrating the standard of free, prior and informed consent (FPIC), will lead to better protection of rights and cultural heritage, and will enhance financial outcomes for companies and investors.

The initiative’s advocacy work will also have an important impact on real-world outcomes. Due to the gaps in Australian legal frameworks (and those of many jurisdictions overseas), poor practice is often dealt with on a case-by-case basis, rather than by systematic application of appropriate standards. A fit-for-purpose legal framework to improve engagement between companies and First Peoples is vital for investors. ACSI has therefore taken a leading role in representing investors in a federal consultation relating to Aboriginal cultural heritage reform. This is an important process to improve Australia’s laws, and ACSI has been publicly supportive of the process being co-designed between the government and First Nations organisations. ACSI has also provided input into other important legal reform processes, such as a federal inquiry into the destruction of Aboriginal cultural heritage at Juukan Gorge in Western Australia, an inquiry into the application of UNDRIP in Australia, and reform of Aboriginal cultural heritage laws in Western Australia.

Collaboration and lessons learnt

This initiative has collaboration at its core, with ACSI and a group of its members working together closely to advance the group’s objectives. Through collaboration with international investors, we have also realised that there is concern in many jurisdictions about the systemic risk of this issue. With the Church of England Pensions Board, we are now developing a workstream within the Mining 2030 Agenda related to Indigenous rights. The aim is to improve company practices globally by developing a set of international standards that investors can expect of the companies they invest in.

One challenge in this area of social risk is that some indicators are qualitative and not easy to measure – for example the extent to which a relationship is robust and built on trust. To be able to assess how well a company is doing on qualitative indicators, we need to listen to different perspectives, which is why we are building feedback from First Nations groups into our assessment of company operations.

 

The results achieved in the initiative to date, including: evaluation of its success against the objectives; any adjustments to plans going forward; and any insights learned from this project that can be applied more broadly?

We have developed a robust investor standard that, while initially designed for Australian circumstances, is intended to be easily adapted for use by investors globally to improve the protection of First Nations rights and cultural heritage. The standard was developed through wide consultation, including with international investors, and has buy-in across the Australian market, from First Nations groups, companies, investors, NGOs and others.

We now have a detailed framework through which to assess company practices and to accelerate progress through collaborative engagement with companies. Already, we are seeing a significant uplift in disclosure and increasing discussions among listed companies about the management of their relationships with First Nations peoples. There is increased recognition from companies that the risks are material and that practices need to improve. We will monitor the impacts of our engagements with companies over the coming years - escalating our expectations and seeking progress year on year.

One specific example of positive impact is ACSI and its members’ engagement with Rio Tinto in the wake of the destruction of the Juukan Gorge caves. ACSI advocated strongly for board accountability and for the company to implement transformative changes to avoid similar risks in future. We have seen clear progress from Rio Tinto, and we will continue to monitor real outcomes on an ongoing basis.

We are also seeing progress in advocacy, through the strong relationships that we have developed with First Nations organisations and policy makers. ACSI and its members are providing strong and informed investor perspectives on the law reform process in Australia around cultural heritage and Indigenous rights. The final report of the Parliamentary Inquiry into Juukan Gorge was a clear step forward, as it outlined robust recommendations to reform Australia’s legal system for the protection of Indigenous rights.

This initiative has been useful to inform ACSI and its members. Company relationships with First Nations people can be a highly politicised area, and challenging to understand and manage. However, we have learnt that there are many ways to break down barriers and build stronger trust-based relationships for mutual benefit to both First Nations people and companies, as well as, ultimately, investors.

ACSI has spent significant time developing mutual understanding and trust with key First Nations organisations and individuals, realising that this was fundamental to the success of the initiative. We realised the importance of always clearly communicating the objectives and mandate of investors, including their fiduciary duties.