Tiwi Islander Grievances

We assisted six Tiwi Islands Traditional Owners and a Larrakia Traditional Owner and superfund members to file human rights complaints against banks and superfunds.

Bank grievances

Sample grievance to ANZ (PDF)

Human rights grievance complaints to financial institutions over Santos’ Barossa gas project

On 4 April 2023, the following Traditional Owners, Elders and clan members filed human rights grievances against financial institutions supporting the Barossa gas project located in waters off northern Australia:

  • Pirrawayingi (Marius) PuruntatameriMunupi Senior Man, Mayor of the Tiwi Islands, Traditional Owner and senior Elder of the Munupi clan
  • Paulina Jedda PuruntatameriTiwi Woman from the Munupi clan, a freshwater woman, and an Elder in her community
  • Carol Maria PuruntatameriMunupi Senior Woman, Traditional Owner and Elder of the Munupi clan of the Tiwi Islands
  • Dennis Murphy TipakalippaMunupi Senior Law Man, Traditional Owner and leader of the Munupi clan
  • Therese Wokai BourkeRegional Councillor, leader of the Malawu clan of the Tiwi Islands
  • Simon MunkaraMember of the Jikilaruwu clan of the Tiwi Islands
  • Tibby QuallLarrakia Elder and Traditional Owner

Human rights complaints, or grievances, were sent to the following banks for an apparent failure to undertake adequate human rights due diligence for the US$1 billion loan in addition to breaches of policy and international human rights standards, including the failure to obtain free, prior and informed consent:

  • ANZAustralia
  • CBAAustralia
  • WestpacAustralia
  • NABAustralia
  • INGNetherlands
  • DNB BankNorway
  • CitigroupUSA
  • Royal Bank of CanadaCanada
  • DBS BankSingapore
  • MUFGJapan
  • SMBCJapan
  • MizuhoJapan

Additional complaints may be filed for other banks.

Export credit agencies, government owned financial institutions of last resort, from Japan and the Republic of Korea, are set to provide a further US$1 billion of financial support to joint venture partners SK E&S in Korea and JERA in Japan.

The export credit agencies that received complaints were:

  • KEXIMRepublic of Korea
  • K-SURERepublic of Korea
  • JBICJapan

The human rights complaints request each financial institution to exit loans and facilities for the risky Barossa offshore gas project. Responses are sought by 16 May 2023.

Bank responses

Full Bank Responses Report (PDF)

Bank responses to grievances

13 out of 15 banks and export credit agencies (ECAs) have responded to the Human Rights Grievances filed in April 2023 by Tiwi and Larrakia Elders and Traditional Owners.

In the Grievance, Traditional Owners explained the serious human rights risks of Santos’ Barossa project and the lack of free, prior and informed consent (FPIC). Amongst other requests, the Grievance asked the banks to accept their contribution to the human rights impacts, to publicly apologise to Traditional Owners and to provide the results of any human rights due diligence conducted by the bank. The Grievances also invited the banks to engage in a dialogue with Traditional Owners on Tiwi Country.

Most of the banks and ECAs rejected the requests in the Grievance. See the table below for a summary of their answers, or read the Full Report at the link below.

ANZ, Australia’s first bank to set up a human rights grievance mechanism, dismissed the Grievance without any consultation or consideration of the serious human rights concerns. ANZ rejected the Grievance on the basis that Santos did not consent to participating in the grievance mechanism. ANZ sent its brief letter of rejection in May 2024, over a year after the Grievance was filed.

Summary table of Australian banks’ responses

CBA Westpac NAB ANZ
1 Did the bank confirm that it was a participant in the syndicated loan to Santos in August 2022? Yes Yes Yes No
2 Does the bank have a human rights grievance mechanism? (UNGP 22 & 31) Yes Yes Yes Yes
3 Does the bank incorporate the UN Guiding Principles into its policies? (UNGP 16) Yes Yes Yes Yes
4 Did the banks accept or dismiss the requests in the grievance? (UNGP 18) Dismiss Dismiss Dismiss Dismiss
5 Has the bank acknowledged that the Barossa project is having adverse human rights impacts? (UNGP 18) No No No No
6 Did the bank confirm that it conducted human rights due diligence before entering into the August 2022 loan to Santos? (UNGP 17) No No No No
7 Did the bank accept that it contributed to the actual and potential adverse human rights impacts of the Barossa project? (UNGP 17) No No No No
8 Did the bank consult or engage with the Claimants while assessing the Grievance? (UNGP 18(b)) No No No No
9 Did the bank accept the Claimants’ invitation to a dialogue on-country? (UNGP 18(b)) Yes5 No No No
10 Did the bank state that it has engaged with Santos on these issues? (UNGP 19(B)) Yes Yes Yes Yes
11 Did the bank commit to conducting human rights due diligence into the Barossa project after receiving the grievance? (UNGP 17) No No No No
12 Did the bank explain how it would respect the right to free, prior and informed consent? (UNGP 18) No No No No
13 Did the bank refer to access to remedies for the human rights impacts? (UNGP 29) No No No No

5 CBA accepted the invitation to speak with the Claimants after making the decision that it had not contributed to the human rights impacts and after dismissing all the other requests from the Claimants in the Grievance.

“UNGP” refers to the UN Guiding Principles on Business and Human Rights, an internationally accepted set of standards which all four Australian banks have committed to in their policies.

Summary table of International Banks & ECA Responses

Mizuho RBC DBS Citi ING DNB JBIC KEXIM
1 Has the bank confirmed that it provided a loan to Santos in August 2022? No Yes No No Yes Yes No No
2 Does the bank have a human rights grievance system? (UNGP 22) Yes Yes No No No No No Yes
3 Does the bank incorporate the UN Guiding Principles into its policies? (UNGP 16) Yes Yes Yes Yes Yes Yes Yes Yes
4 Did the bank accept or dismiss the requests in the grievance? (UNGP 18) Dismiss Dismiss Dismiss No response Dismiss Dismiss Dismiss Dismiss
5 Has the bank acknowledged that the Barossa project is having adverse human rights impacts? (UNGP 17) No Partly No No No No No No
6 Did the bank confirm that it conducted human rights due diligence before entering into the August 2022 loan to Santos? (UNGP 17) No No No No No Partly6 No No
7 Did the bank accept that it contributed to the actual and potential adverse human rights impacts of the Barossa project? (UNGP 18(b)) No No No No No No No No
8 Did the bank consult or engage with the Claimants while assessing the Grievance? (UNGP 18, 31) No No No No No No No No
9 Did the bank accept the Claimants’ invitation to a dialogue on country? No No No No No No No No
10 Did the bank state that it is engaging with Santos on these issues? No Yes No No Yes Yes No No
11 Did the bank commit to conducting human rights due diligence into the Barossa project after receiving the grievance? No No No No No No No No
12 Did the bank explain how it would respect the right to free, prior and informed consent (FPIC) of the Claimants? No No No No No No No No
13 Did the bank refer to access to remedies for the human rights impacts? (UNGP 29) No No No No No No No No

6 *DNB stated that it has “carried out human rights due diligence of Santos Ltd at several stages of the client relationship, and prior to every credit decision.” DNB did not provide any detail regarding the outcome of its human rights due diligence processes.

Non-responding institutions

The following international banks did not acknowledge the Grievance or respond to it — notably, all three have committed to the UN Guiding Principles on Business and Human Rights:

  • SMBCJapan
  • K-SURERepublic of Korea
  • MUFGJapan

Fund complaints

Sample complaint to AustralianSuper (PDF)

Human rights complaints to superannuation funds regarding Santos’ gas projects

On 26 April 2023, Tiwi Islander, Larrakia and Gomeroi/Gamilaraay Traditional Owners sent human rights complaints to Australia’s largest superannuation funds regarding their investments in Santos Limited (ASX:STO) and its proposed Barossa and Narrabri gas projects. The correspondence was sent jointly by superannuation fund members who requested information from the funds under section 1017C of the Corporations Act 2001 (Cth) as a result of concerns about the management of each of the funds.

The complaints set out the serious human rights impacts of the Barossa/DLNG projects on the Tiwi and Larrakia people, and the Narrabri project on the Gomeroi/Gamilaraay people. The impacts include serious risks to the spiritual, cultural and economic rights of Traditional Owners and the failure to obtain free, prior and informed consent.

Equity Generation Lawyers, the firm that represents the Traditional Owners and fund members, referred to each fund’s apparent failure to act in accordance with international human rights principles as a result of being unable to ensure that Santos avoids the adverse human rights impacts.

Funds can discharge their obligations in a number of ways. In addition to effective engagement with Santos, international guidance directs funds to collaborate to increase their leverage and engage with governments and regulators to prevent human rights abuses. If leverage fails, funds are to consider divestment. All such actions are understood to be permitted and arguably required by Australian law particularly in circumstances where Santos’ growth strategy has been described by analysts as financially reckless.

The complaints were sent to the trustees of Australia’s largest superannuation funds:

  • AMP Limited
  • Australian Retirement Trust
  • AustralianSuper
  • Aware Super
  • Brighter Super
  • BT
  • Cbus Super
  • Colonial First State
  • Commonwealth Superannuation Corporation
  • Equipsuper (includes Catholic Super)
  • Emergency Services & State Super
  • Government Employees Superannuation Fund
  • HESTA
  • Hostplus
  • MLC Super Fund
  • OnePath
  • REST
  • State Super
  • Super SA
  • UniSuper

The complaints request information about how funds are complying with international human rights standards, the incorporation of human rights risks into their risk management frameworks, and to otherwise justify investments in Santos in the absence of effective fund engagement to prevent impacts.

International human rights principles suggest funds should consult Traditional Owners on the fund’s proposed actions. Fund executives and trustee directors have been invited to discuss the Traditional Owners’ concerns on Tiwi, Larrakia and Gomeroi/Gamilaraay country.

Responses are sought by 26 May 2023.

Fund responses

Super Fund Responses Report (PDF)

Fund responses to human rights complaints

The responses by superannuation funds to Human Rights Complaints sent in April 2023 by fund members and Tiwi, Gomeroi/Gamilaraay and Larrakia Elders and Traditional Owners have been analysed in a new report by Equity Generation Lawyers.

The Complaint dealt with the serious human rights risks of Santos’ Barossa and Narrabri projects, including the failure by Santos to obtain free, prior and informed consent, or FPIC, from communities.

The funds’ responses were checked against the requirements of the United Nations Guiding Principles on Business and Human Rights, or UNGPs.

Funds can discharge their obligations under the UNGPs in a number of ways. In addition to effective engagement with Santos, international guidance directs funds to collaborate to increase their leverage and engage with governments and regulators to prevent human rights abuses.

Ten funds were open to meeting Traditional Owners to learn more about the impacts.

While some funds said they are engaging with Santos, not a single fund confirmed it would use its leverage to attempt to stop the Barossa and Narrabri projects that lack consent from Tiwi, Larrakia and Gomeroi/Gamilaraay Traditional Owners. None of the funds have standalone human rights policies or human rights due diligence processes.

The funds that did not provide a substantive response were Colonial First State, SuperSA and UniSuper.

ACKNOWLEDGEMENT OF COUNTRY
Equity Generation Lawyers acknowledges and respects the Australian First Nations traditional custodians of the lands upon which our offices are located. We extend our respect to First Nations Elders – past, present and emerging – and to all First Nations people.