Shareholder Resolution

ACCR Shareholder Resolutions to BHP on cultural heritage and lobbying

The Australasian Centre for Corporate Responsibility (ACCR) has filed Shareholder Resolutions to BHP Group Ltd (ASX:BHP) on two important issues for shareholders: the protection of cultural heritage, and climate related lobbying.

BHP has accepted the resolutions, and they will be voted on at its upcoming AGMs on October 14 (BHP Group Ltd, Sydney, Australia) and October 15 (BHP Group Plc London, UK).

Resolution 2, the ordinary resolution on cultural heritage protection, was withdrawn prior to the AGMs after a significant new agreement was negotiated between BHP and the First Nations Heritage Protection Alliance.

See the latest Investor Briefing for these resolutions →

This page contains the resolutions and their supporting statements, and will be updated with links to news and additional briefings about this engagement.

Contents

  1. Resolution 1

  2. Resolution 2 (withdrawn)

  3. Resolution 3

  4. Media coverage


Resolution 1

Special resolution to amend our company’s constitution

To amend the constitution to insert a new clause 46:

Member resolutions at general meeting

The shareholders in general meeting may by ordinary resolution express an opinion, ask for information, or make a request, about the way in which a power of the company partially or exclusively vested in the directors has been or should be exercised. However, such a resolution must relate to an issue of material relevance to the company or the company's business as identified by the company, and cannot either advocate action which would violate any law or relate to any personal claim or grievance. Such a resolution is advisory only and does not bind the directors or the company.

Supporting statement to Resolution 1

Shareholder resolutions are a healthy part of corporate democracy in many jurisdictions other than Australia. As a shareholder, the Australasian Centre for Corporate Responsibility (ACCR) favours policies and practices that protect and enhance the value of our investments.

The Constitution of our company is not conducive to the right of shareholders to place ordinary resolutions on the agenda of the annual general meeting (AGM). In our view, this is contrary to the long-term interests of our company, our company’s Board, and all shareholders in our company.

Permitting the raising of advisory resolutions by an ordinary resolution at a company’s AGM is global best practice, and our fellow shareholders in BHP Group Plc already enjoy this right[1], as do shareholders in any listed company in the UK, US, Canada or New Zealand.

Australian legislation and its interpretation in case law means that Australian shareholders are unable to directly propose ordinary resolutions for consideration at Australian companies’ AGMs. In Australia, the Corporations Act 2001 provides that 100 shareholders or those with at least 5% of the votes that may be cast at an AGM with the right to propose a resolution[2]. However, section 198A specifically provides that management powers in a company reside with the Board[3].

Case law in Australia has determined that these provisions, together with the common law, mean that shareholders cannot by resolution either direct that the company take a course of action, or express an opinion as to how a power vested by the company’s constitution in the directors should be exercised[4].

Australian shareholders wishing to have a resolution considered at an AGM have dealt with this limitation by proposing two part resolutions, with the first being a ‘special resolution,’ such as this one, that amends the company’s constitution to allow ordinary resolutions to be placed on the agenda at a company’s AGM. Such a resolution requires 75% support to be effective, and as no resolution of this kind has ever been supported by management or any institutional investors, none have succeeded. It is open to our company’s Board to simply permit the filing of ordinary resolutions, without the need for a special resolution. We would welcome this, in this instance.

We note that the drafting of this resolution limits the scope of permissible advisory resolutions to those related to “an issue of material relevance to the company or the company's business as identified by the company,” and that recruiting 100 individual shareholders in a company to support a resolution is by no means an easy or straightforward task. Both of these factors act as powerful barriers to the actualisation of any concern that such a mechanism could ‘open the floodgates’ to a large number of frivolous resolutions.

Passage of this resolution would simply extend to us a right already enjoyed by our BHP Group Plc counterparts.

ACCR and the co-filing shareholders urge shareholders to support this proposal.

Resolution 2

Update: This resolution, the ordinary resolution on cultural heritage protection, was withdrawn prior to BHP's 2020 AGMs after a significant new agreement was negotiated between BHP and the First Nations Heritage Protection Alliance.

Ordinary resolution on cultural heritage protection

Recognising that legislative review processes are underway in relation to the extent of Indigenous cultural heritage protections in Australia, in order to manage immediate risks to cultural heritage and shareholder value, shareholders recommend that our company take the following interim steps, until such time that relevant laws are strengthened:

  • a) adopt a moratorium on undertaking activities which would disturb, destroy or desecrate cultural heritage sites in Australia, to be reviewed annually by the Board;
  • b) commit to non-enforcement of any relevant contractual or other provisions that limit the ability of Aboriginal and Torres Strait Islander Traditional Owners to speak publicly about cultural heritage concerns on their land; and
  • c) disclose its expectations in relation to any lobbying on cultural heritage issues by any industry association of which it is a member.

Nothing in this resolution should be read as limiting the Board’s discretion to take decisions in the best interests of our company.

Supporting statement to Resolution 2

This resolution is filed by the Australasian Centre for Corporate Responsibility (ACCR) and over 100 co-filing shareholders, and enjoys the support of the First Nations Heritage Protection Alliance, a coalition of more than 20 Aboriginal and Torres Strait Islander organisations and leaders from across Australia[5].

Background

Our peer company, Rio Tinto, recently detonated a 46,000 year old site known as the Juukan Gorge rock shelters, to facilitate the expansion of the company's Brockman 4 iron ore mine in the Western Pilbara region of Western Australia.

This occurred with legal approval. Rio Tinto’s voluntary commitments to upholding higher human rights standards did not prevent it. News of the blast was met with immediate, near-universal condemnation, and an intense period of public, media and investor scrutiny has followed. Consequences for Rio Tinto have included: company executives facing a public Parliamentary Inquiry[6]; Reconciliation Australia suspending Rio Tinto from their Reconciliation Action Plan program[7]; the Corporate Human Rights Benchmark (CHRB) and the World Benchmarking Alliance (WBA) condemning Rio Tinto's actions[8]; many institutional investors expressing their disappointment publicly, and directly to Rio Tinto’s CEO and Board[9].

This kind of attention would be extremely unwelcome for our company.

The co-filing BHP shareholders are concerned to protect our company, and shareholder value, from the risk of similarly severe reputational damage. This resolution is intended to guide our company in navigating the risks associated with its operations in the permissive legal environment that facilitated cultural heritage destruction.

Our commitments

We affirm our company’s commitment to the UN Guiding Principles on Business and Human Rights (UNGPs)[10] and the ICMM’s Indigenous Peoples and Mining Position Statement[11]. However, gaps between local laws and international standards can create risk. Australian laws are plainly insufficient, in general, in upholding the cultural heritage-related standards contained in the relevant global benchmark, the UN Declaration on the Rights of Indigenous Peoples (UNDRIP), and are out of line with community expectations.

Risk management

We welcome our company’s commitment to not undertake activities which will disturb 40 cultural heritage sites in the Pilbara without “further extensive consultation” with Aboriginal Traditional Owners[12]. However, we note that our company does not as a matter of process disclose to the public information about cultural heritage sites it plans to disturb. That is to say, shareholders do not know if these 40 sites are a complete account of culturally significant sites on land our company intends to mine.

It has been reported that, prior to the Juukan Gorge destruction, our company applied for ministerial consent to destroy or damage the 40 sites despite clear statements of opposition from the affected Native Title holders, the Banjima People[13]. These reports call into question the strength of our company’s commitment to the UNGPs, which demand adherence over and above compliance with lower local legal standards[14].

The proposed resolution is intended as an interim measure, proportionate to the risks at hand, to assist our company while legal standards are reviewed, and until such time as they are sufficiently strengthened. Importantly, the resolution does not call for a moratorium on all mining activities. Instead, it calls for a moratorium on cultural heritage site destruction.

Clause a. of the resolution is intended to manage risk by providing shareholders with comfort that sites will not be disturbed without Board approval, while a regulatory reform process is ongoing.

We also note that it is common in land use agreements between mining companies and affected Native Title holders to restrict the rights of those Native Title holders to publicly air concerns about activities planned on their land. Clause b. of the resolution is intended to assist in risk management by creating an environment in which concerns can be aired by affected Native Title holders without fear of adverse legal consequences.

The WA Aboriginal Heritage Act (1972) has been slated for review since 2012[15]. The Commonwealth Environmental Protection and Biodiversity Conservation Act (1999) is currently under review[16]. The delays in reviewing and modernising these laws to better protect Indigenous cultural heritage and in particular the human rights standards contained in the UNDRIP, has posed, and continues to pose, significant risks to mining companies operating in Australia.

Industry associations are extremely active and influential in regulatory reform processes in Australia. Clause c. of the resolution is intended to ensure that our company’s expectations of its industry associations in the present context are clear and transparent to stakeholders.

ACCR, the co-filing shareholders, and the First Nations Heritage Protection Alliance urge shareholders to support this proposal.

Resolution 3

Ordinary resolution on lobbying relating to COVID-19 recovery

Shareholders request that the Board undertake, as soon as practicable, a review of advocacy activities undertaken by our company’s Industry Associations relating to economic stimulus measures in response to COVID-19.

Shareholders recommend that our company suspend, for a period deemed suitable by the Board, membership of Industry Associations where the review demonstrates, on balance, a record of advocacy inconsistent with the Paris Agreement’s goals[17].

Nothing in this resolution should be read as limiting the Board’s discretion to take decisions in the best interests of our company.

Supporting statement to Resolution 3

Shareholders affirm our company’s commitment to the goals of the Paris Agreement and welcome its commitment to set emissions targets across its entire value chain[18]. However, in the words of our company’s former CEO, the global response to climate change “does not yet match the severity of the problem”[19]. In many countries — including Australia and the United States — public policy to reduce emissions has stalled or regressed. Our company’s lobbying on climate and energy policy continues to have a far greater impact on national emissions trajectories than any reduction in emissions our company can achieve on its own.

The COVID-19 pandemic has had an unprecedented impact on the global economy. We recognize and commend efforts by our company’s management to deal responsibly with this complex situation. In contrast, the advocacy by many of our company’s industry associations in response to the COVID-19 crisis has been predatory, as they have sought to weaken regulation and further entrench fossil fuels in economic recovery agendas.

United States

On 20 March, the American Petroleum Institute (API) wrote to United States President Trump to request a suspension of “non-essential compliance obligations”. On 23 March, the API requested a range of measures from the United States’ Environmental Protection Agency (EPA), including the suspension of reporting requirements for greenhouse gas emissions and of the fugitive methane leak detection and repair program[20]. On 26 March, the EPA suspended enforcement of environmental laws for all industrial polluters[21].

Australia

The Australian government is actively pursuing a “gas-led recovery” from the economic impact of the COVID-19 pandemic, including subsidies for new gas infrastructure, fast-tracking of project approvals, potential underwriting of new developments and aggressive deregulation[22]. It has announced that 15 major projects will have their environmental assessments fast-tracked, including two major gas projects: Burrup Hub and the Narrabri gas project[23]. Government advisers have also earmarked multiple new gas pipelines for taxpayer support[24].

The advocacy by some of our company’s industry associations throughout the COVID-19 pandemic has actively sought policy which is fundamentally inconsistent with the goals of the Paris Agreement: demands for government support, subsidies and fast-tracked approvals for new fossil fuel developments, and aggressive deregulation.

  • The Australian Petroleum Production and Exploration Association (APPEA) has called for government support to develop “uneconomic or stranded” gas resources in order to extend the economic life of existing gas infrastructure[25]. APPEA has repeatedly called for further oil and gas exploration[26], welcomed government subsidies[27], and lobbied for weaker environmental regulation[28].
  • The Minerals Council of Australia (MCA) has called for weakened environmental assessments of mining projects[29], scrapping of environmental regulation, government subsidies for fossil fuel exploration[30], and opposed the inclusion of Scope 3 emissions in Australia’s National Greenhouse and Energy Reporting (NGER) scheme[31].
  • The NSW Minerals Council published a report in July calling for the fast-tracked approval of 21 new or expanded coal mining projects, claiming they were necessary for economic recovery[32].

Throughout 2020, the Chamber of Minerals and Energy of Western Australia, the Queensland Resources Council and the South Australian Chamber of Mines and Energy have also sought to expand or further entrench fossil fuel development.

Many of our company’s industry associations also attempted to use the 10-yearly review of Australia’s Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) to argue that weaker environmental laws were necessary for recovery. Six of our company’s industry associations argued that the EPBC Act should not consider greenhouse gas (GHG) emissions in new project assessments[33].

Our company has previously stated that, despite disagreements over climate change policy, its industry associations provide it with “other benefits”, specifically relating to health and safety, and Indigenous relations. Recent events have called these benefits into question. The MCA’s embrace of tougher COVID-19 protocols was slow and reluctant, only doing so after intervention by Senator Matt Canavan, who urged the mining sector to “take steps to commensurately reduce the risk of transmission”[34]. Furthermore, as evidenced by Rio Tinto’s destruction of the Juukan Gorge caves in May[35], and repeated safety incidents in Queensland coal mines[36], our company’s industry associations are not delivering leadership to manage industry-wide risks.

Following its 2019 review of industry associations, InfluenceMap found that our company had not “fulfilled [its] commitments to address misalignments between [its] stated positions and the lobbying of [its] industry associations on climate”, nor acted with the urgency demanded by its shareholders[37].

Global leaders have a once in a generation opportunity to accelerate decarbonisation through wide-ranging economic policy commensurate with the seriousness of current crises. If our company is unwilling or unable to ensure that its industry associations support that transition, then shareholders request that membership of those groups is suspended.

ACCR and the co-filing shareholders urge shareholders to support this proposal.

Media coverage


  1. By virtue of s338 of the UK Companies Act 2006 ↩︎

  2. sections 249D and 249N of the Corporations Act 2001 (Cth). ↩︎

  3. S198A of the Corporations Act provides that “[t]he business of a company is to be managed by or under the direction of the directors”, and that “[t]he directors may exercise all the powers of the company except any powers that this Act or the company’s constitution (if any) requires the company to exercise in general meeting.” ↩︎

  4. National Roads & Motorists’ Association v Parker (1986) 6 NSWLR 517; ACCR v CBA [2015] FCA 785). Parker turned on whether the resolution would be legally effective, with ACCR v CBA [2016] FCAFC 80 following this precedent on the basis that expressing an opinion would be legally ineffective as it would usurp the power vested in the directors to manage the corporation. ↩︎

  5. https://www.ntsg.org.au/first-nations-heritage-protection-alliance/ ↩︎

  6. https://www.smh.com.au/business/companies/rio-tinto-looks-to-shelter-from-self-detonation-20200807-p55jmm.html ↩︎

  7. https://www.reconciliation.org.au/statement-on-rio-tinto/ ↩︎

  8. https://www.corporatebenchmark.org/sites/default/files/CHRB response to Rio Tinto destruction of Aboriginal site at Juukan Gorge - 09July2020.pdf ↩︎

  9. https://www.smh.com.au/business/companies/rio-tinto-feels-more-heat-on-cave-blast-as-investor-pressure-rises-20200602-p54yqm.html ↩︎

  10. https://www.bhp.com/our-approach/our-company/our-code-of-conduct/caring-about-society/respecting-human-rights/ ↩︎

  11. https://www.bhp.com/our-approach/operating-with-integrity/indigenous-peoples?utm_source=Twitter&utm_medium=Organic&utm_campaign=UNDRIP&utm_content=Overview ↩︎

  12. https://www.theguardian.com/australia-news/2020/jun/11/bhp-agrees-not-damage-40-aboriginal-heritage-sites-without-consulting-traditional-owners-pilbara ↩︎

  13. https://www.abc.net.au/news/2020-06-11/bhp-halts-aboriginal-site-destruction-after-rio-tinto-protests/12345566; https://www.ecowatch.com/bhp-mining-australia-indigenous-sites-2646168977.html ↩︎

  14. UNGP 11: “Business enterprises should respect human rights. This means that they should avoid infringing on the human rights of others and should address adverse human rights impacts with which they are involved.” Commentary: “The responsibility to respect human rights is a global standard of expected conduct for all business enterprises wherever they operate. It exists independently of States’ abilities and/or willingness to fulfil their own human rights obligations, and does not diminish those obligations. And it exists over and above compliance with national laws and regulations protecting human rights.“ (emphasis added) ↩︎

  15. Brief overview here https://www.theguardian.com/australia-news/2020/may/26/rio-tinto-blasts-46000-year-old-aboriginal-site-to-expand-iron-ore-mine ↩︎

  16. https://epbcactreview.environment.gov.au/ ↩︎

  17. “Lobbying positively in line with the Paris Agreement” is Principle 1 of the Investor Principles on Lobbying, set out in IIGCC’s European Investor Expectations on Corporate Lobbying on Climate Change, October 2018. https://www.iigcc.org/download/investor-expectations-on-corporate-lobbying/?wpdmdl=1830&refresh=5d52233df01791565664061 ↩︎

  18. https://www.bhp.com/media-and-insights/reports-and-presentations/2019/07/evolving-our-approach-to-climate-change/ ↩︎

  19. ibid. ↩︎

  20. https://assets.documentcloud.org/documents/6819817/API-Letter-to-EPA-Seeking-Oil-Industry.pdf ↩︎

  21. https://www.epa.gov/sites/production/files/2020-03/documents/oecamemooncovid19implications.pdf ↩︎

  22. https://www.smh.com.au/politics/federal/morrison-prepares-a-gas-plan-to-boost-economy-out-of-the-pandemic-20200807-p55jop.html ↩︎

  23. http://www.environment.gov.au/epbc/major-projects ↩︎

  24. https://www.afr.com/politics/federal/guarantee-gas-pipeline-projects-to-spur-covid-recovery-morrison-told-20200811-p55kkl ↩︎

  25. https://appea.com.au/wp-content/uploads/2020/06/Australia-Oil-and-Gas-Industry-Outlook-Report.pdf ↩︎

  26. https://www.abc.net.au/news/programs/the-business/2020-05-11/interview-with-andrew-mcconville/12236188?nw=0 ↩︎

  27. https://www.appea.com.au/all_news/exploration-support-welcomed/ ↩︎

  28. https://www.appea.com.au/all_news/green-tape-reform-a-top-priority-for-oil-and-gas-industry/ ↩︎

  29. https://www.theaustralian.com.au/commentary/why-mining-will-be-ground-zero-of-the-nations-recovery/news-story/2afefc504f833d477819707abd2deeb0 ↩︎

  30. https://minerals.org.au/news/reform-priorities-support-faster-recovery ↩︎

  31. https://minerals.org.au/news/submission-standing-committee-environment-and-energy-national-greenhouse-and-energy-reporting ↩︎

  32. https://www.nswmining.com.au/news/2020/7/32-mining-projects-in-planning-pipeline-can-drive-economic-recovery-for-nsw ↩︎

  33. https://www.appea.com.au/wp-content/uploads/2020/07/APPEA-Submission-EPBC-Act-Review-May-2020.pdf ↩︎

  34. https://www.theaustralian.com.au/business/mining-energy/coronavirus-australia-matt-canavan-calls-for-fifo-ban-to-prevent-catastrophic-outbreak/news-story/0e49398a58c1c3b162edf32a4602b85e ↩︎

  35. https://www.abc.net.au/news/2020-05-26/rio-tinto-blast-destroys-area-with-ancient-aboriginal-heritage/12286652 ↩︎

  36. https://www.parliament.qld.gov.au/documents/tableOffice/TabledPapers/2020/5620T197.pdf ↩︎

  37. https://influencemap.org/report/-a308b014a206c78c330a5620d22fb117 ↩︎

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