Proposal to hold a forum to develop principles on Resource Development on Indigenous land
Proposal to hold a forum
to develop principles on Resource Development on Indigenous land
Introduction and Background
This document seeks
to provide background information on the Alice Springs forum (co-hosted
by the Aboriginal and Torres Strait Islander Social Justice Commissioner
and Griffith University) outlining its evolution, its aims and objectives.
The Native Title
Unit of the Human Rights and Equal Opportunity Commission (HREOC) is
currently analysing agreements and agreement-making processes between
native title holders and non-government parties. This work forms part
of the Unit's research into the human rights implications of the operation
of native title laws in the broader context of Indigenous rights.
While the negotiation
of agreements is commonly touted as the way forward for native title,
the Aboriginal and Torres Strait Islander and Social Justice Commissioner,
Dr Bill Jonas, is concerned that given the absence of a lack of effective
formal rights for native title claimants and of government commitment
to improving those rights, such negotiations often take place from positions
of unequal power. Such negotiations are unlikely to produce equitable
or sustainable outcomes.
With these considerations
in mind, the Commissioner asked Professor Ciaran O'Faircheallaigh and
Rhonda Kelly of Griffith University to conduct a study into a number
agreements that had taken place between resource development companies
and Indigenous people. A summary of the findings is set out below. In
summary, the study revealed a range of approaches adopted by companies
to negotiating agreements with Indigenous communities, from an approach
that opposed measures aimed at protecting Indigenous rights to one that
exceeds the legal requirements. It was obvious that some companies were
setting standards of corporate behaviour that respected the human rights
of Indigenous people. The challenge is to establish this behaviour as
a benchmark for the entire industry.
As a result of
these studies the Commissioner was of the view that it would be productive
to shift some of the focus of the native title debate from lobbying
for change in the legislation, to protecting the human rights of Indigenous
people at the level of actual agreements between native title parties
and the mining and resource industries.
While resource
companies are not signatories to human rights treaties there is a parallel
process occurring at an international level, aimed at ensuring that
the relationship that mining companies have with Indigenous people is
equitable and just. Principles of sustainable development and corporate
responsibility are the main impetus in this parallel process. The Commission
has argued in various submissions that these principles should be developed
within the context of human rights principles including equality; self-determination;
effective participation; development; cultural protection.
The principles
of equality requires that governments ensure that the level of protection
extended to Indigenous title holders is the same as that enjoyed by
non-Indigenous title holders in relation to their land. In addition,
the unique qualities of native title, its cultural and spiritual characteristics,
need to be protected. The principles of self-determination and effective
participation require that Indigenous people have control over their
land and that, in respect of issues that affect them, no decisions be
taken without their informed consent. Finally, as a minority group,
Indigenous people are entitled to have their culture and their heritage
protected.
There are currently
a number of projects and fora aimed at persuading resource companies
that it is ultimately in their best interests to adopt sustainable development
and corporate responsibility principles in their dealings with Indigenous
communities. For instance, the Global Mining Initiative (GMI) has commissioned
an international research project, the Minerals, Mining and Sustainable
Development Project, aimed at establishing the current state of the
mining industry internationally and its future direction under sustainable
development principles. This report will be provided to the World Summit
on sustainable development in August 2002. The Australian Minerals and
Energy Environment Foundation (AMEEF) has been commissioned to report
on the Australian region and has consulted widely on various issues
including mining in Indigenous communities. In addition the United Nations
promulgates minimum standards for multi national companies through the
Global Compact. Another initiative based on corporate responsibility
principles includes the establishment by OXFAM of a mining ombudsman.
The focus of the
forum proposed by the Aboriginal and Torres Strait Islander Social Justice
Commissioner and Griffith University will be not so much on driving
change within the corporate culture, although the momentum generated
by principles of sustainable development and corporate responsibility
will be important. Rather, the focus will be upon developing principles/policies
consistently with the human rights of Indigenous people, which Indigenous
communities can utilise in determining the relationship they wish to
form with mining companies seeking access to and exploitation of resources
on Indigenous land. The basis of this approach is that a properly articulated
set of demands by Aboriginal land owners, based on their internationally
recognised human rights, and made at the time companies seek a relationship
with Aboriginal land owners will be a very important instrument of change
both in terms of the relationship itself and the values of the company
upon whom that demand is made.
The forum will
utilise the experience that Indigenous people have already derived from
negotiating agreements between resource companies and Indigenous communities
to determine benchmarks that might be applied to such agreements. Human
rights principles will assist in framing the issues that agreements
need to address.
The objectives of the
forum are as follows:
- To envisage
a relationship between mining companies and Indigenous communities
based on human rights principles, including self-determination; - To develop
a set of principles, consistent with human rights principles of self-determination
and equality, as a basis for a relationship between mining companies
and Indigenous communities. The principles are intended to have a
number of uses including: for the use of Indigenous communities wishing
to develop their own policy on mining; to assist in framing issues
for negotiation with mining companies; for incorporation in companies
social responsibility policies; for use by auditors and assessors
in developing benchmarks for company's social responsibility performance. - To obtain from
corporate representatives invited to attend part of the forum, feedback
from a mining perspective on the benchmarks developed;
In pursuit of these
objectives the Aboriginal and Torres Strait Islander Social Justice
Commissioner and Griffith University wish to conduct a forum in which
Indigenous participants or representatives identify a set of issues
that currently face Indigenous communities when mining companies seek
access to their land or wish to develop a project on their land. From
these issues principles will be developed which address these issues.
These principles will be amenable to various forms of articulation,
including policy documents/statements which could form the basis of
negotiations between Indigenous communities and mining companies seeking
access to Aboriginal land and resources.
Once these issues
and principles have been agreed upon by the participants representing
Indigenous interests, mining and resource companies will be invited,
in a separate session, to provide feedback as to whether these issues
and benchmarks are consistent with the responsibilities placed on companies
subscribing to sustainable development principles.
The forum will
provide:
- An opportunity
to evaluate current negotiation and agreement-making practices against
human rights and corporate responsibility principles - An opportunity
to formulate benchmarks for agreement-making through the process of
information exchange - A starting
point for the development of community-based policies relating to
mining on Indigenous land - An opportunity
for negotiators and community representatives to be prepared for and
involved in negotiations in relation to mining on Indigenous land - An opportunity
to obtain feedback on principles and community policy development
from corporations who are proponents of corporate responsibility principles. - An opportunity
to promote a commitment by the participants to the principles developed
(corporations and Indigenous parties) - Encouragement
to participants (corporations and native title parties) to disseminate
the principles they develop through the forum
STAGES IN THE FORUM
Stage One (half day)
Discuss the Existing
Frameworks for mining on Indigenous land and the extent to which the
Indigenous perspective is permitted space to operate in those frameworks.
1. Human Rights
Framework. Provides most space for Indigenous perspective to operate
but is not adhered to by government and creates no obligation on companies.
The Indigenous perspective can operate within human rights framework
in respect of rights to equality; self-determination; effective participation;
development; cultural protection.2. Corporate
Responsibility Framework. Indigenous perspective is given some space
(though not as much as human rights framework) under the notion of
sustainable development and social responsibility principles. These
are legally unenforceable but have a commercial reality where company
projects are delayed because of community disapproval or where company
reputation as a bad corporate citizen affects consumer or shareholder
confidence in the company. Companies who have adopted a policy of
social responsibility may have a commitment to ensuring Indigenous
perspective recognised. The Griffith University Study provides an
analysis of the extent to which corporate responsibility policies
impact on the relationship between mining companies and Indigenous
people. In this segment discussion of international initiatives around
corporate responsibility, including MMSD, Global Reporting Initiative,
Amnesty Mining Ombudsman.3. Legal Framework.
Native title has given some recognition to the Indigenous perspective
in relation to mining by limited recognition of Indigenous right to
land (and possibly minerals). The NTA has established the right to
negotiate as a procedure which regulates mining on native title land.
Land Rights Act also sets benchmarks for mining on traditional land.
The extent to which these procedures allow expression of the Indigenous
perspective will be discussed.4. Policy Framework.
There are several levels of policy formulation in which an Indigenous
perspective may be given expression. Indigenous communities may have
developed their own policy in relation to mining on their land. These
may be articulated at different levels of generality and reflect the
community's position on mining, should it occur on their land. It
may address issues of heritage, employment, training, benefit sharing,
alcohol, etc. At another level of governance, the Commonwealth has
policies which impact the way in which mining affects Indigenous communities.
For instance, in relation to native title the Commonwealth advocates
negotiation and agreement-making as the basis for settling native
title issues. Freedom of contract may offer some latitude to establish
more equitable relationships than that which occurs under the NTA,
although this depends on the willingness of companies to abandon their
legal rights and negotiate for speedier access to land. States have
developed policies for mining on Indigenous land which offer varying
degrees of expression to Indigenous perspective. Framework agreements
between Indigenous representatives and peak mining bodies set policy
guidelines which may allow for limited expression of Indigenous perspective.
From a broader perspective reconciliation seeks to improve the relationship
between non-Indigenous and Indigenous people and may provide a basis
for Indigenous perspective in mining.
Stage 2 (half day)
Determine issues,
using brainstorming and workshopping technique. Use various factual
contexts as a way of triggering issues. Issues might arise in the context
of negotiating agreements with mining companies, in the context of obtaining
community instructions and determining community approach to mining
company access to land, and, in the context of developing government
policies on mining on Aboriginal land.
Some issues that
might arise out of the discussions include;
- Influencing
company policy on Indigenous issues; recommending and participating
in an Indigenous Advisory Group; - Conceiving the
project; is exploration a separate issue; conjunctive vs disjunctive
projects; participation at the planning stage of the project; variations
in the project over time; information exchange on project values and
community values; politicising the project vs privatising the project;
project overlap in several communities; - Planning the
project; unfinished business; participation in developing company's
Indigenous policy (rights based rather than special measures); ascertaining
CEO commitment to social responsibility; cultural impact assessment;
participation in the environmental impact study; participation in
determining the resource values of the project; planning for possible
changes in the project over time; - Identifying
parties; establishing protocols; native title processes; non-native
title processes; legitimacy issues; group right; agreements and group
rights; cohesiveness of Indigenous group; stability of company representation;
role of government; - Negotiation
issues; establishing protocols (eg meeting protocols, lines of communication);
authorising negotiators; clarifying the extent of Indigenous negotiators
authority; liaison committees; ascertaining company's negotiators
and extent of their authority; time frames; financing and resourcing
negotiations; cultural translators; independent legal advisers; independent
expert advice; role of representative body; negotiations inside vs
outside the NTA (eg utilising ILUA provisions, utilising future act
provisions; privacy of negotiations; unequal bargaining power; - Confidentiality
and Disclosure; full disclosure of benefits and impacts; cultural
knowledge; commercial in confidence; transparency of operations; reporting
on company's social responsibility performance; - Sharing the
benefits of the project; equity issues; royalties; compensation vs
consideration; ownership of lease; ownership of minerals; group rights;
ensuring long term benefits; discretionary benefits; intergenerational
rights; sharing benefits with other Indigenous communities (if only
experiences, principles or possibilities); subcontracting; business
partnerships; - Employment and
Training; participation in designing company's Indigenous employment
initiative; role of government in funding employment programs; designated
Indigenous positions; mentoring; transferability of skills; capacity-building;
sub-contracting; cross cultural awareness training for employees and
managers; requiring subcontractors to adopt Indigenous program; - Managing the
impact of the project; non-extinguishment principles; managing heritage;
environmental impact; returning the land; rehabilitation; social impact
of the project; cultural protocols; alcohol; racial discrimination;
privacy; ensure these issues addressed at earliest stage possible
(within company policy, within agreement negotiation, within agreement
itself, throughout auditing process and monitoring process); foreseeability
and responsibility for long term impacts; - Implementation
issues; ensuring implementation of agreed benefits once company left
the area; binding company successors to the agreed standards and undertakings;
the importance of Indigenous support for project; providing Indigenous
support - Monitoring
the project; Indigenous participation in developing performance indicators
for social responsibility benchmarks for project; participation in
designing the auditing process; ongoing consultation at relevant phases
of the project; monitoring the effect of the project once it has been
completed; - Dispute Resolution
mechanisms; discussion of types of dispute resolution mechanisms,
eg arbitration vs mediation; private mediator vs native title processes
or court processes; provision of mechanisms to deal with discrimination
throughout the project; provision of mechanisms for resolving disputes
over whether social responsibility undertakings met; mechanisms for
disputes over implementation of company undertakings (including when
company leaves the area); dispute resolution for Indigenous disputes;
Stage 3 (one day)
Developing principles.
Determine principles that address the issues raised by the participants
in the forum. Use human rights principles to cluster issues under particular
headings.
Stage 4 (one day)
Bring in representatives
of companies that have experience of Indigenous issues and obtain feedback
on the principles that have been developed. Develop ideas on how these
principles could be implemented in the context of mining companies seeking
access to Aboriginal land. Look at how companies can incorporate these
principles into their company policies, into their negotiations and
into the agreements that are finally reached between the company and
the Indigenous group.
The Griffith University
Study
In July 2001 the
Aboriginal and Torres Strait Islander Social Justice Commissioner engaged
Griffith University researchers Professor Ciaran O'Faircheallaigh and
Ms Rhonda Kelly to prepare a report which will help provide valuable
information for the Forum.
The Griffith University
study (completed in November 2001) provides a review of native title
agreement making practices in relation to mining in Australia, based
on input from both corporate and native title parties. It provides:
- A profile of
a sample of mining companies which are substantially involved in native
title negotiations, focusing in particular on their policies and practices
in the areas of Social Responsibility and relations with Indigenous
people; - An analysis
of a number of native title agreements in terms of the issues they
address and the factors which affected the conduct and outcomes of
negotiations; - A small number
of detailed case studies which will allow an in-depth analysis of
the dynamic of native title negotiations and their outcomes. - Identification
of the range of negotiation practices that exist between native title
holders and claimants (and/or their representatives) and mining /
resource companies - Identification
of those practices that result in inequitable outcomes; - Identification
of the advantages of negotiating agreements on a principled basis
and the disadvantages of not doing so; - A list of issues
which arise in relation to native title negotiations and factors which
affect their outcome.
The Griffith University
study will provide a factual context for the raising of issues and the
setting of benchmarks at the forum.
The Forum
It is proposed
that the forum will take place over three days in Alice Springs, from
6 May to 8 May 2002.
There will be approximately
30 participants representing Indigenous interests, who will participate
in the identification of issues and the development of principles guiding
the engagement of mining companies with Indigenous communities. The
participants will have some experience of negotiating with mining companies
seeking access to Aboriginal land, or will be familiar with the effects
of mining on Aboriginal communities or land. In addition corporate representative
from companies familiar with Indigenous issues will be invited to the
third day of the forum to provide feedback on the principles developed,
the likely reaction of mining companies to them, and develop ways in
which the principles can be incorporated into company policy. The forum
will be sufficiently small to encourage audience discussion and participation.
The HREOC contact
for the Project is:
Ms Margaret
Donaldson
Director, Native Title UnitPhone:
(02) 9284-9835
E-mail: margaretdonaldson@humanrights.gov.au
The Griffith University
contact for the Project is
Professor
Ciaran O'Faircheallaigh
