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Submissions on draft Report of the MMSD Australia Project (2001)

21 February 2001

Mr Bren Sheehy
Regional Coordinator, MMSD
Australian Minerals & Energy Environment Foundation
c/- Swinburne University
144 High Street

Dear Sir

Submissions on
draft Report of the MMSD Australia Project

I refer to the above
draft report and to the meeting in Perth on 7 February to discuss the
report. As invited on the MMSD Australia website, I provide some written
comments in relation to the report.

I consider the report
a comprehensive document that will be of use to the mineral industry,
and those dealing with the industry, for some time into the future. Representatives
of the Human Rights and Equal Opportunity Commission attended two of the
workshops last year to discuss the MMSD Australia process and materials,
read the research reports, and I have previously made written submissions
to MMSD Australia (see my letter of 14 November 2001 and 1 February 2002).
It appears the report has accounted for the majority of the points raised
through all these processes. Importantly, human rights matters are reflected
in various parts of the report. Following my concern about their absence
from some of the research material and related discussions, this is a
welcome and important inclusion which has improved the report's relevance
and credibility.

1 Commendable

In addition to the
general comments above I wish to specifically commend five areas in the

(a) The discussion
under the section 'Some words about sustainable development' identifies
'elements of critical importance to [sustainable development and] the
mining and minerals sector … includ[ing] … intergenerational
equity ... intragenerational equity … the precautionary principle
… [and] cultural diversity' (p26). The report, correctly, indicates
that safeguarding these elements requires 'recognition of the rights
of communities and other stakeholders' [26]. I discuss, below (in section
3), how a rights based approach could be usefully reflected in other
areas of the report.

(b) On several
occasions last year, there appeared to be divergent approaches as to
what MMSD Australia should focus on (namely, is it 'how to make mining
sustainable', or more 'locating mining within the greater scope of sustainable
development'?). Therefore, the report's discussion of this issue is
appropriate and I am encouraged the narrower, insular view is not taken
up, with the report noting 'The MMSD Australia process … recognised
the need to ensure that industry is fully accountable for the adverse
environmental and social effects of its activities' (p29).

(c) The report's
summary of 'critical issues' serves to focus attention on the key matters
covered in MMSD Australia. I congratulate the report's statement that
'Companies … need to demonstrate that operations are established
with the prior informed consent of the local indigenous communities.
This means fully informing traditional owners on the implications of
projects - and, where necessary, enabling those owners to obtain independent
advice - and resisting the temptation to proceed by creeping, incremental
concession' (p36). This is in accordance with the human rights principles
outlined in my earlier submissions and for companies to embrace such
an approach can only assist in better relationships between Indigenous
people and miners over land use and management.

(d) The report
spends a short time addressing statements of company values and business
principles. I agree with the report's comment that 'companies need to
integrate those principles fully into decision-making and operations
to ensure they are enforced throughout the organisation' (p48). There
is little achieved where company values or principles remain merely
a public-relations exercise and are not reflected in the company's activities.

(e) I am most encouraged
by the discussion in the section 'Managing Australia's Mineral Wealth'.
As I have previously noted to AMEEF, the research paper prepared by
Mr Willet provides useful information on the economics and regulation
of Australia's mineral industry. Some of Mr Willett's work is summarised
in the report. I expressed concern, both in writing and during MMSD
meetings, that various matters, including Indigenous rights, cannot
be analysed solely in terms of dollars. I agree with the report's assessment
(p77) that:

Purely economic
criteria are clearly not sufficient to determine issues of land access.
The mining industry must accept, for example, that mineral deposits
in areas of high biodiversity or cultural value may be off limits.
This is not a particularly new proposition for Australia, which has
long had a similar regime for National Parks. Long standing mineral
sand mining was stopped on Fraser Island, the vast area of the Great
Barrier Reef is protected from any mining or exploration activity
and mining of the promising deposits of Coronation Hill was not permitted
for cultural reasons.

2 Matters to be

There are two aspects
of the report that I think are factually inaccurate, and you may wish
to consider my comments below.

(a) The report
states that the Wik case determined 'that native title rights
were not necessarily extinguished by the grant of pastoral (and by implication,
mining) leases' (p65). The discussion of mining leases in this manner
could be confusing.

The report is
correct in saying that Wik established that native title is not
necessarily extinguished by pastoral leases - the High Court reasoned
that it was necessary to consider the type of lease in question (some
leases granted exclusive possession and were inconsistent with the continued
recognition of native title, whereas other leases did not have this
effect). Mining leases, although not the focus of Wik, often
give the miner exclusive possession of the land and such rights as may
'extinguish' native title. However, the significance of Wik for
mining tenements (it is all mining tenements - not just mining
leases) is that many of them are located on pastoral leases. If native
title rights could not exist on any pastoral lease, the mining tenement
need not consider the issue of native title.

Perhaps the relevant
paragraph could be better worded as follows:

In 1996 the High
Court determined - in the Wik case - that native title rights
were not necessarily extinguished by the grant of pastoral (and by
implication, mining) leases. This had implications for the mining
industry because numerous mining tenements are located on pastoral
Elements of the mining industry - and some State governments
- conducted a fierce and ultimately highly damaging campaign against
native title rights.

(b) The second
aspect is the statement 'expedited mechanisms exist under the Native
Title Act for the protection of cultural heritage sites, but some indigenous
organisations advocate against their use' (pp69-70). I understand this
is a reference to the 'expedited procedure' under the Native Title Act
('NTA') and I find this statement inaccurate for the following

The 'expedited
procedure' (NTA ss32 and 237) is an exception to the right to negotiate.
This procedure allows the government to grant mining rights over land,
without following the standard negotiation procedure, where the government
considers granting the tenement is not likely to: (a) directly interfere
with community or social activities, (b) interfere with significant
areas or sites, AND (c) involve major disturbance to land (see 237,
NTA). Contrary to this process, various governments use the expedited
procedure in a 'blanket' fashion applying it to any mineral tenement
other than a mining lease. [1] Some governments continue
such use of the expedited procedure, notwithstanding that the National
Native Title Tribunal ('Tribunal') has repeatedly ruled, and
various parties have agreed, that numerous non 'mining lease' tenements
cannot be granted under the NTA's expedited procedure. [2]
These cases from the Tribunal show that government 'blanket' use of
the expedited procedure is incorrect because numerous non 'mining lease'
tenements have been adjudged inappropriate for the expedited procedure.

You can understand
why I believe it inaccurate to state 'expedited mechanisms exist …
for the protection of cultural heritage sites'. In some instances, it
is the very opposite of this - ie. the Tribunal has over-ruled the government's
desire to use the expedited procedure because such use would have damaged
'cultural heritage sites'. [3] I suggest it may be
better to word this section of the report as follows:

Expedited mechanisms
exist under the Native Title Act for [deleted: the protection of cultural
heritage sites] 'fast-tracking' mineral tenements that are considered
to be 'low-impact'
, but some indigenous organisations advocate
against their use in order to protect native title rights. This is
a source of frustration to exploration companies and State governments.

3 Indigenous human

There are several
other areas where I consider the report's analysis has not fully addressed
the situation of Indigenous people in relation to the mining industry.
I raise these points from a recognition, which I assume is uncontroversial,
that in relation to activities affecting Indigenous people's traditional
lands and lifestyles, Indigenous people have pre-existing rights. These
rights derive from various human rights treaties which require Indigenous
people's culture, land and resources be protected. In addition, in relation
to these activities, Indigenous people have a right to effectively participate
in the decision-making process. Where companies do not respect the human
rights of Indigenous people it is incumbent on governments who are signatories
to these treaties to regulate to ensure their treaty obligations are met.
Thus it can be seen that, from a human rights perspective and based on
international law, corporate responsibility in relation to such activities
is not a matter of choice, but an imperative. This perspective is not
fully developed in the report

Rather the report's
characterisation of Indigenous people is that of simply 'another stakeholder'
with the same right to participate as any other affected group. This ignores
the particular rights - civil, political, economic, cultural and social
- that Indigenous people have at international law. I have explained this
in my submission to a Commonwealth Parliamentary Committee considering
the effect of Australia's (voluntarily-assumed) obligations under the
International Covenant on the Elimination of All Forms of Racial Discrimination:

The Convention
requires that State Parties balance the rights of different groups
identifiable by race. An appropriate balance based on the notion of
equality is not between miners, pastoralists, fishing interests, governments
and Indigenous people, but between the rights - civil, political, economic,
cultural and social - of Indigenous and non-Indigenous titleholders.

I raise these points
in relation to two parts of the report.

(a) The 'critical
issues' section should indicate that the necessity for 'prior informed
consent of local indigenous communities' (p36), is not limited to simply
'safeguarding cultural diversity'. The effective participation of Indigenous
people is an issue of relevance to each of the areas identified as critical
issues: resource management, fair distribution of benefits, engaging stakeholders,
and delivering lasting benefits to communities. Restricting effective
Indigenous participation to cultural issues such as heritage, overlooks
the importance of Indigenous participation in the economic development
of their land and resources.

(b) The discussion
of Indigenous rights in the 'Mining and Indigenous Communities' section
could, in my view, be improved with the following amendments (p65):

Indigenous property
rights derive from the traditional laws of Indigenous people. Prior
to Mabo, the indigenous system of law and culture was [deleted: seen
as inferior to the Western system, and indigenous property rights were
vulnerable to extinguishment or impairment under] not recognised
the common law. Mabo and the Commonwealth Parliament's Native
Title Act 1993 were based on the recognition of indigenous laws and
customs that pre-existed the acquisition of sovereignty in Australia.
[insert following sentence from below] The Native Title Act allowed
indigenous groups [deleted: to lay claim to unallocated Crownseek formal
recognition and protection of their traditional rights in] land to which
they had a clear cultural connection.

[Deleted: Through
these developments, Indigenous people gained some rights in relation
to their traditional lands, although these are still characterised as
inferior to Western property rights and vulnerable to extinguishment
or impairment. Native title rights, in most Court decisions, company
agreements, and parliamentary laws, have to yield to any valid non-Indigenous
property right in the same land.]

If you have any questions
regarding this matter, please contact John Southalan. John's direct telephone
number is (02) 9284 9728, or you can use e-mail to

Yours faithfully

Dr William Jonas
Aboriginal and Torres Strait Islander Social Justice Commissioner

eg '[The Western Australian] Department of Minerals and Petroleum Resources
asserts, as a matter of policy, that tenure other than mining leases (in
particular exploration and prospecting licence applications), attract
the expedited procedure', Technical Taskforce on Mineral Tenements and
Land Title Applications, Final Report, Government of Western Australia,
Perth, 2001, p157.

2. Examples
of recent cases include Freddie -v- Western Australia & Povey (19
December 2001, Member Stuckey-Clarke), Velickovic -v- Western Australia
& o'rs (8 June 2001, Member Franklyn), and Young on behalf of the
Ngadju People -v- Western Australia & South Coast Metals (7 June 2001,
Member Sosso).
There are also many cases where, after the native title party has had
to prepare and lodge an objection to the expedited procedure, the tenement
application has been withdrawn or the expedition notice dropped. This
indicates either the government or applicant did not want, or was unable
to justify, that tenement's proceeding under the expedited procedure.
Recent cases of this type include Gulngarring & Luwanbi on behalf
of the Warai -v- Northern Territory of Australia & o'rs (19 December
2001, Member Sosso), Johnny & o'rs for the Kunapa/Kurtinja/Mangirriji
and Kunakiji/Lurrkunu Peoples -v- Northern Territory & Rio Tinto Exploration
(28 November 2001, Member Franklyn), and Lansen on behalf of the Mara,
Alawa,Yanyuwa and Gurdanji Peoples -v- Northern Territory & North
Mining Limited (22 October 2001, Member Sumner).

3. Freddie
-v- Western Australia & Povey (National Native Title Tribunal, 19
December 2001, Member Stuckey-Clarke)

4. Submission
of Aboriginal and Torres Strait Islander Social Justice Commissioner to
the Parliamentary Joint Committee on Native Title and the Aboriginal and
Torres Strait Islander Land Fund, see Aboriginal and Torres Strait Islander
Social Justice Commissioner, Native Title Report 2000, Human Rights &
Equal Opportunity Commission, Sydney, 2001, p187-188 (footnotes omitted).

Last updated 12 June 2002.