21 February 2001
Mr Bren Sheehy
Regional Coordinator, MMSD
Australian Minerals & Energy Environment Foundation
c/- Swinburne University
144 High Street
PRAHRAN VIC 3181
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 points
In addition to the general comments above I wish to specifically commend five areas in the report.
(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 corrected
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 leases. 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 reason.
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 rights
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. [4]
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 by 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 johnsouthalan@humanrights.gov.au
Yours faithfully
Dr William Jonas
AM
Aboriginal and Torres Strait Islander Social Justice Commissioner
1. 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.
