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
