Frameworks for Negotiation
of Mining Agreements
Corporate Social Responsibility
One possible framework
for negotiations between mining companies and Indigenous peoples is
'Corporate Social Responsibility'.
This approach is
based on acceptance by companies that they cannot continue to operate
profitably over the longer term unless they can win support for their
operations from the wider society, including Indigenous peoples. This
means that companies may adopt certain policies and act in particular
ways not because it makes money for them in the short term, or because
they are legally required to do so, but because they believe that this
will ensure support for their business activities in the wider community.
One very important
aspect of corporate social responsibility involves the policies of companies
towards the rights and interests of Indigenous peoples.
In 2001 Rhonda
Kelly and Ciaran O'Faircheallaigh compiled a Report for HREOC entitled
'Corporate Social Responsibility, Native Title and Agreement Making'.
This included an analysis of the policies of eight major mining companies
in relation to the rights and interests of Indigenous peoples. It found
that while most companies accept the idea of corporate social responsibility
in principle, they vary greatly in what they mean by that idea, and
in the extent to which what they actually live up to their policies
Rhonda and Ciaran
identified six distinct approaches which companies might adopt in relation
to the rights and interests of Indigenous peoples. All of these approaches
are listed below, in order to provide a starting point for the discussion
of a Corporate Social Responsibility framework for making agreements.
Approach 1 is the least favourable to Indigenous interests, Approach
6 the most favourable. Obviously some of these approaches would not
be seen as amounting to socially responsible behaviour by companies.
oppose, and/or work covertly to undermine, legislation and policy designed
to protect or promote Indigenous rights and interests.
to acknowledge the existence of relevant legislation or the fact that
their operations affect Indigenous rights and interests, and fail to
develop policies or programs which address the impact of their operations
on Indigenous peoples.
acknowledge the existence of Indigenous rights and interests, but lack
the policies and practices required to give substance to that acknowledgement.
Some firms which adopt this approach may conduct programs or activities
which relate to Indigenous peoples but these either are required for
performance of specific legislative obligations (cultural heritage protection)
or are justified on commercial grounds (employment of local Aboriginal
Companies are in
the process of changing their policies and practices and are taking
significant initiatives in recognising Indigenous rights and interests,
but they have yet to develop coherent policies, practices and monitoring
systems across a range of issues and/or have yet to change their approach
to Indigenous peoples in fundamental ways.
clearly articulated policies which reflect their recognition of Indigenous
rights, support these policies with substantial resources and have systems
in place for monitoring their achievements against policy goals. However
in at least some areas their commitment to Indigenous rights and interests
is limited to the extent required to comply with legislation, and/or
they have yet to translate policy into specific practices in some relevant
areas (for example negotiation of native title agreements).
policies, practices and resource allocation in relation to Indigenous
peoples which are consistent with a human rights based approach, with
the result that the requirements of state or national legislation are
exceeded where this is necessary to give effective recognition to Indigenous