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Use former experiences when further development is needed - citizen participation is a economic gain on the long run

Use former experiences when further development is needed - citizen participation is a economic gain on the long run

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Indigenous mgmt & mining - Indigenous mgmt & mining - Document Transcript

  • Indigenous Participation in Environmental Management of Mining Projects: The Role of Negotiated Agreements CIARAN O’FAIRCHEALLAIGH & TONY CORBETT Department of Politics and Public Policy, Griffith University, Brisbane, Australia ABSTRACT The principle that indigenous people should participate in the environmental management of resource projects on their traditional lands is increasingly recognised by international law and institutions. Negotiation of agreements between indigenous groups and resource developers represents one way in which that principle can be given effect. However, virtually nothing is known about the environmental provisions of negotiated agreements or their efficacy in enhancing indigenous participation. This article examines environmental provisions of agreements involving Aboriginal landowners and mining companies in Australia. It concludes that while agreements certainly have the potential to enhance Aboriginal participation in environmental management, a majority do not have this effect, reflecting the weak negotiating position of many Aboriginal peoples in their dealings with mining companies. Introduction Until the late 20th century indigenous peoples were excluded from any significant role in environmental management of resource development on their traditional lands (Prokhorov, 1989; Albert, 1992; Borrows, 1997; Wilson, 2002; Caruso et al., 2003). In recent decades indigenous peoples have fought hard to establish such a role, on the basis that it is critical in allowing them to fulfil their custodial obligations to protect their traditional lands and so their identities, cultures and societies; and on the basis that protection of their traditional estate cannot be safely entrusted to governments or corporations (Banks & Ballard, 1997; Borrows, 1997; Harper & Israel, 1999; Akpan, 2000; Weitzner, 2002). The right of indigenous people to be involved in environmental management of projects that affect them has won increasing recognition in international Correspondence Address: Ciaran O’Faircheallaigh, Department of Politics and Public Policy, Griffith University, Nathan, Queensland 4111, Australia. Tel.: 61 7 38757736; Fax: 61 7 38755363; Email: Ciaran.Ofaircheallaigh@griffith.edu.au Environmental Politics, Vol. 14, No. 5, 629 – 647, November 2005 ISSN 0964-4016 Print/1744-8934 Online/05/050629–19 Ó 2005 Taylor & Francis DOI: 10.1080/09644010500257912
  • conventions and in the policies of international institutions. For example the International Labour Office’s ILO Convention 169 Concerning Indigenous and Tribal Peoples in Independent Countries (1991) states that indigenous peoples have the right ‘to participate in the use, management and conservation’ of natural resources on their traditional lands, and that governments must establish procedures to consult them before allowing exploitation of such resources (Article 15). The United Nations Draft Declaration on the Rights of Indigenous Peoples (1993) recognises the rights of indigenous peoples to ‘their lands, territories and resources’, the contribution indigenous knowledge can make to proper management of the environment and the right of indigenous people to ‘control the total environment of the lands . . . which they have traditionally owned or otherwise occupied’ and ‘to determine and develop priorities and strategies for the development or use of their lands’ (Preamble, Articles 26, 30). The World Bank requires that projects it helps to finance must devise and maintain mechanisms ‘for participation by indigenous people in decision-making throughout project planning, implementation and evalua- tion’, and must have development plans that give ‘full consideration to the options preferred by the Indigenous people affected by the project’ (World Bank Operational Directive OD 4.20 (1991), Articles 14(a), 15(d)). More broadly, the Bank recognises that effective environmental management can- not be achieved without substantial input from civil society, including indigenous peoples (Davy, 1998; see also World Commission on Environment and Development, 1987). However, while the need for indigenous participation is widely recognised in theory, practice falls far behind principle. To the extent that indigenous people do participate in environmental management, this is often the result of conflict that results from an initial failure to involve them. Indigenous communities must often take direct action in the form of litigation, protests, blockades and in some cases violence before corporations and governments allow opportu- nities for their involvement (Banks & Ballard, 1997; Castro & Nielsen, 2001; Wilson, 2002; Caruso et al., 2003). These opportunities are often episodic. They may occur only during processes designed to determine whether a project should proceed (such as environmental impact assessments), but not continue into the operational phase of resource development (Geisler, 1993); or they may occur only after fundamental decisions regarding the nature of environmental management regimes have already been made (Banks & Ballard, 1997). Additional problems arise from limited capacity for participa- tion at the local level, which constrains the ability of indigenous groups to grasp the opportunities that are available (Davy, 1998). During recent years new and concrete opportunities for indigenous participation have been created through the negotiation of agreements between indigenous groups and resource developers operating on their traditional lands. Such agreements, which typically deal with a range of physical, cultural, social and economic issues associated with resource development, are now common in the mining sectors of industrial nations such as Canada, Australia 630 C. O’Faircheallaigh & T. Corbett
  • and the USA (see, for example, International Council on Mining and Metals, 1999; O’Reilly & Eacott, 1999; Sosa & Keenan, 2001; Langton et al., 2004; O’Faircheallaigh, 2004a, b). They are also beginning to occur in other industry sectors and in less developed countries (Banks & Ballard, 1997; Brew, 1998).1 Agreements usually last for terms that are expected to cover the whole of project life, and in principle they offer an opportunity for systematic and ongoing participation by indigenous peoples in the environmental management of resource projects on their traditional lands. However, while scores, perhaps even hundreds, of such agreements now exist, virtually nothing is known about the nature or efficacy of the environ- mental provisions they contain, or indeed whether they contain any such provisions. In part this reflects the fact that many agreements are of recent origin and there has been limited time to analyse them, but a more significant factor is the common practice of including confidentiality provisions that prevent parties to agreements from divulging their contents. We examine the potential of agreements to facilitate indigenous participation in environmental management of resource development by analysing a large number of agreements negotiated during recent years in Australia between Aboriginal peoples and developers of mining projects.2 Virtually all of the agreements we have analysed are confidential, and to maintain confidentiality we do not identify provisions of individual agreements. Rather we develop a scale that allows an evaluation of the efficacy of provisions in terms of their potential to allow indigenous participation. The agreements are then analysed as a group, allowing conclusions to be drawn about their ability to facilitate Aboriginal participation. The analysis indicates that the potential of agreements is considerable, but that to date that potential has generally not been realised in Australia. We begin by briefly discussing the history of Aboriginal involvement in environmental management in Australia, then examine the broader rationale for negotiation of agreements between Aboriginal peoples and mining companies. Aboriginal Peoples and Environmental Management in Australia Until the 1970s Aborigines were systematically excluded from any significant role in environmental management in Australia for two main reasons. First, land ownership and resource management were based on the legal principle of terra nullius, that the land belonged to no one prior to European settlement. Central to terra nullius was the assumption that Aborigines did not exploit or improve land and thus did not manage resources, which European colonisers took as justification for their appropriation of land in all but arid central Australia and the monsoonal north. While they never relinquished their custodial responsi- bilities to manage their country, dispossession, population decline and removal to reserves left many Aboriginal peoples largely powerless to exercise those responsibilities (Chase, 1990; Howitt, 2001). The second basis of exclusion involved the denial to Aboriginal peoples, until the 1960s, of political and economic rights. Denied the right to vote, to Indigenous Participation in Environmental Management 631 View slide
  • organise, to make their own decisions about where to travel and to live, to retain and/or control the wages they earned, Aborigines were disenfranchised so that it was impossible for them to assert their interests effectively across the whole array of policy issues, including environmental management (Chesterman & Galligan, 1997; Kidd, 1997). Change occurred during the 1960s and 1970s as Aborigines gradually gained citizenship rights, allowing them access (at least in principle) to existing administrative and legal processes provided by mining legislation and the operation of mining wardens’ courts and to newly introduced environmental management and cultural heritage legislation. Aborigines fought hard to have their interests recognised and their voices heard, especially when large resource projects were being developed on their land. However, in general state and Commonwealth governments responded, at both a policy and administrative level, by rejecting any notion that Aboriginal people had a legal interest in land or any particular right to influence decisions on its management and use (Chase, 1990; Dixon, 1990; Howitt, 2001). Further changes have resulted from the introduction of state or territory legislation conferring or recognising Aboriginal interests in land (mainly of relevance in the Northern Territory and South Australia) and particularly the High Court’s 1992 Mabo decision and the introduction of the Common- wealth Native Title Act 1993. The High Court rejected the doctrine of terra nullius, recognising that Australia’s indigenous people owned the land when the first settlers arrived. It found that indigenous ‘native title’ rights in land still survive if they have not been validly extinguished by government, and if the indigenous peoples concerned can demonstrate rights and interests in the land under traditional law and custom, and continued observance of the laws and customs defining their ownership of the rights and interests claimed (French, 2003). The Native Title Act created procedures to allow surviving native title rights to be recognised, though to date in only a handful of the hundreds of claims lodged under the Act has native title been determined to exist. However, the recognition of native title has generated a wider discourse of ‘co-existence’ in relation to land and resource management, and there is a greater tendency for Commonwealth, state and local government to seek indigenous input into the development of land management policies and programmes (Langton et al., 2004). Considerable barriers remain to effective indigenous peoples’ participation in environmental management of their traditional lands. First, many of the administrative and legal avenues that are in principle open to them may be culturally alien and are costly, in part because access to specialist technical expertise is a prerequisite for effective participation. Second, indigenous parties may encounter difficulties in establishing their ‘standing’ in relation to specific environmental issues or in particular administrative or legal forums. This can be a particular problem where land has been permanently alienated (as has occurred in much of eastern, southern and south-western Australia) or where native title rights have yet to be determined. 632 C. O’Faircheallaigh & T. Corbett View slide
  • Third, the relevance and value of indigenous knowledge and interests are often downplayed in environmental assessment and planning processes. Indigenous knowledge is experiential, intuitive and above all holistic, denying neat boundaries between the physical, cultural and spiritual. In these respects it differs in fundamental ways from technical or ‘scientifically rational’ approaches to environmental management, which results in a tendency to dismiss indigenous perspectives as ‘irrational relics of an earlier age’ (Lane & Cowell, 2001, p. 157; see also Suchet, 1996; Brody, 2000). Engineers and planners who are epistemologically opposed to indigenous understandings of the world are prominent and powerful in environmental planning and impact assessment (Chase, 1990; Lane & Cowell, 2001). This reluctance or failure to recognise the legitimacy of other forms of knowledge can render Aboriginal interests in land and resources invisible, a tendency that can be re-enforced by the practice, standard in Australia, of environmental impact assessments being undertaken by consulting firms retained by the project proponent (Lane & Yarrow, 1998). Fourth, environmental assessment and management processes in Australia occur within a state institutional culture where European notions of progress and an ideology of developmentalism are dominant. This has an impact at the local level, such as at Weipa in western Cape York, where the long-term physical and economic dominance of one of the world’s largest bauxite mines has ‘marginalised and smothered [Aboriginal] peoples’ experiences and stories’ (Suchet, 1996, p. 201). Developmentalism is also dominant throughout the various tiers of the state institutional framework, with the result that co- ordinating state agencies place a higher value on the representations of resource developers, and in so doing blur the line between government as regulator and as proponent acting on behalf of the developer (Lane & Cowell, 2001). At a political level, government ministers also adhere to a development ideology, and planning (and project approval processes generally) occurs within a political context of pressure for projects to be ‘fast-tracked’ through ‘black and green tape’ (Lane & Cowell, 2001, p. 161). In summary, ‘interaction of political, cultural, economic and geographic factors impedes and sometimes prevents effective Aboriginal participation in the political processes that determine land and resource use’ (Lane & Cowell, 2001, p. 157). Decision makers, motivated primarily by the economic benefits supposedly associated with mineral development, and operating within a cultural framework that devalues indigenous knowledge and values, tend to ignore, overlook or misinterpret indigenous perspectives (Chase, 1990; Lane, 1997; Howitt, 2001; Lane & Cowell, 2001). A fifth and critical obstacle to Aboriginal participation in environmental management involves the fact that virtually all avenues for their involvement (including general opportunities for public participation) occur through the environmental assessment and project approval processes. Once a project has been approved, opportunities for ongoing participation in its environmental management are minimal or non-existent (Sindling, 1999). The general Indigenous Participation in Environmental Management 633
  • presumption is that environmental management is a matter for the project operator and government regulators. Aboriginal people have little capacity to intervene if they believe that environmental risks not identified through initial environmental assessment processes are likely to emerge; that relevant legislation and regulation are failing to prevent environmental damage; that laws or regulations that could prevent damage are not being enforced; or if they hold knowledge whose application could result in superior environmental outcomes (Suchet, 1996). This lack of opportunity for ongoing engagement in environmental management is fundamental for indigenous peoples who have responsibilities for protecting country that, derived from indigenous law and custom, continue throughout a project’s life. Can Aboriginal people overcome these obstacles to their effective participa- tion in environmental management by negotiating agreements directly with mining companies? Negotiated Agreements: Rationale and Context Agreements between Aboriginal people and mining companies in Australia are negotiated within a variety of legal, administrative and policy contexts. Their specific provisions vary widely but, at a general level, all tend to have a common rationale. They are legally binding instruments that provide for the Aboriginal parties to provide their consent and/or support for mining on their traditional lands. In return, the Aboriginal parties receive commitments from developers designed to mitigate the potentially harmful effects of mining on their culture, society and environment,3 and to enhance their potential economic benefits from mining and associated activities, usually through monetary payments and/or employment, training and business development opportunities. Negotiated agreements typically emerge within three distinct legal/admin- istrative contexts. The first results from legislation that provides for recognition of Aboriginal ownership of land and mandates that mineral development cannot proceed in the absence of agreement between Aboriginal landowners and developers. The Aboriginal Land Rights (Northern Territory) Act 1996 is the clearest example of such legislation in Australia, and a substantial number of agreements have been negotiated under its terms. A similar legal context at the state level is created by Queensland’s Mineral Resources Act 1989. This requires applicants for mineral leases on Aboriginal reserve lands to seek the consent of the relevant Aboriginal trustees, which creates an opportunity for the latter to negotiate with the developer conditions under which they are prepared to grant their consent. If the Aboriginal trustees refuse to consent, their refusal can be overridden by the Governor in Council, a possibility that has not arisen to date because the Aboriginal communities and mining companies concerned have reached negotiated outcomes. The second context arises from legislation that creates an opportunity for negotiation of agreements, but allows mining to proceed in the absence of 634 C. O’Faircheallaigh & T. Corbett
  • consent from Aboriginal landowners. The Native Title Act 1993 is the most important example, and a majority of mining agreements concluded during the last decade have been negotiated under its terms. The Native Title Act creates a ‘right to negotiate’ for native title holders or registered native title claimants in relation to certain proposed actions contemplated by govern- ment (such as the issue of mining leases to resource developers), referred to in the Native Title Act as ‘future acts’. A minimum negotiation period of six months is set during which parties must negotiate in good faith to seek agreement. If agreement is not reached in this time frame, either party can elect to go to arbitration before the National Native Title Tribunal (NNTT). The NNTT can refuse to grant a mining lease, grant a lease without conditions or grant a lease subject to conditions. The prospect of having a lease application refused, or onerous conditions attached to a lease, might create a strong incentive for developers to reach agreement during the six- month negotiation period, but the NNTT has not, to date, refused to grant a single mining lease application that has been referred to arbitration, and has generally tended not to attach onerous conditions to leases it has decided may be issued. The NNTT cannot, under the terms of the Native Title Act, attach a condition to the grant of a lease that involves payments related to the value of minerals or the profits won from a mining lease, whereas such payments can be included in any agreement negotiated between the parties. It can be argued that this places native title claimants under considerable pressure to reach agreement, whereas developers face no such pressure given the strong likelihood that the NNTT will grant them a mining lease if they fail to reach agreement and the matter goes to arbitration. A third context involves situations in which there is no legal requirement on developers to negotiate with Aboriginal traditional owners, usually because companies already hold mining leases issued prior to the High Court’s Mabo decision, but where they choose to negotiate agreements as a matter of corporate policy. A number of such ‘policy-based’ agreements have been negotiated or are being negotiated by subsidiaries of Rio Tinto, which made a decision in the mid-1990s to seek to establish positive relationships with all indigenous communities in the vicinity of its major mining projects. In regions of Australia where Aboriginal people have continued to occupy their traditional lands (predominantly in north and central Australia) and have established strong land-based organisations such as regional land councils, policy-based agreements can generate outcomes for Aboriginal landowners at least as favourable as those arising from a legal requirement for developers to negotiate (see below). The specific legal context in which agreements are negotiated has important implications for the bargaining position of Aboriginal parties. Most obviously, the requirement for developers to achieve agreement with traditional owners under the Aboriginal Land Rights (Northern Territory) Act 1976 places them in a strong bargaining position. Conversely, it can be argued that the time Indigenous Participation in Environmental Management 635
  • constraint on negotiations and the arbitration provisions of the Native Title Act reduces the bargaining power of native title parties. Bargaining positions are of course influenced by other matters, including the presence or absence of commercial pressures on the developer to secure early approval for leases, the financial, technical and organisational resources available to the Aboriginal parties and the degree of cohesiveness displayed by Aboriginal organisations and communities. Criteria for Analysing Environmental Provisions of Indigenous – Developer Agreements In terms of indigenous interests, environmental provisions of agreements can be regarded as positive to the extent that they facilitate and encourage indigenous participation in environmental management. By ‘indigenous participation in environmental management’ we mean the capacity of indigenous people, in relation to mineral development on their traditional lands, to directly shape the way in which environmental issues and impacts are identified and defined and the manner in which such issues and impacts are addressed over the project life cycle, from project design through project operation, to project decommission- ing and rehabilitation. Use of the term ‘directly’ is important in this definition. Responsibility for protecting the viability and sustainability of their traditional waters and lands is not something that indigenous peoples can delegate to others, such as government regulators or company environmental staff (Brody, 2000; Randall, 2003). Indigenous people have little faith in the inclination or ability of mining companies or governments to protect their ‘country’. Only by themselves having a major say in environmental management can they ensure that adverse effects on country are minimised. Thus the central purpose of including environmental provisions in negotiated agreements is to place indigenous people themselves in a position where they can ensure the protection of their ancestral estates. To adopt this starting point is not to assert that environmental protection is a goal held equally by all indigenous people. Various groups within an indigenous community may differ in their attitudes to the trade-offs between environmental and other values that inevitably occur in real-world negotiations (Trigger, 2000). Different people may view quite differently, for example, an agreement that offers strong environmental protection but does little to generate additional economic activity. However, this does not change the fact that if a position is being established on environmental provisions, central emphasis will be placed on maximising indigenous influence over environ- mental management. Thus Table 1 presents a scale against which the environmental provisions of mining agreements can be assessed. This has been derived by reviewing the environmental provisions of numerous mining agreements in Australia (see below); by examining some 30 agreements negotiated between mining companies and indigenous groups in North America during recent decades; 636 C. O’Faircheallaigh & T. Corbett
  • and by reviewing relevant secondary literature (Kennett, 1999; Sosa & Keenan, 2001; Ali, 2003; O’Faircheallaigh, 2004a,b). The scale encompasses eight possible scores, from 71 (i.e. worse than 0) to 6. The scale includes a negative score because whereas indigenous people have rights under general environmental legislation – for example to object to a development, request a higher level of environmental assessment, demand modifications to a proposed project or sue for damages arising from environmental impacts – an agreement may limit their ability to exercise those rights. For instance, under the terms of one agreement included in our analysis, the Aboriginal parties undertake not to ‘lodge any objections, claims or appeals to any Government authority . . . under any [state] or Commonwealth legislation, including any Environmental Legislation’. Such provisions may leave indigenous people worse off than in the absence of an agreement; hence the need for a negative score. Agreements may contain no provisions in relation to indigenous involvement in or responsibility for environmental management of the projects concerned. Such agreements, which neither detract from, nor add to, the position that would exist in the absence of an agreement, are given a score of 0. The positive steps on the scale are as follows. 1 The developer makes a commitment to the indigenous parties to comply with environmental legislation, regulations and management plans. For Table 1. Criteria for assessing environmental management provisions 71 Provisions that limit existing rights. 0 No provisions. 1 Developer commits to indigenous parties to comply with environmental legislation. 2 Developer undertakes to consult with affected indigenous people. 3 Indigenous parties have a right to access, and independently evaluate, information on environmental management systems and issues. 4 Indigenous parties may suggest ways of enhancing environmental management systems, and project operator must address their suggestions. 5 Joint decision making on some or all environmental management issues. 6 Indigenous parties have the capacity to act unilaterally to deal with environmental concerns or problems associated with a project. Note: Positive provisions are ranked from 1 to 6, with each step in the scale reflecting an increase in the likelihood that indigenous parties will overcome barriers to participation and become substantially and effectively involved in environmental management. It is not assumed that each step involves an identical increase in this likelihood. Indigenous Participation in Environmental Management 637
  • example, one agreement provides that the developer ‘must comply with the Environmental Authority for the project’, the environmental authority being the authorities issued for the project under relevant state environ- mental protection legislation. Such provisions allow the Aboriginal parties to take legal action if they believe that a breach of environmental legislation or regulations has occurred, because such a breach constitutes breach of the agreement. Their inclusion can allow indigenous people to address three problems highlighted earlier. First, their ability to intervene covers the whole project life, and not just the environmental assessment processes preceding project approval. Second, it addresses potential problems with the ‘standing’ of the Aboriginal groups in legal proceedings; as parties to a legally binding contract with the developer, their standing in relation to any legal action is not in question. Third, it helps address the concerns of Aboriginal people about having to rely on government regulators to deal with breaches of environmental law or regulations. However, provisions of this sort have a key limitation in that they do not allow traditional owners to play a positive role in avoiding breaches of laws or regulations and/or negative environmental impacts in the first place, except to the extent that a company may apply higher environmental standards in the expectation that traditional owners might take legal action if breaches of laws or regulations occur. 2 The project operator undertakes to consult with affected indigenous people regarding major environmental management issues, and structures (such as consultative committees) are put in place to ensure that this happens. Under one agreement the developer undertakes to ‘meet every 12 months with the [Aboriginal parties]; . . . consult the [Aboriginal parties] about the proposed work programs for the next 12 months and other issues relating to the project; and consider the views of the [Aboriginal parties] in relation to the matters discussed at the consultation meetings in formulating its mining plans’. Such provisions create forums in which indigenous people can offer under- standings of environmental issues and impacts that reflect indigenous values, knowledge and priorities. As noted earlier, these understandings may be quite different from those emerging from technical or ‘scientifically rational’ approaches, and may reflect values that run counter to the ‘ideology of developmentalism’. They may facilitate the application of indigenous knowl- edge in allowing project operators to meet their environmental obligations, while at the same time ensuring that greater weight is attached to environ- mental risks or impacts that are of particular concern to Aboriginal landowners. However, such provisions have a serious weakness. There is no guarantee that the project operator will respond to Aboriginal concerns, take advantage 638 C. O’Faircheallaigh & T. Corbett
  • of Aboriginal knowledge or heed suggestions for improving management systems. This is likely to be a particular problem where Aboriginal values or insights run counter to assumptions and priorities of project operators and environmental regulators. 3 Indigenous parties have a right to access, and independently evaluate, corporate information on environmental management systems and activi- ties. A case in point is one company’s commitment to ‘make available to the [Aboriginal parties] any documents, including environmental plans or assessments submitted to government departments or authorities or plans of proposed operations and measures to safeguard the environment in connection with the tenements, including any notice of intent or other document submitted to the [state government regulatory body]’. Access to information and technical expertise can facilitate Aboriginal participation in a number of ways. First, it can be essential in determining whether breaches of environmental regulations are occurring or likely to occur, and provide a firmer basis for threatening or taking legal action if this proves necessary. Second, the information obtained may support the concerns or positions of Aboriginal landowners, and make it harder for project operators and regulators to ignore these. However, access to corporate information does not of itself ensure that developers or regulators will be responsive to the concerns or priorities of indigenous landowners. 4 Indigenous parties may suggest ways of enhancing environmental manage- ment systems, and the project operator undertakes to implement these or some agreed alternative. For example, in one agreement, if the developer plans to make an application for an environmental approval to any government agency, the developer must first provide a draft copy of the application to the Aboriginal parties. ‘[The company] must consider the comments, if any, from the [Aboriginal parties] in relation to the draft Environmental Application and amend the draft Environmental Applica- tion taking into account these comments’. This approach explicitly recognises the positive value of indigenous participa- tion in environmental management. As such it addresses the ‘devaluing’ of indigenous knowledge and values that has constituted a basic obstacle to attempts by Aboriginal people to shape the environmental assessment and management of resource projects. It also addresses the possibility that project operators might ignore proposals put forward by indigenous parties through consultative structures, by introducing a mechanism that requires the developer to respond to indigenous initiatives. It is an approach adopted in a number of recent Australian agreements, which also include dispute resolution procedures for dealing with situations where suggestions by indigenous parties are not acceptable to the operator. Indigenous Participation in Environmental Management 639
  • 5 There is provision for joint decision making in relation to some or all aspects of environmental management. One Australian agreement provides that a committee constituted of equal numbers of company and Aboriginal representatives ‘shall have the control of environmental . . . issues raised in association with mining and camp operations including the protection of significant sites’. Under this approach, the project operator no longer makes unilateral decisions on environmental management, possibly after consultation with or input from traditional owners. Aboriginal landowners are now incorporated into environ- mental decision making in a structural and permanent fashion. This is in contrast to their historical marginalisation from such decision making, and greatly increases opportunities for introducing Aboriginal values, perspectives and knowledge into environmental management. While they represent a major departure from historical patterns, joint decision-making structures do not necessarily place Aboriginal landowners in a position to prevent environmental damage. For example, if serious differences emerge between the parties, time-consuming dispute resolution procedures may be required, and their outcomes will not necessarily favour the Aboriginal participants. 6 Indigenous parties have a capacity under specified conditions to act unilaterally (for example, by suspending mining operations) where they believe that environmental damage is occurring or may occur. An Austra- lian agreement signed in June 2005 includes the provision: ‘If [the company] contravenes any provision of this [environmental management] clause [and] . . . if the default is likely to or may cause harm to [the Aboriginal landowners], [the company] shall immediately cease production until the matter is remedied to the satisfaction of [the Aboriginal landowners] acting reasonably’. Provisions of this sort allow indigenous people to act themselves to protect their traditional lands if developers or regulators do not respond to their concerns. They can be of particular value where there is a belief that serious environmental damage may occur if immediate action is not taken to halt mining in general or some specific aspect of project operations, such as use of a pipeline traversing highly sensitive areas. Such provisions not only recognise the custodial obligations of Aboriginal landowners but accept that in some circumstances these obligations can outweigh the commercial imperative to maintain production. As such, they represent a fundamental change from environmental management systems that privilege ‘rational scientific’ knowledge and developer interests. Provisions of this sort can have substantial effects even if they are rarely (or indeed never) invoked, because they create a compelling incentive for the project operator to work closely with traditional owners to avoid the 640 C. O’Faircheallaigh & T. Corbett
  • possibility of environmental damage or risk that might lead to suspension of production. A number of general points should be made about this scale. First, each point on the scale represents a broad approach, and there is scope for variation in outcomes within each. For example, in relation to point 2, provisions on consultation with indigenous parties may consist only of a general statement that consultation will occur. Alternatively, they may also encompass details regarding the issues on which consultation will occur, when it will occur and what form it will take, and commitments to provide sufficient resources to ensure that consultation is meaningful from an indigenous perspective. In relation to point 5, joint decision making, the role of indigenous parties may be restricted to some nominated and very specific aspects of a project (for example, release of water into a particular creek), or could extend to the whole of a project’s environmental management system. Second, the different approaches are not mutually exclusive. For example, it may be that an indigenous party will seek a commitment to comply with environmental legislation so that it can take legal action if adverse impacts do occur (point 1), while at the same time wishing to contribute to enhancing environmental systems (point 4) in order to minimise the chances that environmental damage will happen. However, on the other hand the scale does represent a clear hierarchy in terms of the potential for allowing indigenous influence in relation to environmental management, and a commitment to provisions further up the scale will often also result in adoption of points lower on the scale even if these are not explicitly required by an agreement. Thus it is most unlikely that a developer would not consult with indigenous parties in relation to environ- mental management issues (point 2) or fail to involve them in decision making (point 5) if those parties have a capacity to halt project operations if they believe environmental damage is likely to occur (point 6). Environmental Provisions of Mining Agreements in Australia Almost all mining agreements in Australia contain legally binding confidenti- ality clauses, and their presence represents a fundamental problem in learning about, presenting and analysing agreement provisions. Our strategy in dealing with this issue was to seek access to a sufficient number of agreements so that we could discuss aggregate findings about their content without revealing the identity or the content of individual agreements. We have achieved this by gaining access to agreements through professional practice as advisers and negotiators, and, in particular, by entering research protocols with a number of leading Aboriginal land councils, allowing us to access agreements while at the same time protecting the confidentiality and intellectual property rights of the parties to agreements. We currently have access to 45 agreements governing the development and/or operation of mining projects in Australia. Indigenous Participation in Environmental Management 641
  • The 45 agreements were negotiated under a variety of legislative and policy regimes and were signed over the period 1978–2003. Reflecting the increase in agreement making since the introduction of the Native Title Act, about half have been signed since 1998. No comprehensive record of mining agreements exists in Australia, so we cannot be certain of what proportion of all agreements our selection represents. However, it is substantial. Searches of relevant databases and of media sources indicate that we are close to having full coverage of agreements in New South Wales and Victoria and in many of Australia’s major resource-producing regions, including the Pilbara and Kimberley regions of Western Australia, the Northern Territory and the Cape York and Central Queensland regions of Queensland. We are confident that we are aware of the full range of provisions related to environmental management contained in mining agreements negotiated in Australia during recent decades. Agreements differ considerably in their size and complexity, but most are extensive documents and some run to hundreds of pages and incorporate numerous schedules and attachments. We analysed each agreement in full, because provisions relating to environmental issues are not necessarily contained under a section with a heading such as ‘Environmental management’. For example, one agreement had no such section heading, but under a heading dealing with relations between the parties creates a joint decision-making body that has responsibility for environmental issues related to the project. We consolidated all provisions from each agreement relating to environ- mental management, and then rated each agreement on the scale discussed above. Some agreements match more than one of the criteria contained in the scale. These were allocated to the ‘highest’ criterion that they meet. This approach assists in gaining a clear view of the distribution of agreements across different points in the scale. Table 2 provides information regarding the ratings for the 45 agreements. Two agreements (5% of the total) achieved a negative rating, because they contain provisions that restrict the Aboriginal parties from exercising rights available to them under general environmental legislation. Twenty-six agreements (58% of the total) received a score of 0 or 1, 11 of these agreements containing no environmental provisions and a further 15 containing provisions Table 2. Ratings for environmental management provisions in Australian agreements between Aboriginal peoples and mining companies Assessment criteria (score as Table 1) Number of agreements (n ¼ 45) 71 2 0 11 1 15 2 3 3 4 4 5 5 5 6 0 642 C. O’Faircheallaigh & T. Corbett
  • that only commit the developer to abide by environmental legislation, which does not of itself allow the Aboriginal parties any positive role in environ- mental management. The remaining agreements are spread fairly evenly across criteria 2 (three agreements), 3 (four agreements), 4 and 5 (five agreements each). None of the 45 agreements achieved a rating of 6. At a general level, these results indicate that while some agreements include provisions likely to create important opportunities for Aboriginal participation in environmental management, a substantial majority do not. Only 10 agreements (22% of the total) contain provisions that require companies to respond to Aboriginal proposals for improving environmental management (score 4) or provide for joint decision making on environmental matters between Aboriginal parties and developers (score 5). It would appear that the potential for negotiated agreements to facilitate Aboriginal participation in environmental management has not been realised in many cases. Why should this be so? One explanation might be that Aboriginal communities and organisations are not aware of the potential of agreements or of the implications of using particular sorts of provisions of the type discussed earlier and scored differentially in Table 2. This is entirely possible given that, as far as we are aware, ours is the first public research to present any systematic analysis of the environmental provisions of mining agreements. Another possibility is that Aboriginal groups are involved in deliberate trade-offs in the negotiation process, and that some groups have chosen not to pursue an active role in environmental management in return for concession from developers in other areas, such as financial benefits or employment and training programmes. Given that differences in relative commitment to environmental values may exist between individual Aboriginal groups, such an explanation might appear plausible. It may indeed be the case that in individual negotiations trade-offs are made between Aboriginal groups and mining companies across a range of issues. For example, Aboriginal people may accept environmental provisions that rank at 4 on our scale, rather than ones that rank at 5, in order to secure more favourable outcomes on cultural heritage protection, monetary payments or Aboriginal employment and training programmes. However, we have substantial evidence that such trade-offs do not explain the pattern of outcomes regarding environmental provisions reflected in Table 2. If they did, one would expect to find that agreements with strong environmental provisions had significantly weaker provisions in other areas, or conversely that agreements with no or weak environmental provisions had strong provisions in other areas. This is generally not the case. As part of our broader research on mining agreements we have also developed criteria to evaluate seven other categories of provisions that tend to be central to agreements between Aboriginal people and mining companies (cultural heritage protection, recognition of Aboriginal interests in land, financial provisions, employment and training, business development, im- plementation provisions, and the degree of support offered to developers by Indigenous Participation in Environmental Management 643
  • Aboriginal parties). Without exception, those agreements that score highly (i.e. 4 or 5) on the environmental criteria also score highly on the criteria for these other areas, indicating that other benefits have not been traded off in a substantial way in order to achieve stronger environmental provisions. The same conclusion emerges from the fact that agreements achieving a negative or 0 score for their environmental provisions also score poorly in relation to the other provisions (O’Faircheallaigh, 2004a,b). A final and alternative explanation is that the outcomes summarised in Table 2 are the result of differential bargaining power on the part of the Aboriginal groups concerned. There is substantial evidence to support this interpretation. Of the 10 agreements achieving a score of 4 or 5, all but one were negotiated under the provisions of the Aboriginal Land Rights (Northern Territory) Act 1996 or the Queensland Minerals Resources Act 1989, which place Aboriginal landowners in a strong position vis-a`-vis developers, and/or they were negotiated by major, high-profile Aboriginal land councils in northern Australia, organisations that can bring substantial political weight to bear at the negotiation table. On the other hand, the two agreements that achieved a negative score and most of those scoring 0 or 1 were negotiated under the terms of the Native Title Act, which tends to place Aboriginal groups in a much weaker negotiating position. Many of these agreements also relate to projects in ‘settled Australia’ (New South Wales, Victoria, the southern regions of Western Australia and Queensland), where Aboriginal organisations are less likely to have the political weight to overcome weak legal positions. Conclusion Indigenous peoples have long been marginalised from environmental manage- ment of resource development projects that affect their traditional lands. In recent years the negotiation of agreements between indigenous landowners and resource developers has created an alternative mechanism through which indigenous people may be able to fulfil their desire and their responsibility to be involved in minimising adverse environmental impacts from large-scale resource development. We set out to examine the possible utility and relevance of this mechanism, by developing a scale for evaluating the contribution of various agreement provisions in facilitating indigenous participation in environ- mental management. This scale was then used to examine a substantial number of agreements between mining companies and Aboriginal interests in Australia. Our analysis indicates that while negotiated agreements do have the poten- tial to substantially enhance Aboriginal participation, many of the agreements negotiated to date do not have this effect. In a small minority of cases they actually reduce opportunities for Aboriginal participation in environmental management. In a substantial majority of cases their contribution is non-existent, or is limited to allowing Aboriginal people to take legal action to remedy breaches of environmental legislation after the event, or to giving 644 C. O’Faircheallaigh & T. Corbett
  • them a right to be consulted by developers. Less than a quarter of agreements require developers to address proposals by Aboriginal landowners to enhance environmental management, or create mechanisms for joint decision making on environmental issues. No agreement included in the study provides indigenous people with a unilateral capacity to act in response to perceived environmental risks from mining projects, but such a provision has in 2005 appeared in one Australian agreement. Our wider analysis of the contents of mining agreements does not indicate that these outcomes reflect decisions by Aboriginal landowners to trade off opportunities to participate in environmental management against other benefits available through negotiations with mining companies. Instead they appear to reflect a lack of awareness regarding the range of environmental provisions that can be negotiated and the differential negotiating positions of Aboriginal people in various parts of Australia. Differing negotiating positions reflect, in turn, the differing effects of various legislative enactments, and in particular the weak bargaining position created for Aboriginal landowners by the federal Native Title Act, and the superior bargaining position enjoyed by politically influential Aboriginal organisations in north and central Australia. Acknowledgements The authors wish to thank the Aboriginal communities and organisations that have assisted their research, but do not name them individually to help in maintaining confidentiality. The authors also wish to acknowledge the detailed and helpful comments of two anonymous referees. Notes 1. In Australia negotiated agreements have generally been restricted to the mining and oil and gas sectors. However, an agreement is currently being negotiated for a major new agricultural development in the East Kimberley region of Western Australia. 2. Australia has two distinct indigenous populations, Aborigines and Torres Strait Islanders. When we refer to both or to indigenous peoples more generally we use the term ‘indigenous’. This article is confined to agreements involving Aboriginal interests. 3. It is acknowledged that for many indigenous people the creation of distinct categories such as ‘social’, ‘cultural’ and ‘environmental’ has little validity, because such concepts relate to matters that are for them inter-related dimensions of holistic relationships involving people and land (see Randall, 2003). However, in Australia, as in most countries, separate legal and regulatory frameworks apply to each of these spheres, and so Aboriginal people must attempt to pursue their interests by engaging with systems of ‘environmental’ or ‘cultural heritage’ or ‘social’ legislation or regulation. References Akpan, G. S. (2000) Environmental and human rights issues – implications for petroleum and mineral investment, part 2, Centre for Energy, Petroleum and Mineral Law and Policy Journal, 6. Available at www.dundee.ac.uk/cepmlp/journal/html/vol6/article6-5b.html (accessed 11 January 2005). Indigenous Participation in Environmental Management 645
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