From Conflict to Cooperation Transformations and challenges in the engagement between the Australian minerals industry and Australian Indigenous peoples
PROF. MARCIA LANGTON
A PUBLIC POLICY ANALYSIS PRODUCED FOR 07 THE MINERALS COUNCIL OF AUSTRALIA FEBRUARY 2015
From Conflict to Cooperation Transformations and challenges in the engagement between the Australian minerals industry and Australian Indigenous peoples
PROF. MARCIA LANGTON
MINERALS COUNCIL OF AUSTRALIA February 2015 Marcia Langton AM is the Professor and Foundation Chair of Australian Indigenous Studies in the Melbourne School of Population and Global Health at The University of Melbourne. Her most recent book is The Quiet Revolution: The 2012 Boyer Lectures, HarperCollins (Sydney). She co-edited with Judy Longbottom Community Futures, Legal Architecture: Foundations for Indigenous Peoples in the Global Mining Boom, published in 2012 by Routledge (UK). Professor Langton is the Chairman of Guma ICRG JV Pty Ltd, a mining services company, owned by Nyiparli Traditional Owners and Indigenous Construction Resource Group Pty Ltd.
The Minerals Council of Australia represents Australia’s exploration, mining and minerals processing industry, nationally and internationally, in its contribution to sustainable economic and social development. The views expressed in this publication are those of the author. This publication is part of an overall program of the MCA, as endorsed by its Board of Directors, but does not necessarily reflect the views of individual members of the Board.
This publication contains photographs related to Aboriginal and Torres Strait Islander peoples. Aboriginal and Torres Strait Islander readers are advised photographs in this publication may contain images of deceased persons which may cause sadness or distress.
ISBN 978-0-9925333-2-8
MINERALS COUNCIL OF AUSRALIA Level 3, 44 Sydney Ave, Forrest ACT 2603 (PO Box 4497, Kingston ACT Australia 2604) P. + 61 2 6233 0600 | F. + 61 2 6233 0699 W. www.minerals.org.au | E. [email protected]
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Executive summary 7
Section 1 Introduction 11
Section 2 20 years of reform in engagement and 15 socio-economic progress
Section 3 The achievements of agreement-making 25 Legal frameworks for mining agreements 30
Section 4 Reforming the negotiation and 37 implementation of agreements Developing agreements 40 Implementing agreements 45
Section 5 Post agreements: removing obstacles 51 to economic participation The Indigenous Community Development 55 Corporation proposal
Section 6 Conclusion 59
Endnotes 65
Acronyms 77 Source: Newmont Asia Pacific Executive summary
The engagement between the minerals industry and Indigenous Australians has been characterised by remarkable change in the last two decades.
Instead of constant conflict in every outcomes in employment, skills, encounter, there is now a widespread training, income levels, education approach of sophisticated face- standards, health and other social to-face engagement that fosters and economic indicators. discussion rather than argument. These negotiated settlements can This has resulted in the adoption of provide resolution to issues not good practices in negotiation and envisaged by the Native Title Act agreement-making between parties. 1993 (Cth) (NTA), such as wealth This relationship has been creation, sustainable development positively transformed by more post project and transitioning from than 20 years of reform in the welfare dependency to economic rights of Indigenous Australians participation. and innovative engagement on The positive approach by the part of the minerals industry. minerals companies toward their The hard-won transformation relationships with Indigenous from one of acrimonious conflict communities has fostered respect to mutually beneficial agreement- for Aboriginal culture and history making has produced substantial and delivered tangible socio- Indigenous employment and economic impacts. This has driven enterprise outcomes. increased economic participation A number of agreements have for Indigenous people, and growing been developed in the minerals procurement of goods and services industry without contesting native from Indigenous businesses and title. Agreements cover issues such joint ventures. For example, up to as access to land and resources, 150 Aboriginal businesses have been infrastructure, environmental established in the mining supply management, tourism and cultural chain in the Pilbara with combined heritage, facilitating business and turnover in excess of hundreds of service delivery, accelerating positive millions of dollars.
FROM CONFLICT TO COOPERATION 7 Tangible economic outcomes for minerals industry to operate Aboriginal people and communities in cooperation with Aboriginal are being delivered, particularly communities is achievable. The to those neighbouring mining benefit of agreements lies in their operations in remote and regional ability to link many elements such Australia. Benefits to native title as Indigenous decision-making and groups and Indigenous communities expression of local aspirations to include support for cultural overcome levels of disadvantage. maintenance, higher incomes as a Agreement-making encourages result of employment and economic environmental protection and activity, skills development and participation in economic capital accumulation. development while providing a legal framework for the negotiation of Research shows that the minerals different interests. industry is the largest employer as a proportion of all Indigenous Twenty years after the Mabo employment in mining provinces, decision and the rejection of the while in other areas it ranges from doctrine of terra nullius, this legacy low to high proportions of all is profound. The use of agreement- Indigenous employment1 including making has forged a new approach the government subsidised work- to Indigenous affairs. Nevertheless, for-the-dole scheme (formerly there are weaknesses in this the Community Development statutory system of agreement- Employment Project2 (CDEP)). making which could be further strengthened by government Importantly, Indigenous policy reform. employment growth has been steadily increasing since the Despite sustained improvements mid-1990s, and the percentage in economic participation for of Indigenous men and women Indigenous communities, high levels employed in mining more than of disadvantage remain a troubling concern (even among those located doubled between 2006 and 2011. near mining projects). Given the The increase in participation of non- unprecedented prospects offered remote Aboriginal people can be by the minerals industry to remote associated with Fly-in Fly-out (FIFO) and regional Indigenous people, supporting labour mobility. it is vital to understand enduring The shift to collaboration over constraints on Indigenous economic the past four decades through participation and the resulting agreement-making has proven impacts on ‘poverty in the midst that the social licence for the of plenty’.
8 MINERALS COUNCIL OF AUSTRALIA Disparity between Indigenous Communities Development communities exists and the isolation Corporation model — proposed by of some regions in conjunction with the National Native Title Council little service delivery demands focus. (NNTC) and the Minerals Council A major proportion of agreements of Australia (MCA). Further, the are made with communities where regulation of third party agents government investment is lacking. and the registration of Section 31 Policy reform is needed to ensure Agreements3 are crucial to providing that government programs which greater consistency for the delivery deliver goods, environmental or of revenues to beneficiaries. personal services include explicit Indigenous employment goals. Without change, the gains made since the introduction of the NTA Where Indigenous parties engage are at risk. Moreover, the incumbent in negotiation, the capacity policy issues are complicated and for Indigenous leadership and difficult. They require expertise entrepreneurship is enhanced. As in policy formulation and legal a result, governments, the private reform, as well as a comprehensive sector and non-government knowledge of the history and organisations (NGOs) collectively features of existing accords recognise that efforts should between the minerals industry and be focused on the school-age Indigenous peoples in Australia. population. It is critical the next generation’s education and Further research into the successes employability is addressed to avoid forged by the minerals industry a worsening of disadvantage in in partnership with Indigenous some areas. communities would be of particular benefit to characterising the labour Furthermore, new legal frameworks force engaged in mining, and are required for the effective identifying factors that have led to negotiation and governance business development in the mining of agreements in Indigenous supply chain. It is now a priority communities. As part of this, to manage the achievements capacity-building and transparency accomplished, address existing (setting aside commercial in barriers and facilitate new confidence aspects) are key to opportunities to sustain Indigenous systematic change. economic development. The management and distribution of benefits would be better supported by a new structure — the Indigenous
FROM CONFLICT TO COOPERATION 9
SECTION 01
Introduction Jake Smith completed an Indigenous Traineeship with Mount Isa Mines in 2012, and works within the business as a storeperson for the supply department. In 2012, Jake was nominated for the Kinetic Training Awards in the Trainee of the Year category and also the NAIDOC Awards in the NAIDOC Trainee/Apprentice of the Year category.
12 MINERALS COUNCIL OF AUSTRALIA Source: Glencore SECTION 1
Introduction
The collaborative engagement between the minerals industry and Aboriginal peoples is a well-established feature of Australia’s 21st century resources sector.
This much-improved relationship since the introduction of the NTA with Indigenous communities has are at risk. Moreover, the incumbent emerged alongside the growth policy issues are complicated and of mining operations, largely as a difficult. They require expertise result of hundreds of associated in policy formulation and legal land access agreements under the reform, as well as a comprehensive Native Title Act 1993 (Cth) (NTA). knowledge of the history and These agreements have generated features of existing accords beneficial impacts for Indigenous between the minerals industry and peoples, including direct financial Indigenous peoples in Australia. benefits and remarkable increases The NNTC, MCA and academics in Indigenous employment and have worked through some of enterprise activity. these difficult policy issues over Though this was not always the the past decade. Their findings case, the hard-won transformation should be taken into consideration of this relationship from one of when formulating policy reforms to acrimonious conflict to mutually- support the sustainable management beneficial agreement-making will and delivery of benefits for continue to produce substantial Indigenous peoples through land Indigenous employment and access agreements. To this end, I will enterprise outcomes. Importantly, therefore address three key issues: these outcomes could be • Good practice in agreement strengthened further by reformed making under the NTA and other government policies, including the legislation adoption of the proposal for a new • The management and distribution corporate model (the Indigenous of benefits from agreements to Community Development Indigenous communities and Corporation (ICDC) approach), people that better support Indigenous • Removing the obstacles to engagement in the economy. increased Indigenous economic Without change, the gains made participation.
FROM CONFLICT TO COOPERATION 13
SECTION 02
20 years of reform in engagement and socio-economic progress 16 MINERALS COUNCIL OF AUSTRALIA Source: Newmont Asia Pacific SECTION 2
20 years of reform in engagement and socio-economic progress
Few Australians working in the minerals industry today, especially those involved in Indigenous or community relations, would remember the acrimonious relationships between Aboriginal and industry representatives that characterised a number of highly contentious mining projects between the mid-1960s and the mid-1990s.
The introduction of the Mabo Aboriginal culture and history and decision and the NTA in the early delivered tangible socio-economic 1990s catalysed parts of the impacts. This has driven increased minerals industry to depart from economic participation for Indigenous their adversarial positions and people, and growing procurement of respond to this new legal regime goods and services from Indigenous with a willingness to work with businesses and joint ventures. Indigenous people. This relationship has been positively transformed by Hundreds of agreements have 4 more than 20 years of reform in the been negotiated, providing for rights of Indigenous Australians and secure land access for project 5 innovative engagement on the part rights, employment opportunities 6 of the minerals industry. Instead of for Indigenous people, Aboriginal constant conflict in every encounter, cultural heritage protection, and there is now a widespread approach regimes for the management of sophisticated face-to-face of natural resources.7 A notable engagement that fosters discussion consequence of these agreements rather than argument and good has been the significant increases practices in negotiation and in private-sector Indigenous agreement-making between parties. employment over the past decade, particularly in the minerals industry. The positive approach by some minerals companies toward their The minerals industry has become relationships with Indigenous a major source of employment for communities has fostered respect for Indigenous communities. It is an
FROM CONFLICT TO COOPERATION 17 alternative to the welfare transfers upon which many remote and regional communities depend. With sixty per cent of Australia’s mineral operations neighbouring Indigenous communities,8 the benefits to Indigenous people through life-of- operation cooperation agreements are important for their long-term economic wellbeing. Instead of constant While the minerals industry is the largest employer of Indigenous conflict in every people, high Indigenous encounter, there is now employment rates are found in a widespread approach the health and allied industries. Commonwealth government of sophisticated face- employment of Indigenous people to-face engagement lags far behind at 2.2 per cent.9 The that fosters discussion Forrest Review found that: rather than argument The employment gap, outside of the strong contribution made by and good practices the mining industry, is a private in negotiation and sector gap. The very low incidence of private sector employment for agreement-making first Australians in remote and very between parties. remote areas by the non-mining industry is stark. In contrast, for other Australians the private sector employment rate is higher in remote areas than it is in regional areas or the major cities. In very remote areas the proportion of first Australians aged 15 to 64 who had a private sector job in 2011 was less than 19 per cent.10 A study of the Indigenous workforce undertaken at the Australian National University (ANU) reported in 2014 the continuing growth of Indigenous employment in the private sector,11
18 MINERALS COUNCIL OF AUSTRALIA Source: Newmont Asia Pacific
especially the mining industry. Mining remote areas, and males and females. employment was shown to be the These increases in employment most important component of among the Indigenous population Indigenous employment in locations have been greater than non- close to mines, such as in the Pilbara Indigenous population employment and central Queensland. growth.12 This means that the ‘gap’ in levels of disadvantage of Indigenous There has been a large increase Australians as compared with other in Indigenous employment in the Australians is closing. private sector since the mid-1990s. The study found that Australian These results were unexpected. Bureau of Statistics (ABS) data Previous studies had excluded showed an overall increase in non-CDEP employment, resulting Indigenous employment since the in misleading conclusions about Global Financial Crisis, including employment growth and the increases for both younger and older effectiveness of government workers, those from remote and non- policy. While the commitment
FROM CONFLICT TO COOPERATION 19 of several large minerals companies • The percentage of Indigenous males to Indigenous employment was the and females employed in mining primary contributing factor, other more than doubled in remote contributing factors included: areas between 2006 and 2011 • Strong macro-economic • An increase in non-remote areas conditions could be associated with the • Changes to the characteristics greater utilisation of FIFO workers of the Indigenous population • While this is still a small portion of (such as increasing education, the overall Indigenous workforce in decreasing arrests among males Australia, the minerals industry is and decreasing populations in a significant portion of Indigenous remote areas) employment in particular regions • Changes to the income support • Indigenous involvement in system rules designed to mining increased substantially encourage paid employment as a percentage of all Indigenous • An increasing emphasis in employment and is now closer Indigenous labour market policies to the percentage of mining on unsubsidised employment employment for overall Australian employment • Wage subsidies. • There have been other benefits Although, growth in employment to Indigenous families and in the minerals industry accounts for a small portion of the overall communities as a result of the Indigenous workforce in Australia multiplier effects that ‘major mines due to its relative size, it is a have on employment in other significant source of employment industries such as construction, for Indigenous communities for transport and hospitality in the 14 regions in Queensland, South areas in which they are located’. Australia and Western Australia. Major mines generate employment In another study by the Centre opportunities in associated industries for Aboriginal Economic Policy in the areas in which they operate. In Research, Gray and others found that addition to construction, transport, the extent to which the Indigenous and hospitality, other industries such workforce has a similar composition as facilities management, agriculture in industry of employment as that for and land management, provide other Australians has increased.13 Indigenous communities with The major findings were: business opportunities and services.15
20 MINERALS COUNCIL OF AUSTRALIA Contracting opportunities for Less is known about business Indigenous businesses have grown development in contrast to rapidly. Up to 150 Aboriginal Indigenous research as little contracting companies are operating research has been conducted. The in the Pilbara at present, with a need for research on Indigenous combined annual turnover in the business development in the hundreds of millions of dollars. There mining industry is of high priority. are owner-operated small enterprises Australian governments could do and joint ventures involving more to encourage Indigenous Aboriginal Corporations, as well as business development, because large contracting corporations and this ‘will lead to more jobs for first project management firms. Rio Tinto Australians. Indigenous majority- Iron Ore and Fortescue Metals Group owned businesses are about 100 times more likely to employ first each reported that their expenditure Australians than other businesses.’17 on Indigenous contracting services exceeded $1 billion in the 2011 period. The Forrest Review recommended the ‘Commonwealth should support The employment opportunities the growth of Indigenous businesses provided by contractors that service and first Australian commercial the mining and energy sector enterprises with its $39 billion annual are significant. However, there purchasing of goods and services.’18 are insufficient data about this The report referred to measures contribution. These opportunities in the United States and Canada vary across the mining regions. A to encourage Indigenous business report to the Queensland Resources growth, including the following: Council concluded that: Other countries such as the Only a small number of companies United States and Canada have reported involvement in supply used government procurement chain initiatives aimed at creating to stimulate their minority or Indigenous employment (that is, aboriginal business sectors for arrangements with Indigenous- decades. The US Government run companies or requirements has a procurement target of 23 for contractors and suppliers per cent of all procurement from to address specific Indigenous small business, with a sub-target employment and training of 5 per cent from disadvantaged objectives). Most companies small businesses (which includes that responded to the survey minority-owned businesses). acknowledged that there were unrealised opportunities in A similar policy applies in Canada, this area.16 where Aboriginal businesses are
FROM CONFLICT TO COOPERATION 21 Figure 1 Indigenous employment in the minerals industry, 2011
Per cent of employed persons aged 15+
over 50 25 to 50 10 to 25 5 to 10 1 to 5 Note: Includes CDEP employment
The minerals industry has become a major source of employment for Indigenous communities.
22 MINERALS COUNCIL OF AUSTRALIA growing at five times the rate to operate in or near Aboriginal of other businesses thanks to communities is achievable.21 government procurement policies. The MCA has defined the concept The NANA Corporation, for example, of a social licence to operate as is owned by Aboriginal people in ‘an unwritten social contract’: it is Alaska and has grown from small about ‘operating in a manner that is beginnings to a turnover of more attuned to community expectations than $1 billion. The company is and which acknowledges that competitive without government businesses have a shared subsidy. Its success is based on responsibility with government, government procurement alone and more broadly society, to help through the US Government’s facilitate the development of strong Aboriginal exemption policies.19 and sustainable communities.’22 An understanding of these issues Although pockets of resistance relating to the high levels of toward this collaborative approach engagement of Indigenous people still exist, only a few companies in the minerals industry is not widely and Aboriginal groups persist with grasped by the Australian public. megaphone debates in the media. This is largely a result of the poor Rarely do these disputes result in representation of Aboriginal people better outcomes for either party. in the media and metropolitan With fewer assured growth rates environmentalist campaigns. in the demand for minerals from Aboriginal people continue to our international trading partners, be portrayed as marginalised and the effects of mine closures, victims of history with no agency delayed expansions, and the ore- to influence matters or make price variation that can follow, the responsible decisions. Leaders priority now will be to manage our within the minerals industry and the achievements to sustain Indigenous Indigenous sector have a far better economic development, as well as understanding of the issues and this progress policy reform further to has been critical to the development address barriers and facilitate new of positive relations and better opportunities. results in Indigenous economic participation.20 The shift to collaboration over the past four decades through agreement-making and the NTA has demonstrated that the ‘social licence’ for the minerals industry
FROM CONFLICT TO COOPERATION 23
SECTION 03
The achievements of agreement making The Argyle Participation Agreement remains one of the most comprehensive agreements ever made in Australia between a resource company and Traditional Owners. It symbolises an unprecedented action in the history of mining companies in engaging Indigenous communities.
26 MINERALS COUNCIL OF AUSTRALIA Source: Rio Tinto SECTION 3
The achievements of agreement-making
The transformative capacity of agreement-making is evident in the collaboration between Indigenous parties and minerals companies in Australia that has extended the engagement beyond the legal requirements for land access for projects.
Many of the benefits are found, Although the NTA did not grant not only in the details of specific native title holders a right of veto, provisions in agreements, but also the Native Title Amendment Act in the ways in which the agreement- 1998 (Cth) introduced the right to making processes are contributing negotiate provision (RTN) and a new to the social and economic fabric of form of agreement, the Indigenous Indigenous communities. A deeper Land Use Agreement (ILUA). These understanding of these issues has amendments shifted the focus of caused some minerals industry native title law towards negotiation leaders to change their attitudes and agreement-making under the toward the impacts of mining, terms and conditions upon which and the entitlement of Aboriginal land use and access could occur.24 communities to compensation for The RTN gave Indigenous parties the impacts of mining and related a position in the market and the activities.23 prospect of economic participation Until 1994, only Aboriginal that had been denied previously. For Traditional Owners in the Northern the first time, this right provided an Territory had a limited right to veto opportunity for Indigenous parties dealings on Aboriginal land under to negotiate the access and use of the terms of the Aboriginal Land their land with project proponents Rights (Northern Territory) Act 1976 from the private sector, all levels of government and other parties. (ALRA). The passage of the NTA in 1993, along with later amendments, Since the 1970s, agreements between established important provisions for Indigenous people and other parties agreement-making. have increased from one or two
FROM CONFLICT TO COOPERATION 27 Commonwealth agreements (such agreements occur in both urban as those made under the ALRA) to and rural settings, those relating to an estimated 4,000. Most of these land access, mining and exploration are Future Act Agreements (FAAs) are more common in remote and under the terms of NTA. regional areas. Types of agreements include In the last decade, both Indigenous Indigenous Land Use Agreements and minerals industry representatives (ILUA), Indigenous Protected Area have benefited from the accrual Agreements (IPAA), commercial of negotiating experience and contracts and Memoranda of understanding of the issues. Understanding (MoUs). These have However, while minerals industry been variously negotiated with representatives have engaged directly federal, state and local governments; with Indigenous people to conclude resource extraction companies; agreements, governments have farming, grazing and environmental been largely absent from minerals representative bodies; arts industry agreements and rarely organisations; and many other become parties.26 Even so, the use of institutions and agencies. agreement-making has forged a new Agreements relating to native title approach to Indigenous affairs.27 are the most common, followed To varying degrees, agreement- by collaboration and partnership, making gives Indigenous people cultural heritage, mining and a genuine planning and decision- minerals. They cover a range of making role; responsibilities matters including access to land, and duties in governance; and resources and infrastructure, and opportunities to plan for community environmental management. Many development across a range of focus on employment and training in issues affecting their lives and their Indigenous communities particularly environments. Several important in relation to accelerating positive aspects to this new approach should outcomes in skills, income, health and be noted. Agreements may: other social and economic indicators.25 • Provide a process through which Other agreements relate to parties can build relationships and construction and infrastructure, redefine future interactions employment and training, environmental heritage, tourism, • Provide a means for the formal and cultural heritage, recognition recognition of local and regional of traditional rights and interests, Indigenous groups, including exploration, and health and formal standing, and often, community services. While defined roles and responsibilities
28 MINERALS COUNCIL OF AUSTRALIA McArthur River Mine Health, Safety, Environment and Community (HSEC) Manager Julie Crawford discusses seed germination as part of a MRM Community Information Session on nursery production as a cottage industry opportunity.
Source: Glencore
in a range of governmental and the process of development non-governmental agencies and • Often include provisions for arrangements dealing with customary relations • Allow the negotiation of terms that are incorporated as formal for improving the social and features in the relationships economic conditions of local between Indigenous people and Indigenous groups other parties.28 • Provide a means for local The benefit of agreements lies in the Indigenous people to identify ability to link many elements such their aspirations and develop as Indigenous decision-making and their social and political plans and expression of local aspirations to strategies to achieve specific goals overcome levels of disadvantage. Agreement-making encourages • Allow Indigenous people to participation in economic develop roles as actors rather than development while providing a legal victims, or as consensual parties framework for the negotiation of rather than as ‘stakeholders’, in different interests.29
FROM CONFLICT TO COOPERATION 29 Legal frameworks for mining agreements
Agreement-making with Indigenous Land use agreements are the most peoples in relation to land has been common form of agreement made particularly influenced by various with Indigenous peoples in Australia. statutory acts, including the ALRA, While these agreements may arise heritage legislation, and the NTA from common law contractual and its amendments. The majority of arrangements, most agreements negotiations and resultant agreements (e.g. ILUAs, exploration agreements, between minerals companies and Section 31 Agreements and mining Indigenous communities have been agreements, FAAs, and Consent triggered by one of the following Determinations) are created legislative provisions: pursuant to legislation such as the NTA. In March 2012, there were 588 • The mining provisions of the ALRA ILUAs registered with the NNTT. The and other statutory schemes provisions for the ILUAs and the • The NTA and subsequent making of agreements through the amendments RTN have resulted in thousands of agreements, collectively amounting • The absence of a statutory basis to a bargain with Indigenous people for Aboriginal rights in some over the use and access to land.30 jurisdictions requiring voluntary agreements for a period of time In Australia’s federal system, both Commonwealth and state • Government requirements legislation applies in a range of land for service contracts and access matters and dealings with Commonwealth/ state Indigenous people with legal and agreements for co-ordination in institutional environments differing areas such as Indigenous health. from jurisdiction to jurisdiction. Some agreements have statutory A variety of Commonwealth status and others are contractual and state statutes establish the arrangements, MoUs or simple procedures and binding nature of statements of commitment. those agreements. These agreements The extent to which each type may be used in conjunction with of agreement creates legally a determination of native title or enforceable obligations depends rights and interests under state and upon the identity of the parties territory legislation, or may exist as and the nature of the agreement. stand-alone agreements.
30 MINERALS COUNCIL OF AUSTRALIA The Ranger Agreement and the Gagudju Association
The Ranger and Narbarlek projects on its desired priorities and in the Northern Territory present preferences. This permitted it to a useful case study of Aboriginal build up capital assets which could mining payments, their financial provide members with a source provisions and utilisation, and of future income’.36 This ensured structures created for distributing the viability of the homeland statutory royalties and negotiated centres and enabled a higher level payments. In the case of the of economic participation by the Ranger Agreement, the financial Aboriginal Traditional Owners, management and distribution including ownership of substantial structures developed in the assets in the area. 1970s to respond to the flow of Only when the uranium commodity monies proved to be effective and price fell sharply in the international sustainable for a considerable period. market, coinciding with an airline The Gagudju Association achieved a strike affecting the tourism industry significant increase in its members’ in which the Gagudju Association cash incomes for a time, and had invested much of its capital was able ‘to mount an extensive resources, did the weaknesses in program of outstation development this model expose the group to and basic service provision based financial difficulties.
Whether these agreements are Agreements, Template Agreements, enforceable against all parties Joint Management and Joint Venture will vary based upon the terms Agreements, Indigenous Partnership of each agreement. Other types Agreements, Leases, Regional of agreements include Consent Agreements, Research Agreements, Determinations, Framework and Interim Agreements.
FROM CONFLICT TO COOPERATION 31 The purposes of these agreements minerals companies and Traditional — and thus their potential benefits Owners to develop agreements and detriments (the latter may be such as avoiding costly litigation the compulsory extinguishment of and delays to exploration and native title in some cases) — can mining projects.34 Importantly, relate to exploration, mining, oil there is a growing recognition and gas extraction, and associated in the minerals industry that ‘it infrastructure such as plants, will be increasingly difficult for roads, mining towns, and ports. [organisations] to operate profitably Agreements involving land access unless they establish cooperative 31 often contain a range of provisions , working relationships with local including the two most important: Indigenous interests’.35 • The need for accurate Indigenous groups have overcome identification of the local a range of cultural and social Indigenous people, including problems, such as ongoing native title holders, Traditional feuds and conflicts, to constitute Owners, persons with custodial themselves as negotiating parties interests, and affected to improve agreement outcomes.37 communities and their members However, the mere fact of • Consent from native title holders agreements does not necessarily and Traditional Owners that assure positive, meaningful or remains binding for the life of equitable results for Indigenous project and to its terms. communities. This approach has expanded upon Over the past 40 years, agreements the conventional understanding have increased in complexity as of corporate social responsibility Indigenous parties have become as ‘the continuing commitment more experienced with the scope by business to behave ethically of the legislation involved, and and contribute to economic as companies have developed development while improving the policies to demonstrate corporate 32 quality of life’. The MCA expresses social responsibility. The rapid a preference for the negotiating of increase in the past two decades a sustainable relationship with of agreements to formalise the agreed approaches and conditions relationship between companies for land access and local support and local Indigenous neighbours for mining operations as a more indicates the importance of this successful strategy.33 approach to secure the conditions Often multiple factors motivate for sustainable operations.38
32 MINERALS COUNCIL OF AUSTRALIA The Argyle Diamond Mine ILUA: an exemplary case of agreement-making
The Argyle Diamond Mine ILUA Coexistence Agreement (WCCCA) is one of a growing number of and the Argyle Diamond Mine agreements that has set new Agreement representatives of standards in formalising relationships minerals companies with experience between resource companies and in collaborating with Indigenous local indigenous groups in Australia communities have concluded that under the terms of the NTA. It negotiated settlements can provide formalises a new partnership based resolutions to matters that the NTA on mutual respect and marks a does not envision. definitive break with that history. The economic future of host and The ILUA sets out the arrangements affected communities involve concluded by the local and regional areas of interest that the NTA indigenous parties and the mining is silent about, such as wealth company and which are explicitly creation in the region, sustainable aimed at maintaining a good development after the life of the relationship, ensuring that local project, and transitioning from indigenous people benefit from welfare dependency to economic the operation, and increase their participation. These representatives economic participation through understand that the extinguishment employment and enterprise. of native title is not a sound basis for Implementation is as important as sustainable development and long- the negotiation of agreements if term relationships. benefits to the community are to be realised. Further, in order to harness the opportunities that these agreements provide, adequate infrastructure and a minimum level of human or community capacity is necessary to ensure positive outcomes. While this last remains a challenge, the arrangements for implementation in this case set a high standard. In cases such as the Comalco – Western Cape Communities
FROM CONFLICT TO COOPERATION 33 The Argyle Diamond Mine ILUA
Source: Rio Tinto
Under the NTA, any activity such as a NTA do not apply, as the alternative grant of land, that may affect native consultation provisions are to be title rights is defined as a ‘future act’ followed instead. and must comply with the future Rio Tinto points to its 2004 act provisions of the act in order Participation Agreement with to be valid. The parties agree that Traditional Owners and its the above activities are future acts. comprehensive mine closure However, the parties also agree the management plan as prime right to negotiate provisions of the examples of policy commitment
34 MINERALS COUNCIL OF AUSTRALIA The Argyle Diamond Mine ILUA
to sustainable development. the Traditional Owners until the Indigenous employment levels at completion of mining operations. the company’s Australian operations The ILUA provides a mechanism for have increased ten-fold since 1995. the recognition of native title rights over that grazing area. Activities authorised by the ILUA Compensation and benefits In particular, the parties consent to, support and will not object The parties agree that no further to Argyle conducting mining compensation will be paid by Argyle operations. This includes: for past acts, but that Argyle will pay benefits as described in the • Open pit mining exploration ILUA into two trusts: • Exploratory decline • A charitable trust that secures • Underground mining funds for future generations • Future mining activities and provides funds for law and • Granting or renewal of Argyle culture, education and training interests. and community development Consent to these activities is partnerships conditional on Argyle acting • A discretionary trust that provides according to the law, the ILUA and benefits to the Traditional Owners the Management Plans. for the ILUA area.39 The grazing lease One of the activities authorised by the ILUA is the grant of the ‘Replacement Lease’. This refers to a grazing lease granted to Argyle. The ILUA deals with the surrender and grant of a replacement lease, which is to be held on trust by Argyle for
FROM CONFLICT TO COOPERATION 35
SECTION 04
Reforming the negotiation and implementation of agreements 38 MINERALS COUNCIL OF AUSTRALIA SECTION 4
Reforming the negotiation and implementation of agreements
The NTA has contributed to a remarkable attitudinal change in the minerals industry in relation to dealing with Indigenous people. A new approach, developed through the engagement fostered by native title rights, has been both an incentive for, and an outcome of, agreement-making.40
More than two decades after the to the commercial issues that Mabo decision and the rejection agreements present.41 of the doctrine of terra nullius, this The lack of government investment, legacy is profound in its impact on especially in Indigenous communities Indigenous economic participation. and social infrastructure, in mining However, there are weaknesses in provinces draw our attention to the this statutory system of agreement- 42 making that require reform. matter of accountability. NTCs lack resources to participate in the market The lack of legal clarity and and with 100 registered or waiting limitations of specific provisions in to be registered, the challenge of the present legislative and policy local governance and capacity is a framework inhibit the development high priority for innovation in policy. of an institutional environment that encourages diverse Aboriginal A majority of agreements are with economic opportunities. Although regional Aboriginal communities Native Title Corporations (NTC) where isolation and the absence (or Registered Native Title Bodies of the state is marked. Often, Corporate (RNTBC)) are statutory this is manifested by little or no institutions to enable the native service delivery and inadequate title holders to manage their titles relationships among Commonwealth and natural resources, they may be and state governments, agencies excluded from functions relating and Indigenous communities.
FROM CONFLICT TO COOPERATION 39 In this environment, it is therefore Developing agreements not surprising that a widespread Leadership lack of understanding of policies within Indigenous communities Attention must be given to the contributes to confusion and poor development of strategies to compliance in Indigenous affairs. overcome obstacles to the effective In addition to service contracts, participation of Indigenous people delivery agreements between in negotiations. The manner in which parties are identified, described agencies add to the complexity and included in the decision- of arrangements and it is ‘entirely making process can have long-term possible that an agreement might implications for the sustainability in fact leave an Indigenous party of agreements. It is critical to worse off than before’.43 that coherent cultural identity Issues of power imbalances, and ‘ownership’ of agreement resource allocations, capacity, outcomes44 is established by the compliance and lack of relevant native title and other implementation plans need to be Aboriginal Corporations.45 addressed in order to make the Indigenous groups that are cohesive agreement-making process produce with well-recognised structures more beneficial, sustainable for decision-making — such as the outcomes. Rigorous monitoring and Noongar in southwest Australia evaluation performance frameworks and Western Cape communities are vital to track the benefits and in Queensland — have a greater detriments to Indigenous parties. capacity to advance negotiations. This would ensure that agreement- Leadership has a consequential making arrangements continue impact on the development of a to improve. strong negotiating mandate. This is While best practice in agreement- illustrated by New Zealand’s Ngai 46 making may be context-driven Tahu Settlement , the Larrakia and related to the specific Nation in Darwin, the Tsawassan 47 circumstances in which agreements First Nation in British Colombia , are made, some general principles the Yellowknives Dene First Nation 48 can be discerned. The following of Canada’s Northwest Territories , and the Southern Pitjantjatjara themes for the development and people of South Australia.49 implementation of agreements have emerged from my research at the A number of native title courses for University of Melbourne. professionalisation of the sector’s
40 MINERALS COUNCIL OF AUSTRALIA Aboriginal Leadership Program – Diavik, Canada
The International Diamond leadership training, augmented Exchange News Room announced with mentoring from Diavik staff. on 28 January, 2007, that the Rio Course content is built around Tinto-owned Diavik diamond mine SAIT’s Applied Management Certificate Program, but is in the North West Territories of customized to take into account Canada had completed its Second Diavik’s 24-hour, 365-day mining
Aboriginal Leadership Program: operation and the varying work Designed and delivered by SAIT schedules of its workers. Polytechnic in collaboration with Diavik employs over 700 workers, Diavik, the program is aimed at the majority of whom are northern preparing Aboriginal employees residents. Approximately half of the of both DDMI and its contractors northern workforce is Aboriginal. to take on increasing work responsibilities. Over half of the The Diavik Diamond Mine, Diavik workforce is employed by located 300 kilometers northeast Aboriginal firms who, together of Yellowknife, Northwest Territories, with DDMI, are helping increase is an unincorporated joint venture employment and business capacity between DDMI (60 per cent) and in the Aboriginal community. Aber Diamond Limited Partnership (40 per cent). Both companies The leadership program comprises are headquartered in Yellowknife, eight modules that addressed Canada. DDMI is a wholly owned 16 leadership competencies, subsidiary of Rio Tinto.51 and includes over 160 hours of
personnel have been developed. as well as closure and post project Leadership training and skills community outcomes.50 An transfer in this highly complex international example from Diavik area are essential for continuing in the North West Territories of improvement in agreement Canada sets a high standard. implementation and management,
FROM CONFLICT TO COOPERATION 41 The membership of NTCs changes The development of protocols over time and it can occur quickly as for communication and decision- new members are born and some making between Indigenous pass away. The customary rules landowners and other parties in for recruitment and membership a region can assist with reducing alter occasionally from lineal to disputation and power manoeuvres. cognatic. These issues of changing This approach can aid the traditions and customs contribute negotiation and implementation of to structural limitations upon agreements with parties external to Indigenous communities engaged the Indigenous domain, and it has in negotiations, and the impacts of proved most effective when: legal, governance and administrative • Parties develop confidence in the frameworks influence agreement process of agreement-making outcomes. In some cases, the combination of these factors with • Disputes have been solved in a short timeframes has resulted in principled way according to set a division of interests between rules parties negotiating agreements, or • When parties clearly understand overlapping claims. the rules and decision-making Often, there is even insufficient processes of the Traditional attention to the definition and Owners. description of particular NTCs Where Indigenous parties engage at their inception. As a result, in negotiation, the capacity their sustainability is frequently for Indigenous leadership and jeopardised by the absence of entrepreneurship is enhanced. measures to ensure that they Recognition, engagement, and can serve as viable entities the development of effective and responsible for land holding proper governance mechanisms and other legal duties. are essential for successful The fragility of NTCs, such as sustainable outcomes, as seen Prescribed Bodies Corporate (PBC), through initiatives such as the results from the conflicting purposes Cape York Caring for Country of the entity created as a legal Program and Traditional Knowledge personality. Designed to ensure Project.52 The effective functioning the perpetual succession of native of Indigenous groups is dependent title — as well as the management on other parties to the negotiations of native title in the market place — supporting the legitimate NTCs have legal duties and cultural governance mechanisms established obligations to members. by those groups.
42 MINERALS COUNCIL OF AUSTRALIA Resourcing more so on a case by case basis, as In accordance with native title, seen in the South West Australia 54 the responsibilities of NTCs are Regional Agreement. transmissible to the next and future Typically in Australia, informal generations. As such, it is critical to frameworks are employed to understand the types of assistance progress negotiations as a common that would be required for a framework does not exist beyond sustainable existence. that which is inherent in the NTA. Few NTCs have the resources for As a result, strategies have been basic administration of their duties developed differently in several and the further development of the negotiations. group’s fortunes. Forty or more A ‘one size fits all’ approach is NTCs and PBCs presently exist, but therefore not tenable for negotiation most are insufficiently resourced to and agreement-making in Australia. attend to their responsibilities. The Even where government policy and membership of these Corporations frameworks in which negotiations is often dispersed across vast occur are common, details vary. regions, making it difficult and Innovation and flexibility are expensive for members to meet. It important elements in negotiations, is a challenge to recruit competent, as New Zealand’s arduous Ngai Tahu skilled staff and service providers, Settlement has taught us.55 even if resources are available. Although the NTA provides for a The adequate resourcing and set of standards for the negotiation capacity-building of representative of native title related issues, no Indigenous bodies is therefore model exists to promote consistency crucial for the effective performance in agreement-making or the of communities in conducting subsequent distribution of benefits. and managing negotiations, and In Canada and New Zealand, representing the aspirations of their established frameworks and models 53 constituents. for processes and claims for the Frameworks and flexibility restitution of land, and governance mechanisms relating to rights Building Indigenous perspectives associated with respective treaties into agreements is essential to are more common. success. Formal frameworks to guide negotiations have been There are several models for the well-developed in Canada and New distribution of benefits used in land Zealand. This model however is less access agreements with Indigenous advanced in Australia and employed parties in Australia, and some are
FROM CONFLICT TO COOPERATION 43 more effective and sustainable can adequately address new and than others. These include cash diverse Indigenous demographic distributions that have in some trends, varied Indigenous and cases created deleterious conditions non-Indigenous approaches to for Traditional Owners and governance and comparative contributed to ongoing poverty. Indigenous disadvantage. 57 An increasingly consistent feature Performance indicators of ILUAs negotiated to secure Developing standard criteria to access for minerals companies is the assess agreements would be establishment of trusts to manage feasible. Given what is known the financial benefits negotiated about the objectives of Indigenous in agreements. Their importance, beyond an example of good practice groups involved in negotiations, the in financial management, lies in their criteria must be accompanied by an potential to strengthen Indigenous analysis of agreements to identify 58 governance and capacity for the common indicators. The design of long-term management of funds for a performance framework should intergenerational prosperity. include consultation with Indigenous groups to ensure relevant values The goal of a ‘final’ settlement is and aspirations are reflected. often unrealistic, and instead an outcome-oriented approach with Some preliminary research has ample time should be made available occurred to establish performance for negotiations. Comprehensive baselines for agreements. 59 A assessments of factors would assist major constraint however, is with identifying opportunities for that many remain confidential, the proactive — rather than the making comparison and analysis historically reactive — provision for difficult. Research has shown future requirements, and appropriate that agreements impact in two and significant collaboration in ways. Provisions can either deliver agreement-making.56 outcomes through implementation, Importantly, incorporating new or they can be developed from the caveats for agreement-making commencement of negotiations.60 processes requires further inquiry. As a result, agreement-making This must be based on careful results are highly variable and consideration of research that introducing indicators would examines relevant socio-economic assist with further collaboration in indicators. Questions remain over the agreement-making and the delivery extent to which government policies of objectives.
44 MINERALS COUNCIL OF AUSTRALIA Thamarrurr Region Shared Responsibility Agreement
A study was undertaken to Central to this evaluative approach evaluate the Thamarrurr region was the need to develop indicators in the Northern Territory where against which the impact of the administrative processes were agreement could be measured. Care established under the Shared was taken to collate data sets from Responsibility Agreement and a range of sources which were then the Northern Territory Stronger correlated against regional cultural Regions Policy. It identified ‘mutually factors. Despite considerable determined social economic and research, the derivation of culturally service delivery outcomes, together appropriate indicators remained with the means to achieve them and problematic. This highlights the assume responsibilities’. 61 need for Indigenous people to be involved in determining key The study’s goals were to be codified performance requirements.62 in a regional plan for evaluation.
Implementing agreements of Indigenous bodies in place. Agreements — especially land access Sustainability agreements and Regional Partnership The increase in agreements has Agreements — can enhance enabling seen concomitant financial and bodies that are already established human resource support directed and functioning well. to negotiations.63 Thus, the value of ‘non-litigated’ outcomes for There are several reasons for Indigenous people has increasingly supporting Indigenous enabling been recognised. Yet, the emphasis to organisations, such as Native date has primarily been on reaching Title Representative Bodies agreement as an end in itself with little (NTRB), regional service provision focus on long-term sustainability.64 corporations, agencies and community councils (for instance, The success of agreements depends the Balkanu Aboriginal Development on the capacity and functionality Corporation, the Torres Strait Regional
FROM CONFLICT TO COOPERATION 45 The Comalco – Western Cape Communities Coexistence Agreement
The Comalco – WCCCA was based Immediately after the WCCCA on a partnership between the was signed, Comalco set up the eleven Traditional Owner groups of trusts, coordinating committee and the region, the four communities secretariat. Trustees were appointed of Napranum, Aurukun, Mapoon by the Traditional Owners using and New Mapoon, the Cape York the selection criteria recommended Land Council and the Queensland by Comalco. It was recognised Government. that younger generations could be better placed to assume roles Registered as an ILUA in 2001, the of responsibility, and overall, agreement comprised: those nominated provided stable • A charitable trust controlled by representation. Success was made in a majority of Traditional Owners the implementation of its initiatives with community, state, CYLC and in employment and training, cultural Comalco representatives as invitees heritage protection and support for local Indigenous businesses. • A $2.5 million Comalco annual contribution and a $1.5 million The agreement’s financial annual Queensland Government benefits were directed into the contribution indexed to mine community trust with most of revenue and the consumer price the funds invested to provide index a sustaining economic base for current and future beneficiaries. • 60 per cent of annual funding The balance remaining was for to the Trust placed in long-term current expenditure for specific secure investments purposes to northern, central and • A $500,000 employment and southern communities. In return, training budget managed by the traditional owners agreed to Comalco for programs endorsed support Comalco’s lease for mining by the Coordinating Committee operations in western Cape York. • A $150,000 Cultural Awareness However, once management of Fund, and allowances for bursary, the agreement was underway, cultural heritage and ranger governance arrangements became a programs. concern. A review of the agreement
46 MINERALS COUNCIL OF AUSTRALIA Authority, and the Cape York Institute for Policy and Leadership). These bodies are often ‘inspired by The Comalco – Western Cape Communities Coexistence Agreement and developed in partnership with elders and traditional culture’, and innovative non-Indigenous figures found that clear communication and organisations.65 The roles of between all parties was needed for Noel Pearson and the Hon. Peter effective delivery. While Comalco Beattie in the establishment of provided support to trustee the highly successful Cape York directors, management of the Partnership are exemplary cases. trusts was under resourced due to It is important to acknowledge inexperience in the secretariat. This organisations in existence, and led to delays in the disbursement of encourage their growth and benefits, inefficient administrative development. practices and poor communication. For the most part however, there Externally, collaboration between is an urgent need throughout Comalco and the secretariat could the Indigenous domain to have been enhanced. It was revealed improve administrative and that Comalco employees had a governance arrangements for general lack of knowledge about the these organisations. In particular, agreement’s details which affected capacity-building programs should awareness in line accountability and be provided to the leadership responsibilities including business and personnel involved. The planning, support for local business development, and administrative implementation of the Comalco capacity. – WCCCA demonstrates that this needs to be addressed as part of The secretariat was unequipped to agreement implementation. provide the guidance advice that was sought and needed by trustees Protection and stakeholders. Appropriately Current governance arrangements skilled staff is fundamental to the for the management of land-related successful operation of all benefit- payments from agreements to receiving trusts. As a broader issue Indigenous parties are inadequate. of importance for agreements in Substantial funds in trusts are general, it is critical independent vulnerable to private agents mentoring, and programs are managing payments on behalf provided to trustees over a period of Indigenous landowners and of time.66 communities. There have been
FROM CONFLICT TO COOPERATION 47 reported instances of individuals As a result of reports about improper diverting proceeds from FAAs for dealings in these funds by private their own benefit. These undesirable agents, the MCA, NNTC and experts outcomes have resulted from poor recommend the Commonwealth governance structures and the lack take steps to regulate the practice probity or failure of government of such persons and commercial agencies to enforce regulations.67 entities. This should include the regulation of private agents, other Another critical contributing factor to than NTRBs and NTSPs, involved in this poor governance environment is negotiating FAAs. the lack of clarity in the NTA. It might be thought that under the Act, the FAAs made under section 31 of the proceeds of native title agreements NTA are not required to be reported would belong to the native title and there is little transparency. To holding (claiming) community and protect agreements from poor that the named applicant(s) are management, the MCA and NNTC in a fiduciary relationship with the recommend a process for the authorising community. Although registration of these agreements be this intuitive position is supported legislated. Furthermore, a statutory by recent case law68, it is by no trust should be established to hold means beyond doubt. native title agreement funds in situations where there are no NTC These two key areas that demand or PBC entities to receive them. This reform to protect native title would provide native title holders beneficiaries from unconscionable with an alternative to private behaviour of private agents. The agents.69 MCA, the NNTC and experts recommend amending the NTA and Transparency relevant regulations to clarify that a Little is known about the details of fiduciary relationship exists between commercial contracts due to the a native title applicant and the commercially sensitive nature and broader group of native title holders. confidentiality of arrangements. My own research has been able to While the NTA contemplates that identify and publish only 15 full or claimants will be represented partial texts of agreements out of a by NTRBs or Native Title Service total of 930 recorded on database.70 Providers (NTSP), section 84B allows the possibility for private agents The content of agreements should to provide these representational be made publicly available for services without appropriate the evaluation of the outcomes regulatory mechanisms in place. of agreement-making over time.
48 MINERALS COUNCIL OF AUSTRALIA Given the economic value of these and to involve Indigenous agreements in the Indigenous communities in these processes.71 domain, the measurement of their It is equally important that such financial and economic impacts evaluation processes themselves is an ever more pressing concern are transparent and involve with increasing complaints that governments and their agencies Indigenous people are missing where relevant. 72 out on the benefits of economic While agreements should be made opportunities. with specific reference to the This is a high-priority matter that circumstances in which they are has long been discussed amongst developed, it is important that a experts and is long overdue. It will broader understanding of legal, be critical to implement measures commercial and financial models is to encourage transparency without developed. This would ensure that limiting the potential of the free parties entering into negotiations market, and protect rights to are able to determine which model negotiate specific terms on an might best be suited to their agreement by agreement basis. particular circumstance. Although private contracts are discrete, they are not necessarily unregulated. Depending upon the type of contract in place, the agreement may be subject to general statutory conditions for behaviour (for example, precluding unconscionable conduct or fair trading principles which provide a safety net). Furthermore, common law provides redress for issues such as misrepresentation and fraud. However, NTCs, PBCs and associated Corporations will find it impossible to pursue matters through the courts for legal enforcement because of time and cost prohibitions. There is an urgent need to rigorously evaluate and monitor the implementation of agreements
FROM CONFLICT TO COOPERATION 49
SECTION 05
Post agreements: removing obstacles to economic participation Source:52 MINERALS Newmont COUNCIL Asia Pacific OF AUSTRALIA SECTION 5
Post agreements: removing obstacles to economic participation
There is an urgent need for policy reform to enable Indigenous peoples to leverage the native title benefit payments to trusts to increase their capital for economic enterprises.
The ability for Indigenous for the governance, management communities to benefit further and distribution of native title from activity in the minerals sector trust revenues. This would not only depends to a large extent on the assist with improving governance willingness of governments to reform arrangements for the relevant policies, especially in relation to the bodies, but also improve access to efficiency of the native title system. funding for economic development. Significant priorities for native title The introduction of a new approach arrangements and trusts are: to dealing with native title bodies and their charitable status under • The creation of appropriate the Charities Act 2013 (Cth) was vehicles to allow Indigenous a significant step forward to communities to maximise the empowering economic development economic development potential and sustainability.73 It ensures that of revenues derived from project trusts or entities for native title approvals and native title holders, claimants or Traditional future acts Owners by common descent or • The need for regulatory change kinship are not denied charitable to ensure that native title future status. Even so, more needs to act revenues are made available be done to increase pathways for to the relevant native title holding economic participation. community and not diverted or As discussed in the previous chapter, appropriated by a negotiation further legislative reform and agent or individual members of policy arrangements are required the native title holding community.
FROM CONFLICT TO COOPERATION 53 By translating the recognition of native title into tangible economic and social benefits for communities, native title groups have achieved high levels of economic participation and wealth creation. Even so, the situation for most Indigenous parties involved in agreements is that the land- related payments are trapped The immediate in the charity and not-for-profit and future business (NFP) sector by legal limitations on case for the ICDC directly releasing these funds for commercial activities. structure to better These charitable trusts have a mixed generate economic record as vehicles for Indigenous participation economic development. This is particularly the case for the for Indigenous immense opportunities that mining communities is projects can offer for enterprise significant. development in contracting and ancillary service provision. The legal definition of ‘charitable purposes’ is the primary limitation to the ways in which funding can be invested. This can pose difficulty for native title arrangements to participate in initiatives of a commercial nature and many community development and capacity building programs. Removing the obstacles to economic participation and business development opportunities for Indigenous communities is a high priority. To this end, the NNTC and MCA propose a new governance model — ICDC model — for trusts or similar entities established to manage land-related payments.
54 MINERALS COUNCIL OF AUSTRALIA A smoking ceremony at a mine site. Source: Newmont Asia Pacific
The Indigenous Community Development Corporation proposal The ICDC proposal is a new business case for the ICDC structure approach to corporations for land- to better generate economic related payments for native title participation for Indigenous holders. It encourages cooperative communities is significant. approaches in which holders of land-related payments can co-invest The ICDC model proposed would with governments and the private not only be income tax exempt sector in regional development and deemed NFP, it would also projects. The immediate and future hold Deductible Gift Recipient
FROM CONFLICT TO COOPERATION 55 status. The model would enable education, wealth creation, NTCs to access revenues to invest asset accumulation and directly in community programs, intergenerational wellbeing. business enterprise development, Secondly, it would be able to and commercially sound initiatives facilitate the accumulation of over a long period of time. The payments towards a ‘future fund’ ICDC model would be subject to of private monies derived by an robust governance standards, and Indigenous community from native accountable both to the Indigenous title agreements or other sources, community it serves and the which could then be applied for regulator. the community’s benefit in the The intention of the proposal for longer term (unlike charitable an ICDC structure is twofold. Firstly, trusts which are capped at 10 to Indigenous communities could use 20 year timeframes). Through the an ICDC to provide financial support application of prudential standards, for a wider range of community or ICDC funding could be invested in economic development activities sub-trusts to develop sustainable than is possible under the existing income streams for both immediate charitable trust framework. The community needs and future ICDC could enrich local Indigenous generations. Its tax-exempt status communities by contributing to would maximise the funds available business and social ventures that for economic development. can create flow-on socio-economic Improved governance is crucial if opportunities, particularly in full benefits are to be derived from job creation. any new entity that may be used This measure, if adopted by by Indigenous communities for government and legislated, would overseeing land-related payments. contribute substantially to the Before it could be implemented, new policy drive for measures further development of the ICDC to accelerate the transition of concept is needed in consultation thousands of Indigenous people with Indigenous communities, from welfare dependency to full government agencies and experts to economic participation, thereby develop the structure in detail. raising the low socio-economic To ensure its successful delivery, the status of Indigenous people following must be established in line and enabling them to enjoy with recommendations made by the opportunities available to the Native Title Tax Working other Australians in employment, Group covering:
56 MINERALS COUNCIL OF AUSTRALIA • The legislative framework that would establish and broadly govern the ICDC model • Governance arrangements that would apply to ICDCs • Regulatory requirements and the mix of bodies working with of ICDCs, including:
– Procedural matters, such as registration requirements
– How existing entities would need to modify their set-up to qualify as an ICDC
– Transition arrangements, including for existing charitable entities managing land-related payments and other income that wish to move to the ICDC model.74
FROM CONFLICT TO COOPERATION 57
SECTION 06
Conclusion Bryce Rory commenced work with McArthur River Mine, near Borroloola in the Northern Territory, in 2014 as a school-based apprentice. Bryce is now apprenticed to the mine as a diesel fitter.
60 MINERALS COUNCIL OF AUSTRALIA Source: Glencore SECTION 6
Conclusion
Engagement between the minerals industry and Aboriginal people has advanced radically since the inception of agreement- making in the 1970s, and the NTA in the early 1990s.
This has been driven both by Indigenous people are seeking the economic opportunities for employment opportunities, but Indigenous peoples presented by the Indigenous and many NGOs legislative reform, and a shift in that represent their interests have the way in which the minerals not usually developed a regional industry engages. approach to securing industry-wide Despite sustained improvements outcomes. The regional variation in economic participation for in Indigenous employment rates in Indigenous communities, high the minerals and energy industries levels of disadvantage (even among ranges markedly from zero across those located near mining projects) most of the continent, to more than remain a troubling concern. Given fifty per cent in the Pilbara region. the unprecedented prospects These differences demonstrate offered by the minerals industry to there is great scope for continued remote and regional Indigenous growth and progression in people, it is vital to understand Indigenous employment. enduring constraints on Indigenous Various government and non- economic participation and the government programs have resulting impacts on ‘poverty in the addressed to some extent the midst of plenty’. persistent problems of Indigenous While research has forecast a under-employment and poverty. strong demand for employment However, the research community, in some areas, more change is government, and agencies have yet required to take advantage of to identify the size and characteristics opportunities available. Many of the Indigenous workforce in the
FROM CONFLICT TO COOPERATION 61 minerals industry with any precision. population underpins the need Ascertaining the exact outcomes to develop strategies to increase for Indigenous people from their Indigenous participation in the agreements and other forms of workforce, especially for younger engagement with industry remains cohorts entering the workforce in difficult, even though a growing body the coming years. of research points to encouraging The pace of growth in Indigenous developments. Understanding these economic participation is too slow developments would assist with: to benefit the next generation of • Informing decision-making for the school leavers. Younger people most effective outcomes for local far outnumber Indigenous people communities affected throughout in older age-cohorts and, in the life of a mining project some geographic areas, lack the (including the management of capacity to join the workforce in impacts) sufficient numbers to avoid the low socio-economic status that has • Identifying the most effective characterised Indigenous Australia strategies for engaging local throughout Australian history. Indigenous people in employment Governments, the private sector and • Measuring and reporting NGOs collectively recognise that outcomes rigorously such as efforts should be focused on the recruitment and retention school-age population. It is critical • Engaging agencies to identify the that the next generation’s education contributions needed to achieve and employability is elevated as far better outcomes as reasonably possible to avoid a widening of disadvantage gaps. • Developing relationships between local communities and mining Without effective strategies for operations. employment pathways, there is a danger that perpetual welfare The population profile of, and dependency will remain a part demographic change in, the of the Indigenous population, Indigenous Australian population particularly in remote regions. As counters the global trend of a result, government and non- structural ageing present in government parties alike should the non-Indigenous Australian refocus their attention on education population and other OECD nations. participation and employment The very high proportion of youth pathways based on population and children in the Indigenous profiling for optimal outcomes.
62 MINERALS COUNCIL OF AUSTRALIA Consequently, further reform must now take place to enhance immediate Indigenous economic participation and secure long-term growth. Improving governance arrangements for negotiations and agreement-making, the management of land-related payments and a more contemporary approach to trusts would unlock the potential for greater Indigenous economic empowerment. Reform in these areas could deliver programs to ensure young Indigenous Australians are able to take up employment and business opportunities. It would equip Native Title Corporations (NTCs) with the tools to properly negotiate economic agreements with minerals and other companies. Finally, it would enable structures such as the ICDC to be introduced and better enable intergenerational transfer of improved financial status and enable transition from a charity focus to one of economic development.
FROM CONFLICT TO COOPERATION 63
Endnotes
1 See Hunter B, Howlett M and Gray M (2014), The Economic Impact of the Mining Boom on Indigenous and Non-Indigenous Australians, CAEPR Working Paper No 93/2014, Centre for Economic Policy Research (Australian National University, Canberra): ‘In remote mining areas, 9 per cent of Indigenous employment in 2011 was directly in the mining industry, which is substantially lower than the 22 per cent of non-Indigenous employment in the same areas. In non-remote mining areas, 9 per cent of Indigenous employment, and 13 per cent of non-Indigenous employment, was in mining. In non-mining areas, Indigenous and non-Indigenous employment in the mining industry was only 1 to 2 per cent, and was likely to be in head offices or small-scale mines, or include FIFO workers who travel to mining areas to work. In remote areas, the overall Indigenous employment rate in mining areas was 4 per cent higher than in non-mining areas (43 per cent compared with 39 per cent), and the rate of full-time employment was 5 per cent higher. In non-remote areas, there was an even more marked difference, with 55 per cent of Indigenous people in employment (compared with 48 per cent in non-mining areas) and a 7 per cent higher full-time employment rate in mining areas’ (p7 – 8). The authors used ABS statistics from the 2006 and 2011 Censuses. Note that the CDEP was replaced by a new ‘reformed’ scheme entitled the Remote Jobs and Communities Program in 2012 – 2013. 2 The CDEP was reformed in 2012-2013 by the Commonwealth Government and is now titled the Remote Jobs and Communities Program. 3 See section 31 of the Native Title Act 1993 (Cth). 4 See the ATNS website http://atns.net.au, funded by the Australian Research Council and Industry Partners. With its searchable database of agreements with Indigenous people, it serves a global community of Indigenous people, lawyers, researchers and market analysts. The Agreements, Treaties and Negotiated Settlements database (ATNS)
FROM CONFLICT TO COOPERATION 65 is an online gateway to a wealth of information relating to agreements between indigenous people and others in Australia and overseas. The database offers a range of features including background information on each agreement; links to related agreements, organisations, signatories and events; a glossary of relevant terminology as well as direct access to published and on-line resources. 5 These include consent determinations and Indigenous Land Use Agreements involving issues of native title (see the National Native Title Tribunal website http://www.nntt.gov.au). 6 For example, see the Argyle Diamond Mine Participation Agreement: Management Plan Agreement. 7 For example, see the Yorta Yorta Co-operative Management Agreement. 8 Minerals Council of Australia (2006), Minerals Council of Australia 2007– 2008 Pre-budget Submission (Minerals Council of Australia, Canberra). 9 Commonwealth of Australia (2014), The Forrest Review: Creating Parity (Department of Prime Minister and Cabinet, Canberra) p185. 10 Ibid p174. 11 Gray M, Hunter B and Howlett M (2013), ‘Indigenous Employment: A Story of Continuing Growth’, CAEPR Topical Issue No 2/2013, Centre for Aboriginal Economic Policy Research (Australian National University, Canberra). 12 See especially the following: Hunter B, Howlett M and Gray M (2014), The Economic Impact of the Mining Boom on Indigenous And Non- Indigenous Australians, CAEPR Working Paper No 93/2014, Centre for Economic Policy Research (Australian National University, Canberra); Gray M, Hunter B and Lohoar S 2012, Increasing Indigenous Employment Rates, Issues Paper No 3, Closing the Gap Clearinghouse (Australian Institute of Health and Welfare, Canberra); Gray M, Hunter B and Howlett M (2013), Indigenous Employment: A Story of Continuing Growth, CAEPR Topical Issue No 2/2013 (NATSIS 1994 and 2008); Hunter B and Gray M (2013), ‘Workplace Agreements and Indigenous- Friendly Workplaces’, Indigenous Law Bulletin, Vol 8, Issue 8 p 7–13. 13 Gray M, Hunter B and Howlett M (2013), Indigenous Employment: A Story of Continuing Growth, CAEPR Topical Issue No 2/2013 (NATSIS 1994 and 2008) p8.
66 MINERALS COUNCIL OF AUSTRALIA 14 Ibid p7– 8. 15 Ibid p7– 8. 16 Vidler P (2007), Indigenous Employment and Business Development in the Queensland Resources Sector: Report to the Queensland Resources Council June 2007, Centre for Social Responsibility in Mining (The University of Queensland, Brisbane) pvii. 17 Commonwealth of Australia (2014), The Forrest Review: Creating Parity (Department of Prime Minister and Cabinet, Canberra) p47. 18 Ibid. 19 Ibid. 20 See Langton M (2013), The Quiet Revolution: The 2012 Boyer Lectures (HarperCollins, Sydney). 21 See Minerals Council of Australia (2005) Enduring Value: The Australian Minerals Industry Framework for Sustainable Development, Guidance for Implementation (MCA, Canberra): ‘Simply defined the ‘social licence to operate’ is an unwritten social contract. Unless a company earns that licence, and maintains it on the basis of good performance on the ground, and community trust, there will undoubtedly be negative implications. Communities may seek to block project developments; employees may choose to work for a company that is a better corporate citizen; and projects may be subject to ongoing legal challenge, even after regulatory permits have been obtained, potentially halting project development. The Australian minerals industry strongly supports the role of a ‘social licence to operate’ as a complement to a regulatory licence issued by government. To the minerals industry ‘social licence to operate’ is about operating in a manner that is attuned to community expectations and which acknowledges that businesses have a shared responsibility with government, and more broadly society, to help facilitate the development of strong and sustainable communities’ (p2). 22 Ibid. 23 Australian Government (2007), Leading Practice Sustainable Development Program for the Mining Industry: Working with Indigenous Communities (Department of Industry, Tourism and Resources).
FROM CONFLICT TO COOPERATION 67 24 Langton M and Webster A (2012), ‘The “Right to Negotiate”, the Resources Industry Agreements and the Native Title Act’ in Bauman T and Glick L (eds) The Limits of Change: Mabo and Native Title 20 Years On (AIATSIS - Aboriginal Studies Press, Canberra) p269 – 288. 25 See interactive and searchable database of the Agreements, Treaties and Negotiated Settlements website http://www.atns.net.au 26 Langton M and Palmer L (2003) ‘Modern Agreement-Making and Indigenous People in Australia: Issues and Trends’, Australian Indigenous Law Reporter, Vol 8, No 1, p1 – 31; Langton M, Tehan M, Palmer L and Shain K (eds) (2004), ‘Introduction’, Honour Among Nations: Treaties and Agreements with Indigenous Peoples (Melbourne University Publishing, Carlton); Blowes R and Trigger D (1999), ‘Negotiating the Century Mine Agreements: Issues of Law, Culture and Politics’ in Edmunds (ed) Regional Agreements in Australia, Vol 2 Case Studies, Native Title Research Unit (Australian Institute for Aboriginal and Torres Strait Islander Studies, Canberra). 27 See Langton M (2013), The Quiet Revolution: The 2012 Boyer Lectures (HarperCollins, Sydney); Langton M and J Longbottom (eds) (2012) Community Futures, Legal Architecture: Foundations for Indigenous Peoples in the Global Mining Boom (Routledge, UK). 28 See Langton M and Longbottom J (eds) (2012), Community Futures, Legal Architecture: Foundations for Indigenous Peoples in the Global Mining Boom, (Routledge, UK); Godden LC, Langton M, Mazel O and Tehan M (eds) (2008), ‘Special Issue: Indigenous and Local Peoples and Resource Development: International Comparisons of Law, Policy and Practice’, Journal of Energy and Natural Resources Law, Vol 26, No 1; Langton M and Palmer L (2003), ‘Modern Agreement-Making and Indigenous People in Australia: Issues and Trends’, Australian Indigenous Law Reporter, Vol 8, No 1, p1– 31; Langton M, Tehan M, Palmer L and Shain K (eds) (2004), ‘Introduction’, Honour Among Nations: Treaties and Agreements with Indigenous Peoples (Melbourne University Publishing, Carlton). 29 See end note 26. 30 Langton M and Webster A (2012), ‘The “Right to Negotiate”, the Resources Industry Agreements and the Native Title Act’ in Bauman T and Glicks L (eds) The Limits of Change: Mabo and Native Title 20 Years On (AIATSIS - Aboriginal Studies Press, Canberra) p269 – 288.
68 MINERALS COUNCIL OF AUSTRALIA 31 Other terms and conditions of agreements often include: cultural heritage protection; environmental protection; economic and business development, including contracting provisions for Indigenous companies; employment and training; education and community development; responsible management and distribution of financial benefits; capacity building and leadership training; implementation of the agreement; leveraging the benefits of agreements to attract and secure public and private funding and investment in affected communities. 32 Corporate social responsibility is defined by the World Business Council of Sustainable Development as: ‘The continuing commitment by business to behave ethically and contribute to economic development while improving the quality of life of the workforce and their families as well as of the local community and society at large’ [WBCSD (2000), Corporate Social Responsibility: Making Good Business Sense, World Business Council for Sustainable Development (Geneva, Switzerland) p9]. 33 Ibid. 34 Charlie Lenegan, Managing Director, Rio Tinto (2005), The Minerals Sector and Indigenous Relations, paper presented at the Resourcing and Innovative Industry, Minerals Week 2005, 30 May – 3 June 2005, Hyatt Hotel and Parliament House, Canberra, ACT, Australia. 35 O’Faircheallaigh C (2000), Negotiating Major Project Agreements: The Cape York Model Discussion Paper No 11 (Australian Institute for Aboriginal and Torres Strait Islander Studies, Canberra); O’Faircheallaigh C (2002), ‘Implementation: The Forgotten Dimension of Agreement-Making in Australia and Canada’, Indigenous Law Bulletin, Vol 5, No 20, p14 –17. 36 O’Faircheallaigh C (2002), A New Approach to Policy Evaluation: Mining and Indigenous People (England: Ashgate Publishing Limited, UK) p151. 37 O’Faircheallaigh C (2004) ‘Evaluating Agreements Between Indigenous People and Resource Developers’ in Langton M et al (eds) (2004) Honour among Nations: Treaties and Agreements with Indigenous Peoples (Melbourne University Publishing, Carlton). 38 The numbers, breadth of agreement types and subject matters of agreements made with Indigenous people is demonstrated by the data
FROM CONFLICT TO COOPERATION 69 held in the Agreements, Treaties and Negotiated Settlements (ATNS) database http://www.atns.net.au/ 39 Doohan K, Langton M and Mazel O, ‘From Paternalism to Partnership: The Good Neighbour Agreement and the Argyle Diamond Mine Indigenous Land Use Agreement in Western Australia’, in Langton M and Longbottom J (eds) (2012) Community Futures, Legal Architecture: Foundations for Indigenous Peoples in the Global Mining Boom (Routledge, Oxford) p231 – 250. 40 Langton M and Palmer L (2003) ‘Modern Agreement-Making and Indigenous People in Australia: Issues and Trends’, Australian Indigenous Law Reporter, Vol 8, No 1, p1 – 31; Langton M, Tehan M, Palmer L and Shain K (eds) (2004), ‘Introduction’, Honour Among Nations: Treaties and Agreements with Indigenous Peoples (Melbourne University Publishing, Carlton). 41 Native Title Corporations have a range of functions as explained at http://www.nativetitle.org.au 42 ‘The resource curse’ and ‘the paradox of plenty’ refer to the social and economic phenomenon in which many countries rich in natural resources have had poor economic growth, conflict and declining standards of democracy. See: Auty R (1993), Sustaining Development in Mineral Economies: The Resource Curse Thesis (Routledge, London); Stiglitz J (2006), Making Globalization Work (WW Norton & Company, New York); Sen A (1999), Development as Freedom (Oxford University Press, Oxford); Nussbaum M and Sen A (1993), The Quality Of Life (Oxford University Press, Oxford); Mehlum H, Moene K and Torvik R (2006), ‘Institutions and the Resource Curse’, The Economic Journal, Vol 116, p1 – 20; Collier P (2007), The Bottom Billion: Why the Poorest Countries are Failing and What Can be Done About It (Oxford University Press, Oxford); O’Faircheallaigh C (1988), ‘Resource Development and Inequality in Indigenous Societies’, World Development, Vol 26, No 3, p381 – 394. 43 O'Faircheallaigh C (2004), ‘Evaluating Agreements Between Indigenous People and Resource Developers’ in Langton M et al (eds) (2004) Honour Among Nations: Treaties and Agreements with Indigenous People (Melbourne University Press, Carlton) p304. 44 Langton M and Palmer L (2004), ‘Treaties, Agreement-Making and the
70 MINERALS COUNCIL OF AUSTRALIA Recognition of Indigenous Customary Polities’ in Langton et al (eds) Honour Among Nations (Melbourne University Press, Carlton) p34 – 49. 45 Mantziaris and Martin describe the role of NTA legislation as: ‘The NTA establishes a framework for the holding and management of native title. It requires the use of corporations that stand in a relationship of ‘trust’ or ‘agency’ to the members of the native title group. The trust or agency relationship is statutory in character. Delegated legislation made under the NTA specifies the characteristics and functions of native title corporations and lays down procedures to be followed by the corporation in decisions relating to native title matters. The corporate trustee and agency device allows non-native title interests dealing with the group to channel their transactions through a single legal person with perpetual succession. This is intended to avoid the problem of fixing obligations on the ever-fluctuating membership of a group of natural persons lacking legal personality’ [Mantziaris C and Martin D (2000), Native Title Corporations: A Legal and Anthropological Analysis (Federation Press, New South Wales) p90]. 46 O’Regan T, Palmer L and Langton M (2006), ‘Keeping the Fires Burning: Grievance and Aspiration in the Ngā i Tahu Settlement’ in Langton et al (eds) Settling with Indigenous People: Modern Treaty and Agreement- Making (Federation Press, Sydney) p44 – 65. 47 Palmer L and Tehan M (2006), ‘From Remnant Lands to Sustainable Communities: Negotiating Spaces for Indigenous Land and Jurisdiction in Darwin and Vancouver’ in Langton et al (eds) Settling with Indigenous People: Modern Treaty and Agreement-Making (Federation Press, Sydney) p231–256. 48 Palmer L and Tehan M (2006), ‘Anchored to the Land’: Asserting and Recognising Aboriginal Jurisdiction in the Northwest Territories in Langton et al (eds) Settling with Indigenous People: Modern Treaty and Agreement-Making (Federation Press, Sydney) p66 – 94. 49 Mazel O (2006), ‘Returning Parna Wiru: Restitution of the Maralinga Lands to Traditional Owners in South Australia’ in Langton et al (eds) Settling with Indigenous people: Modern Treaty and Agreement-Making (Federation Press, Sydney) p159 – 181. 50 The NNTC and Melbourne Business School have collaborated with
FROM CONFLICT TO COOPERATION 71 Indigenous Business Australia, the MCA and other sponsors to convene the Native Title Master Class program to deliver entrepreneurship, management and leadership modules to native title sector emerging leaders. The Aurora Program has delivered training and scholarships in this field. The Australian Indigenous Leadership Centre delivers certificate level leadership training. 51 IDEX Online (2007), ‘Diavik Completes Second Aboriginal Leadership Program’, IDEX, 30 January 2007. 52 See the Balkanu Aboriginal Development Corporation Caring for Country Business Unit. 53 Ivanitz M (1997), The Emperor has No Clothes: Canadian Comprehensive Claims and their Relevance to Australia, Native Title Research Unit Discussion Papers, Regional Agreements No 4, Native Title Research Unit (Australian Institute of Aboriginal and Torres Strait Islander Studies, Canberra). 54 Bradfield S (2004), Agreeing to Terms: What is a “Comprehensive” Agreement? Issues paper Vol 2, No 26, Native Title Research Unit (Australian Institute of Aboriginal and Torres Strait Islander Studies, Canberra) p1–16; Palmer L and Tehan M (2006), ‘From Remnant Lands to Sustainable Communities: Negotiating Spaces for Indigenous Land and Jurisdiction in Darwin and Vancouver’ in Langton et al (eds), Settling with Indigenous People: Modern Treaty and Agreement- Making (Federation Press, Sydney) p231–256; Palmer L and Tehan M (2006), ‘Anchored to the Land’: Asserting and Recognising Aboriginal Jurisdiction in the Northwest Territories in Langton et al (eds) Settling with Indigenous People: Modern Treaty and Agreement-Making (Federation Press, Sydney) p66 – 94. 55 O’Regan T, Palmer L and Langton M (2006), ‘Keeping the Fires Burning: Grievance and Aspiration in the Ngā i Tahu Settlement’ in Langton et al (eds) Settling with Indigenous People: Modern Treaty and Agreement- Making (Federation Press, Sydney) p44 – 65. 56 O’Faircheallaigh C (2004), ‘Evaluating Agreements Between Indigenous People and Resource Developers’ in Langton et al (eds) Honour Among Nations: Treaties and Agreements with Indigenous People (Melbourne University Press, Carlton) p303 – 328. 57 Taylor J (2006), Population and Diversity: Policy Implications of Emerging
72 MINERALS COUNCIL OF AUSTRALIA Indigenous Demographic Trends, CAEPR Discussion Paper No 283, Centre for Aboriginal Economic Policy Research (Australian National University, Canberra); Taylor J (2006), Indigenous Peoples and Indicators of Well-Being: An Australian Perspective on UNPFII Global Frameworks, CAEPR Working Paper No 33, Centre for Aboriginal Economic Policy Research (Australian National University, Canberra). 58 O’Faircheallaigh C (2004), ‘Evaluating Agreements Between Indigenous People and Resource Developers’ in Langton et al (eds) Honour Among Nations: Treaties and Agreements with Indigenous People (Melbourne University Press, Carlton) p326. 59 O’Faircheallaigh C (2002), ‘Implementation: The Forgotten Dimension of Agreement-making in Australia and Canada’, Indigenous Law Bulletin, Vol 5, No 20, p14 –17; O’Faircheallaigh C (2003), Negotiating a Better Deal for Indigenous Land Owners: Combining ‘Research’ and ‘Community Service, Research Paper No 11, School of Politics and Public Policy (Griffith University, Queensland); O’Faircheallaigh C (2003), Implementing Agreements between Indigenous Peoples and Resource Developers in Australia and Canada, Research Paper No 13, School of Politics and Public Policy (Griffith University, Queensland); O’Faircheallaigh C (2003), Financial Models for Agreements Between Indigenous Peoples and Mining Companies, Research Paper No 12, Aboriginal Politics and Public Sector Management, (Griffith University, Queensland). 60 O’Faircheallaigh C (2004), ‘Evaluating Agreements Between Indigenous People and Resource Developers’ in Langton et al (eds) Honour Among Nations: Treaties and Agreements with Indigenous People (Melbourne University Press, Carlton) p306. 61 Taylor J (2004), Social Indicators for Aboriginal Governance: Insights from the Thamarrurr Region, Northern Territory, CAEPR Research Monograph No 24 (ANU E Press, Canberra) p2. 62 Ibid. 63 M Langton O Mazel, L Palmer, K Shain and M Tehan (eds) (2006), Settling with Indigenous People: Modern Treaty and Agreement-Making (Federation Press, Sydney); Blowes R and Trigger D, ‘Negotiating the Century Mine Agreements: Issues of Law, Culture and Politics’ in Edmunds M (ed) (1999) Regional Agreements in Australia, Vol 2 Case Studies, Native Title Research Unit (Australian Institute for Aboriginal and Torres Strait Islander Studies, Canberra).
FROM CONFLICT TO COOPERATION 73 64 Sustainability is defined here as the capacity of agreements to endure over time and continue to meet the economic, environmental and social objectives and goals of the parties involved. 65 Botsman P (2007), Polity, Capability, Culture: Thinking Through the Next Phase of Australian Indigenous Affairs (Peter Botsman’s Working Papers, Barrengarry). 66 Crooke P, Harvey B and Langton M (2006), ‘Implementing and Monitoring Indigenous Land Use Agreements in the Minerals Industry: The Western Cape Communities Co-Existence Agreement’, in Langton et al (eds) Settling with Indigenous People: Modern Treaty and Agreement-Making, (Federation Press, Sydney) p95 – 114. 67 Australian Government (2013), Taxation of Native Title and Traditional Owner Benefits and Governance Working Group, Report to Government, (Treasury, Canberra). 68 Weribone on behalf of the Mandandanji People v State of Queensland (No 2) (23 May 2013) [2013] FCA 485 at [50]. 69 Australian Government (2013), Taxation of Native Title and Traditional Owner Benefits and Governance Working Group, Report to Government, (Treasury, Canberra). 70 See the Agreements, Treaties and Negotiated Settlements (ATNS) database http://www.atns.net.au/ 71 The Aboriginal and Torres Strait Islander Social Justice Commissioner notes: ‘The absence of consistent and comparable data is problematic as it can result in inefficiencies, duplication and a lack of accountability’ [Calma T (2005), Social Justice Report 2005 (Australian Human Rights Commission, Canberra). 72 Australian Government (2006), Evaluation Plan for Whole-of- Government Activities in Indigenous Affairs 2006-09 (Office of Indigenous Policy Coordination, Canberra). 73 See the definition of ‘sustainability’ above. 74 Australian Government (2013), Taxation of Native Title and Traditional Owner Benefits and Governance Working Group, Report to Government, (Treasury, Canberra).
74 MINERALS COUNCIL OF AUSTRALIA FROM CONFLICT TO COOPERATION 75
Acronyms
ABS Australian Bureau of Statistics ALRA Aboriginal Land Rights (Northern Territory) Act 1979 ANU Australian National University DGR Deductible Gift Recipient ICDC Indigenous Community Development Corporation ILUA Indigenous Land Use Agreement IPAA Indigenous Protected Area Agreement FIFO Fly-in Fly-out MCA Minerals Council of Australia NFP Not-for-Profit MoU Memorandum of Understanding NNTC National Native Title Council NNTT National Native Title Tribunal NTA Native Title Act 1993 (Cth) NTC Native Title Corporation NTRB Native Title Representative Body NTSP Native Title Service Provider PBC Prescribed Bodies Corporate RNTBC Registered Native Title Bodies Corporate RTN Right to Negotiate SRA Shared Responsibility Agreement WCCCA Western Cape Communities Coexistence Agreement
FROM CONFLICT TO COOPERATION 77
From Conflict to Cooperation Transformations and challenges in the engagement between the Australian minerals industry and Australian Indigenous peoples
PROF. MARCIA LANGTON
The past two decades have witnessed a profound shift in the relationship between the minerals industry and Indigenous Australians. Through employment, education and training, business development and the negotiation of agreements, the minerals industry is delivering tangible economic benefit to remote and regional communities. This in turn has substantively contributed to ‘closing the gap’. Prof. Langton draws on her extensive experience in Indigenous economic development, native title and mining land access agreements to identify the policy reforms needed to build on this transformation. Prof. Langton highlights the imperative for greater government investment in education and training for Indigenous youth, reformed governance arrangements for agreement making and a more contemporary approach to the management of funds held in trusts to unlock the potential for greater Indigenous economic empowerment.
MINERALS COUNCIL OF AUSTRALIA Level 3, 44 Sydney Ave, Forrest ACT 2603 PO Box 4497, Kingston ACT Australia 2604 P. + 61 2 6233 0600 | F. + 61 2 6233 0699 w. www.minerals.org.au | E. [email protected]