Indigenous mgmt & mining -

Indigenous Participationin Environmental Managementof Mining Projects: The Roleof Negotiated Agreements

CIARAN O’FAIRCHEALLAIGH & TONY CORBETTDepartment of Politics and Public Policy, Griffith University, Brisbane, Australia

ABSTRACT The principle that indigenous people should participate in the environmentalmanagement of resource projects on their traditional lands is increasingly recognised byinternational law and institutions. Negotiation of agreements between indigenous groupsand resource developers represents one way in which that principle can be given effect.However, virtually nothing is known about the environmental provisions of negotiatedagreements or their efficacy in enhancing indigenous participation. This article examinesenvironmental provisions of agreements involving Aboriginal landowners and miningcompanies in Australia. It concludes that while agreements certainly have the potential toenhance Aboriginal participation in environmental management, a majority do not havethis effect, reflecting the weak negotiating position of many Aboriginal peoples in theirdealings with mining companies.

Introduction

Until the late 20th century indigenous peoples were excluded from anysignificant role in environmental management of resource development on theirtraditional lands (Prokhorov, 1989; Albert, 1992; Borrows, 1997; Wilson, 2002;Caruso et al., 2003). In recent decades indigenous peoples have fought hard toestablish such a role, on the basis that it is critical in allowing them to fulfil theircustodial obligations to protect their traditional lands and so their identities,cultures and societies; and on the basis that protection of their traditional estatecannot be safely entrusted to governments or corporations (Banks & Ballard,1997; Borrows, 1997; Harper & Israel, 1999; Akpan, 2000; Weitzner, 2002).The right of indigenous people to be involved in environmental management

of projects that affect them has won increasing recognition in international

Correspondence Address: Ciaran O’Faircheallaigh, Department of Politics and Public Policy,

Griffith University, Nathan, Queensland 4111, Australia. Tel.: 61 7 38757736; Fax: 61 7 38755363;

Email: [email protected]

Environmental Politics,Vol. 14, No. 5, 629 – 647, November 2005

ISSN 0964-4016 Print/1744-8934 Online/05/050629–19 � 2005 Taylor & Francis

DOI: 10.1080/09644010500257912

conventions and in the policies of international institutions. For example theInternational Labour Office’s ILO Convention 169 Concerning Indigenous andTribal Peoples in Independent Countries (1991) states that indigenous peopleshave the right ‘to participate in the use, management and conservation’ ofnatural resources on their traditional lands, and that governments mustestablish procedures to consult them before allowing exploitation of suchresources (Article 15). The United Nations Draft Declaration on the Rights ofIndigenous Peoples (1993) recognises the rights of indigenous peoples to ‘theirlands, territories and resources’, the contribution indigenous knowledge canmake to proper management of the environment and the right of indigenouspeople to ‘control the total environment of the lands . . . which they havetraditionally owned or otherwise occupied’ and ‘to determine and developpriorities and strategies for the development or use of their lands’ (Preamble,Articles 26, 30). The World Bank requires that projects it helps to finance mustdevise and maintain mechanisms ‘for participation by indigenous people indecision-making throughout project planning, implementation and evalua-tion’, and must have development plans that give ‘full consideration to theoptions preferred by the Indigenous people affected by the project’ (WorldBank Operational Directive OD 4.20 (1991), Articles 14(a), 15(d)). Morebroadly, the Bank recognises that effective environmental management can-not be achieved without substantial input from civil society, includingindigenous peoples (Davy, 1998; see also World Commission on Environmentand Development, 1987).However, while the need for indigenous participation is widely recognised in

theory, practice falls far behind principle. To the extent that indigenous peopledo participate in environmental management, this is often the result of conflictthat results from an initial failure to involve them. Indigenous communitiesmust often take direct action in the form of litigation, protests, blockades andin some cases violence before corporations and governments allow opportu-nities for their involvement (Banks & Ballard, 1997; Castro & Nielsen, 2001;Wilson, 2002; Caruso et al., 2003). These opportunities are often episodic. Theymay occur only during processes designed to determine whether a projectshould proceed (such as environmental impact assessments), but not continueinto the operational phase of resource development (Geisler, 1993); or theymay occur only after fundamental decisions regarding the nature ofenvironmental management regimes have already been made (Banks &Ballard, 1997). Additional problems arise from limited capacity for participa-tion at the local level, which constrains the ability of indigenous groups to graspthe opportunities that are available (Davy, 1998).During recent years new and concrete opportunities for indigenous

participation have been created through the negotiation of agreements betweenindigenous groups and resource developers operating on their traditionallands. Such agreements, which typically deal with a range of physical, cultural,social and economic issues associated with resource development, are nowcommon in the mining sectors of industrial nations such as Canada, Australia

630 C. O’Faircheallaigh & T. Corbett

and the USA (see, for example, International Council on Mining and Metals,1999; O’Reilly & Eacott, 1999; Sosa & Keenan, 2001; Langton et al., 2004;O’Faircheallaigh, 2004a, b). They are also beginning to occur in other industrysectors and in less developed countries (Banks & Ballard, 1997; Brew, 1998).1

Agreements usually last for terms that are expected to cover the whole ofproject life, and in principle they offer an opportunity for systematic andongoing participation by indigenous peoples in the environmental managementof resource projects on their traditional lands.However, while scores, perhaps even hundreds, of such agreements now

exist, virtually nothing is known about the nature or efficacy of the environ-mental provisions they contain, or indeed whether they contain any suchprovisions. In part this reflects the fact that many agreements are of recentorigin and there has been limited time to analyse them, but a more significantfactor is the common practice of including confidentiality provisions thatprevent parties to agreements from divulging their contents.We examine the potential of agreements to facilitate indigenous participation in

environmentalmanagement of resource development by analysing a large numberof agreements negotiated during recent years in Australia between Aboriginalpeoples and developers of mining projects.2 Virtually all of the agreements wehave analysed are confidential, and to maintain confidentiality we do not identifyprovisions of individual agreements. Rather we develop a scale that allows anevaluation of the efficacy of provisions in terms of their potential to allowindigenous participation. The agreements are then analysed as a group, allowingconclusions to be drawn about their ability to facilitate Aboriginal participation.The analysis indicates that the potential of agreements is considerable, but that todate that potential has generally not been realised in Australia.We begin by briefly discussing the history of Aboriginal involvement in

environmental management in Australia, then examine the broader rationale fornegotiation of agreements between Aboriginal peoples and mining companies.

Aboriginal Peoples and Environmental Management in Australia

Until the 1970s Aborigines were systematically excluded from any significant rolein environmental management in Australia for two main reasons. First, landownership and resource management were based on the legal principle of terranullius, that the land belonged to no one prior to European settlement. Central toterra nullius was the assumption that Aborigines did not exploit or improve landand thus did not manage resources, which European colonisers took asjustification for their appropriation of land in all but arid central Australia andthe monsoonal north. While they never relinquished their custodial responsi-bilities to manage their country, dispossession, population decline and removal toreserves left many Aboriginal peoples largely powerless to exercise thoseresponsibilities (Chase, 1990; Howitt, 2001).The second basis of exclusion involved the denial to Aboriginal peoples,

until the 1960s, of political and economic rights. Denied the right to vote, to

Indigenous Participation in Environmental Management 631

organise, to make their own decisions about where to travel and to live, toretain and/or control the wages they earned, Aborigines were disenfranchisedso that it was impossible for them to assert their interests effectively acrossthe whole array of policy issues, including environmental management(Chesterman & Galligan, 1997; Kidd, 1997).Change occurred during the 1960s and 1970s as Aborigines gradually gained

citizenship rights, allowing them access (at least in principle) to existingadministrative and legal processes provided by mining legislation and theoperation of mining wardens’ courts and to newly introduced environmentalmanagement and cultural heritage legislation. Aborigines fought hard to havetheir interests recognised and their voices heard, especially when large resourceprojects were being developed on their land. However, in general state andCommonwealth governments responded, at both a policy and administrativelevel, by rejecting any notion that Aboriginal people had a legal interest in landor any particular right to influence decisions on its management and use(Chase, 1990; Dixon, 1990; Howitt, 2001).Further changes have resulted from the introduction of state or territory

legislation conferring or recognising Aboriginal interests in land (mainly ofrelevance in the Northern Territory and South Australia) and particularly theHigh Court’s 1992 Mabo decision and the introduction of the Common-wealth Native Title Act 1993. The High Court rejected the doctrine of terranullius, recognising that Australia’s indigenous people owned the land whenthe first settlers arrived. It found that indigenous ‘native title’ rights in landstill survive if they have not been validly extinguished by government, and ifthe indigenous peoples concerned can demonstrate rights and interests in theland under traditional law and custom, and continued observance of the lawsand customs defining their ownership of the rights and interests claimed(French, 2003). The Native Title Act created procedures to allow survivingnative title rights to be recognised, though to date in only a handful of thehundreds of claims lodged under the Act has native title been determined toexist. However, the recognition of native title has generated a wider discourseof ‘co-existence’ in relation to land and resource management, and there is agreater tendency for Commonwealth, state and local government to seekindigenous input into the development of land management policies andprogrammes (Langton et al., 2004).Considerable barriers remain to effective indigenous peoples’ participation in

environmental management of their traditional lands. First, many of theadministrative and legal avenues that are in principle open to them may beculturally alien and are costly, in part because access to specialist technicalexpertise is a prerequisite for effective participation. Second, indigenous partiesmay encounter difficulties in establishing their ‘standing’ in relation to specificenvironmental issues or in particular administrative or legal forums. This canbe a particular problem where land has been permanently alienated (as hasoccurred in much of eastern, southern and south-western Australia) or wherenative title rights have yet to be determined.


Third, the relevance and value of indigenous knowledge and interests areoften downplayed in environmental assessment and planning processes.Indigenous knowledge is experiential, intuitive and above all holistic, denyingneat boundaries between the physical, cultural and spiritual. In these respects itdiffers in fundamental ways from technical or ‘scientifically rational’approaches to environmental management, which results in a tendency todismiss indigenous perspectives as ‘irrational relics of an earlier age’ (Lane &Cowell, 2001, p. 157; see also Suchet, 1996; Brody, 2000). Engineers andplanners who are epistemologically opposed to indigenous understandings ofthe world are prominent and powerful in environmental planning and impactassessment (Chase, 1990; Lane & Cowell, 2001). This reluctance or failure torecognise the legitimacy of other forms of knowledge can render Aboriginalinterests in land and resources invisible, a tendency that can be re-enforced bythe practice, standard in Australia, of environmental impact assessments beingundertaken by consulting firms retained by the project proponent (Lane &Yarrow, 1998).Fourth, environmental assessment and management processes in Australia

occur within a state institutional culture where European notions of progressand an ideology of developmentalism are dominant. This has an impact at thelocal level, such as at Weipa in western Cape York, where the long-termphysical and economic dominance of one of the world’s largest bauxite mineshas ‘marginalised and smothered [Aboriginal] peoples’ experiences and stories’(Suchet, 1996, p. 201). Developmentalism is also dominant throughout thevarious tiers of the state institutional framework, with the result that co-ordinating state agencies place a higher value on the representations ofresource developers, and in so doing blur the line between government asregulator and as proponent acting on behalf of the developer (Lane & Cowell,2001). At a political level, government ministers also adhere to a developmentideology, and planning (and project approval processes generally) occurswithin a political context of pressure for projects to be ‘fast-tracked’ through‘black and green tape’ (Lane & Cowell, 2001, p. 161).In summary, ‘interaction of political, cultural, economic and geographic

factors impedes and sometimes prevents effective Aboriginal participation inthe political processes that determine land and resource use’ (Lane & Cowell,2001, p. 157). Decision makers, motivated primarily by the economic benefitssupposedly associated with mineral development, and operating within acultural framework that devalues indigenous knowledge and values, tend toignore, overlook or misinterpret indigenous perspectives (Chase, 1990; Lane,1997; Howitt, 2001; Lane & Cowell, 2001).A fifth and critical obstacle to Aboriginal participation in environmental

management involves the fact that virtually all avenues for their involvement(including general opportunities for public participation) occur through theenvironmental assessment and project approval processes. Once a project hasbeen approved, opportunities for ongoing participation in its environmentalmanagement are minimal or non-existent (Sindling, 1999). The general


presumption is that environmental management is a matter for the projectoperator and government regulators. Aboriginal people have little capacity tointervene if they believe that environmental risks not identified through initialenvironmental assessment processes are likely to emerge; that relevantlegislation and regulation are failing to prevent environmental damage; thatlaws or regulations that could prevent damage are not being enforced; or ifthey hold knowledge whose application could result in superior environmentaloutcomes (Suchet, 1996). This lack of opportunity for ongoing engagement inenvironmental management is fundamental for indigenous peoples who haveresponsibilities for protecting country that, derived from indigenous law andcustom, continue throughout a project’s life.Can Aboriginal people overcome these obstacles to their effective participa-

tion in environmental management by negotiating agreements directly withmining companies?

Negotiated Agreements: Rationale and Context

Agreements between Aboriginal people and mining companies in Australia arenegotiated within a variety of legal, administrative and policy contexts. Theirspecific provisions vary widely but, at a general level, all tend to have acommon rationale. They are legally binding instruments that provide for theAboriginal parties to provide their consent and/or support for mining on theirtraditional lands. In return, the Aboriginal parties receive commitments fromdevelopers designed to mitigate the potentially harmful effects of mining ontheir culture, society and environment,3 and to enhance their potentialeconomic benefits from mining and associated activities, usually throughmonetary payments and/or employment, training and business developmentopportunities.Negotiated agreements typically emerge within three distinct legal/admin-

istrative contexts. The first results from legislation that provides for recognitionof Aboriginal ownership of land and mandates that mineral developmentcannot proceed in the absence of agreement between Aboriginal landownersand developers. The Aboriginal Land Rights (Northern Territory) Act 1996 isthe clearest example of such legislation in Australia, and a substantial numberof agreements have been negotiated under its terms. A similar legal context atthe state level is created by Queensland’s Mineral Resources Act 1989. Thisrequires applicants for mineral leases on Aboriginal reserve lands to seek theconsent of the relevant Aboriginal trustees, which creates an opportunity forthe latter to negotiate with the developer conditions under which they areprepared to grant their consent. If the Aboriginal trustees refuse to consent,their refusal can be overridden by the Governor in Council, a possibility thathas not arisen to date because the Aboriginal communities and miningcompanies concerned have reached negotiated outcomes.The second context arises from legislation that creates an opportunity for

negotiation of agreements, but allows mining to proceed in the absence of


consent from Aboriginal landowners. The Native Title Act 1993 is the mostimportant example, and a majority of mining agreements concluded duringthe last decade have been negotiated under its terms. The Native Title Actcreates a ‘right to negotiate’ for native title holders or registered native titleclaimants in relation to certain proposed actions contemplated by govern-ment (such as the issue of mining leases to resource developers), referred to inthe Native Title Act as ‘future acts’. A minimum negotiation period of sixmonths is set during which parties must negotiate in good faith to seekagreement. If agreement is not reached in this time frame, either party canelect to go to arbitration before the National Native Title Tribunal (NNTT).The NNTT can refuse to grant a mining lease, grant a lease withoutconditions or grant a lease subject to conditions. The prospect of having alease application refused, or onerous conditions attached to a lease, mightcreate a strong incentive for developers to reach agreement during the six-month negotiation period, but the NNTT has not, to date, refused to grant asingle mining lease application that has been referred to arbitration, and hasgenerally tended not to attach onerous conditions to leases it has decidedmay be issued.The NNTT cannot, under the terms of the Native Title Act, attach a

condition to the grant of a lease that involves payments related to the value ofminerals or the profits won from a mining lease, whereas such payments can beincluded in any agreement negotiated between the parties. It can be argued thatthis places native title claimants under considerable pressure to reachagreement, whereas developers face no such pressure given the stronglikelihood that the NNTT will grant them a mining lease if they fail to reachagreement and the matter goes to arbitration.A third context involves situations in which there is no legal requirement on

developers to negotiate with Aboriginal traditional owners, usually becausecompanies already hold mining leases issued prior to the High Court’s Mabodecision, but where they choose to negotiate agreements as a matter ofcorporate policy. A number of such ‘policy-based’ agreements have beennegotiated or are being negotiated by subsidiaries of Rio Tinto, which made adecision in the mid-1990s to seek to establish positive relationships with allindigenous communities in the vicinity of its major mining projects. In regionsof Australia where Aboriginal people have continued to occupy theirtraditional lands (predominantly in north and central Australia) and haveestablished strong land-based organisations such as regional land councils,policy-based agreements can generate outcomes for Aboriginal landowners atleast as favourable as those arising from a legal requirement for developers tonegotiate (see below).The specific legal context in which agreements are negotiated has important

implications for the bargaining position of Aboriginal parties. Most obviously,the requirement for developers to achieve agreement with traditional ownersunder the Aboriginal Land Rights (Northern Territory) Act 1976 places themin a strong bargaining position. Conversely, it can be argued that the time


constraint on negotiations and the arbitration provisions of the Native TitleAct reduces the bargaining power of native title parties. Bargaining positionsare of course influenced by other matters, including the presence or absence ofcommercial pressures on the developer to secure early approval for leases, thefinancial, technical and organisational resources available to the Aboriginalparties and the degree of cohesiveness displayed by Aboriginal organisationsand communities.

Criteria for Analysing Environmental Provisions of Indigenous –Developer

Agreements

In terms of indigenous interests, environmental provisions of agreements can beregarded as positive to the extent that they facilitate and encourage indigenousparticipation in environmental management. By ‘indigenous participation inenvironmental management’ we mean the capacity of indigenous people, inrelation to mineral development on their traditional lands, to directly shape theway in which environmental issues and impacts are identified and defined andthe manner in which such issues and impacts are addressed over the project lifecycle, from project design through project operation, to project decommission-ing and rehabilitation. Use of the term ‘directly’ is important in this definition.Responsibility for protecting the viability and sustainability of their traditionalwaters and lands is not something that indigenous peoples can delegate toothers, such as government regulators or company environmental staff (Brody,2000; Randall, 2003). Indigenous people have little faith in the inclination orability of mining companies or governments to protect their ‘country’. Only bythemselves having a major say in environmental management can they ensurethat adverse effects on country are minimised. Thus the central purpose ofincluding environmental provisions in negotiated agreements is to placeindigenous people themselves in a position where they can ensure the protectionof their ancestral estates.To adopt this starting point is not to assert that environmental protection is

a goal held equally by all indigenous people. Various groups within anindigenous community may differ in their attitudes to the trade-offs betweenenvironmental and other values that inevitably occur in real-world negotiations(Trigger, 2000). Different people may view quite differently, for example, anagreement that offers strong environmental protection but does little togenerate additional economic activity. However, this does not change the factthat if a position is being established on environmental provisions, centralemphasis will be placed on maximising indigenous influence over environ-mental management.Thus Table 1 presents a scale against which the environmental provisions

of mining agreements can be assessed. This has been derived by reviewingthe environmental provisions of numerous mining agreements in Australia(see below); by examining some 30 agreements negotiated between miningcompanies and indigenous groups in North America during recent decades;


and by reviewing relevant secondary literature (Kennett, 1999; Sosa & Keenan,2001; Ali, 2003; O’Faircheallaigh, 2004a,b).The scale encompasses eight possible scores, from71 (i.e. worse than 0) to 6.

The scale includes a negative score because whereas indigenous people haverights under general environmental legislation – for example to object to adevelopment, request a higher level of environmental assessment, demandmodifications to a proposed project or sue for damages arising fromenvironmental impacts – an agreement may limit their ability to exercise thoserights. For instance, under the terms of one agreement included in our analysis,the Aboriginal parties undertake not to ‘lodge any objections, claims orappeals to any Government authority . . . under any [state] or Commonwealthlegislation, including any Environmental Legislation’. Such provisions mayleave indigenous people worse off than in the absence of an agreement; hencethe need for a negative score.Agreements may contain no provisions in relation to indigenous involvement

in or responsibility for environmental management of the projects concerned.Such agreements, which neither detract from, nor add to, the position thatwould exist in the absence of an agreement, are given a score of 0.The positive steps on the scale are as follows.

1 The developer makes a commitment to the indigenous parties to complywith environmental legislation, regulations and management plans. For

Table 1. Criteria for assessing environmental management provisions

71 Provisions that limit existing rights.

0 No provisions.

1 Developer commits to indigenous parties to comply withenvironmental legislation.

2 Developer undertakes to consult with affected indigenous people.

3 Indigenous parties have a right to access, and independentlyevaluate, information on environmental management systemsand issues.

4 Indigenous parties may suggest ways of enhancing environmentalmanagement systems, and project operator must address theirsuggestions.

5 Joint decision making on some or all environmental managementissues.

6 Indigenous parties have the capacity to act unilaterally to dealwith environmental concerns or problems associated with aproject.

Note: Positive provisions are ranked from 1 to 6, with each step in the scale reflecting anincrease in the likelihood that indigenous parties will overcome barriers to participationand become substantially and effectively involved in environmental management. It isnot assumed that each step involves an identical increase in this likelihood.


example, one agreement provides that the developer ‘must comply with theEnvironmental Authority for the project’, the environmental authoritybeing the authorities issued for the project under relevant state environ-mental protection legislation.

Such provisions allow the Aboriginal parties to take legal action if they believethat a breach of environmental legislation or regulations has occurred, becausesuch a breach constitutes breach of the agreement. Their inclusion can allowindigenous people to address three problems highlighted earlier. First, theirability to intervene covers the whole project life, and not just the environmentalassessment processes preceding project approval. Second, it addresses potentialproblems with the ‘standing’ of the Aboriginal groups in legal proceedings; asparties to a legally binding contract with the developer, their standing inrelation to any legal action is not in question. Third, it helps address theconcerns of Aboriginal people about having to rely on government regulatorsto deal with breaches of environmental law or regulations.However, provisions of this sort have a key limitation in that they do not

allow traditional owners to play a positive role in avoiding breaches of laws orregulations and/or negative environmental impacts in the first place, except tothe extent that a company may apply higher environmental standards in theexpectation that traditional owners might take legal action if breaches of lawsor regulations occur.

2 The project operator undertakes to consult with affected indigenous peopleregarding major environmental management issues, and structures (such asconsultative committees) are put in place to ensure that this happens.Under one agreement the developer undertakes to ‘meet every 12 monthswith the [Aboriginal parties]; . . . consult the [Aboriginal parties] about theproposed work programs for the next 12 months and other issues relatingto the project; and consider the views of the [Aboriginal parties] in relationto the matters discussed at the consultation meetings in formulating itsmining plans’.

Such provisions create forums in which indigenous people can offer under-standings of environmental issues and impacts that reflect indigenous values,knowledge and priorities. As noted earlier, these understandings may be quitedifferent from those emerging from technical or ‘scientifically rational’approaches, and may reflect values that run counter to the ‘ideology ofdevelopmentalism’. They may facilitate the application of indigenous knowl-edge in allowing project operators to meet their environmental obligations,while at the same time ensuring that greater weight is attached to environ-mental risks or impacts that are of particular concern to Aboriginallandowners.However, such provisions have a serious weakness. There is no guarantee

that the project operator will respond to Aboriginal concerns, take advantage


of Aboriginal knowledge or heed suggestions for improving managementsystems. This is likely to be a particular problem where Aboriginal values orinsights run counter to assumptions and priorities of project operators andenvironmental regulators.

3 Indigenous parties have a right to access, and independently evaluate,corporate information on environmental management systems and activi-ties. A case in point is one company’s commitment to ‘make available to the[Aboriginal parties] any documents, including environmental plans orassessments submitted to government departments or authorities or plansof proposed operations and measures to safeguard the environment inconnection with the tenements, including any notice of intent or otherdocument submitted to the [state government regulatory body]’.

Access to information and technical expertise can facilitate Aboriginalparticipation in a number of ways. First, it can be essential in determiningwhether breaches of environmental regulations are occurring or likely to occur,and provide a firmer basis for threatening or taking legal action if this provesnecessary. Second, the information obtained may support the concerns orpositions of Aboriginal landowners, and make it harder for project operatorsand regulators to ignore these. However, access to corporate information doesnot of itself ensure that developers or regulators will be responsive to theconcerns or priorities of indigenous landowners.

4 Indigenous parties may suggest ways of enhancing environmental manage-ment systems, and the project operator undertakes to implement these orsome agreed alternative. For example, in one agreement, if the developerplans to make an application for an environmental approval to anygovernment agency, the developer must first provide a draft copy of theapplication to the Aboriginal parties. ‘[The company] must consider thecomments, if any, from the [Aboriginal parties] in relation to the draftEnvironmental Application and amend the draft Environmental Applica-tion taking into account these comments’.

This approach explicitly recognises the positive value of indigenous participa-tion in environmental management. As such it addresses the ‘devaluing’ ofindigenous knowledge and values that has constituted a basic obstacle toattempts by Aboriginal people to shape the environmental assessment andmanagement of resource projects. It also addresses the possibility that projectoperators might ignore proposals put forward by indigenous parties throughconsultative structures, by introducing a mechanism that requires the developerto respond to indigenous initiatives. It is an approach adopted in a number ofrecent Australian agreements, which also include dispute resolution proceduresfor dealing with situations where suggestions by indigenous parties are notacceptable to the operator.


5 There is provision for joint decision making in relation to some or allaspects of environmental management. One Australian agreement providesthat a committee constituted of equal numbers of company and Aboriginalrepresentatives ‘shall have the control of environmental . . . issues raised inassociation with mining and camp operations including the protection ofsignificant sites’.

Under this approach, the project operator no longer makes unilateral decisionson environmental management, possibly after consultation with or input fromtraditional owners. Aboriginal landowners are now incorporated into environ-mental decision making in a structural and permanent fashion. This is incontrast to their historical marginalisation from such decision making, andgreatly increases opportunities for introducing Aboriginal values, perspectivesand knowledge into environmental management.While they represent a major departure from historical patterns, joint

decision-making structures do not necessarily place Aboriginal landowners in aposition to prevent environmental damage. For example, if serious differencesemerge between the parties, time-consuming dispute resolution procedures maybe required, and their outcomes will not necessarily favour the Aboriginalparticipants.

6 Indigenous parties have a capacity under specified conditions to actunilaterally (for example, by suspending mining operations) where theybelieve that environmental damage is occurring or may occur. An Austra-lian agreement signed in June 2005 includes the provision: ‘If [the company]contravenes any provision of this [environmental management] clause[and] . . . if the default is likely to or may cause harm to [the Aboriginallandowners], [the company] shall immediately cease production until thematter is remedied to the satisfaction of [the Aboriginal landowners] actingreasonably’.

Provisions of this sort allow indigenous people to act themselves to protecttheir traditional lands if developers or regulators do not respond to theirconcerns. They can be of particular value where there is a belief thatserious environmental damage may occur if immediate action is not takento halt mining in general or some specific aspect of project operations,such as use of a pipeline traversing highly sensitive areas. Such provisionsnot only recognise the custodial obligations of Aboriginal landowners butaccept that in some circumstances these obligations can outweigh thecommercial imperative to maintain production. As such, they represent afundamental change from environmental management systems thatprivilege ‘rational scientific’ knowledge and developer interests. Provisionsof this sort can have substantial effects even if they are rarely (or indeednever) invoked, because they create a compelling incentive for theproject operator to work closely with traditional owners to avoid the


possibility of environmental damage or risk that might lead to suspensionof production.A number of general points should be made about this scale.First, each point on the scale represents a broad approach, and there is scope

for variation in outcomes within each. For example, in relation to point 2,provisions on consultation with indigenous parties may consist only of ageneral statement that consultation will occur. Alternatively, they may alsoencompass details regarding the issues on which consultation will occur, whenit will occur and what form it will take, and commitments to provide sufficientresources to ensure that consultation is meaningful from an indigenousperspective. In relation to point 5, joint decision making, the role of indigenousparties may be restricted to some nominated and very specific aspects of aproject (for example, release of water into a particular creek), or could extendto the whole of a project’s environmental management system.Second, the different approaches are not mutually exclusive. For example, it

may be that an indigenous party will seek a commitment to comply withenvironmental legislation so that it can take legal action if adverse impacts dooccur (point 1), while at the same time wishing to contribute to enhancingenvironmental systems (point 4) in order to minimise the chances thatenvironmental damage will happen.However, on the other hand the scale does represent a clear hierarchy in

terms of the potential for allowing indigenous influence in relation toenvironmental management, and a commitment to provisions further up thescale will often also result in adoption of points lower on the scale even if theseare not explicitly required by an agreement. Thus it is most unlikely that adeveloper would not consult with indigenous parties in relation to environ-mental management issues (point 2) or fail to involve them in decision making(point 5) if those parties have a capacity to halt project operations if theybelieve environmental damage is likely to occur (point 6).

Environmental Provisions of Mining Agreements in Australia

Almost all mining agreements in Australia contain legally binding confidenti-ality clauses, and their presence represents a fundamental problem in learningabout, presenting and analysing agreement provisions.Our strategy in dealing with this issue was to seek access to a sufficient

number of agreements so that we could discuss aggregate findings about theircontent without revealing the identity or the content of individual agreements.We have achieved this by gaining access to agreements through professionalpractice as advisers and negotiators, and, in particular, by entering researchprotocols with a number of leading Aboriginal land councils, allowing us toaccess agreements while at the same time protecting the confidentiality andintellectual property rights of the parties to agreements. We currently haveaccess to 45 agreements governing the development and/or operation of miningprojects in Australia.


The 45 agreements were negotiated under a variety of legislative and policyregimes and were signed over the period 1978–2003. Reflecting the increase inagreement making since the introduction of the Native Title Act, about halfhave been signed since 1998. No comprehensive record of mining agreementsexists in Australia, so we cannot be certain of what proportion of allagreements our selection represents. However, it is substantial. Searches ofrelevant databases and of media sources indicate that we are close to havingfull coverage of agreements in New South Wales and Victoria and in many ofAustralia’s major resource-producing regions, including the Pilbara andKimberley regions of Western Australia, the Northern Territory and the CapeYork and Central Queensland regions of Queensland. We are confident that weare aware of the full range of provisions related to environmental managementcontained in mining agreements negotiated in Australia during recent decades.Agreements differ considerably in their size and complexity, but most are

extensive documents and some run to hundreds of pages and incorporatenumerous schedules and attachments. We analysed each agreement in full,because provisions relating to environmental issues are not necessarilycontained under a section with a heading such as ‘Environmental management’.For example, one agreement had no such section heading, but under a headingdealing with relations between the parties creates a joint decision-making bodythat has responsibility for environmental issues related to the project.We consolidated all provisions from each agreement relating to environ-

mental management, and then rated each agreement on the scale discussedabove. Some agreements match more than one of the criteria contained in thescale. These were allocated to the ‘highest’ criterion that they meet. Thisapproach assists in gaining a clear view of the distribution of agreements acrossdifferent points in the scale.Table 2 provides information regarding the ratings for the 45 agreements.

Two agreements (5% of the total) achieved a negative rating, because theycontain provisions that restrict the Aboriginal parties from exercising rightsavailable to them under general environmental legislation. Twenty-sixagreements (58% of the total) received a score of 0 or 1, 11 of these agreementscontaining no environmental provisions and a further 15 containing provisions

Table 2. Ratings for environmental management provisions in Australian agreementsbetween Aboriginal peoples and mining companies

Assessment criteria (score as Table 1) Number of agreements (n¼ 45)

71 20 111 152 33 44 55 56 0


that only commit the developer to abide by environmental legislation, whichdoes not of itself allow the Aboriginal parties any positive role in environ-mental management. The remaining agreements are spread fairly evenly acrosscriteria 2 (three agreements), 3 (four agreements), 4 and 5 (five agreementseach). None of the 45 agreements achieved a rating of 6.At a general level, these results indicate that while some agreements include

provisions likely to create important opportunities for Aboriginal participationin environmental management, a substantial majority do not. Only 10agreements (22% of the total) contain provisions that require companies torespond to Aboriginal proposals for improving environmental management(score 4) or provide for joint decision making on environmental mattersbetween Aboriginal parties and developers (score 5). It would appear that thepotential for negotiated agreements to facilitate Aboriginal participation inenvironmental management has not been realised in many cases.Why should this be so? One explanation might be that Aboriginal

communities and organisations are not aware of the potential of agreementsor of the implications of using particular sorts of provisions of the typediscussed earlier and scored differentially in Table 2. This is entirely possiblegiven that, as far as we are aware, ours is the first public research to present anysystematic analysis of the environmental provisions of mining agreements.Another possibility is that Aboriginal groups are involved in deliberate

trade-offs in the negotiation process, and that some groups have chosen not topursue an active role in environmental management in return for concessionfrom developers in other areas, such as financial benefits or employment andtraining programmes. Given that differences in relative commitment toenvironmental values may exist between individual Aboriginal groups, suchan explanation might appear plausible.It may indeed be the case that in individual negotiations trade-offs are made

between Aboriginal groups and mining companies across a range of issues. Forexample, Aboriginal people may accept environmental provisions that rank at4 on our scale, rather than ones that rank at 5, in order to secure morefavourable outcomes on cultural heritage protection, monetary payments orAboriginal employment and training programmes. However, we havesubstantial evidence that such trade-offs do not explain the pattern ofoutcomes regarding environmental provisions reflected in Table 2. If they did,one would expect to find that agreements with strong environmental provisionshad significantly weaker provisions in other areas, or conversely thatagreements with no or weak environmental provisions had strong provisionsin other areas. This is generally not the case.As part of our broader research on mining agreements we have also

developed criteria to evaluate seven other categories of provisions that tend tobe central to agreements between Aboriginal people and mining companies(cultural heritage protection, recognition of Aboriginal interests in land,financial provisions, employment and training, business development, im-plementation provisions, and the degree of support offered to developers by


Aboriginal parties). Without exception, those agreements that score highly(i.e. 4 or 5) on the environmental criteria also score highly on the criteria forthese other areas, indicating that other benefits have not been traded off in asubstantial way in order to achieve stronger environmental provisions. Thesame conclusion emerges from the fact that agreements achieving a negative or0 score for their environmental provisions also score poorly in relation to theother provisions (O’Faircheallaigh, 2004a,b).A final and alternative explanation is that the outcomes summarised in

Table 2 are the result of differential bargaining power on the part of theAboriginal groups concerned. There is substantial evidence to support thisinterpretation. Of the 10 agreements achieving a score of 4 or 5, all but onewere negotiated under the provisions of the Aboriginal Land Rights(Northern Territory) Act 1996 or the Queensland Minerals Resources Act1989, which place Aboriginal landowners in a strong position vis-a-visdevelopers, and/or they were negotiated by major, high-profile Aboriginalland councils in northern Australia, organisations that can bring substantialpolitical weight to bear at the negotiation table. On the other hand, the twoagreements that achieved a negative score and most of those scoring 0 or 1were negotiated under the terms of the Native Title Act, which tends to placeAboriginal groups in a much weaker negotiating position. Many of theseagreements also relate to projects in ‘settled Australia’ (New South Wales,Victoria, the southern regions of Western Australia and Queensland), whereAboriginal organisations are less likely to have the political weight toovercome weak legal positions.

Conclusion

Indigenous peoples have long been marginalised from environmental manage-ment of resource development projects that affect their traditional lands. Inrecent years the negotiation of agreements between indigenous landowners andresource developers has created an alternative mechanism through whichindigenous people may be able to fulfil their desire and their responsibility to beinvolved in minimising adverse environmental impacts from large-scaleresource development. We set out to examine the possible utility and relevanceof this mechanism, by developing a scale for evaluating the contribution ofvarious agreement provisions in facilitating indigenous participation in environ-mental management. This scale was then used to examine a substantial numberof agreements between mining companies and Aboriginal interests in Australia.Our analysis indicates that while negotiated agreements do have the poten-

tial to substantially enhance Aboriginal participation, many of the agreementsnegotiated to date do not have this effect. In a small minority of cases theyactually reduce opportunities for Aboriginal participation in environmentalmanagement. In a substantial majority of cases their contribution isnon-existent, or is limited to allowing Aboriginal people to take legal actionto remedy breaches of environmental legislation after the event, or to giving


them a right to be consulted by developers. Less than a quarter of agreementsrequire developers to address proposals by Aboriginal landowners to enhanceenvironmental management, or create mechanisms for joint decision makingon environmental issues. No agreement included in the study providesindigenous people with a unilateral capacity to act in response to perceivedenvironmental risks from mining projects, but such a provision has in 2005appeared in one Australian agreement.Our wider analysis of the contents of mining agreements does not indicate

that these outcomes reflect decisions by Aboriginal landowners to trade offopportunities to participate in environmental management against otherbenefits available through negotiations with mining companies. Instead theyappear to reflect a lack of awareness regarding the range of environmentalprovisions that can be negotiated and the differential negotiating positions ofAboriginal people in various parts of Australia. Differing negotiating positionsreflect, in turn, the differing effects of various legislative enactments, and inparticular the weak bargaining position created for Aboriginal landowners bythe federal Native Title Act, and the superior bargaining position enjoyed bypolitically influential Aboriginal organisations in north and central Australia.

Acknowledgements

The authors wish to thank the Aboriginal communities and organisations thathave assisted their research, but do not name them individually to help inmaintaining confidentiality. The authors also wish to acknowledge the detailedand helpful comments of two anonymous referees.

Notes

1. In Australia negotiated agreements have generally been restricted to the mining and oil and gas

sectors. However, an agreement is currently being negotiated for a major new agricultural

development in the East Kimberley region of Western Australia.

2. Australia has two distinct indigenous populations, Aborigines and Torres Strait Islanders. When

we refer to both or to indigenous peoples more generally we use the term ‘indigenous’. This

article is confined to agreements involving Aboriginal interests.

3. It is acknowledged that for many indigenous people the creation of distinct categories such as

‘social’, ‘cultural’ and ‘environmental’ has little validity, because such concepts relate to matters

that are for them inter-related dimensions of holistic relationships involving people and land (see

Randall, 2003). However, in Australia, as in most countries, separate legal and regulatory

frameworks apply to each of these spheres, and so Aboriginal people must attempt to pursue

their interests by engaging with systems of ‘environmental’ or ‘cultural heritage’ or ‘social’

legislation or regulation.

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