Sustainable Development Conference

Sustainable Development Conference

Sheraton Perth Hotel, WA

Thursday October 26, between 11.00am and 12.30pm

(25 minutes / 15 minutes for questions)

A Level Mining Field: The Path to Achieving Outcomes for Indigenous and Non-Indigenous Stakeholders in Mining

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I would like to start this afternoon by acknowledging the Noongar people, the traditional owners of the land where we meet today. For those Noongars here – I’d like to congratulate you in the success of your native title claim over this area. Your determination and your ability to work together as a group to pursue this claim is an inspiration to all of us. Indigenous property rights and connection to land are crucial considerations for this presentation because they underpin any discussion about human rights, Indigenous people and land matters. 

I’d like to thank the organisers for inviting me to speak at this conference and I acknowledge all distinguished guests and participants.

I am here today to speak to you about Principle 3 and Element 3.3 of the 2004 “Enduring Value” Australian Minerals Industry Framework for Sustainable Development document.

Principle 3 asks the minerals industry to - and I quote here:

Uphold fundamental human rights and respect cultures, customs and values in dealings with employees, and others who are affected by our activity.

Element 3.3 implements the principle through the following action to:

Implement policies and practices designed to eliminate harassment and unfair discrimination in all aspects of (y)our activities.

I am very pleased to note the inclusion of human rights standards and the acknowledgement of indigenous cultures and customs in this document. Principle 3 of the Framework lifts the bar on expectations of conduct in the workplace and the community, and acknowledges that indigenous people have unique human rights (including cultural rights) that are recognised nationally and internationally.

Amongst other objectives, Principle 3 and Element 3.3 underpin two fundamental aims for the minerals industry: to (1) employ and (2) retain Indigenous people in the minerals and mining workforce. In order to achieve these aims, it is essential that the mining workplace environment reflect the rights, values and interests of Indigenous Australians.

Before I look at the human rights issues, let’s consider the context of Indigenous employment in mining today.

We all know that due to the current commodities boom there is a labour shortage, particularly a skilled labour shortage in the mining industry. In a speech in August to commemorate the Wave Hill Walk Off, the MCA Chief Executive Mitch Hooke stated:

…More than 60 percent of our operations have neighbouring Indigenous communities. We are currently experiencing skills shortages and we face profound people shortage requiring some 70,000 more people, or a 50 percent increase on current direct employment in the next decade.

It is probably for good reason that this conference is being held in Western Australia. Statistics all point to this state as being at the forefront of the commodities boom. While a fly in, fly out workforce is partly supporting this boom; a vast potential workforce exists in the form of the Indigenous people who live in the area.

Indigenous people can potentially provide a stable workforce because they are more than likely to be long term residents of the area. Indigenous people are more than likely to raise their children in the area and to be descended from long lines of traditional owners of the area. They know the land, they know the heritage of the area and they are a part of the continuous history of the area.

We must not forget that the co-located Indigenous communities are often the traditional owners of the land on which the mining operations are occurring. While the continuing struggle for the recognition of land rights now happens in the courts and through negotiation, the feeling for the land is no different than it was during the blockades at Noonkanbah. The impacts of mining can be very emotional for traditional owners and we shouldn’t lose sight of this.   

The connection to land of the local people often means that a proportion of mining and exploration ventures are subject to native title claim. Many claims contain a native title agreement component with traditional owners, including provision for minimum Indigenous employment quotas in mining operations.

So what we have in mining regions are Indigenous and non-Indigenous stakeholder groups with competing and powerful interests in the land. These groups also have mutual objectives that are about providing opportunity for Indigenous people through mining.

It is therefore crucial for the minerals industry, and desirable for Indigenous people that reciprocal, rewarding and sustainable relationships be established from the outset and maintained.

There are important reasons to establish and maintain Indigenous employment in the minerals industry. Yet despite good reasons and the best of intentions, there are some major impediments to realizing this objective.

Let’s first consider the employment statistics of Indigenous people in this industry. The first point that I can make here is that the data is limited though I know there is current work to address these limitations.

According to the MCA, at best we can say that Indigenous people currently represent about 5 percent of the minerals industry workforce - which makes the minerals industry the largest private sector employer of Indigenous people. According to the MCA, more and more operations are adopting Indigenous employment targets to ensure that the composition of their workforce reflects the proportion of Indigenous people in the region. For example, the Pilbara operations, Rio Tinto and BHP Billiton now have a target of 12 to 15 percent Indigenous workers, and the East Kimberley, Rio Tinto has a target of approximately 40 percent Indigenous workforce.

The MCA and Chamber of Minerals and Energy project that:

• by 2015 industry will require a further 70,000 workers
• the largest shortages are projected to be in non-professional occupational classifications with 27,000 as tradespersons, and 22,000 as semi-skilled employees.
• of the 70,000 positions, 42,000 will be in WA, 15,000 in Queensland and 5,000 in both NSW and SA1

There will be significant job opportunities for prospective Indigenous employees. Nonetheless, despite these opportunities and attractive salaries of up to $90,000 per annum, employment data of Indigenous people in mining regions suggests that this is not incentive for Indigenous people to take up positions.

What I want to do here, is to look closely at some disincentives to Indigenous employment, and interrogate some of the issues peculiar to the mining regions and the minerals industry. The following hypothetical example outlines some of the possible disincentives.

An Indigenous man living in Roebourne gains employment in a local mining operation. He has lived in a Homeswest government subsidised house in Roebourne, though now employed, he no longer meets the income test criteria for subsidised housing. Because of the limited housing available in Roebourne, rental accommodation in Karratha may be his only option. There are housing shortages in Karratha too, and apart from the fact that he will be very lucky to find something, he is also likely to be faced with rentals of up to $800 to $900 a week.

He also discovers that his children are no longer eligible for Abstudy subsidies, and that they are very unhappy about having to move house and move schools. Our employee currently lives with his extended family and he has concerns as to whether he will be competitive in the housing market as he needs to accommodate an extended family.  

Now some of us here might argue that the means test for subsidised housing is fair and applicable to non-Indigenous Australians, so why create different rules. My answer to this is that in some instances, in order to create equality of outcome, different inputs are required.

When we consider the historical disadvantage of Indigenous people, as well as continuing disadvantage such as limited access to education, the existence of poverty, lack of wealth within the family, illness and so on, then it is necessary to employ special measures in order to create a level playing field. We may need to provide additional assistance to ensure that Indigenous peoples can be in a position that they can contribute and benefit in the same way as non-Indigenous people. So what we should focus on is the intended outcome and whether we are able to achieve equality at that point, rather than the input.

Let me use a simple illustration. There are two people who are stuck down two separate wells – one of them is 10 metres down and the other is twenty meters down. Now we could lower a rope ten meters in length down each well and we would be treating these people the same. But we would not be treating them equally.

Equality does not necessarily mean sameness in treatment. I am pleased to note that the ‘Implementation Guidance’ for Element 3.3 makes reference to ‘…establish[ing] special measures intended to reduce harassment and achieve fairness.’ It is true that special measures are required to give many Indigenous people a real opportunity for employment, and to establish a workplace that respects our customs and culture.

If we want to encourage Indigenous employment we have to think creatively and ensure that government and industry policy allows for transitional phases so that Indigenous people can move into the workforce. In the case of housing for example, it may be that an interim period is required for Indigenous employees to find appropriate and affordable accommodation. It may also be that the agency offering subsidised housing look closely at the number of people that an income is supporting, and ensure that their policies do not put undue stress on extended families.

While Indigenous employees should not be exempt from means testing on government subsidies, policy should be responsive and flexible.  Governments should be working closely with industry to ensure that they are not operating at cross purposes. All stakeholders need to work collaboratively to achieve boarder objectives.

If we set the bar too high, then:

• Indigenous people will not benefit from employment,
• Governments will not realise their objectives to facilitate welfare to work transition, and
• Industry will not have access to a local workforce.

There are issues other than housing that also need consideration. Financial management is an important skill, and one that is required for those newly employed. When an individual gains employment and has what appears to be sudden wealth, this can bring about family and communal friction and upheaval. We need to consider that among some community based Indigenous peoples a culture, and maybe a cultural practice, of communal ownership of assets and wealth, prevails. The importance of sharing assets and wealth with the wider community has been a survival technique for my people, practiced long before white settlement.

Banking, investment, superannuation, hire purchase and general concepts of how to manage cash may be alien concepts to new wage recipients.

Therefore the minerals industry needs to look to whether it can provide or facilitate financial counselling not only to employees, but perhaps to the wider community. Such action is a practical manifestation of what it means to have ‘the social licence to operate.’ It is about acknowledging and recognising cultural difference. It is about understanding that bridges need to be built across cultures so that both can benefit from what the other offers. And it fully implements Element 3.3 of the Framework for Sustainable Development by redressing Indigenous disadvantage and acknowledging that the wider community is affected by mining activities.

I am mindful that the minerals industry is not a quasi government department, providing services where they are lacking, or developing programs only to find that governments withdraw the same programs to leave the minerals industry as a sole provider. What I am arguing here is that in applying Element 3.3 faithfully, the minerals sector may achieve objectives that would not otherwise be achievable. The minerals industry is in a powerful position in terms of its resources. The one resource that is lacking is the human resource. By developing a level playing field, the minerals industry is potentially facilitating employment for an underutilised pool of workers; the Indigenous workforce.

Another area where the minerals industry can positively contribute is in the area of vocational education and training. A level of numeracy and literacy are important pre-requisites to employment in the mining industry. Due to the legacy of long standing neglect of education in remote communities, many potential employees are not work ready.  

As one director of an Indigenous contracting business observed:

Trying to get an Aboriginal person on to a mine is onerous. You have to pass courses and have certificates; given safety is a big issue. But a lot of our people are semi-literate, and if you can’t read signs and you have an ore loader coming the other way you’re in trouble. 2

The obligation for providing appropriate vocational education is shared between government and industry groups. The past and present limitations of the education and training system in rural and remote Australia has meant that Indigenous people are at an employment disadvantage. Urgent action to redress this inequity is now required. In terms of human rights standards, the right to education is enshrined in a number of treaties and declarations.

Article 22.3 of the ILO Convention 169 provides that:

Any special training programmes shall be based on the economic environment, social and cultural conditions and practical needs of the peoples concerned. Any studies made in this connection shall be carried out in co-operation with these peoples, who shall be consulted on the organisation and operation of such programmes.

Along with government, the minerals industry is an important player in vocational education and training. The minerals industry has a role to ensure that Indigenous people are involved in the design and delivery of education to ensure that it is relevant and appropriately focussed. For example, literacy and numeracy education may not seem a core responsibility for the minerals industry, though it may be the precluding prerequisite to employment for Indigenous people. If workers cannot read signs, then they are very limited in what they can do in the workplace. A basic level of literacy is fundamental in terms of occupation health and safety. A skills and needs assessment is essential before involving local people in the development of culturally appropriate training. Involving local Indigenous people in the development of training creates a culture of commitment, and is an important step to ensuring that Indigenous training participants fulfil their responsibility to attend and engage in courses that are tailored for their needs. 

Delivering culturally appropriate training both in formal education settings and in the workplace serves a number of purposes. If culturally appropriate training is developed with the involvement of local Indigenous people it gives both training participants and Indigenous employees’ ownership of their workplace skills and knowledge. It means that the workers have a true understanding of workplace requirements and it could contribute to less absenteeism. This generally leads to improved occupational health and safety, workplace morale, and workplace productivity.

I like to hear examples of companies that are attempting to implement good practice in training. While not yet implemented, an Indigenous owned and operated contracting company based in the Pilbara is finalising the development of a program aimed at providing an employment ‘bridge’ for Indigenous people to gain access to the mining industry.    

The company, Ngarda Civil & Mining is developing a training program that will cover topics including health related subjects such as responsible drinking, hydration, safe driving, fatigue and safety topics. The safety topics will include fire fighting, working safely on elevated work platforms, workplace safety and roles and responsibilities of workers.

As the program is being developed, Ngarda enriches the program materials by involving local Indigenous people in their design. This process ensures the relevance of the training program, a feature that is often lacking when non-Indigenous training programs are taken and 'Aboriginalised.' Ngarda works with local Indigenous people in identifying the relevance of the content, in honing the application of the message, and in obtaining advice about how the material can be presented. Ngarda expects to have both male and female Indigenous trainers and mentors involved in the delivery of the training.

In this instance, the ultimate aim of the program is to provide the opportunity for participants to gain experience operating mining equipment.

It is in the best interests of industry to adopt differential treatment and special measures for Indigenous people not only to rectify past discrimination and to comply with current obligations, but, in a purely practical sense, to accommodate its own requirement of a sustainable labour force.

To an extent the minerals industry has adapted to the obligations imposed under the Native Title Act. From initial resistance to acceptance and cooperation, the industry has entered into negotiation and agreement regarding employment opportunities and other forms of compensation to claimant groups.

The mining industry is increasingly regulated by national and international principles and codes for practice. Chronologically some of the important standards that regulate the industry include:

• the Industry Code for Environmental Management by the Australian Minerals Industry in 1996;
• the Sustainable Development Principles of the International Council of Mining and Metals in 2003;
• the Minerals Council’s Australian Industry Framework for Sustainable Development - Enduring Value of 2004, replacing the 1996 code,
• the Minerals Council Implementation Guide for its principles outlined in  Enduring Value in 2005;
• and most recently the International Council of Mining and Metals is finalising its draft Position Statement on Mining and Indigenous Peoples in 2006.

All of these principles anticipate the changing mining environment in terms of its interface with Indigenous populations. The minerals industry must continue to be proactive and cognisant of changing international principles and standards in relation to indigenous peoples and human rights. The Draft Declaration on the Rights of Indigenous Peoples is likely to be adopted by the UN General Assembly later this year. It is an important document setting human rights standards for governments, and for industry groups, in their interactions with indigenous populations.

My Office has developed two publications that outline human rights approaches to good practice in mining and then more broadly, good practices in engaging with Indigenous people.

They are:

• Corporate Responsibility Developing Human Rights Principles for Resource Development on Aboriginal Land: A Human Rights Based Approach to Mining on Aboriginal Land.

And

• Engaging the Marginalized: Partnerships between indigenous peoples, government and the civil Society

Both of these documents are available on the HREOC website.   

The great challenge for all of us here today, especially the minerals industry, is to interpret and implement the principles of these documents so that they become sustainable practice.

Implicit in any human rights approach is meaningful and intense dialogue with Indigenous stakeholders. As a first step, the mining industry should be seeking the free, prior and informed consent of traditional owners to activities occurring on their land. This includes ensuring that traditional owners are aware of all the ramifications of a proposed development as it applies to them, and obtaining authorisation in the form of a representative decision by the affected parties. While the Native Title Act requires certain statutory obligations with regard to notification and in some cases the right to negotiate, I am arguing here that mining groups can go further.

There are exciting possibilities for the inclusion of Indigenous people in your operations, in your planning, your decision-making, in the design and delivery of your training, and especially in the design and planning of education and training for future generations. The minerals industry knows where its operations will be in two, five and ten year’s time. This information is invaluable to local communities, to local schools, to local training providers and to governments as service providers. The more you share and promote local Indigenous peoples’ inclusion in your business, the greater the potential for mutual benefit in the future. 

In many places in remote Australia, the mine is the main, if not the exclusive, employer. Minerals industry groups should be continuously engaged in planning for future recruitment into positions across your operations.

I am watching with interest the development of the MoU between government and the MCA on the seven trial sites. Governments are looking to do things differently - and for good reason. Very senior public servants are now publicly decrying the failure of policy to deliver positive outcomes for Indigenous peoples.

Recently the Secretary of the Department of Prime Minister and Cabinet painted – in his words – a ‘brutal summary’ of stark assertions about the position of Indigenous people in Australia. Dr Shergold claimed that he was moved to do so because of his – and I quote here:

…frustration at the failure of a generation of public policies to translate into the sustained economic betterment of indigenous Australians…

Dr Shergold went on to say:

I am aware that, for some 15 years as a public administrator, too much of what I have done on behalf of government for the very best of motives has had the very worst of outcomes. I (and hundreds of my well-intentioned colleagues, both black and white) have contributed to the current unacceptable state of affairs, at first unwittingly and then, too often, silently and despairingly.

I do not want to outline the statistics of Indigenous disadvantage here, but I do want to support Dr Shergold to the extent that in order to change the situation, we do have to think differently. Perhaps government does not have all of the answers. It makes sense the mining industry has a role to play where it is co-located with Indigenous communities. It makes sense in a context where mining companies are making astronomical profits on land that once belonged wholly to people; people who are still at the doorstep of your operations.   

It should not require the Native Title Act or the various land rights legislations to inspire mining companies to exercise ‘the social licence to operate.’ Many mining companies are responsibly engaging with local Indigenous communities through scholarships, mining royalties, infrastructure development and education and training; outside of legislative requirements.

This is necessary, and we can do more. I would like to see mining companies put their best and brightest people to work to ensure the best recruitment, employment and training initiatives available. It should be a point of pride to engage in this endeavour. We don’t need companies that are just going through the motions to fill Native Title agreement quotas.

We need companies that will implement the spirit of Enduring Values – the Australian Minerals Industry Framework for Sustainable Development.

All of this starts with good communication. It starts with involving Indigenous people in all stages of the business of mining. It starts with good will, respect, and a firm belief that all things are possible. Indigenous peoples the world over need to be respected to enable them to respect themselves.

From self respect comes dignity, and from dignity comes hope.

Thank you

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