Minerals Week 2008

Minerals Week 2008

Tom Calma

Aboriginal and Torres Strait Islander

Social Justice Commissioner

Human Rights and Equal Opportunity Commission

Hyatt Hotel, Canberra

May 27 2008

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• Please click here to download a copy of the PowerPoint presentation [463 KB]

I acknowledge the Traditional Owners of this land, the Ngunnawal peoples.

I’d also like to thank the Minerals Council of Australia for inviting me to speak today and I acknowledge all distinguished guests and participants. 

I’d like to start by recognising the efforts of the Minerals Industry over the past decade to working towards achieving the industry’s triple bottom line of financial, social and environmental dividends and sustainable development.

The minerals industry presents one of the greatest opportunities to Indigenous Australians livelihoods and wellbeing;  it also poses one of the greatest threats. 

• The majority of your operations take place in remote and rural Australia  –  where there are high proportions of Indigenous people. 

• 60% of your activity in this country neighbours an Indigenous community where there is limited economic and social infrastructure.   
• And the land from which you take resources is integral to the health and wellbeing of Indigenous people and their culture. 

when it comes to working alongside Indigenous communities, the minerals industry has come along way. 

The Minerals Council Indigenous Relations strategic framework recognises that:

the future success of [y]our industry is inextricably linked to creating new [relationships], and continuing to build upon the strong existing relationships established between companies and [Indigenous] communities. 

But tomorrow when you are looking forward to the year 2020  –  a year all of Australia seems to be leaping and bounding toward  –  remember there is always room for improvement. 

The international human rights framework provides the basic minimum standards that we all must uphold in order to respect the inherent dignity of human life and create a fair and just society.

One universally recognised right is the right of Indigenous peoples to the ownership and control of their lands, territories and natural resources, and to give - or not give - their free, prior and informed consent over developments on their land.

This is what I will focus on today. 

Free. Prior. Informed. Consent. 

Where do these words come from and what practically do they mean?

In 2005, the United Nations Economic and Social Council (or ECOSOC) identified the realisation of free, prior and informed consent as a major challenge for member states. 

In 2007, the United Nations General Assembly adopted the Declaration of the Rights of Indigenous People. Our current government has committed to supporting it.

The Declaration reinforces the existing rights of Indigenous people to give their free, prior and informed consent before certain actions affecting them can occur.

• It explicitly recognises that Indigenous people have a right to the land we traditionally own.1
• We have a right to compensation for land if it is taken, occupied, used ordamaged without our free, prior and informed consent.2
• We have a right to the conservation and environmental protection of our country.  This includes a right not to have hazardous materials disposed of on our country.3

Most importantly, Article 32 of the Declaration on the Rights of Indigenous Peoples provides that we have a right to determine and develop priorities and strategies for the development or use of our lands and resources.

We have a right to give or not give our free and informed consent prior to any project affecting our lands and resources.   This is particularly in connection with the development, utilisation or exploitation of mineral, water or other resources.

If this consent is not obtained, we have a right to an effective mechanism for just and fair redress, and to have any adverse environmental, economic, social, cultural or spiritual impact mitigated. 

Free, prior and informed consent is more than consultation and participation.  Governments at all levels have developed documents containing principles which support building relationships of respect and trust based on consultation and participation. 

The minimum legislative requirements and basic principles are usually being met by the mining industry in Australia.  In individual cases, some companies may go much further. 

The attitude of the mining industry to its engagement with Indigenous Australians has changed significantly over recent years. 

At the International Level, the International Council on Mining and Metals released its position statement on mining and indigenous peoples’ earlier this month.  It recognises the significant impacts the industry has had on indigenous people and the importance of community support.  Consequently, the members of the ICMM have committed to:

• Respect the rights and interests of Indigenous Peoples. 
• Clearly identify and fully understand the interests and perspectives of Indigenous Peoples when developing projects or operating. 
• Engage with Indigenous Peoples during all stages of new development projects/ mining activities, and
• Seek agreement with Indigenous Peoples on programs to generate net benefits for their communities. 

This position statement is to be commended. 

• what we must remember, however, is that when we talk about consent we are not talking about consultation. 

• the current relationship between the industry and communities is overwhelmingly one of consultation.

To consult is defined as:4

• to  seek advice or information from;  ask guidance from
• to refer to for information, and
• to have regard for in making plans.

Whereas To give consent means  ‘to permit, approve, or agree’. 

It is the act of giving permission or allowing.   

Consultation on the other hand is an exchange and sharing of information.  It is devoid of any notion of a decision making role. 

A decision-making role is essential for Indigenous people.

The challenge for you here today is two-fold. 

Firstly, to Fully adopt the principle of free, prior and informed consent; and secondly to interpret, implement,  and make this principle an integral part of your operations.  If this challenge is met, indigenous people will have a central role in decision-making.

Looking at the first challenge - Along with the industry commitment to improve the relationship, the drive for the resource industry to operate on the basis of obtaining free, prior and informed consent from communities is happening internationally. 

Earlier this year the International Council on Mining and Metals held a roundtable on free, prior and informed consent.  Slowly principles and guidelines are changing from consultation to consent.  Regulatory frameworks are also changing.  For example, in the Philippines there is a legislative requirement for ‘prior informed consent’ at the exploration stage.5  

Taking the second challenge of implementing the right to free, prior and informed consent, this is made easier by the existing and continually developing guidance available internationally. 

These reports listed on the screen give us an indication of what is meant by each key element practically.

Free

Consent must be given freely. Without any coercion, intimidation or manipulation. This includes not threatening a community to make a decision immediately or they lose the opportunity to negotiate. 

You must respect traditional owners’ decisions, decision-making and dispute resolution processes.

Prior

The communities consent must have been sought before you have authorised or commenced activity. This requires you to engage the community not only during the planning stages but continuously throughout all phases of assessment, planning, implementation, monitoring, evaluation and closure of a project or operation.  It is not a one-off procedure.

Remember that timeframes which are subject to cultural, climatic and geographical conditions also need to be considered in decision making processes.

Informed

This is integral and cannot be assumed or taken for granted. 

A survey conducted for my Native Title Report 2006 found that only 25% of Traditional Owner respondents claimed an understanding of land agreements they’d entered, while 60% of responses from representative bodies claimed that Traditional Owners were able to understand the agreements.

Traditional owners must have all the information they need to make decisions in a timely, comprehensive and understandable form, suitable to the needs of the traditional owner group.

The language barriers between you and Indigenous people must not be under-estimated, particularly when communicating with non-English speaking communities based historically on oral tradition or communities who may have low English literacy skills.

Effective communication strategies will require resources, experimentation, talking and listening.   

And finally, you must fully disclose all the information about the project and inform the community when aspects of the project change.  Although a small change to the project may seem insignificant to you, the diversion of a road 50 metres to the right may mean the destruction of a sacred site. 

Consent

Indigenous people must be able to understand what they are consenting to.

Communities have the right to withhold consent. The benefits of free, prior and informed consent can only come to fruition if you respect their right to say no.  Recognise that you may not always get the answer you want to hear.

So, in order to fulfil the right to free, prior and informed consent there are a number of other underlying principles to be mindful of.

• Old agreements may need to be renegotiated to incorporate these principles of free, prior and informed consent as was the case with The Argyle participation agreement. 
• Free, prior and informed consent applies to all companies operating in the industry not just large mining companies. 
• Free, prior and informed consent is not just a right of Indigenous Australians.  It applies to all of your operations that affect Indigenous peoples internationally.  It is universal.
• Processes of review need to be built in to ensure free, prior and informed consent is being obtained.
• Free, prior and informed consent requires well resourced and supported governance structures that enable this consent to be given. 
• Industry capacity must be built.  You must increase the capacity of your own staff to pursue obtaining free, prior and informed consent, through understanding and respect for our culture and our traditions. 
• And, despite what Western law says, traditional owners are the custodians of their lands and waters. They must be the ultimate decision makers. 

These then are the two challenges: fully adopting the principle and making it an integral part of your operations.

Remember - the large, essential and powerful minerals industry poses one of the greatest threats to Indigenous Australians livelihoods and wellbeing. It also presents one of the greatest opportunities. 

So I challenge the minerals industry to openly and whole-heartedly commit to adopting the principle of free, prior and informed consent and then to practice it.

Make it an integral part of your operations.  Make respecting Indigenous people and their rights, part of your every day business. 

Thank you and I look forward to a prosperous and positive future for the industry and Indigenous peoples.

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[1] Article 26, DRIP

[2] Article 28, DRIP

[3] Article 29, DRIP

[4] www.dictionary.com

[5] Mining Law 1995, Indigenous Peoples Rights Act 1997