mining-indigenous agreement making a global context

Negotiating Settlements: Indigenous people, settler states and Negotiating Settlements: Indigenous people, settler states and the significance of treaties and agreementsthe significance of treaties and agreements

Mining-Indigenous Agreement Making

A Global Context

Bruce HarveyChief Adviser Aboriginal & Community Relations

Neville TiffenChief Counsel Rio Tinto Australia

Presentation OverviewPresentation Overview

• Rio Tinto • Mining Industry – Indigenous Relations

– 1970’s –1980’s• Paradigm Shift

– 1990’s • Western Cape Communities Co-existence Agreement

– a ‘rights-based’ agreement on Cape York • Globalisation

– an analysis of the global context

Rio Tinto - Location of OperationsRio Tinto - Location of Operations

Diamonds

TiO2 / Iron

GoldBorates

Copper /Gold /

Silver /Molybdenum

CoalGold

Talc Coal

Talc

Iron oreNickel

Borates

Copper

Gold

Aluminium

TalcCopper / Tin

UraniumGold

TiO2

Copper

Coal

Gold

Copper / Gold

Gold

DiamondsSalt

Iron ore

Aluminium

Aluminium

CoalGold

BauxiteCoalAluminaAluminium

Coal

Copper/gold

Zinc

Iron Ore

Uranium

Copper/gold

Zinc, silver and gold

Talc

Rio Tinto - Spread of AssetsRio Tinto - Spread of AssetsAssets at end 2001 - US$13 billion

Africa

3%

Europe

3%

Indonesia

4%S America

5%Australia &NZ

45%

USA

25%

Canada15%

Australian Operations & Land StatusAustralian Operations & Land Status

500km

NWA99005.ppt 02-11-1999

Private Lands

RTE Tenement

Pastoral Leases

Aboriginal Land

Native Title Claim

Rio Operation

National Parks

Darwin

CAP

Peake

Robe

Bell Bay

Comalco Weipa

North Parkes

Pacific Coal

Argyle Diamonds

ERA

Hamersley Iron

Perth

Dampier Salt

Three SpringsCoal & Allied

Mining Industry Position 1970’s-80’sMining Industry Position 1970’s-80’s

• Mining Industry Solidarity

• 20 years Land Rights Experience : NT/SA

• No recognition of Aboriginal rights

• Stonewalling on Native Title

• Emphasis on legislation & litigation

• Chronic lack of exploration access : NT/SA

• Emerging scenario elsewhere

Why?Why?

• Farmer, pastoralists, miners: 1970’s & 80’s– Decades of promise & frustration– International demand for commodities – Corporate & national pride – Vital & heroic endeavour

• Paradox of public support wavering– Infringement of Aboriginal rights– Threat to environment

• A decade of legal debate - Mabo

• Served to clarify & confuse

• Relationships rather than litigation

• Recognition of ‘standing’

• The need for ‘modern’ agreements

Paradigm Shift in the 90’sParadigm Shift in the 90’s

Leon Davis, Incoming CEOLeon Davis, Incoming CEO

“In CRA, we believe there are major opportunities for growth in outback Australia which will only be realised with the full co-operation of all interested parties”

The Native Title Act….”laid the basis for better exploration access and thus increased the probability that the next decade will see a series of CRA operations developed in active partnership with Aboriginal people”

Securities Institute, March 1995

Leon DavisCRA MDs ConferenceApril, 1995

Culture Shift -1995Culture Shift -1995

• It is my desire to move away from a litigious framework

• I wish to open channels to those who are not favourably disposed to Rio Tinto

• I want to establish innovative ways of sharing with and/or compensating indigenous people

• I believe that a negative attitude will produce negative results

• I have an open mind on how we should approach the question

Aboriginal & Torres Strait Islanders Policy

This Policy is based upon recognition and respect.Rio Tinto recognises that Aboriginal and Torres Strait Islander people in Australia:

have been disadvantaged and dispossessed have a special connection to land and waters have native title rights recognised by law

Rio Tinto respects Aboriginal & Torres Strait Islander peoples’ cultural diversity aspirations for self sufficiency interest in land management

In all exploration and development in AustraliaRio Tinto will always consider Aboriginal and Torres Strait Islander people issues.Where there are traditional or historical connections to particular land and waters, Rio Tinto will engage with Aboriginal and Torres Strait Islander stakeholders and their representatives to find mutually advantageous outcomes. Outcomes for Aboriginal and Torres Strait Islander people will result from listening to them.Economic independence through direct employment, business development and training are among the advantages that Rio Tinto will offer. Strong support will be given to activities that are sustainable after Rio Tinto has left the area.

Leigh CliffordChief Executive

Aboriginal & Torres Strait Islanders Policy

Policy ImplementationPolicy Implementation

• Regional & Land Access Agreements

• Regional Development Programs

• Rio Tinto Aboriginal Foundation

Regional & Land Access AgreementsRegional & Land Access Agreements

• Rio Tinto seeks consultative mine development and land access agreements with Aboriginal TO’s & groups affected by Rio Tinto operations.

• Wherever appropriate and possible we seek to include State governments in tripartite arrangements

• Since 1996– 5 major mine development agreements– 30 exploration access agreements

• 2001– Eastern Guruma Agreement – Western Cape Communities Agreement

Rio Tinto Operations & Land Use AgreementsRio Tinto Operations & Land Use Agreements

Rio Tinto Exploration Tenement

Rio Tinto Operating Site

Land Use Agreement Completed or Pending

500km

Hamersley Iron

Comalco Weipa

Pacific CoalComalcoGladstone

Coal & Allied

KintyreGurama

Yandicoogina

Kimberley MOUBalanggara Benda Bluff

Mt Lean

Century

Western Cape

Hail Creek

Wellington Common

Hunter Valley

Mt Davies De Rose Hill

WA

QLD

NSW

SA

VIC

TAS

Far West Coast SA

Dambinangari

Yulga JinnaWhite Lakes

Mt Candolle

Nyamal

Yamtaji Land

Thalanyji

Pine Ridge

Walgundu

Sth Nicholson

Stokes RangeArgyle Diamonds

NTRobe

Peak Gold

ComalcoBell Bay

ERA

North Parkes

Dampier Salt

Three Springs

Western Cape Communities Co-existence Agreement

March 2001• Comalco• Cape York Land Council• 11 Traditional Owner Groups• Councils (Aurukun, Napranum, Mapoon

and New Mapoon)• Queensland Government

Weipa

Mapoon

Aurukun

Napranum

Western Cape CommunitiesWestern Cape Communities

• Weipa Population 2000» Daily Jet Service to Cairns» Regional Centre » Company Town

• Napranum Population 1000» 7 km from Weipa» Local Council

• Aurukun Population 1000» 200 km by dirt road from Weipa» Shire Council

• Mapoon Population 250» 80 km by dirt road from Weipa» Local Council

• New Mapoon Population 280» 250 km by dirt road from Weipa» Local Council

1957 – Comalco awarded mining lease from Qld Govt

1961 – First bauxite mined and shipped from Weipa

1963 – Mapoon closed - Forced removal many families

1992 – Mabo decision - Landmark for Native Title rights

1993 – Wik Peoples challenged Comalco Act & Lease

– Native Title Act

1995 – Comalco begins negotiations with CYLC

1996 – Wik: High Court finds Comalco interests valid1997 – Century Zinc Agreement signed

– Alcan agreement with communities; Comalco deal with Alcan

1998 – NTA amendments

2001 – WCCCA signed

HistoryHistory

• Comalco and Rio Tinto recognised that negotiation and consultation was far preferable to litigation.

• Lease until 2062 – however, a recognised need to “modernise” relationships rather than rely on ad hoc initiatives

• Recognise Traditional Owner rights

• Co-existence agreements (ILUAs) made possible under NT Act to address respective interests

Local Context?Local Context?

• Mutual respect and recognition• Support for future Comalco mining operations• Economic development of indigenous

communities• Increased Indigenous employment in Comalco • Increased Indigenous representation in

consultations about operations• Increased level of cultural awareness among

Comalco employees• Requirement for ILUA registration and native

title applications

Basis for AgreementBasis for Agreement

• Charitable Trust controlled by majority Traditional Owners, with Community reps., State, CYLC and Comalco as invitees

- $2.5 million Comalco annual contribution

- $1.5 million annual Qld Govt contribution

(both increase with production & prices)

- 60% of annual funding to the Trust is placed in long-term secure investments

Key Aspects Key Aspects

• $500,000 Employment and Training Budget- managed by Comalco to run programs endorsed by the Coordinating Committee

• $150,000 Cultural Awareness Fund - allowance for bursaries, cultural heritage & Ranger programs

• All Comalco staff to complete Cultural Awareness Course run by TO’s

• Transfer of Sudley Station for agri-business & Indigenous training:- 1325 square km working property(6000 head of cattle; improvements and homestead facilities)

Key aspects (cont.)Key aspects (cont.)

Coordinating Committee to oversee day to day implementation of Agreement and consult on : - cultural heritage and site management

- Comalco operations and plans

- employment and training initiatives

- environmental & rehabilitation aspects

- land access (mine and recreation)

- Committee has broad representation from all signatories to the Agreement

Coordinating CommitteeCoordinating Committee

• The Agreement was signed by all parties on Wednesday 14 March 2001 at Weipa

• Premier Peter Beattie issued a formal apology to the people of Mapoon

• Comalco apologised for taking 40 years to come to such an agreement

• Speeches acknowledged a new era for Western Cape Indigenous people - acknowledged responsibilities and provided the means for delivering a better future

CeremonyCeremony

Globalisation Globalisation

• Transformation of social relations

• Growth global & regional connections

• Reconfiguration of social geography

– Far-reaching implications for governance

• Contrast to sovereign statehood framework of 18th-20th Centuries

GlobalisationGlobalisation

• Catchcry of the 21st Century

– Vagueness, inconsistency, confusion

– Oversimplification, exaggeration,

– Wishful thinking

• A number of broad usages

– Related, overlapping and not new at all

‘‘International’International’

• Cross-border activity – sovereign states• Growth in international transaction &

interdependence• Increased movements - state frontiers

– people, – products, – money, investments, – messages, ideas

• Events & conditions in one country inevitably effect others

Removal of restrictionsRemoval of restrictions

• Movements between countries– ‘open’, ‘borderless’ world economy

• Reduction, even abolition of– Statutory trade barriers

– Foreign exchange controls

– Capital controls

• Privileged citizens & professions are particularly mobile

‘‘Worldwide’ & ‘Westernisaton’Worldwide’ & ‘Westernisaton’

• Objects & experiences

– Gregorian calendar, automobiles, Chinese restaurants, CSR

• ‘Modernisation’

– Capitalism, rationalism, industrialism, bureaucratism

– Heavily impacting local governance

Reconfiguration of governanceReconfiguration of governance

• No longer defined soley by– Sovereign states, territorial places & borders

• Large-scale reconfiguration of territorial controls, this is what makes contemporary globalisation new & different– CNN broadcast, electronic finance, climate

change, internet, intercontinental missiles, rules of world trade

Nation states still matterNation states still matter

• Continue to exert significant influence

• Co-existence

– Fuzzy sovereignty

– Regional currencies

• Euro

• US dollar

Globalisation is UnevenGlobalisation is Uneven

• Some enjoy greater global connectivity– North America, North‑East Asia, Australasia,

Southern Africa and Western Europe

– Managers, professionals & the wealthy

– Conurbations

• Elsewhere nationalism still reigns– Often brutally

Nationalism remains strongNationalism remains strong

• Well established or still emerging– Industrialisation & division of labour– Effective large-scale public administration– Imperative of cultural association

• Five factors define nationality– collective name – common myth of ancestry – distinctive shared culture – specific territory – sense of solidarity

Nationalism remains strongNationalism remains strong

• Well established or still emerging– Industrialisation & division of labour– Effective large-scale public administration– Imperative of cultural association

• Five factors define nationality– collective name – common myth of ancestry – distinctive shared culture – specific territory – sense of solidarity

Governance challenge of 21Governance challenge of 21stst C C

• New social contracts• Confined to economic reach• Sets aside need for cultural coercion• Transformation of social geography

– Decentralised– Local authorities

• Human rights, economic growth, ecological integrity attain a higher priority

Governance challenge of 21Governance challenge of 21stst C C

• New social contracts• Confined to economic reach• Sets aside need for cultural coercion• Transformation of social geography

– Decentralised– Local authorities

• Human rights, economic growth, ecological integrity attain a higher priority

No demise of Sovereign StateNo demise of Sovereign State

• Robust survival

• Some are stronger than ever

• Change on traditional understanding

– ‘sovereignty’, ‘crown’ ownership, ‘royalties’

• Multilateral rather than unilateral governance now the norm

Nationalism & GlobalisationNationalism & Globalisation

• Military forces, currencies, public policy, state-sponsored amenity– Optimising scale arsing from industrialisation

• Shipping, railways, telegraphy

• Globalisation– Optimising scale of the information age– Expanded scale, but limit scope– Do not seek to control everything

• Confined to economic sphere• Not social, cultural & spiritual

– No such thing as ‘National Socialist’ corporation

Sub-state & Supra-stateSub-state & Supra-state

• Regional & local regimes have gained– e.g. Scottish and Welsh assemblies– Virtual ‘city states’ dominate world finance

• Supra-state institutions– EU, IMF, NATO, OECD, WTO, other

international agencies• Dispersion of authority

– ‘up’ & ‘down’– lateral

• Governance is multi-layered & diffuse

Sub-state & Supra-stateSub-state & Supra-state

• Regional & local regimes have gained– e.g. Scottish and Welsh assemblies– Virtual ‘city states’ dominate world finance

• Supra-state institutions– EU, IMF, NATO, OECD, WTO, other

international agencies• Dispersion of authority

– ‘up’ & ‘down’– lateral

• Governance is multi-layered & diffuse

‘‘Global Culture’?Global Culture’?

• Has failed to emerge– Except maybe in international airports & hotels

• People are choosing to accentuate their local identity– Celebration of diversity, …..or– Political fragmentation

• Paradox?– Countervailing nature of humanity– Tribalism, local culture is alive and well!

Corporate CitizenshipCorporate Citizenship

• Enlightened vision & ‘self-interest’ alone cannot guarantee

• Shareholder activism, ethical investment, consumer boycotts

• Pension, insurance & investment funds – need for mobility!

• Democratic government cycles vs instant market response

Corporate CitizenshipCorporate Citizenship

• Enlightened vision & ‘self-interest’ alone cannot guarantee

• Shareholder activism, ethical investment, consumer boycotts

• Pension, insurance & investment funds – need for mobility!

• Democratic government cycles vs instant market response

ConclusionConclusion

• A change in social geography• Question of governance

– Multi-layered, diffuse identity & regulation– Counterweight to sovereign governance deficit?

• Governance evolution– 16th century

• personified ‘divine majesty’– 20th century

• geographic, constitutional, comprehensive public sectors

– 21st century • ? Global agencies & local constituencies

ConclusionConclusion

• A change in social geography• Question of governance

– Multi-layered, diffuse identity & regulation– Counterweight to sovereign governance deficit?

• Governance evolution– 16th century

• personified ‘divine majesty’– 20th century

• geographic, constitutional, comprehensive public sectors

– 21st century • ? Global agencies & local constituencies