Table of Contents
In February 2008, the Commonwealth Attorney General called for a new approach to resolving native title claims, unblocking the system through ‘interests-based’ negotiations between claimants and other parties, including governments, which can result in an array of ‘non-native title’ outcomes (McClelland 2008). More recently, in the 2008 Mabo Lecture the Commonwealth Minister for Families, Housing, Community Services and Indigenous Affairs (Macklin 2008) called for ‘a mindset which structures the governance of these arrangements to ensure financial benefits create employment and educational opportunities for individuals and are invested for the long term benefit of communities’.[1]
These Ministerial speeches raise a number of important questions. The first is that they do not engage with research in relation to major Australian mining agreements which argues that many do not in fact deliver substantive, meaningful benefits to the Aboriginal parties (for example, Cousins and Nieuwenhuysen 1984; O’Faircheallaigh 1988, 2006). Even when agreements do deliver such benefits, they would appear to have only minimal impact on the general socioeconomic status of the Aboriginal people in mine hinterlands (for example, Taylor and Scambary 2005).[2] Secondly, the speeches avoid reference to the important issue which arises where compensatory payments involve the substitution of monetary benefits with goods and services which arguably should be generally accessible to all citizens (Smith 2001: 44; see also, for example, Altman 1985b; Altman and Levitus 1999: 17–18; Toohey 1984).
Thirdly, there are questions relating to the ‘distributive equity’ of agreement payments (that is, ensuring that compensation is paid to the appropriate rights holders) and ‘distributive spread’ (for example, whether other Aboriginal people than just those whose native title rights are impacted, should also receive a portion of compensatory payments) (Smith 2001: 42). Fourthly, there is the issue raised by the commonly inadequate attention typically paid to the implementation and monitoring stages of mining agreements (O’Faircheallaigh 2002a, 2003b). Lastly, and the subject of this chapter, are questions of the governance of mining agreements, which go to the ongoing ability of agreements to sustainably and effectively deliver the negotiated outcomes of any particular agreement. The significance of effective and sustainable agreement governance applies irrespective of these preceding factors, but little attention appears to have been paid to it as an issue, although attention has been paid to the governance of royalty associations and the like (for example, Altman 1985b; Altman and Smith 1999).
This chapter examines this core requirement of agreements to meet their objectives, making three key arguments: that inadequate attention is paid to the governance of agreements as systems; that agreement governance has to be explicitly understood and implemented as transformative; and that agreement governance should be seen as intercultural, a characteristic operating differentially across the various entities and relationships within any particular agreement.
These are not the only significant governance characteristics. For example, sustainable governance needs to incorporate an active recognition of the diversity amongst Aboriginal stakeholders, and between them and other parties (see Holcombe, Chapter 7; Scambary, Chapter 8). Indeed, the need to incorporate recognition of diversity is not unique to the case of Aboriginal people; there are arguments that it is an essential component of social sustainability more generally (Martin, Hondros and Scambary 2004; Western Australian Council of Social Services 2000). However, the three identified governance issues constitute case studies illustrating important principles for the negotiation, design, and implementation of large-scale mining agreements between Aboriginal people and major resource developers.
[1] Such sentiments are far from novel—they have a history at least as long as that of land rights itself; see for example Turnbull 1978.
[2] Indeed, such factors as the lack of adequate baseline data in many regions, compounded by difficulties in obtaining quantitative data sets that relate to the specific groups who are the beneficiaries of an agreement (Taylor 2008a), make the monitoring of agreement impacts potentially quite difficult.