Science Teachers Association
of New South Wales
Professional Development Day
MACQUARIE
UNIVERSITY DIVISION OF ENVIRONMENTAL AND LIFE SCIENCES
9
August 2003
Office of the Board of Studies
Metropolitan Nth
Level 7/117 Clarence Street
SYDNEY NSW 2000
(PO Box 5300 SYDNEY NSW 2001)
Ph: 9367 8356
M: 0418 683 608
F: 9367 8375
carnemolla@boardofstudies.nsw.edu.au
Department of Human Geography
Macquarie University 2109
Ph: 9850 8386
F: 9850 6052
In addressing issues involved in mining it is important to identify the importance of CONTEXT and the need to integrate insights from the earth, environmental and social sciences not only in understanding the nature of the issues, but also in developing sustainable responses to those issues. While other parts of the Earth and Environmental Science syllabus might may train students to look for explanation of current forms and opportunities in the time scales of geological time, the Mining and the Australian Environment option encourages students to “investigate processes that may be used to minimise environmental damage during and after the mining process in the light of national strategies for a sustainable future”.
In this workshop we focus on the interplay of social,
political, legal and economic issues with environmental issues, focusing on
Native Title and Environmental Impact Assessment.
Associate Professor
Richie Howitt is a Human
Geographer who has been an observer and analyst of Australian mining for
twenty-five years. His work has included assessments of the corporate strategies
of major mining companies, social impact assessment of major (and minor) mining
operations, native title negotiations, and currently a review of the impact of
cross-cultural mining operations on corporate culture. He was awarded the
Australian Award for University Teaching (Social Science) in 1999.
Paul Carnemolla is Liaison Officer for Metropolitan North with
the NSW Board of Studies.
The syllabus identifies
the topics addressed in this workshopin the following way:
The laws related to mining leases, rights of the land-holder and the role of governments in granting leases:
·
Discuss the implications of one landmark decision
that has impacted on mining operations in Australia.
·
Outline the effect of one state or federal policy
on mining operations in the context of sustainability.
The relationship between
mining and the environment is a complex and sometimes controversial one that
cannot be simplistically reduced to a set of biophysical relationships, energy
balances or flows.[1] In most
countries, governments mediate the relationship between the mining industry and
the environment. Governments define the rights of mining interests. They define
the sorts of legal tenure and responsibilities that mining companies have, and
they define the terms for environmental responsibility. It is important the
recognise that technical issues such as questions of recoverable ore grades in
a mineral deposit, rehabilitation arrangements after mining, water management
during mining operations and choices in mineral recovery techniques for
processing ore deposits are always affected by social, political, legal and
economic issues they are never simply technical issues to be addressed by
technical experts.
In Australia, for
example, the Commonwealth legislation is clear that the ‘environment’ is not
simply the ‘natural’ elements of earth surface systems. It is not upto
‘scientists’, therefore, to tell us what ‘the environment’ is. Indeed, the
social context is quite central to the Commonwealth definition of
‘environment’. Section 528 of the EPBC Act defines environment in the
following terms:
“environment includes:
(a) ecosystems and their constituent parts, including
people and communities; and
(b) natural and physical resources; and
(c) the qualities and characteristics of locations,
places and areas; and
(d) the social, economic and cultural aspects of a
thing mentioned in paragraph (a), (b) or (c).”[2]
In Canada, one
environmental assessment process went even further, requiring the development
proponents of a major hydro-electric project to adopt a ‘multicultural
definition of the environment:
“While
the process of classifying the valued components and the structure of the
environment is universal, the manner of performing such classifications is
culture dependent. Thus the [local indigenous groups] and other inhabitants of
the region affected by the proposal may well define the environment around them
in different ways. Therefore, in addition to defining the environment in
accordance with state-of-the-art scientific methods, the Proponent shall also
describe it in accordance with the acquired knowledge of the [local indigenous
groups], making use, among other methodologies,, of those developed in the
field of ethno-science”[3]
A recent paper by Jayanta
Guha (Emeritus Professor of Geology, University of Québec at Chicoutimi) offers
one way of re-thinking geo-environmental problems. He suggests that a better
understanding of basic science will assist not only in distinguishing ‘natural’
and ‘mining’ causes of problems, but in developing solutions and management
regimes.[4]
In addressing the
relationships between mining activities, environmental issues and the social,
political, legal and economic contexts in which they occur, a range of
geographical scales come into play. The nature of global economic issues and
the ways in which transnational resource corporations and international treaty
arrangements affect the industry is, perhaps, most obvious. The interplay of
local, state, national and international issues in questions of human rights,
employment conditions, the ‘social licensing’ of mining, the management of
social and cultural diversity, and the evolution of legal conditions for
mining, however, is perhaps harder to grasp and operationalise in the
classroom. So, contextualising Australian mining activities in terms of
globalisation can also provide a framework for re-thinking geo-environmental
problems.[5]
These ways of
understanding the place of mining in Geo-Environmental Management systems is an
important element of contextualising mining industry activity for secondary
students. In many ways, we do need to provide frameworks within which students
might better process diverse information sets from industry, political,
environmentalist, media and community sources. The syllabus, however, requires
us to deal with this issue not through conceptual frameworks, but through
Australian case examples.
In Australia, except in
the case of uranium, which is governed by the Commonwealth, it is state governments
that hold the pre-emptive interest in mineral resources and who claim a right
to allocate those resources through various exploration and mining rights. It
is also generally state governments that deal with the planning and
environmental approvals, receive royalty payments and allocate other property
rights that affect mining interests.
Historically, Crown
ownership of minerals evolved in Australia as part of the colonial system of
governments prior to federation. Very different systems of mineral ownership
exist in other countries. For example, in the USA sub-surface mineral rights
are commonly attached to surface property rights which is why people can
become millionaires when gold or oil is discovered on their property. In
Canada, modern treaties negotiated with First Nations have recognised that
First Nations retain a right to many mineral, forest, water, wildlife and
energy resources in their territories. In Aotearoa/New Zealand, Maori iwi
(tribes) have been recognised as holding specific rights including ownership
and use rights in relation to particular resources. This has produced
substantial shifts towards co-management of resources under that country’s Resource
Management Act 1991.[6]
The Native Title Act
1993 is Commonwealth legislation, which purports to give recognition to the
judicial (court-based) recognition of common law native title in the High
Court’s Mabo decision in 1992. The Act was amended in 1998 by the Howard
Government to address concerns about ‘workability’ and the issues that were
decided in the High Court’s Wik decision in 1996. There has been
well-documented criticism of the amendments as putting Australia in breach of
its international human rights obligations because of the racist impacts of the
amendments.[7] Certainly
the Native Title Debates of the 1990s were difficult and divisive. The mining
industry was directly implicated, with significant efforts by some in the
industry to advocate a ‘blanket extinguishment’ approach to government policy,
and with a split in industry ranks in the mid-1990s when Rio Tinto shifted its
own policy position to advocate negotiated settlement of Native Title issues on
its own mining and exploration projects.
Frank Brennan offers a
view of the ‘post-Wik’ environment for Australian mining industry activities.[8]
His paper captures the sense that society, industry and government all faced
critical choices in the debate about how to respond to the idea that mining
leases might have to deal with ‘coexisting’ rights of native title.
To understand the
intensity of the politics of native title, we need to understand a little of
the historical context. First, mining legislation, particularly in Western
Australia and Queensland, was in many ways the pre-eminent legislation in the early
construction of colonial governance. This gave high levels of autonomy to
mining interests once their rights had been created. In fact, in describing the
sorts of rights created by some of the ‘long boom’ mining leases in northern
Australia, I have suggested in the past that we could characterise the rights
given to transnational mining companies as a form of ‘corporate sovereignty’!
Yet, underpinning this has always been the possibility that the claims of
governments to ‘own’ sub-surface minerals and the right to dispose of surface
rights could be challenge legally, politically and socially by Aboriginal
Australians.
In the popular
discourse, the High Court’s Mabo and Wik decisions are credited
with producing dramatic changes in Australia. Certainly, judicial rejection of
the doctrine of terra nullius represented a major shift in judicial
thinking, and presented the nation with a long overdue opportunity to come to
new terms between Indigenous and non-Indigenous Australians.
Then Prime Minister
Paul Keating anticipated this challenge in his 1992 Redfern speech. In his
famous ‘Redfern Speech’, he suggested:
“… the plight of Aboriginal Australians affects us all. In Redfern it
might be tempting to think that the reality Aboriginal Australians face is somehow
contained here, and that the rest of us are insulated from it. But of course,
while all the dilemmas may exist here, they are far from contained. …
This is perhaps the point of this Year of the World’s Indigenous
People: to bring the dispossessed out of the shadows, to recognise that they
are part of us, and that we cannot give indigenous Australians up without
giving up many of our own most deeply held values, much of our own identity
and our own humanity.
… We simply cannot sweep injustice aside. Even if our conscience
allowed us to, I am sure, that in due course, the world and the people of our
region would not. There should be no mistake about this our success in
resolving these issues will have a significant bearing on our standing in the
world”.[9]
The conservative
Coalition partners, most state and territory governments, the National Farmers
Federation and the Australian Mining Industry Council all sought to do
precisely what Keating had warned against. They imagined Native Title could
either be extinguished or ‘contained’. They imagined they could somehow
insulate their constituents and supporters from needing to address the legacies
of a system that was predicated on the false notion of terra nullius.[10]
Not surprisingly, the original legislation, which had been amended even more
than the legislation that had established the Aboriginal and Torres Strait
Islander Commission a few years earlier,[11]
was flawed and needed some practical amendments. Australia’s dominant
geographical legacy of colonial settlement the states and their boundaries
proved fundamental in defining the political responses.
The conservative
opposition parties and some states sought to respond to the challenge of Native
Title by pursuing blanket extinguishment. Despite the clarity of the Mabo
judgement, which made it clear that the issuing of freehold title unambiguously
extinguished Native Title, state leaders in Queensland and Western Australia
suggested that suburban backyards were under threat from Native Title. The Wik
decision made it clear that morally dubious acts, such as the granting of
mining leases, which took no account of the rights or interests of Aboriginal
people who were effectively wards of the Queensland state who were subject to
control by deeply racist and repressive legislation, also extinguished Native
Title. But for vested interests whose place in the sun was secured on the basis
of the ‘truth’ of terra nullius, this was not enough. National Party
leader Tim Fischer promised ‘bucketloads of extinguishment’,[12]
and Prime Minister Howard developed a ‘Ten-Point Plan’ that would counteract
the effect of a policy shift which had seen the pendulum swing ‘too far in
favour of Aborigines’.[13]
In large areas of
Australia, the dominant land tenure has been Pastoral Leases a form of title
which is significantly less than freehold title, and in which there were often
reservations requiring landholders to provide access to Aboriginal people, and
which also provided for controls on investment levels, stock numbers and other
activities. Mining tenures (exploration licenses, mining leases etc) have
historically been grant ‘over’ such leasehold lands with a requirement for
minimal interference and appropriate compensation. The regulations governing
notifications to landholders and so on were quite routine by the 1990s, with
state bureaucracies handling mining claims relatively efficiently.
The recognition of
native title, and the Wik case finding that native title and pastoral lease
title could ‘coexist’, however, threw these bureaucratic regimes into a degree
of chaos. The negotiation of the Native Title Act 1993 involved an
undertaking by all states and the commonwealth that no new titles would be
created in ways that would affect surviving native title interests unfairly. Specifically,
the Native Title Act established ways for registration of native title
interests, and gave those holding potential native title rights a ‘right to
negotiate’ about the creation of new titles, or proposals for ‘future acts’.
Despite these undertakings, several governments continued to issue mineral
rights over pastoral lands in ways that meant that there was considerable
uncertainty over their validity once the Wik case was decided. Even after the
Wik decision, however, some states c0ontinued to issue mining rights over
pastoral lease land and other areas where native title might survive in ways
that were inconsistent with (and arguably in direct breach of) the Native
Title Act. The debate over the validity of these rights affecting
hundreds of titles in Queensland and Western Australia in particular was
couched in terms of ‘certainty’ and ‘workability’. The deeply entrenched
structural racism within Australia political thinking and a related widely-held
assumption in many parts of the mining industry that mining was a privileged
activity that should not be held accountable to Aboriginal interests, was
influential in setting the terms of the debate. For example, Aboriginal
property rights were conceptualised as quite different to others citizens’
property rights by conservative advocates of the protection of ‘private
property’. The propositions about blanket extinguishment, for example, would
appear unacceptable if couched in terms of the blanket removal of freehold
rights yet were seriously entertained by governments.
For the mining industry, a statement in 1996 by the Chief Executive Officer or Rio Tinto Plc changed the reference point for debate about native title.[14] Addressing an audience of Australian executives in Europe in August 1996, he suggested that Australia was:
... undergoing radical change. A change of the
kind that happened at the beginning of this century, when six British colonies
agreed to combine in a single nation. Today [he said], nearly 18 million people
are redefining what it means to be Australian (Leon Davis 1996: 1).[15]
Having
acknowledged his position as a global executive managing substantial assets
including major investments in Australia, and that change inevitably frightens
some people, Rio Tinto’s Leon Davis provided a perspective on change which
challenges many of the dominant caricatures of the transnational executive:
Nothing demonstrates this process of
redefinition and Australia’s growing confidence and maturity more than the Mabo
debate and subsequent Native Title legislation. The more the nation has looked
into the future, the more people have realised the need to come to terms with
the past.... However, just acknowledging the cultural differences that exist
will not solve the problem. This will be the task of the Australian people.
Just as there must be a deep understanding of Aboriginal needs [in
negotiations, for example], there must be an equally deep understanding of the
economic imperatives of the system under which we all live ...[16].
In March 1995, Davis had expressed CRA’s satisfaction with the central tenets of the Native Title Act and committed the company to a new approach in the area of Aboriginal relations, involving:
·
moving away
from a litigious framework in the dealings with Aboriginal people
·
opening
channel to those not favourably disposed to CRA
·
developing
innovative ways of sharing with and/or compensating indigenous people
·
developing
a genuinely open mind on the key questions and issues.[17]
By February 1996, CRA released a policy on Aboriginal and Torres Strait Islander People which shifted the reference point for judging the company's dealings with indigenous interests. While the policy document was largely produced as a top-down initiative within the company, the management training forums provided a process for its dissemination and discussion within the company. Rio Tinto also set about the process of putting rhetoric into practice - although this is, perhaps inevitably, more fraught in real negotiations than within company forums. It is recognised, however, that implementation of the policy through completed agreements with indigenous people is the only criteria for measuring success:
There is no benefit in only having a set of
headlines and worthy documents. CRA will not be measured by these. The real
measure is in application of the settlement and words in arrangements that
benefit both Aboriginal people and CRA - deals that have mutual advantage[18].
So, from a position
in which the industry simply opposed judicial recognition of native title, Rio
Tinto’s shift reflected a new approach to both community relations and more
broadly to sustainability in the industry. Mining negotiations with Aboriginal
groups became more commonplace, and have shifted the way that many companies
think about start-up in exploration and mining operations. For example, the
social skills of cross-cultural management, negotiation, and communication are
highly valued as ‘new competencies’ in the industry.[19]
For all the debate
and disruption, however, it would be easy to overstate the practical change
wrought in Australia by native title. To date, the Federal Court has determined
only forty-five claims. Nearly 600 remain to be dealt with. Only seventeen of
these forty-five claims have demonstrated the existence and persistence of
Native Title across the entire claim area. Fourteen of the claims were found to
have no Native Title persisting in the claim area, including significant
litigated determinations in New South Wales (Yorta Yorta) and South
Australia (De Rose Hill). In the Yorta Yorta case (December
1998), Justice Olney concluded that the ‘tide of history’ had washed away the
customary laws of the Yorta Yorta and their connection to their country.
In the case of De Rose Hill (November 2000), which concluded that South
Australian pastoral leases had not extinguished Native Title, the claimants
were found to have lost their connection to their traditional estates in the
last twenty years. This decision, which risks inviting pastoral leaseholders to
lock gates, defy Aboriginal people access to traditional estates and threaten
violence, is currently on appeal. Even in those areas where Native Title was
determined as continuing to exist, many of the determinations have insisted on
major restrictions in favour of non-Indigenous interests. For example, in the
Croker Island case (September 1998), the Federal Court insisted that Native
Title rights did not provide for an exclusive interest in sea territories and
their resources. Native Title rights to fish were proved, but they coexisted
with the right of the general public to fish. In other words, the critically
important right to manage property was reduced to a right equivalent to the
general public’s right to use a resource. In the Wik determination, it
was determined that state legislation that clearly breached contemporary human
rights standards in terms of protection of the interests of Aboriginal people
vis a vis mining companies had legally extinguished Native Title in mining
lease lands of western Cape York Peninsula. In the Miriuwung-Gajerrong and
Balangarra determination (August 2002), the High Court disallowed
Aboriginal claims to interests in water and sub-surface minerals. On appeal,
the court concluded that the Howard Government’s amendments to the Native Title
Act required that Native Title is essentially a ‘bundle of rights’, which
cannot be revived once extinguished by a legal act by the Crown. The Western
Division Leases case (Wilson) in NSW (August 2002) found that leases issued
under the Western Land Act 1901 (NSW) had extinguished Native Title,
effectively excluding Native Title from most of Western NSW.
So, it seems post-Mabo
landscapes look quite similar to those that existed before the High Court’s
rejection of the doctrine of terra nullius. Even successful claimants
have found that there are limitations to the meaning of ‘success’. In the
Torres Strait, where there have been 13 successful determinations, the
principal change has been a degree of recognition and an opportunity to
negotiate about development proposals. One year after a series of consent
determinations which returned seven islands to Kuareg people, the NNTT’s
newsletter reported ‘aspects of the ILUA are still being implemented [and] the
full effects of the determinations are not yet clear’.[20]
A determination does not, for example, provide recognition of the structures of
law and government of the successful applicants. It does not empower a people
towards self-determination. At best it seems Native Title delivers a seat at
the table where others discuss what they want to do with the country involved.
In many quarters, even the suggestion of
self-determination, let alone self-government, is seen as threatening to divide
Australian sovereignty. Yet, in our federal system, sovereignty has always been
divided between competing governments that are only rarely able to act in a
unified way. Aboriginal and Torres Strait Islander Social Justice Commissioner
Bill Jonas notes very limited debate about Indigenous sovereignty has proceeded
in ways that are ‘prejudicial to Indigenous peoples’ because it conflates
Aboriginal and state sovereignty as more or less equivalent concepts,
formulating Indigenous claims as:
… a threat to territorial integrity; to our system of government; to
our way of life. And as a consequence, it irresistibly leads the broader
community to the conclusion that Aboriginal sovereignty cannot be
recognised and must be resisted.[21]
There has been a lot of myopic fear-mongering
over Native Title, which has belittled the nation and brought it into
international disrepute. Rather than recognising the importance of Indigenous
self-determination and self-government to the integrity and cohesion of
Australia, governments, following the Commonwealth’s belligerent lead, have
opposed Native Title, emphasising the need to protect ‘State’s rights’, and
trying to minimise its incidence, reduce its influence on how we are governed,
and restrict the extent to which it removes Indigenous Australians from the
harsh yoke of social surveillance and accountability to values and rules that
are not of their making. That fear has produced a Native Title system which
fails to deliver much beyond a limited recognition to most Indigenous
Australians, and which reinforces the authority of the Crown rather than
Indigenous institutions. In light of the implication in the wording of the
Syllabus document, it is ironic that the mining industry is perhaps a more
coherent and substantive supporter of native title than the governments that
the Mabo and Wik decisions concluded were most directly obliged to recognise
and respect native title rights.
Jonas offers an
alternative vision of the rule of law and structure of governance in Australia
to that which appears to motivate most states and the Commonwealth. His vision
is much more consistent with the current practices of many mining companies.
Jonas alerts us to the increasing recognition that human rights are
not within the discretion of governments to give or withhold but are inherent.
For Indigenous people, the international system has begun to acknowledge their collective
rights to self-determination and to protection of their culture that is, that
rights reside in peoples’ systems of organization, governance and ultimately,
sovereignty.[22]
The second topic
addressed in this workshop is “the effect of one state or federal policy on
mining operations in the context of sustainability”. This will be tackled by
considering the effects of the Environmental Protection and Conservation of
Biodiversity Act 1999. This new legislation came into effect in July 2000
and represented a major change in the way that environmental protection is
organised in Australia. In particular it was intended to simplify the
mechanisms by which environmental protection would be achieved, and to clarify
the responsibilities of developers and governments in pursuing ‘sustainable
development’. For example, the EPBC Act supersedes five earlier acts and
extends environmental protection provisions and procedures to all states,
territories, external territories and the offshore exclusive economic zone.[23]
The EPBC Act has
a significant impact on mining because it it’s the principle legislation
governing the environmental impact assessment regime facing mining development
proposals. The act establishes its scope of operations as applying to “matters
of national environmental significance” and identifies just six specific
matters that fit that scope:
While this definition
makes no reference to a range of important environmental concerns that many see
as having ‘national significance’ such as climate change, land degradation,
water and air pollution, and forest and coastal resource management, and it
certainly makes no blanket reference to mining activities as requiring specific
attention from national environmental protection procedures, many mining
activities come within the scope of the legislation because they have effects
and impacts on those six specific matters highlighted in the Act. Likewise,
although some mining activities may remain within the domain of state and
territory administrations rather than the Commonwealth, there is scope for
Commonwealth oversight. One of the criticisms of the EPBC Act was that it
risked abdicating a Commonwealth role in matters of national importance to more
parochial state and territory governments.[24]
As we saw in relation to
Native Title issues, above, in Australia, except in the case of uranium, which
is governed by the Commonwealth, it is the state and territory governments which
hold the pre-emptive interest in mineral resources and claim a right to
allocate those resources through various exploration and mining rights. It is
also generally state governments that deal with the resource management
decisions and planning and environmental approvals. They also receive royalty
payments and allocate other property rights that affect mining interests. In
each state, there is a system for assessing the environmental impacts of
proposed development activities, and the EPBC Act establishes a new
Commonwealth regime for this area too.[25]
In its first year of
operation, there were 310 referrals under the EPBC Act for projects
involving mining, urban development, infrastructure development, tourism and
recreational developments, energy and water management. Of the 201 that Shaw
considered, 62 required further assessment.[26]
The EPBC Act establishes a set of cooperative arrangements between the
Commonwealth and the states and territories, allowing ‘best practice’
procedures of the states to be approved as authorizing procedures for required
Commonwealth approvals. This is intended to streamline approval processes and
to avoid triggering of separate Commonwealth investigations and assessments by
non-environmental triggers such as trade or export approvals, as occurred under
previous legislation.
According to one
observer:
There is no doubt that the EPBC Act has fundamentally changed Australia’s national environmental laws. Improved transparency and opportunities for public participation, enhanced enforcement mechanisms, and increased powers for the Commonwealth Environment Minister are just some examples of improvements made by the EPBC Act, when compared to the legislation it replaced.[27]
One of the notable absences from the EPBC Act
triggers for environmental assessment procedures are any concerns about social
dimensions of ‘environment’. Clearly, in light of our earlier discussion of
native title issues, this means that there is a much greater dis-integration of
the ‘social’ and ‘natural’ environmental issues than the definition of the term
‘environment’ might anticipate. It is certainly the case that the “matters of
national environmental significance” identified by the EPBC Act will
privilege ‘scientific’ expertise in the environmental assessment. In the case
of mining projects, it risks separating and marginalizing the consideration of
social impacts from the resolution of narrowly defined ‘environmental agendas.
This is inconsistent with the sort of framework put forward by Guha,[28]
and risks excluding important biophysical, social and cultural information that
should be incorporated into best practice environmental assessments.[29]
In terms of the concerns
of the syllabus, the EPBC Act entrenches sustainable development as the
pre-eminent criterion against which environmental assessment occurs. This
effectively requires the mining industry to performs its function in society
consistently with the principles of sustainable development. For many mining
projects this is an enormous challenges which requires a substantial shift in
thinking and practices to achieve. As with the evolution of the native title
system, the introduction of the EPBC Act produced considerable
uncertainty and concern about ‘workability’. While this was perhaps less
publicly visible than the debates over native title, for the mining industry,
it has been perhaps equally significant.
Basic notions within the
EPBC Act remain deeply contested. For example, the idea that
environmental issues can be categorically identified as “nationally
significant” is seen by Hughes as “technically incorrect”. She points out:
Ecologically, there cannot be
any concept of an issue of only local environmental significance. All
degradation of the environment affects the delicate ecological balance of the
planet as a whole … Whilst the cause of an environmental problem may appear to
exist in one State only, the effect of that environmental problem affects the
entire globe. All environmental systems are interconnected; thus all
environmental problems in Australia are of national environmental significance
…[30]
Similarly, the principles of ecologically
sustainable development and their implications are widely debated. The EPBC Act
defines the principles in this way:
The following principles are principles
of ecologically sustainable development:
(a) decision‑making
processes should effectively integrate both long‑term and short‑term
economic, environmental, social and equitable considerations;
(b) if
there are threats of serious or irreversible environmental damage, lack of full
scientific certainty should not be used as a reason for postponing measures to
prevent environmental degradation;
(c) the
principle of inter‑generational equity—that the present generation should
ensure that the health, diversity and productivity of the environment is
maintained or enhanced for the benefit of future generations;
(d) the
conservation of biological diversity and ecological integrity should be a
fundamental consideration in decision‑making;
(e) improved
valuation, pricing and incentive mechanisms should be promoted.[31]
In practice, the
balancing of the economic, environmental, social and equitable dimensions of
ecologically sustainable development will be an issue that is deeply contested
in and around the mining industry. While good environmental and social impact
assessment offers important tools for harnessing this debate to improve mining
practices and the governance and accountability of mining operations in their
social and biophysical contexts, there is no guarantee that the environmental
agencies charged with implementing and enforcing the EPBC Act will be
adequately resourced to undertake the required actions, nor that the integrated
assessment of social, economic, biophysical and equitable dimensions of
‘environmental impacts’ will be incorporated into decision-making about mining
projects.[32]
[1] P. Sampat, Scrapping Mining Dependence, in G Gardner et al (eds.) State of the World 2003: A Worldwatch Institute Report on Progress Towards a Sustainable Society, Earthscan, London (2003): 110-129.
[3] Guidelines: Environmental Impact Statement for the Proposed Great Whale River Hydroelectric Project, Great Whale Public Review Support Office, Montreal (1992).
[4]
J. Guha, Geo-environmental management, public
awareness and development an interdisciplinary approach, in Liu,C-Q, Z Zhoa,
T Xiao and J Guha (eds.) Strategic Management of Environmental and
Socio-Economic Issues, Guizhou Science and Technology Publishing House,
Guiyang, China: 1-7 (2003).
[5] See for example, R. Howitt, Recognition, reconciliation and respect: steps towards decolonisation? Australian Aboriginal Studies 1998/1.28-34 (1998).
[6] For a useful discussion of international comparative issues see, inter alia, P.G. McHugh, “The legal and constitutional position of the Crown in resource management”, in: R. Howitt, J. Connell and P. Hirsch, Resources, nations and indigenous peoples: case studies from Australasia, Melanesia and Southeast Asia. Melbourne, Oxford University Press (1996): 300-316.
[7] Chapter 1: A Nation in Dialogue, in W. Jonas (2001) Aboriginal and Torres Strait Islander Social Justice Commissioner: Native Title Report 2000, HREOC, Sydney. See also R Howitt, A nation in dialogue: recognition, reconciliation and indigenous rights in Australian, Hagar International Social Science Review, 2(2): 261-276 (2001).
[8] F. Brennan, Mining and native title post-Wik, in: S. Rees and S. Wright, Human rights, corporate responsibility. Sydney, Pluto Press: 102-115 (2000).
[9] P. Keating, “The Redfern
Park Speech” [1992], In: Grattan, M. (ed.) Reconciliation: essays on
reconciliation in Australia, Black Inc, Melbourne: 60-64 (2001).
[10] Howitt 1998, op.cit, n,4.
[11] R. Tickner, Taking a Stand: Land Rights to Reconciliation. Sydney, Allen & Unwin (2001), Chapter 3.
[12] F. Brennan, F. The Wik Debate: Its Impact on Aborigines, Pastoralists and Miners. Sydney, UNSW Press (1998): 57.
[13] Ibid.: 54-55.
[14] The following discussion is drawn from Howitt 1998, op.cit. n4.
[15] L. Davis, Redefining Australia, Luncheon address to Australian Business in Europe, RTZ-CRA, London, August 14 1996: 1.
[16] Ibid.: 2.
[17] Paraphrased from a paper given by Rio Tinto’s Vice President Aboriginal Affairs, P. Wand, CRA exploration and mine development in Australia after Mabo, paper presented to Australia and the Mabo Judgement Conference, London, 18-19 April 1996
[18] Ibid.: 7.
[19] See eg. B.E. Harvey, (2002) New Competencies in Mining: Rio Tinto's experience, Melbourne, Rio Tinto. May 2002.
[20] NNTT [National Native Title Tribunal] (2002). Talking Native Title, 3, June 2002: 5.
[21] W. Jonas, Recognising Aboriginal sovereignty - implications for the treaty process. Canberra. ATSIC National Treaty Conference. August 2002: 2, emphasis in original.
[22] Ibid.: 4, emphasis in original.
[23] The EPBC Act replaced the National Parks and Wildlife Conservation Act 1975, Whale Protection Act 1980, Endangered Species Protection Act 1992, World Heritage Properties Conservation Act 1983 and Environment Protection (Impact of Proposals) Act 1974. The EPBC Act does not affect the operation of the Aboriginal Land Rights (Northern Territory) Act 1976 or the Native Title Act 1993, see Australian Government Solicitor Legal Briefing, 17 Sept 1999: 1.
[24] L. Hughes, “Environmental Impact Assessment in the Environment Protection and Biodiversity Act 1999 (Cth)”, Environmental and Planning Law Journal 16(5): 441-467.
[25] The previous Commonwealth regime was established under Whitlam era legislation in the Environment Protection (Impacts of Proposals) Act 1974.
[26] C. Shaw, “Impact of the Environment Protection And Biodiversity Conservation Act 1999 (Cth) on the State Approval Process”, Australian Mining and Petroleum Law Association Yearbook 2001: 82-114.
[27] S. Chapple, “The Environment Protection And Biodiversity Conservation Act 1999 (Cth): One Year Later”, Environmental and Planning Law Journal 18(6): 523-539 at 524.
[28] J. Guha (2003) op.cit. n4.
[29] See eg R. Howitt, “Local and non-specialist participation in impact assessment”, in Liu,C-Q, Z Zhoa, T Xiao and J Guha (eds.) Strategic Management of Environmental and Socio-Economic Issues, Guizhou Science and Technology Publishing House, Guiyang, China: 27-36 (2003).
[30] Hughes (1999), op.cit. n24, at 445.
[31] EPBC Act 1999, Part 1, Section 3A.
[32] Many of these issues are taken up in my course ‘HGEO802 Social Impact Assessment and Cross-Cultural Negotiations’, which is offered as part of a number of Macquarie University postgraduate programs, including he Masters of Environmental Management and Masters of Sustainable Development in the Graduate School of Environment, see http://www.gse.mq.edu.au/About/degoff_cw.shtml