Ciaran O'Faircheallaigh

Indigenous participation in environmental management of mining projects: The role of negotiated agreements

Abstract The principle that indigenous people should participate in the environmental management of resource projects on their traditional lands is increasingly recognised by international law and institutions. Negotiation of agreements between indigenous groups and resource developers represents one way in which that principle can be given effect. However, virtually nothing is known about the environmental provisions of negotiated agreements or their efficacy in enhancing indigenous participation. This article examines environmental provisions of agreements involving Aboriginal landowners and mining companies in Australia. It concludes that while agreements certainly have the potential to enhance Aboriginal participation in environmental management, a majority do not have this effect, reflecting the weak negotiating position of many Aboriginal peoples in their dealings with mining companies.

Making Social Impact Assessment Count: A Negotiation-based Approach for Indigenous Peoples

In the past, indigenous people have often been entirely excluded from social impact assessments (SIAs) of projects or activities that affect them, or have faced major financial and cultural barriers in participating effectively and in having their perspectives accepted as legitimate. More recently, indigenous groups have achieved greater success in influencing SIA, but a fundamental problem remains. Their enhanced input into SIA has generally not increased the capacity of indigenous people to shape the outcomes of development projects in ways that favor their interests. This problem reflects a wider failure, extensively documented in the literature, to integrate SIA into decision-making. Drawing on case studies from Australias Cape York Peninsula, this article shows how SIA can be integrated into the negotiation of legally binding agreements between developers and indigenous groups, offering a practical and effective way of ensuring that SIA findings influence the development and operationof resource pro...

Aborigines, mining companies and the state in contemporary Australia: A new political economy or ‘business as usual’?

Since the early 1990s major changes have occurred in the legal, policy and institutional context within which mineral development occurs on Aboriginal land in Australia. This article assesses whether these changes have substantially enhanced the capacity of Aboriginal people to control mining and share in its benefits. It examines, in turn, the major actors involved in mineral development in Australia, the policy positions they are adopting and the way in which they are behaving in relation to mining on Aboriginal land. It concludes that while some Aboriginal groups are gaining greater control over resource development, many have failed to do so, reflecting the fact that the legal, policy and institutional environment remains largely hostile to Aboriginal interests. Only adoption by Aboriginal people of effective political strategies operating on a number of scales can change this situation.

Effectiveness in social impact assessment: Aboriginal peoples and resource development in Australia

Definitions of and judgments regarding effectiveness in social impact assessment (SIA) depend on how the purposes of SIA are understood. They are defined differently by various interests that participate in, or are affected by, impact assessment processes, and the concept of ‘effectiveness’ and the issue of what is required to achieve it are both contested and contextual. This article reviews a number of different approaches to SIA and outlines what effectiveness might mean for each. It then considers, at two levels, what ‘effective SIA’ involves in the context of large-scale resource development on Aboriginal land in Australia. The first level involves control of SIA. For indigenous peoples who have historically been excluded from and ignored by SIAs undertaken as part of government approval processes, Aboriginal control is an essential prerequisite for ‘effective SIA’. However, control only creates the potential for effectiveness. The second level of analysis involves the practical activities that must be undertaken, and issues that must be addressed, to realize this potential. The author develops a matrix designed to help identify and manage these activities and issues in a systematic way.

Community development agreements in the mining industry: an emerging global phenomenon

Agreements between commercial developers and local communities are becoming more common in virtually all parts of the world, from inner city America to remote mining regions. The need for such “community development agreements” (CDAs) is especially acute in mining, where environmental and social costs are often borne by communities while project benefits accrue in national capitals and global financial centres, leading to conflict between local people and miners. This article identifies the forces behind the recent spread of CDAs in the mining industry, and provides a sense of some general trends in the nature and impact of CDAs. The article also raises some key issues regarding CDAs in mining, issues that are often equally relevant in other contexts. These include the implications of unequal bargaining relationships between communities and developers; equity in the distribution of benefits generated by CDAs; and the enforceability and implementation of agreements.

Aboriginal-Mining Company Contractual Agreements in Australia and Canada: Implications for Political Autonomy and Community Development

Abstract The negotiation of contractual agreements between Aboriginal communities and mining companies is now standard practice in Australia and Canada and increasingly common in developing countries. The widespread use of such agreements indicates that they offer significant economic and social opportunities. However, such agreements also raise major issues for Aboriginal relations with other political actors and institutions, including government, environmental groups, and the ju.dicial system. The paper considers these implications and identifies strategies to address them and so maximize the contribution of contractual agreements to community development.

Resource Development and Inequality in Indigenous Societies

Concern has been expressed both by indigenous people and by academic analysts that large-scale resource development may sharpen inequality in what are (relatively) egalitarian indigenous societies. Much of the academic literature suggests that resource development does indeed have this effect, but such claims are usually based on very limited empirical evidence. In addition, the literature is lacking in conceptual frameworks which allow the concept of inequality to be adequately specified, take into account the quite different forms of income which resource development can generate, explain (rather than simply document) specific changes in income distribution and, on this basis, provide grounds for policy prescription. This article seeks to develop such a framework.

International Recognition of Indigenous Rights, Indigenous Control of Development and Domestic Political Mobilisation

Indigenous peoples have recently achieved increased recognition of Indigenous rights in international declarations and conventions, and national legislation. This increased recognition does not itself allow Indigenous peoples to achieve one of their central objectives, control over development which affects them or their ancestral lands. State authorities often ignore international legal instruments and domestic legislation in dealing with major resource projects on Indigenous land, and international recognition of Indigenous rights has no binding effect on the private resource corporations that increasingly dominate resource exploitation. Given this situation, Indigenous control of development can only be achieved by Indigenous mobilisation in the domestic political sphere, targeting both the state and resource corporations.

Indigenous people and mineral taxation regimes

Abstract Indigenous people in a number of major mineral-producing countries have established a substantial and growing capacity to tax mineral resources extracted from their traditional lands. However, almost no analysis has been conducted regarding the conceptual and practical issues involved in designing mineral taxation regimes for use by indigenous people. The general literature on mineral taxation is of limited relevance because basic assumptions it makes regarding the nature of the taxing authority (national or state governments) do not apply to indigenous peoples. This article discusses some key characteristics of indigenous communities as they relate to taxation of mineral resources. Against this background, it identifies a number of approaches to mineral taxation which might be utilized by indigenous groups and which acknowledge the specific constraints and circumstances they face while at the same time recognizing their need to attract and maintain investment on their traditional lands. It also reviews the inter-relationship between indigenous and state or governmental tax regimes.

Financial failures in mining: Implications for LDC mineral policies

Abstract The risk of financial failure among LDC mining projects, always significant, has apparently increased during recent years. This situation, which is unlikely to change in the near future, has important implications for LDC mineral policies. In particular, it can no longer be assumed that mining will generate significant government revenues, traditionally regarded as the single most important economic benefit arising from large-scale mining projects in LDCs. Many LDC governments consequently need to reassess their mineral policies and place greater stress on maximizing economic benefits which will accrue even where mines fail to generate significant profits. Two such benefits are discussed, and concrete policy measures are suggested to illustrate the initiatives available to LDCs.