MAC/20: Mines and Communities

Aboriginal community takes "last stand" against world's most powerful miner

Published by MAC on 2009-09-22

Australian court case may have global repercussions

BHP Billiton and Rio Tinto have set about implementing their intention, announced earlier this year, to become the world's biggest joint producers of iron ore, thus displacing Vale of Brazil which has long worn this dubious "crown".

No doubt relishing this prospect, BHP Billiton's board has seen fit to award its chief executive a more than 50% pay rise - even though the company's profits toppled by a third during the past financial year.

At the heart of the partners' expansion project is the Pilbara region of Western Australia, one of the largest areas of Indigenous custodianship anywhere on the planet. However, that traditional ownership has been mercilessly eroded over many years - notably by Rio Tinto.

The much-heralded Mabo legal judgment of 1992 afforded Aboriginal communities title rights to non-private lands. However, the following year's Native Title Act did not allow them a veto over encroachment of other parts of their territory - in particular, those covered by mining leases.

Now, citing a recent environmental judgment, the Martidja Banyjima people - some of whose resources have already been appropriated and damaged by Rio Tinto - are determined to stop BHP Billiton from mining on some 200 square kilometres of their territory.

In the meantime, and while not taking a position on the community's specific claim, Australia's Human Rights Commission has offered vital arguments which may be deployed to support it.

The Commission's admirably succinct, but comprehensive, summary of relevant state and international laws and protocols, has potential application beyond the immediate case.

And, indeed, beyond Australia itself.

[Commentary by Nostromo Research]

Lore of the land as Aborigines take on BHPJAN MAYMAN

The Age

3 August 2009

Aborigines in West Australia' s Pilbara iron ore region are taking on BHP Billiton over its claim for leases covering 200 square kilometres of their tribal country.

UNAWARE that the strange visitors planned to turn their country into a vast sheep run, the Aboriginal people of the Pilbara welcomed the first white settlers in the mid-19th century, and led them to fresh water.

Tribal women befriended lonely station wives, helping to deliver their babies and care for their children. Pioneers such as Emma Withnell, a new bride who arrived with her husband John in 1864 after a perilous voyage from Perth, almost 1600 kilometres south, recorded heart-warming stories of racial harmony in her diaries and letters.

But the idyllic pastoral scene soon degenerated into a tragedy of murder, rape and slavery, as more and more land-hungry whites arrived with their horses, sheep, guns and stockwhips. They brought alien, fatal diseases and a reign of terror - a tragic saga well-documented by historians.

Open-range sheep farming devastated a fragile, semi-arid environment and degraded its water resources: native food supplies dwindled until nomadic tribespeople were forced to camp on pastoral stations, surviving as unpaid workers on meagre rations and the occasional hand-out of cheap clothes.

It would be 150 years after European colonisation before the Martidja Banyjima people could fight for their land with powerful white weapons: lawsuits and eloquent lawyers, using rights flowing from the landmark 1992 Mabo judgment that offered the first legal recognition of Aboriginal land ownership. That decision came decades after the mining giants first arrived in the Pilbara to carve up its mineral resources.

Then, the idea of paying royalties to the original owners was inconceivable. But even with Native Title law and legally defined as traditional owners, the tribespeople had only the right to negotiate compensation payments, now locked away in trust funds professionally managed for group benefit.

Like the hedgerow priests who kept their faith alive in Ireland during the dark days of English occupation, Aboriginal elders, men and women, maintained their infinitely ancient culture and religion, travelling vast distances to perform secret ceremonies and songs in their holy places. Their spiritual strength gave the Martidja Banyjima people courage to take on the world's biggest mining company.

Miners are often granted exemption from Aboriginal Heritage law, allowing them access to the most cherished sacred sites, like the Weeli Wolli Creek.

Once it was a sublimely beautiful oasis on Martidja Banyjima land, hallowed to the Rainbow Serpent, the Aboriginal creation deity, rich in wildlife, its delicate ecology adapted to seasonal flows, with prehistoric rock art gracing its marble-walled gorges.

Now it is a weed-ridden drain for Rio Tinto's giant Hope Downs mine, where 110 megalitres of water is pumped out daily to expose the rich orebody. Since that project began, the discovery of ancient tools carbon-dated at 35,000 years old on their land gave them a new sense of pride and purpose, fuelled by the destruction of yet another sacred place a few months later.

One last dance

Rio graciously allowed them to perform one last dance ritual at the site before it was destroyed, but the loss enveloped the community in bitter mourning. It also fuelled their determination to stop BHP Billiton's bid for mining leases on 200 square kilometres of their traditional land.

After months of community meetings and deliberation, the Martidja Banyjima decided on a new legal path via the Warden's Court, which advises the mines minister on new lease applications.

The precedent that encouraged the Martidja Banyjima was a case where the Environmental Defendee's Office took action over mining plans in the pretty Perth hills. That resulted in the WA Supreme Court ruling that the Mining Warden, magistrate Graeme Calder, could in the public interest consider environmental objections to mining proposals.

The disputed land includes important areas of the spectacular Hamersley Range they call Karijini, sacred heartland of their culture, where they perform ancient ceremonies that they believe are vital to keep their land alive. "The country is dying today, because so much is cut off from us by the big mining leases. There are no heartbeats walking round the country, so it is slipping into a coma.

The spirits of the land think no one wants them any more," says Michael Woodley, a respected elder of the Pilbara's Yindjibarndi group. He says Aboriginal leaders who failed to protect their country would be punished with death: "If this BHP claim goes ahead, the spirits will know we failed and some of us will die. We believe this is the truth.

"Our country is like our temple, our university, our Mecca, a holy place where we go to learn and collect knowledge, and connect with the land. I spend a lot of time out there with our old people, learning their stories. We can't break off so much as a leaf without permission from the spirits."

Maitland Parker, a Martidja Banyjima elder and a senior ranger in Pilbara's spectacular Karijini National Park, says: "The mining people seem to find it hard to understand that some things are more important than money to us."

The disputed area contains iron ore that could be worth billions in future. While Parker concedes that mining money has brought material benefits to his community, there are times he wishes his people could still visit all their sacred places.

"The miners just want to take more and more. It never stops. They say this is progress. We feel terrible pain, ongoing pain, when we see our country destroyed,"Parker says.

Just over 200 men and women with large extended families, the Martidja Banyjima are scattered all over the Pilbara. Many still grieve for family members who worked in the infamous Wittenoon asbestos mines and with asbestos mingled with iron ore in some areas, they are reluctant to work in today's mining industry.

The stakes in the current dispute are awesome. The claimed area contains ore potentially worth many billions of dollars, depending on future prices and Chinese demand. Most of Australia's iron ore resources are in the Pilbara, with exports worth about $16 billion last year, according to the Department of Trade. The Australian Bureau of Agricultural and Resource Economics predicts this will rise to $25.47 billion this financial year.

If the mining warden agrees to hear their case, they will call a series of expert witnesses, including WA's 2009 scientist of the year, Professor Jorg Imberger, a world authority on hydrology, as well as elders to explain their fears. They are especially concerned by the cumulative impact of mining on the Pilbara's water resources, and the underground aquifers that sustain the region. Its lifeline is the mighty Fortescue River, which in the wet season flows 500 kilometres from the Hamersley Ranges to the coast.

"Water is the centre of our culture - the Fortescue and all the creeks were made by the same religious being, our God," says Michael Woodley who is chairman of the Yindjibarndi Aboriginal Corporation.

"If we allow the Fortescue to be damaged, we know the spirits will kill us. Our own Yindjibarndi law and culture is hurt when the Banyjima culture is hurt. We all have to look after each other. If our country is gone, how can we pass on and teach our laws to our children? We have lost so much already."

There are already four big mines on Martidja Banyjima country: Yandi and Area C, owned by BHP Billiton, and Yandicoogina and Hope Downs, owned jointly by Rio and Hancock Prospecting. They all plan big expansion programs. As mining plunges deep below the water table, with huge volumes of water pumped out to expose the orebody, the traditional owners are profoundly disturbed by the impact on underground aquifers that feed springs, billabongs and waterholes all over the region.

Two worlds met in a recent preliminary hearing in the WA Warden's Court. As Martidja Banyjima elders looked on, Melbourne barrister Sturt Glacken, SC, argued that important public interest, human rights and environmental issues were at stake, and that his clients' indigenous culture, religion and spiritual life would be at risk if BHP Billiton were granted the leases it sought.

Counsel for the mining company, Perth barrister Peter Quinlan, argued that human rights and public interest issues were irrelevant to the mining lease applications. He said there were other legal avenues where these matters could be considered under the state's Aboriginal Heritage and Environmental Protection Act.

Greg McIntyre, SC, a member of the Mabo legal team and now an adjunct law professor at Notre Dame University, says the Martidja Banyjima action is an unprecedented move by an Aboriginal group, which could have serious legal significance. "It would be difficult to argue that the public interest should not be considered in this case," McIntyre says.

He says the WA Supreme Court ruling in favour of the Environmental Defenders Office on behalf of local residents was a strong precedent.

Human rights issues

The Australian Human Rights Commission is watching the case closely. AHRC president Catherine Branson, QC, sent the Martidja Banyjima's legal adviser, Gadens Lawyers, a nine-page letter on June 26 saying that she was interested in the matter, although she had decided not to intervene "at this stage.". Her letter [see below] cited international criticism of existing Western Australian laws for their failure to fully protect Aboriginal human rights, especially the way the Aboriginal Heritage Act permitted the destruction of registered heritage sites.

In particular, WA's Native Title Act had been repeatedly criticised by the UN Committee on the Elimination of Racial Discrimination and the Human Rights Committee as being discriminatory and not adequately protective of indigenous land rights.

"WA's Aboriginal Heritage Act 1972 permitted destruction of registered Aboriginal sites with the ministe's consent, without setting any quotas or limits to ensure a minimum level of protection to a particular Aboriginal group's enjoyment of their culture," Branson wrote.

A spokesman for BHP Billiton declined to comment on the case while it was before the Warden's Court, but said the Martidja Banyjimas were an important stakeholder for the company, which had a long-standing agreement with the group.

"All our developments are undertaken in full accordance with all the necessary environmental and regulatory approvals. BHP Billiton Iron Ore is committed to operating responsibly and sustainably. We value the relationships we have with indigenous communities," the spokesman said.

"BHP Billiton Iron Ore is committed to reconciliation, creation of economic opportunities and improvement in indigenous well-being.

"The company is committed to indigenous development in the Pilbara and has a range of community programs in place across the areas of indigenous health, education, the arts, employment and economic development."

The Mining Warden has adjourned the matter to a date to be fixed. He is expected to take several months to announce his decision.

[This article is reprinted with kind permission of the author.]


Australian Human Rights Commission (AHRC) answers plea by Martu Idja Banjima

Letter from Catherine Branson, president AHRC

To: Gadens Lawyers
Level 1
16 St Georges Terrace
Perth WA 6000

26 June 2009

Attention: Mr Paul Sheiner

Dear Mr Sheiner
Request to intervene

You have requested that the Australian Human Rights Commission intervene in the matter of Applications for mining leases 47/704, 707, 761 and 761 -782 by BHP Billiton Minerals Ltd and Ors and Objections by the Applicants for the Martu Idja Banjima Native Title Claim.

The Commission has decided not to intervene at this stage of the proceedings.

However, the Commission is interested in the outcome of the matter and provides the following views on the issues raised. The Commission is happy for its views to be brought to the attention of the Mining Warden if you believe that they will assist in the Warden's consideration of the matter.

While the Commission does not express a view on the merits of the objections, it considers that the objections raise matters that engage Australia's human rights obligations to protect Aboriginal peoples' culture and allow for their self-determination. The Commission is of the view that acts that engage Australia's international human rights obligations are matters of public interest for the purposes of the Mining Act 1978 (WA).

Furthermore, the Commission views Aboriginal peoples' human rights as a legitimate influence on the exercise of the Warden's discretion to hear the objectors and when reporting to the Minister.

1 Background

The Commission is Australia's National Human Rights institution. Its functions include promoting an understanding and acceptance of human rights in Australia. The Commission also has particular functions in relation to the human rights of Aboriginal persons and these are exercised through the Aboriginal and Torres Strait Islander Social Justice Commissioner. These functions include producing an annual Social Justice Report regarding the enjoyment and exercise of human rights by Aboriginal and Torres Strait Islander peoples and an annual Native Title Report concerning the operation of the Native Title Act 1993 and its effect on the exercise and enjoyment of human rights by Aboriginal and Torres Strait Islander peoples.

2 Matters of public interest

‘Public interest' is clearly a broad expression. In Sinclair v Mining Warden at Maryborough, the phrase ‘public interest' was held to comprehend the whole field of objection other than those relating to deficiencies in the application or marking out of the land. The ‘public interest' excludes private interests unless it is in the public interest to protect those private interests.

2.1 Protecting human rights is in the public interest

In the Commission's view, where objections raise matters that engage Australia's international human rights obligations, those objections go to matters of public interest. The protection of human rights is a matter of fundamental public interest. This is reflected in the creation of the Commission which is required to perform its functions with regard for, amongst other things, ‘the principle that every person is free and equal in dignity and rights' and ‘with the greatest possible benefit to the people of Australia'. The Australian government has also recently observed:

Observance of human rights, in Australia and abroad, benefits the security and prosperity of all nations and individuals. Successive Australian governments have supported these principles and systems.

In Mineralogy Pty Ltd v Kurama, the Mining Warden found that non-compliance with Commonwealth legislation was contrary to the public interest, particularly where non-compliance is discriminatory. Similarly, the Commission is of the view that non-compliance with Australia's international human rights obligations is contrary to the public interest.

The public interest in protecting Indigenous peoples' human rights is also reflected in ‘Enduring Value - the Australian Minerals Industry Framework for Sustainable Development' (a copy of which is Attachment 1 to this letter), produced by the Australian Minerals Council. Principle 3 commits signatories to: ‘Uphold fundamental human rights and respect cultures, customs and values in dealings with employees and others who are affected by their activities'. The elements of this include a commitment to ‘respect the culture and heritage of local communities, including indigenous peoples'.

The applicant in this matter, BHP Billiton Limited, is one of the signatories to this Framework.

2.2 Protecting Aboriginal culture is in the public interest

Protecting Aboriginal and Torres Strait Islander culture is also a matter of significant public interest. In its recent statement of support for the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) the Australian Government stated that its support is a celebration of the ‘great privilege all Australians have to live alongside the custodians of the oldest continuing cultures in human history' and the ‘positive contribution of Indigenous culture to Australia'.

The Minerals Council of Australia has also provided the following implementation guidance for members in relation to Principle 3 of its Framework for Sustainable Development:

Element 3.6: Respect the culture and heritage of local communities, including Indigenous peoples

Implementation Guidance

Recognise and respect the culture and heritage of local communities including

• the culture and traditions of Indigenous peoples and their relationships with lands and waters; and

• sites and objects of local, regional and national significance

? Engage with local and Indigenous communities in culturally appropriate ways, respecting their customs and beliefs.

• Work with communities to develop appropriate, cooperative strategies to protect and manage sites of special significance to those communities on lands within and adjacent to our operations

• Where appropriate, incorporate local and traditional environmental knowledge and land management practices into company operations

• Work with communities to develop employment, education, training and business development and other opportunities

3 Human rights engaged

The objectors (Martidja Banyjima) raise concerns that the grant of a mining lease will, amongst other things,

• affect a significant portion of their land, including important cultural sites; and

• interfere with the ability of the Martidja Banyjima to perform culturally significant activities.


In the Commission's view, such claims engage a number of Australia's international human rights obligations. The Commission focuses its comments on the two that appear most relevant:

• the right of minorities to enjoy their own culture under Article 27 of the International Covenant on Civil and Political Rights (ICCPR); and

• the right to self determination under articles 1 of both the ICCPR and the International Covenant on Economic, Social and Cultural Rights.

Australia has recently reaffirmed its commitment to these (and other) rights as they apply to Indigenous peoples by supporting the UNDRIP.

The Commission notes that obligations under international human rights law apply to both the actions of federal governments and the actions of state/provincial governments: all are considered actions of the party to the treaty.

3.1 Minority rights to enjoy culture

Article 27 of the ICCPR provides:

In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language.

This obliges Australia to protect the rights of Indigenous peoples to maintain their traditional beliefs and engage in cultural practices.

The Inter-American Court of Human Rights has recognised that the close ties of indigenous people with the land must be recognized and understood as the fundamental basis of their cultures, their spiritual life, their integrity, and their economic survival. For indigenous communities, relations to the land are not merely a matter of possession and production but a material and spiritual element which they must fully enjoy, even to preserve their cultural legacy and transmit it to future generations.

Article 27 also requires Australia, through all arms of its government, to take positive measures to protect the rights of minorities, including from the actions of private individuals and organisations. The UN Human Rights Committee has observed:

Although article 27 is expressed in negative terms, that article, nevertheless, does recognize the existence of a ‘right' and requires that it shall not be denied.

Consequently, a State party is under an obligation to ensure that the existence and the exercise of this right are protected against their denial or violation. Positive measures of protection are, therefore, required not only against the acts of the State party itself, whether through its legislative, judicial or administrative authorities, but also against the acts of other persons within the State party.

In Chief Bernard Ominayak and Lubicon Lake Band v. Canada, the Human Rights Committee considered whether a group's art 27 rights could be violated by either public or private entities, such as the state or a corporation through environmental harm. The Committee concluded in that matter that extensive oil and gas exploration was negatively affecting the minority group's way of life, and therefore breaching the Lubicon Lake Band's right to culture.

The Human Rights Committee also cautioned in the Lansman v Finland that although different activities in themselves may not constitute a violation of art 27, such activities taken together, may erode the rights of people to enjoy their own culture over time.

The objectors in the present matter allege that neither an environmental impact assessment nor a comprehensive heritage survey has been carried out. Such assessments are, in the Commission's view, vital to ensure the special relationship of Martidja Banyjima to their land is adequately protected.

The Commission considers that neither regime provided by the Native Title Act 1993 nor the Aboriginal Heritage Act 1972 (WA) will necessarily ensure that the grant of the mining lease will comply with Australia's above human rights obligations. In particular:

• The Native Title Act 1993 has been repeatedly criticised by the UN Committee on the Elimination of Racial Discrimination and the Human Rights Committee as being discriminatory and not adequately protective of Indigenous land rights.

• The Aboriginal Heritage Act 1972 (WA) permits the destruction of registered Aboriginal sites with the Minister's consent without setting any quotas or limits to ensure a minimum level of protection to a particular Aboriginal group's enjoyment of their culture.

3.2 The right to self determination

Article 1 of both the ICCPR and the ICESCR protect the right to self determination as follows:

1. All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.

2. All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence

The right to self determination is a fundamental principle of international law. The UN Human Rights Committee has stated that extinguishing inherent Aboriginal rights is incompatible with the right to self-determination. The right also requires Indigenous peoples to have a ‘real political influence over the use to which their traditional lands are put'.

In its General Comment on the right to self-determination, the UN Committee on the Elimination of Racial Discrimination has noted that
Governments should be sensitive towards the rights of persons belonging to ethnic groups, particularly their right to lead lives of dignity, to preserve their culture, to share equitably in the fruits of national growth and to play their part in the Government of the country of which they are citizens.

Article 3 of the UNDRIP affirms that ‘Indigenous Peoples have the right to self-determination. Particular incidents of the right to self determination are codified in the UNDRIP as requiring:

• Control and ownership of culture, cultural property and ceremonies, including the right to access cultural sites in private (Articles 12 and 13);

• Free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect Indigenous Peoples (Articles 18,19 and 20).

• Inherent right to exercise control over their lands, derived from their identity as peoples and status as first peoples (Articles 25-32).

Articles 25 and 26 of the UNDRIP specifically recognise Indigenous peoples' right to maintain and strengthen their distinctive spiritual relationships with their traditionally owned or otherwise occupied lands and waters, to uphold their responsibilities to future generations in this regard and to develop and control these lands.

4 Australia's human rights obligations are a legitimate factor in the exercise of the Warden's discretion

Human rights instruments and jurisprudence are relevant to the exercise of the Mining Warden's discretion to:

• give the objectors an opportunity to be heard; and
• recommend granting or refusing the mining lease under s75(4) and s75(5) of the Mining Act 1978 (WA).

It is a well settled principle of statutory construction that, to the extent of any ambiguity, all domestic statutes should be applied as far as practicable so as to conform to Australia's obligations under international law. This principle applies to the exercise of discretion.

4.1 Hearing the objectors

Human rights principles support giving the objectors an opportunity to be heard in the present matter.

The jurisprudence of the UN Human Rights Committee in relation to both the right to culture and self-determination makes it clear that the failure to afford prior consultation and the participation of Indigenous peoples in decisions that affect their lands will result in a breach of Australia's international law obligations under the ICCPR.

Further, Article 32 of UNDRIP confirms the right to free, prior and informed consent in decisions relating to lands, territories, and resources, ‘particularly in connection with the development, utilization or exploitation of mineral, water or other resources'.

In the context of the rights of tribal peoples to survive and own property, the Inter-American Court has held that consultations must take place at the early stages of an investment plan. The Court also found that in relation to large scale development plans, the State must not only consult, it must obtain free, prior and informed consent.

The obligation to afford Indigenous peoples effective participation in decisions that affect their lands requires all arms of Government to provide every opportunity to Aboriginal people to participate in decisions that affect their lands. This should happen at the earliest possible stage in development. Further, the Commission is of the view that the principle of informed consent means, at a minimum, that Aboriginal People have the right to say ‘no' to proposed development projects at any point during negotiations with governments or extractive industries.

4.2 Making recommendations

Human rights principles are also a legitimate influence on the recommendations that the Mining Warden makes to the Minister. In the Commission's view, the Mining Warden should recommend against the grant of a lease if the Warden believes the grant is likely to result in a breach of the human rights of the Martidja Banyjima.

While prior consultation and informed consent is a vital component of the right to culture and self determination, this will not save manifestly disproportionate measures from breaching Australia's obligation to protect Indigenous peoples' culture.

When assessing whether a development proposal will have a disproportionate impact, the crucial question is whether past development activity as well as that proposed in the future will be of such proportions that they will prevent the Indigenous group from enjoying their culture in that area.

Please do not hesitate to contact me should you require any further information.

Yours sincerely,

Hon. Catherine Branson Q.C
President


BHP OKs Kloppers' 51% pay increase

BARRY FITZGERALD, The Age

16 September 2009

REMUNERATION for BHP Billiton chief executive Marius Kloppers soared 51 per cent to $US10.39 million ($A12.08 million) in the June year, despite broad-based government and community pressure for executive pay restraint in the wake of the global financial crisis.

BHP has defended the increase in its CEO's pay packet from $US6.87 million in 2008. It pointed to the group's ability to emerge from the crisis with a solid credit rating, a pristine balance sheet and its outperformance on a total shareholder return basis (220 per cent growth compared with 72 per cent growth achieved by an index of peer companies).

It also argued that a big component of the pay increase was due to the first-time allotment of shareholder-approved incentives related to the 2004 financial year, along with the increase in base salary and other benefits Mr Kloppers received on his elevation to the chief executive position in October 2007.

But while BHP's five-year total shareholder return (share price changes plus dividends reinvested) was impressive, its total shareholder return for the crisis-affected 2009 financial year was a sobering 35 per cent decline. Profit for the year tumbled from $US15.36 billion to $US10.72 billion as commodity prices collapsed, forcing several mine closures.

As a result, Mr Kloppers did not escape pay-packet pain altogether. His annual cash award, which can be 160 per cent of base salary, was $US1.73 million, representing only 53 per cent of the $US3.2 million possible, reflecting the judgment that BHP's safety performance and adjusted earnings were below target.

In his last annual report before retirement, BHP chairman Don Argus said uncertainty remained about the rate of global economic growth.

His cautious outlook was echoed by Mr Kloppers. ''We do not expect a return to the same buoyant conditions that prevailed before the global financial crisis, or a return to record global growth rates within our forecasting horizon,'' he said.

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