مشارکت بومی در مدیریت آب معدن استرالیا: هم ترازی استراتژی شرکت های بزرگ با اهداف اصلاحی آب ملی

In the mineral rich but arid Pilbara region of Western Australia, managing water constraints represents a significant challenge to the mining sector where local depletion is a growing problem. Conversely, the expansion of pit dewatering is creating surface water excess in localised areas of potentially high social and ecological significance. Indigenous people are by far the longest term residents of the Pilbara region and express a range of strong concerns about past, current and future water-related developments in the area. They also have proprietary interests in water recognised by the common law and protected by federal native title legislation. Rio Tinto Iron Ore (RTIO), commissioned the authors to undertake research to improve corporate understanding of Indigenous interests in water and to provide advice on its consultation processes. We argue here that a more sophisticated account of Indigenous water values is a necessary but, on its own, insufficient measure to achieve RTIO’s desired long-term goals. We suggest an equivalent process of understanding and documenting corporate water values and interests, actions to improve trust and credibility in the relationship between the parties, and leadership in wider catchment management as necessary complementary actions. These actions follow logically from internal corporate commitments regarding water and Indigenous people and from recognition of their property rights, but also align directly with major trends in the National Water Initiative, the key water policy framework for Australia. Therefore significant synergies exist between internal corporate aspirations, the evolving legal regime, and wider governance agendas for a key limiting resource. Our analysis is relevant to a range of CSR and water resource contexts across the wider mining sector.

Business strategies for achieving Corporate Social Responsibility (CSR) and ‘triple bottom line’ (Elkington, 1998 and Richards, 2009) outcomes which enhance the ‘social license to operate’ (Richards, 2009) are now an established aspect of the corporate landscape (Luning, In press). Although the terms used can vary and both they and their consequences are subject to critique (Vanclay, 2002, Hutchins and Walck, 2005, Langton and Mazel, 2008, Crowson, 2009, Idemudia, 2009, Campbell, In press, Mutti and Yakovleva, In press, Slack, In press and Warnaars, In press), such strategies are designed to provide both guidance and impetus to company activities that enhance corporate outcomes and entitle companies to a social license to operate. In their external engagements, resource companies (like many other companies) have historically tended to identify the community in a simplistic and undifferentiated way (Jenkins 2004 cited in Hutchins, Walck et al., 2005), but effective triple bottom line and/or CSR strategies increasingly require corporations to understand the differences between stakeholders and the kinds of engagement strategies which are considered appropriate (Luning, In press). For mining companies, successful dialogue requires going beyond the conventional limits of mining practice and discourse to include issues such as environmental sustainability, cultural diversity, economic equity and social justice (Solomon, Katz et al., 2008). The Australian mining sector has adopted CSR policies and aspirations and it operates in areas containing high numbers of Indigenous Australians. Many initiatives emerging from those aspirations have focused on Indigenous people, including employment targets and programs as well as the recognition of the interests of Indigenous landowners (Godden, Langton et al., 2008). Mining companies such as RTIO, which are seeking best practice operations, are continuing the process of Indigenous engagement1 and the aspiration to better understand Indigenous water values forms part of that recent engagement effort. In jurisdictions such as Western Australia which has not formally recognised Indigenous land rights, the recognition of native title by the Australian High Court in 19922 provided a legal framework within which the resource sector could address Indigenous resource rights and interests (O'Fairchellaigh, 2004), including rights to water. The High Court’s Mabo decision and the Native Title Act (NTA) 1993 made possible some recognition of Indigenous rights to inland waters under Australian law ( Jackson and Altman, 2009). In general terms, native title is capable of legal recognition in limited circumstances in Australia: namely, where there has been no extinguishment of native title (by, for example, a grant of freehold title), it can be proven by an Indigenous claimant group or agreed by government that native title exists, and the particular native title or native title rights sought to be established are regarded by the courts as consistent with the common law principles 3 ( O’Donnell, 2011). Under the NTA, rights to hunt, gather and fish for the purposes of satisfying the personal, domestic or non-commercial needs of native title holders can be exercised free from water licensing or permit restrictions that otherwise apply to such activities. Typically, as recent commentators have observed (Godden and Gunther, 2010), native title rights in relation to water where recognised are not interpreted on the evidence as conferring an interest akin to a fee simple, that is beneficial (private) property right, but rather a ‘right to water as ancillary to the exercise of native title rights’. This narrow interpretation has been used to preclude Indigenous people from accessing commercially viable volumes of water and it limits the extent to which native title holders can control access to water and make decisions about how the waters are used (see O’Donnell, 2011 for a full discussion of these matters). Godden and Gunther (2010) argue that in light of the acknowledged limitations of judicial interpretations of native title over the post-Mabo era,4 negotiated outcomes and agreement making have been the preferred strategy of increasing numbers of Indigenous people over pursuing claims through the litigation process. This trend is evident in the Australian resource sector, where there is now widespread support for agreement making as the preferred method by which to address issues surrounding the recognition of native title (O'Fairchellaigh, 2004). Following a period of internal ‘cultural change’ in the company (Harvey, 2004), RTIO has been at the forefront of native title agreement-making in Australia and RTIO has recently negotiated a number of regional agreements as part of the settlement of native title claims to land and waters in the Pilbara (Cleary, 2011). Mutually satisfying native title outcomes are crucial to relationships between mining corporations and Indigenous land owners, but despite the importance of water on both sides, there is little published evidence that Indigenous proprietary rights in water and mine water management has been a major topic of discussion. The absence of evidence may be attributed to the fact that there is yet to be a thorough analysis of outcomes from Australian agreements with mining corporations. Although the implications of some of our data for such an analysis are clear, we do not further analyse the legal and/or native title framework in this paper (but for a fuller description of the general status of Indigenous rights and interests in water, see (Tan, 1997, Bartlett, 2004, Behrendt and Thompson, 2004, Jackson and Altman, 2009 and Godden and Gunther, 2010). Instead we explore some implications of internally generated corporate aspirations for both Indigenous engagement and water management, and demonstrate how these implications align with key aspects of national water reform policy. In this sense, we identify processes and actions which are complementary to the basic recognition of Indigenous proprietary rights required of corporate actors by native title legislation, noting how those processes and actions position corporate actors well for emerging wider water governance regimes. In considering Indigenous water values and their relevance to the Australian mining sector, we fill a gap in the literature on resources policy. The literature acknowledges that the impacts on water quality and quantity are among the most socially contentious aspects of mining projects (Bebbington and Williams, 2008 and Velásquez, In press). But consistent with the above observation about the undifferentiated way in which community engagement is undertaken, the existing literature does not give sufficient attention to the distinct rights, values and interests of Indigenous people with respect to water and its management. Reconceptualising an undifferentiated ‘community’ as a series of ‘stakeholders’ is an improvement, but the stakeholder model still tends to reduce the unique rights, deep cultural connections, and extended residence times characteristic of Indigenous people to those of other ‘stakeholders’ with usually very different relationships to the locations and resources being discussed. In the Pilbara, considerable frustrations exist within the Indigenous community about past water resource developments (Rijavec, 1993, Rumley and Barber, 2004, Olive, 2007 and Barber and Jackson, 2011a) and mining issues (Holcombe, 2005, Holcombe, 2006 and Olive, 2007). These influence current Indigenous attitudes to water and mining developments associated with the recent economic boom. Historical experiences also influence Indigenous attitudes to mining consultation processes such as the one described here.5 RTIO staff were aware of these frustrations at the commencement of the study reported here and wished to both better understand Indigenous perspectives and improve corporate performance in the area, hence the decision to commission the work on which this paper is based. In detailing the research outcomes, our paper provides an overview of the major water issues raised by Indigenous people participating in the study, particularly those relating to mine impacts. However our analysis of these issues suggests that successfully presenting a comprehensive descriptive account of Indigenous values in line with RTIO’s request would only partly address overall corporate aspirations. Indeed, despite RTIO’s leadership in the sector, we argue that such an account cannot be properly provided without some important preliminary steps to establish better communication flow, equivalence, and trust in the relationship between the corporation and local Indigenous people, and that these steps are applicable well beyond the specific circumstances of this study. We conclude by noting the alignment between these steps in Indigenous engagement, corporate leadership in catchment management, and major national water policy trends.

The research process outlined here was a preliminary scoping exercise intended to identify key Indigenous water values and interests, to provide additional expertise and ideas regarding Indigenous perspectives on water management, and to make preliminary recommendations and suggestions for further action. The process was undertaken at the request of one company operating in a single region, albeit a highly significant company in an extremely valuable mining region facing significant water management issues. However despite the limitations of the research scope, our analysis reveals the linkages between some important characteristics of Indigenous water values, potential company actions such as native title negotiations and processes to improve corporate engagement with those values, and the wider implications of that activity for water management at the site specific, catchment, regional, and national scales. Our analysis is intended to complement analyses focusing on the direct implications of Indigenous proprietary rights in water – we are identifying additional bases for corporate action flowing from pre-existing CSR commitments and from strategic corporate positioning with respect to impending changes in water regulation and governance. RTIO’s corporate strategies regarding negotiated agreements over land access, benefit sharing and heritage management have brought the parties together but they had not resulted in a clear corporate understanding of Indigenous water values and of Indigenous perspectives of mining impacts on water resources. Creating an atmosphere of reciprocity in which Indigenous values can be shared requires the company to articulate its own values and interests in Pilbara water supplies. That process in turn should lead to an understanding of the limitations of generic statements of values when they are not complemented by an ongoing process of engagement with the holders of those values, particularly when the focus is on decisions about major developments and infrastructure. The process of building trust and improving communication flow to enable the articulation and sharing of values also requires a range of simultaneous actions, including a re-evaluation of the necessity for information restrictions, attempts to widen the reach and circulation of existing publicly available information, clearly articulating existing water strategies and plans, and supporting technical and behavioural innovation in water efficiency across the business. These suggested activities are consequences of following through on internal corporate aspirations for understanding Indigenous water values and on the explicit recognition of Indigenous rights in land and water, but they also align directly with external trends in national water planning. The NWI requires increased community consultation in general and increased Indigenous engagement in particular. Actions required to facilitate Indigenous consultation processes with respect to water also provide large mining companies with opportunities to provide leadership rather than participation in catchment management processes, particularly in areas such as the Pilbara which are both water-scarce and heavily dominated by mining activity. This implication for the catchment scale also aligns directly with another emerging trend in national water management – the aspirations to integrate the mining sector and its water needs into the wider water planning and management process. Our analysis demonstrates that a serious attempt to understand Indigenous water values and interests emerging primarily from internal corporate aspirations potentially leads to a transformation in the way that companies are positioned with respect to water resources and water management issues. Undertaking this transformation would benefit local and regional Indigenous people and the immediate operational environment, but it also positions companies well to effectively engage with significant contemporary developments in national water management.