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Managing EditorPrafessor Thomas Walde, Centre for
Energy, Petroleum & Minerallaw & Policy,University of
Dundee, Scatland
Editorial AssistantMahmoud Reza Firoozmand, Centre for
Energy, Petraleum & Minerallaw & Policy,University of
Dundee, Scotland
Anociate EditorDr Alex Wawryk, lecturer, Law Schaol,
University of Adelaide
Assistant EditorsOr Arthur J Warden, Part-time lecturer
and Consu'ltant, Centre for Energy,Petroleum & Mineral Law
& Policy,universlty of Oundee, Scotland
Janeth Warden-Fernilndez, Centre forEnergy, Petroleum &
Mineral Law & Palicy,University 01 Oundee, Scotland
(Mining)
Stephen Dow, Centre for Energy,Petroleum & Minerallaw &
Policy,University of Oundee, Scotland
BibliographyMahmaud Reza Firoozmand
University of Dundee, Scotland
EXECUTlVE COMMITTEEChairmanGeaff Hewitt, London, United
KingdomOr Philip Andrews-Speed, University af
Oundee, ScotlandJos A M Bos, Simmons & Simmons Trenit,
Rotterdam, NetherlandsMichacl Dale, Deneys Reilz,
Marshalltown,
Soulh AfricaProfessor Thomas Walde, university of
Dundee, Scotland
EDITORIAL BOARDPablo Javier Alllan!, Estudio Bruzzan &
Asociados, Buenos Aires, ArgentinaChief Sena Anthony, General
Manager
legallCornpany Secretary, LNG ltd,lagos, Nigeria
Robert A Bassett, Darsey & Whitney lLP,Denver, USA
Patrick Blanchard, Head of ExecutiveOffice, Fuel Division,
Electricit de France;Associate Professor of law, University 01Pars
10 Nanterre, France
Jos A M Bos, Simmons & Simmons Trenit,Rotterdam,
Netherlands
Stphane A Brabant, Herbert Smith,Paris, Franee
Professor Adrian J Bradbrook, BonythonProfessor of Law,
Universily of Adelaide,Adelaide, Australia
Albert T Chandler, Chandler & Thong-Ek,Bangkok, Thailand
Graham (oop, General Counsel, EnergyCI='W SQcrQ~i.;L8I'u=ok,
Brendan Devlin, Electricity and Gas UnIt,DG Transport and
Energy, EuropeanCommission, Brussels, Belgium
Richard M Farmer, Thelen Reid & PriestLLP,New York, USA
Professor William Fax, Catholic Universilylaw Sehool, Washington
oc. USA
Professor Zhiguo Gao, Exeeutive Director,China Institute for
Marine Affairs, Beijing,PRChina
Jonathan Hines, LeBoeuf lamb Greenc &MacRae, Moscow, Russian
Fedcration
Professor Moshe Hirsch, HcbrewUniversity. Jerusalem, Israel
Kaj Haber, Mannheimer Swartling AB,Stockholm, Sweden
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Secretariat,Brussels, Belgium
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Director of the Institutdes Hautes Etudes Internationales,
Paris,France
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Rogelio lopez-Velarde, Lopez.ValardeHeftyc Abogados, Mexieo
OF,Mexico
Prafessor Alastair R lucas, Faculty of law,Universlty of
Calgary, Alberta, Canada
David F Moroney, Kingswood, UKProfessor George (Rock) Pring,
University
of Denver College of Law, Denver,Colorado, USA
Nelson lara Dos Reis, (aemi Minera;ao eMetalurgia SA, Rio de
Janeiro, Brazil
Or AH Rodrguez Araque, President,Petroleos de Venezuela,
Caracas,Venezuela
Professor Or Jens-Peter Schneider,University of Osnabrck, School
of law,Osnabrck, Germany
Professor Ernest Smith, University of Texas$chaol 01 law,
Austin, USA
Atef Suleiman, Legal Adviser, Abu OhabiNational Dil Company,
United ArabEmirates
Professor Gillian O Triggs, Director,British Institute for
International andComparative law, london
Jacqueline lang Weaver, A A WhiteProfessor of law, University of
Houstonlaw Center, Houston, Texas, USA
Or lbibia Worika, Senior legal Counsel,OPEC, Vienna, Austria
Professor Donald N Zillman, Dean,University of Maine School of
law,Portland, USA
Journal of Energy &Natural Resources Lawis the Journal 01
theInternatjonal BarAssociation's Seetionon Energy,
Environment,Natural Resources andInfrastructure Law.It is published
quarterlyand is cQ-sponsored bythe Centre for Energy,Petroleum
& Minera) Law& Policy, University 01Dundee, Scotland.
Articles appearing in thisjournal are indexed in
theEnvironmental PeriodicalsBibliography and theInternationaf
Biblographyof the Social Sciences.
Journal of Energy & Natural Resourees LawVol23 No 4 November
2005 pp 385-605 ISSN0264 6811
Contents
Introduetion 385Janeth Warden-Femandez and Mahmoud
Firoozmand
Indigenous Communities' Rights and MineralDevelopment 395Janeth
Warden-Femandez
Canadian Aboriginal Law: Creating Certainty inResource
Development 427
Thomas Isaac and Anthony Knox
Indigenous Peoples' Rights to Minerals and theMining Industry
465
Judge Antonie Gildenhuys
Paradise Lost or a SeeondChanee? 482William Manning
Rio Tinto and Indigenous Community AgreementMaking in Australia
499
Bruce Harvey and Simn Nish
Indigenous Peoples. Energy and EnvironmentalJustiee: the
Pangue/Raleo Hydroeleetric Projeetin Chile's Alto BioBo 511
Marcos A Orellana
Preventing Violent Conflicts Caused by Infringementsof
Indigenous Peoples' Rights: the Case01 theEcuadorian Amazon 529
Adenike Esan
Bibliography 550
Generallndex 599
The views expressed in this Journat are those 01 the
contributors, and notnecessarily those 01 the International Bar
Association.
-
385
Janeth Warden-Fernandez* and Mahmoud FiroozmandtCentre for
Energy, Petroleum and Mineral Law and Poliey, University of
Dundee
Introduction
DUNDEEProfessional Re/evance
4-8 September
Negatlatlng and Documenting PeboIeumIndusbJ
Tl-ansactiDns-Lcx:arion: University of Dundee, 5cotland, UK
Fee: 1,795 Seminar Director: Dennis Stickley
2006Professional
Training Seminarsand Conference Information
Aeadem/e Excellence
1-5 May
Internatlonal Petraleum FIscal SptemsAnalysls ami
Deslgn*Location: University of Dundee, Scotland, UK
Fee: 1,795 Seminar Director: Daniel Johnston
8.12 May
RlsIe Analysls and Declslon Maldng InPetraleam
Exploratfon*Locaran: Unversity of Dundee, Scotland, UK
Fee: 1,995 Seminar Director: Daniel Johnston
15-19 May
Modern Praetia! In Petroleam Ucenslng*Locatan: University of
Dundee, 5cotland, UK
Fee: 1,795 Seminar Director: Michael Bunter
22.26 May
Contracts used in IJtternatlonal PetroleumDevelopment*Lacatlan:
University of Dundee, Scotland, UK
Fee: 1.795 5emjnar Directors: Praf Joho S loweand Praf Owen L
Anderson
L~A#~~~..~~~.~~fu!~~alff~r~;~~(,19.20 June
Annual CEPMLP Mlnlng SemlnarLocation: London
Fee: to be confirmed Seminar Directors:Dr Elizabeth Bastida
(CEPMlP) and
Magnus Eficsson(RawMaterials Group, Sweden)
8-10 August
AsIa 011and Cas LawLo(ation: Kuala Lumpur
Fee:100 Seminar Directors: Col Roberts (Petronas)and Stephen Dow
(lones Day)
28.30 August
Multilateral ProJed NegotiatIDnsLocation: Carnoustie,
5corland
Fee:1,295 Seminar Director: Dennis Stickley
11-15 September
NegotIatIng and Managlng Natural GasConVacts'Location:
University of Dundee, 5cotland, UK
Fee: 1,795 Seminar Director: Dennis Stickley
18-21 5eptemberPetroleam Industry Servfce Contl'acts .Location:
University of Dundee, Scotland, UK
Fee: 995 Seminar Director: Dennis Stickley
18.22 5eptemberUK Gil and Cas LawLocation: Sr AndrewsFee:1,995
Seminar Directors:
Stephen Dow (CEPMlP)andPenelope Warne (CMSCameron McKenna)
Fo! fur.her informa/fOil regarrJing hes:? Seminars,please
comaCl.
Hugh Gunn, Serninar Co.ordinatOlCEPMLP,University 01 Dundec,
Dundec DDl 4HN
Scotland, UKTel: +44 (O) 1382 385871. Fax:+44 (O) 1382
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E-mail: [email protected]: www.c(.pmlp.org
Negotiated rates available for NGOs, academics andstudcnts -
subject to attend,rnce numhers
'As aU economies begin io become inexorably linked into the
universalist globalviUage, a process o/ basic redefinition o/ the
nature and extent o/ pre-existingparadigms and phiwsophies is
being/orced upon indigencrus peopies warldwide.Worldviews that once
extended only to the next vaUey are being expanded to aplanetary
perspective. lnherently holistic and all-encompassing
traditionaltribal phiwsophieal pereeptions and perspedives,
lifeworlds that once servedto connect cause and eliect in a
culturally aceeptable manner, ail in manyways to explain present
coneepts o/ reality'
Brian GoehringIndigencrus Peoples o/ the World:
An Introduction to loor Pasl, Fresent andFuture, 1993.
Globalisation has catalysed the development of natural resources
projects inmore remote areas. Nowadays, natural resources
industries do not constraintheir activities to their own countries.
Using the advantages offered by theliberalisation ofinternational
markets and technological advanccs, they havemoved their activities
beyond boundaries. This increasing development ofnatural resources
projects in remote areas has increased the awareness ofthe
existence of indigenous peoples around the world.In almost al! the
remote areas of the globe, the presenee of peoples
considered indigenous is cncountered. They are spedal people and
in manycases they have inhabited countries or regions that have
been subjected to
'" janeth Warden-Fernandez is a Research and Teaching Fellow, an
Advisor of thc MiningPrograrnme and the Manager of the Distance
Learning Programme at the Centre for Energy,Petroleum. Mineral Law
and Policy at the University ofDundee (CEPMLP/Dundee). Shecan be
contacted by e-mail [email protected].
t Mahmoud Reza Firoozmand is a Doctoral Research Fcllow at
CEPMLP. Before cornmencinghis PhD in 2001, Mahmoud had worked as a
lawyer in the National Iranian Oil Company(NIOC). He can be
contacted at m.r.firo01.m:mrlftlrlllndee.3.c_uic
-
394 JOURNAL OF ENERGY& NATURAL REsOURCES LAw Vol 23 No 4
2005 395
conflicts can be avoided and peace ensured in conflict zones
would be lolook for a workable agreerncnt between host governments,
MOCs andindigenous peoples, such as mase that exist in Australia
and Canada.
Indigenous Communities'Rights and MineralDevelopmentBy Janeth
Warden-Fernandez*
The contemporary trend in globalisation dedicated towards an
integrated worfdeconomy and rapid advances in technology have
accelerated the developmentof natural resources throughout the
world. This fast tracking of such develop-ment has caused the
migratan of mining companies into remoter regions,hitherto
untouched. In sorne cases these terrains are inhabited by
indigenouspeoples who see in such development a threat leading to
the infringement oftheir traditional rights related to the use and
management of lands whichthey perceive are theirs by right of
tradition and usage. Consequently, thisprojected development of
traditionallands has precipitated confliets that cangenerate
stagnation in the economic growth of countries, espedally thosethat
rely heavily on the development of their natural resources. If this
is notredressed it could be an on90in9 obstacle to the development
of naturalresources. Such conflicts have arisen because of the
diverging interests of theprincipal stakeholders in mineral
development namely sta tes, investors andthe indigenous
communities. Therefore with the aim of avoiding this type
ofconflict. it is imperative to find the fairest and most equitable
approach, whichcaters objectively for all the interests
involved.
Mining activities are.obviously limited to the areas in which
mineral resourcesare located. In many countries, the developrncnt
of natural resources is secoas ao esseotial prerequisite for
economic growth. The accelerating
* Jancth Warden-Fernandez is a Research and Teaching Fellow, an
Advisor of the MiningProgramme and the Manager ofthe Distance
Learning Prograrnme at the Centre for Energy.Petroleum, Minerallaw
and Palicy al the University ofDundee (CEPMLP/Dundee). Shecan he
conl.ac.l:e:d bv fO_m;i1 ;al L7__\&I::Irnnf"'rnn...l .~ nn_ r
le
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396 JOURNAL o, ENERGY& NATURAL REsOURCESLAw Vol 23 No 4 2005
INDIGENOUS COMMUNmES' RIGl-ITS AND MINERAL DEVELOPMENT 397
development of natural resourees throughout the world, triggered
by theliberalisation oC international markets, technological
advances and thepromise of finding more opportunities in pIaces
hitherto untouched, hasled mining investors lo focus on remo te
areas. (The term 'remote' isdeliberately used to emphasise the
untouched naturc of such lacatians, whichare far beyond the
confines oflarge urban and industrial centres. I) In manycases such
areas are located within the homelands of the indigenous peopIesof
the target countries, in which they have survived in their
traditional waywhile prescrving their cultural identity. The main
factors that contributedto this survival were undoubtedly the
remoteness of these lands and the faetthat they were eonsidered by
modern industry to be relatively unattraetivein eeonomic terms.
Under such circumstances, development precipitates confliets
beeause ofdiverging interests2: the interest of the state in
obtaining more revenue and eneouragingeeonomie aetivity by
increasing the development of natural rcsourcesthrough the
investtnent of private capital;
the interest of the investor to do business and earn a profit;
and the interest of indigenous cornmunities, which goes beyond
traditionaleeonomie eonsiderations, sueh as prcserving their
culture, lifestyles andbiodiversity as well as proteeting the
access and use of land.!
Cordcs pointed OUlthal 'Remoleness, in the modcrn era, oflen
prescnts companies withtwo.unique challenges. Qne is the challenge
lOengineering design posed by operating inenVlronmentally extreme
and umested terrain. This adds lOthe uncertainty associaled
withpossible environmental failures and lhe prospecl of harsh
economic and politicalconsequences. The other is the possibility of
operating in areas populaled by indigenouspeoples how viewand use
land differently than lhat which is cuslomary in modern
societies.These peoples are now pressing their views and demands lO
participale in decisions veryaggressively and with growing
success': J ACordes, Mining and lndigenaus Peoples, paperpresen~ed
al International Mining Coursc, CEPMLP,Dundee University, 1997.
2 See O OSlensson, 'The Stakeholders: Interesl and Objectives',
in SustainableDeuelopmmt andtht FutuTt: o/ Mineral Invtstmmt
(2000).
3 The SludyofDiscrimination againsl Indigenous Peoples, prepared
by the Special RapporleurJ R ~artin~z Cobo, sta~es:.'Ilis essential
lOknow and understand the deeply spirilual specialrelauonshlp
between mdlgenous peoples and their land as basic lo their
exislence as suchand lo al! their beliefs, customs, lraditions and
culture. For such peoples, the land is nOl~erel~a r,ossessionand a
meansofproduction. The entire relationship between the
spiritualJifeof mdlgenous peoples and Mother Earth, and their land,
has a greal many deep-sealedimplications. Their land is not a
commodity which can be acquired, bul a malerial e1emenllO be
enjoyed reely.' This lexl is ciled in the Final working paper on
indigenous peoplesand their relationship to land, prepared by the
Special Rapporleur, Erica-Irene A Dacs.~~il~~_~~~~~~, Economic and
Social Council, Commission on Human rights, E/CN.4/
Indigenous communities' relationship with the land is
deep-seated andfrequently based on spiritual and religious beliefs
that form part of theirheritage. It is diffieult for Western
societies to comprehend the strongconneetion between indigenous
peoples, their land and its resources. Thiscultural ehasm can often
be bridged only with diffieulty.'
In the case of exploration and mining, development can confliet
with therights ofindigenous peoples,5 especially those related to
the use, access andmanagement of their lands and waters, leading in
many cases to stagnationof mining ventures until problems have becn
resolved. This stagnation canhave an adverse impact on the economic
growth of a country as a whole.The opposition from indigenous
communities to this type of developmentis certainly, in cases,
understandable, as in the past the exploitation of mineralresources
has provided substantial profits for governments and
miningeompanies, who ignored the faet that the resources were
loeated on thelands of indigenous peoples and that the peoples
generally did not reeeiveany of these benefits.6 However, there is
now a foeus on how to create adequateinstrurnents to allow mineral
activity under conditions that wiIl contributeto the global
transition towards sustainable dcvclopment.'
4 The World Bank in its BO 4.10, which replaccs 00 4.20,
recognises that 'thc identitiesand cultures of indigenous peoples
are inexuicably linked to the lands on which thelive and lhe
nalural reSOUTceson which they dependo These distincl
circumstance:expose indigenous peoples to differenl types ofrisks
and levels ofimpacts rom dcvclopmentprojects, induding loss oC
identity, culture, and cuslomary livelihoods, as well as exposurelO
disease': at hup:/
/wbln0018.worldbank.org/Instilutional/Manuals/OpManual.nsf/B52929624EB2A3538525672E00775F66/0F7D6F3F04D
D70398525672C007D08ED?OpenOocument
5 The final report on indigenous peoples, compiled by the Foresl
People Prograrnme as acontribution lo the World Bank's Extractive
Industries Review (EIR) , highlighted the lhreatsthat resource
developmenl projects can impose on indigenous peoples.
6 For a detailed analysis of the impacts of the mining, oil and
gas industry on indigenouspeoples' rights, see Extracting.Pronlius:
Indigenous Peop~, Extractiv~ IndustTUs and tht WorldBank, Synthesis
Report, 2003, al hup:!
/iris36.worldbank.org/domdoc/PRD/Olher/PRDOCon lainer.nsf/
All+Documen ts/ 85256D240074B56385256FF6006E5E7
A/$File/volume6indigenous.pdf.
7 The application ofthe concepl ofsustainable developmenl lo the
mineral industry involveslhe promotion of and contribution lO the
well-being and welfare of the people of the hosts~le, 'loday
witho~l reducing lhe pOlential for future generations lo do the
same': Mining,Mmerals and Sustamable Oevelopmenl projecl (MMSD),
BTtaking Nw Ground (2002), P 24.In 2003, me lnternational Council
oC Mines and Metals (ICMM) approved the ICMMprincipies, againsl
which its members and other companies thal have agreed lOadopt
thesamc pcrformance obligations as ICMM memhers should measure lhe
suslainabledevelopmenl performance of lheir activities. Compliance
with these principies will bea measure of corporate performance:
W'WW.icmm.com/publications/1CMM_Principles_en.odf.
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398 JOURNAL OF ENERGY & NATURAL REsOUReES UW Vol23 No 4 2005
INDIGENOUS COMMUNmES' RrGHTS ANO MINERAL DEVELOPMENT 399
Within this context, and with the aim o avoiding conflicts in
the courseof the development o mineral resources, the important
question is: whatwill be the best, fairest and most equitable
approaeh that respeets all theinterests involved? T help answer
this question, this artide provides anovervicw o the differcnt
legal approaches related to the recagnitian andaffirmation of the
existence of indigenous rights in countries and regionswith a
history o colonisation.
Defhtion oC indigenous peoples
There is no universal definition of indigenous people. Many
studies anddiscourses have attempted to formulate a definition but
with Httle success,hence a definition ofindigenous pcoples at
internationallaw does not exist,despite the fact that
internationallaw has recognised the rights ofindigenouspeoples to
exist as 'distinct, separate peoplcs.8 with tbeir own cultural
identity.Malanezuk highlights the diffieulty in understanding with
clarity the maindifference between the definition of 'indigenous
peoples' and 'minorities'.He argues how the conceptof'peoples'
implies asocial identitywith particularcharacteristics and with a
relationship with a territory. Instead, minoritiessuggest a
'numerical inferiority', which is not necessarily synonyrnous
withindigenous peoples. In the case of the concept of indigenous
peoples heconcludes tllat it comprises elements of minorities and
peoples. Nevertheless,what in reality counts is the legal context
and instrument in which this conceptis applied'
In 1982, the United Nations Economic and Social Council,
Commissionon Human Rights, adopted a definilion as follows:
'Indigenous populalions are composed of the existing descendants
ofthe peoples who inhabited the present territory of a country
wholIy orpartially at the time when persons of a different culture
or ethnic originarrived there from other parts of the world,
overcame them, and byconquest, settlement or other means, rcduced
them to a non-dominantor colonial situation; who today live more in
conformity with theirparticular social, economic and cultural
customs and traditions thanwith the institutions of the country of
which they now form a part,under a state structure that
incorporates mainly the national, socialand cultural
characteristics of other segments of the population that
8 For a comprehensive study 00 the evolutian of human rights
standards and its impact 00damestic laws in Australia, Canada and
New Zealand, sce lorns Magallanes, CJ, 'InternationalHuman Rights
and their Impact 00 Domestic Law 00 lodigenous Peoples' Rights in
Australia,Canada and New Zealand', in Indigenous Peapks Rights in a
Australia, Ganada & New Zealand(1999).
9 P Malanczuk, Modern lntroduetion to lnternational Law (Landan:
Routledgc, 1997).
are predominant o Although they have llot suffered conquest
arcolonisation, isolated or marginal groups existing in the country
shouldbe regarded as covered by the notion of Indigenous
Populations forthe following rcasaos:(a) they are descendants of
groups which were in the territory of the
country al the time when other groups of differentcultures or
ethnicorigins arrived there;
(b) preeisely beeause of their isolation from other segments of
thecountry's population they have preserved almost intact the
customsand traditions of their ancestors which are similar to
thosecharacterised as Indigenous;
(e) they are, evell if only formally, plaeed under a state
strueture, whichincorporates national, social and cultural
characteristics, alien totheirs.'lO
In 1983,J R Martinez Cobo, the Speeial Rapporteur of the
Sub-Commissionon Prevention ofDiscrimination and Protection
ofMioorities, in his Study o/the Problem o/ Dismmination Against
Indigenous Populations, elaborated adefinition of indigenous
peoples that is commonly accepted and uscd bythe Working Croup 00
Indigenous Populationsll:
'lndigenous communities, peopiesand nations [emphasis addedJ are
thasewhich, having a hislorical continuit.y with pre-invasion and
pre-eolonialsocieties that devel?ped on their territories, consider
thmselves distinctfrom other sectors of the societies now
prcvailing 00 those territories,or parts of them. They forro at
present non-dominant sectors of societ.yand are determined to
preserve, develop and transmit to futuregenerations their ancestral
territories, and thcir ethnic identity, as thebasis of their
continued existence as peoples, in accordance with theirown
cultural patterns, social institutions and legal system. This
historicalcontinuit.y may consist of the continuation, for an
extended periodreaching into the present of one or more of the
following factors:(a) Oeeupation of aneestrallands, or at least of
part of them;(b) Common aneestry with the original oeeupants of
these lands;(c) Culture in general, or in specific manifestations
(such as religion,
living under a tribal system, membership of an
indigenouscornmunity, dress, means of livelihood,
lifest.yle,etc);
(d) Language (whether used as the only language, as
mother-tongue,as the habitual means of communication at home or in
the farnily,or as the main, preferred, habitual, general or
normallanguage);
10 In B Goehring, lndigenous PeojJks ofthe World (Canada: Purich
Publishing, 1993), p 5.11 UN Doc. E/CN.4/Sub.2/1983/2I/Add 8, par",
379-381.
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400JOURNAL OF ENERGY & NATURAL REsOURcrs LAw Vol 23 No 4
2005
INDIGENOUS COMMUNITlF ..S' RICHTS AND MINERAL DEVELOPMF.NT
401(e) Residence 00 certain parts afthe country or in cert"," f
th' l.4:lIn regIDns O
e world;(1) Other relevant factors.
On an individual basis, an indigenous person is aue who b 1these
indigenous populations through self-identificati . cd.ongs to(. 00
as In 1genousgroup. conscIOusness) and is recognised and acccpted
by these
populatIons as one of its members (acceptance by the group).
Thispreserves for these cornmunitics the sovereign right and power
to decidewho belongs to them, without externa! interference
Thornberry12 highlights how the Working Group on Ind;genous
Populations~n ~any years of discussions. has not yet adopted a dear
definition fa:mdlgcnous peoples; the group exccutes its task
'bearing in mind' M tI.Cobo's I:5 D . ar nez
~Cport. unng the 15th scssion of the Working Group on
IndigenousPopulatlOns the Spec. 1Ra ., .' la pporteur E 1Daes
pomted out that 'no singledefinrtIon could capture th d. . f. .. .
. e lVCfSlty o mdlgenous peoples worldwide, andI~wa~notdeslrable or
posslble to arrive al a universal definition al the present~lm~.
Orre of the observers highlightcd that the working definition
DE~ndlg:nous peopl~s providcd in Martinez Cobo's report will
suffice 'toIdenuf}r who constltute an Indigenous Peoplc' Furth. .
ermore, many of thereprcsentauves oE indigenous peoplcs who
participated in the session saidthere w~ no need lo provide 3n in
terna tion al definition of indigenouspeoples smce there was no
definition f" '" - .,. o mmonues at mternatlOnaJ lawtherefore
Itwould be discriminatory if "indigenous peopIes" alone needc~
]2 P Thorn berry, /ndigencrns P,.nhks nd H Riat 2-60. WJ' a uman
ghts ( Manchester: Juris Publishing, 2002),
]3 ThcWorkingGroupon1 d' PI..d I n tgenous opu atlOnsmcludes as
partofits mandatc' '(a) Re .
fevedopment~pe,rtaining to the promotion and protcction ofhuman
rightsandftmdamc::ree oms of mdlgcnous nnpulati . 1 d. .G I r~ ons,
me u mg Informanon requested by the Secretar enera annually from
governments, spccialised ' '. y
organisations and non-governmental organisations ~~::~:~':~~:~~
mter&.overnmentalof indigenous peoples, to analyse such
materials and to submit i~'partl~u1~rlythosereeommendations to the
Sub-Com " ~' " conc USlons andrccommmdations conta'1IM'!he mlSSlon,
anng In mznd inter alia tM conclusions andMartinc. Cobo, mtitle~
"St: o :t;t o{~ SMci~l~p!(JT~r o/ tht Sub-Commission, Mr Josi
R(E/CN,4/Sub,2/1986/7 an~ ~dd,c; (emo~:~~:;::~~ against indigmous
pcpulationsn,Other definitions and uses of the f'"
Convention No 169 at ' c~ncept o mdtgeno~s peoples are includcd
in ILOOP/BP 4 JO o I d.' WWW.I1o.org/llolex/cgi-lex/convde.pl?C169.
the World BankMa n u a ,'s / O~ ~ al~:n:~snPefo;~e~
2a~:ttp://wbln0018,worldbank.org/lnstitutional/OF7D6F3F04DD7039852~6;2C007D08:~~~
E B2A 3 5 3 8 5 25 6 7 2 E OO7 75 F 6 6 /DepartmentofEconomic and
Soc'alAff: ' ,penDocument and UOlted
NationsPFII%202004%20WS,]%203%2~Defin~~::,~:;v,un.org/
esa/socdev/unpfiV documents/
For a dctailcd study oC the historical evolution of the iro .act
of thc dnatural reSOurceson indigenous rights sec Cord 1 bo P
evelopment of, eS,n a ve.
to be defined'. The group also concluded that the cntena set up
in Martinezeobo's report was enough to identify 'whether a person
or community wasindigenous or not', Final1y, one of thc
rccornmcndations of the WorkingGroup regarding the definition of
indigenous peoples was 'to arrive at alegal and social framework
which could be used as a reference, and toharmonise action and
protect the rights of indigenous peoples' ,14 Incon sequen ce, what
exists is a detailed concept of indigenous peoples,
whichencapsulates the spedal characteristics that identify them:
they aredescendants of the peoples who inhabited the country before
colonisation;they have preservcd their custorns and traditions -
cultural distinctiveness-and they are placed under a state
structure different to their own.15 TheOrganisation of American
States, in the proposed American Declaration onthe Rights of
Indigenous Peoples, says that the criterion to determine if
aparticular group is indigenous is their self-identification as
SUCh.16
Impact of mining activities 00 indigeoous rights
The particular effect of mining activities on indigcnous
peoples' rights andthe socio-economic, cultural and environmental
impacts in general are issuesof considerable contemporary
importance, as was documented in BreakingNew Ground, the final
report of the Mining, Minerals and SustainableDevelopment
Project.17 Indigenous communities, as described aboye, areviewed
internationally as being different and therefore subjcct to
specialtreatrncnt.18 Indigenous peoples have considered themselves
differcnt froro
]4 Special Rapporteur, Enca Irene ADaes, &PCTrt01tite
WV'TkingGroup on /ndigmous Populationson itsfifrenth s~sion.
E/CNA/Sub.2/1997/14.
15 Sce in general A Diaz, lnt.ernational Standard-Sttting on the
Right.s o/lndigmous Ptoples:/mplications lar Mineral Drotlopmcnt in
Africa 7-3 CEPMLP, online journal, a[ www.dundee .ac.uk/ ccpmlp/
journal/hunl/ vol7/ articlc7.3.h tm!.
16 www.cidh.org/indigcnous.hun,17 MMSD,Brtaking New Ground
(2002). The WorldBank Group (WBG)ha~stated that 'Mining,
aswell as the cessation oCmining where it has become uneconomic,
can a150be a cause oCpoverty or adversely affect the living
conditions oCthe poor and other vulnerable groups',For a detailed
Iist of potential negativc impacts of the mining activities see
World Bank,Mining and Poverty Reduction, at
http://web,worldbank,org/WBSJTE/EXTERNAL/TOPI es/EXTOGMC/O"con
tentMDK:202461 Ol-menuPK:509413-pagePK: 148956-piPK:2166]B-theSite
PK:336930,00,hun1,
18 Anara and Williams sUte: 'One of thc most notable feature5 oC
the contemporaryinternationaI human rights regime has beeo the
reeognition ofindigenous peopIes asspecialsubjeets oC concern. A
diserete body oCinternational human rights law upholding
thecollective nghts of indigenous peoples has emerged and is
rapidly developing': S Anayaand RA WilIiams, 'The Protection
oflndigcnous Peoples' Rights Over Lands and NaturalResources Undcr
the Inter-Arncrican Human Rights System' (2001) ]4 Harvard
HumanRig"" urna, Spring 2001.
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402 JOURNAL OF ENEROY & NATURAL RESOURCES LAw Vol 23 No 4
2005
,INDlCENOUS COMMUNI1lES' RICHTS ANO MINERAL DEVELOPMENT 403
the new cornmunity moving iota their territory and have
generally persistedwith the desire to preserve their own culture,
ethnic identity and politicaland social systems.19
The coloniser, conquerar or invader was generally motivated by
theacquisition of new terraio, which therefore - in the view of the
legal systemthey brought with them - usually negated the rights of
indigenous peoples.20
In the last tWQ decades, however, internalional bodies have
draftedinstruments that give the indigenous cornmunity rights over
land and theright to participate in the decision-making process in
relation to issues thataffeet them, especially those related lo the
development and managementof natural resources.21
There is clearly an increasing global awarencss concerning the
rccognitionof indigenous rights over land. In the case of the
development of naturalresources, espccially mineral resources, this
issue is of great importan ce.Mining companies are interested in
finding good projects in which they caninvest to obtain a profit.
In order to rcalise this aim, companies initial1yselect the most
promising arcas in the New World countries situated inAustralasia
and the Americas, and to sorne extent in Africa.22 AH these
newcountries were and still are inhabited by indigenous communities
who havc
19 M A Chubb, 'nternauonal Human Righu and N(JTI.Rmwabk Natural
Resources: AutachthanousRighu aj Influence Over the MineraL
Development Prouss, ImplicatianJ far CorpflYate Palicy,Dissertation
to obtain LLM Degree in Mineral Law and Policy, CPMLP, 1997, at
2.
20 Brownlie sets out five models of colonisation:(1) An
extension of powers without the necessity of any incursion of
settlers into the country
and the recovery of independence without a majar dernogrdphic
change, eg Ghanaand Nigeria.
(2) Typical colonisation with an inflow of settlers, eg Kenya
and Southern Rhodesia. Theimportance of this model is that when
de-eolonisation is achieved the sell..lers can beallowed to stay
with the compromise of taking citizenship and remaining part of
amultiracial society.
(3) Aggressive colonisation, with the aim of climinating the
indigcnous cornrnunity or atleast evicting them from their lands,
eg Indians in South America.
(4) So-called 'self-determination', in which indigenous
communities, as minoritycommunities, have an opportunity lOmake a
decision on their nationality.
(5) The 'League ofNations' mandate, which restrained the radical
forms of colonisation.I Brownlie, Treat~ and lndigmous Pwpks
(Canada: Purich Publishing, 1992), pp 1-3.
21 For a comprehensive review ofme evolution ofindigenous
pcoples' rights over land underinternationallaw, sce MOrellana,
'Indigcnous Peoples, Mining and International Law', inFinding
Common Ground. report published by me International Institute for
Environmcntand Development, 2003. For a detailed review on '(i) me
practice under the internationalsystem on the use of the terms
"Indigenous Peoples" and 'Tribal People"; and () anoverview of the
emerging principies of international law on indigenous peoples,
andme cxtent to which the proposed Bank Policy is consistent with
such principIes', see
http:/Isiteresources.worldbank.org/INTINDPEOPLE/Publications/2057]
167 ILegal %20Note.pdf.
different perceptions of the development of their lands that
were theirtraditional property. This potential conflict of
interests imposcd a burden00 host states of resolving the impasse,
since security of tenure is a key issuein investment
decision-making for mining projects.
When deciding to invest in mineral developmcnt, it is of vital
importanceto know who owns the resourccs. With the exception of the
United States,and a few other countries or with rcspect to
specified minerals, mineralownership is generally vested in the
state. In Latin American countries witha tradition of civillaw and
a regalian systcm,2~the state has unrestricted andexclusive
dominion or proprietary rights over mines and minerals. In civillaw
countries, proprietorship over the land does not extend to the
ownershipof minerals of the subsurface. In countries with a coromon
law tradition, theowner of the land generally owns the minerals
located in the subsurfaceusque ad caelos usque ad inJeros.2'4 In
the case of mineral resources located inindigcnous lands, the
deve10pment of such wealth can generate conflictsand in sorne cases
violence because they put in direct confrontation theviews of
Western societies and indigenous peoples regarding the surfaccand
sub-surface rights distinction. Indigenous peoples oflen hold in
highregard religious or spiritual attachments that may not be known
orunderstood by outsiders.25
22 Connell and Howitt point out that 'the expansion of mining
into more remote areas hascoincided with the depletion of
established mines, increasing cos15 in many metropolitanmines, ncw
methods of eXlracting mineral resources (especially epithermal
gold) and moreadequatc geological exploration and surveys':]
ConncIl and R Howitt (eds) , Mining andlndigenuus Peopks in
Australasia (1991), P 2.
23 In me -regalian system lhe state is the original owner of the
mineraIs without any considerationof who owns the surface of the
land. The other system is called the accession system, inwhich the
ownerofthe land is the ownerofthe mine as well. UnderUS
legislation, mineralsbelong to me proprietor oC the land, therefore
the exploration and cxploitation of minesare subject to private
agreemen15. Furthermore, in mining counmes with a eommon lawsystem
such as the United States, Canada and Australia, 'a large
proportion of miningoccurs on lands hcld by the government -
"public domain"lands, "Crown lands", or thelike - where private
surface oeeupants, if any, are usually governmenl tenants who can
berequired lO eave in favour ofmincral development': MMSD, Breaking
NroJOrottnd: MiningMinerals and Sustainable Dtvelcpment (2002).
A1so see T Walde, 'Third World Minerallnvesunent Policies in the
Late 1980s; From Restriction Back to Business' (1988)
:3MineraLProassingandExtractive MetaUurgy Reuiew 121-182 and World
Bank, Strategyfar African Mining,World Bank Technical Paper No 181
(1992).
24 TWatde, MinerolDtvtwpment gislatWn: Rtsull and lnstrument
alMineral DrotLopmmt Planning,12 (1) NRF (t988).
25 See, in general, International Work Group for Indigenous
Affairs, 'lndigenous Peoplesand Land Rights', at
www.iwgia.org/sw2:3I.asp. Scc also the final working paper
preparcdby the Special Rapporteur, Irene-Erica A Daes, on
lndigenous peoples and their rclationshipto land,
E/CN.4/Sub.2/2001/21, at
www.hri.ca/forthcrecord2001/doeumentation/commissionl
e-en4-sub2.200 1-21.h tIn.
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404 JOURNAL OF ENERGY & NATURAl. REsOURCF.s LAw Vol 23 No 4
2005 INDlGENOUS COMMUNITIES' RICHTS At'ID MINERAL DEVELOPMENT
405
What is needed are tooIs that will facilitate a process that
leads to anequitable dcvelopment of the mineral resources of
indigenous lands, whereappropriate, through the participation of
these cornmunities in decision-making over a potencial mining
project and the distribution of its wealth ina fair and equitable
way." Indigenous peoples should have the right to free,. d'C d
27pnor an mlorme cansent. The ooly way lo guarantec that a
mining
venture promotes sustainable development is through the
participation ofaH key stakeholders in the decision-making proccss
- governments, miningcompanies and cornmunities, including
indigenollS cornmunities, where theirrights are affected.28
Australia
The mining industry is a key activity to the Australian
econorny.29 Australia isa big producer and exporter of metals and
minerals, including gold, coal,iron ore, base metals and alumina.
Owing to the vast size ofthe country, the
26 Convention No 169 eoncerning lndigenous and Tribal PeopIes in
Independent Counlries,adopted by ihe General Conference of the
International Labour Organization (ILO)(Geneva, 27 June 1989). This
Convention, which carne into force on 5 September 1991,contemplates
in itsArt 7: 'The peoples concerned shall have the right to decide
their ownpliorities for the process of development as it affects
their lives, beliefs, institUlions andspiritual well-bcing and the
lands they occupy or otherwise use, and to exercise control, tothe
extent possible over their owo cconomic. socia! and cuhuraI
development. In additionuley shall participate in the formularion,
implementation and evaluation of plans andprogrammes for national
and regional development which mar affect them directIy.'
27 World Bank BP 4.10, 2005, No 2, reaffirms ihe right
ofindigenous peoples to 'Free, Prior,and lnforrned Consultation'.
When a project affects lndigenous Peoples, the TI (Bank'sIask tean)
assists the borrower in carrying out free. prior, and informed
consultation with~fected ~om~unities about thc proposed project
throughout the projcct cycle, takinglOto conslderatlon lhe
following: (a) "free, prior and informed
consultation"isconsultationlhat occurs freely and voluntarily,
withOUl any externa! manipulation, interference, orcoercion, for
which (he parties consulted have prior access to information on the
imentan~ scope ofthe proposed project in a culturally appropriate
manner, form, and language... : http://wblnOOI8.
worldbank.org/lnstitulionaI/Manuals/OpManuaI.nsf/B52929624EB2A3538525672E00775F66/DBB9575225027E678525703100541C7D?OpenDocument.
28 ~or a.d~tailed ~ccount of_thecharacteristics. roles,
interests and objectives of the stakeholdersm ml~mg prOJects, see
Ostensson, n 2 abovc, at 3-1/30. Also see O stensson, 'Playcrs
inthe Mmeral Industry', in E Bastida, T W;iJdc andJ
Warden-Fernandez, lntn'national andOrmparative Mineral Law and
PoliCj (The Hague: Kluwer L.awInternational 2005) 429-451. '
,pp
29 'Since ~~ late 19805, res.ource extraction has annually
contributed around five per cent ofAustralia sGross Domestlc
Producto Over the past three decadcs, mineral and energy
exports~ave ann.uaIly average~ more than 35 per cent of Australia's
total receipts. The miningmdustry IS ~lle ofthe blg~est
contributors to Austra.lia's export trade and it is a vital part
ofthe Australian economy: see Australian Stock Exchange, at
www.asx.com.au/investor/industry / mining/ overview.huu.
industry has developed an extensive, essential infrastructure
thathas broughtprogress to isolated locations. Since the last
century, the ownership ofminerals in Australia has been vested in
the Crown.
Wcstern Australia, Queensland and the Northern Territory, which
providemore than 85 per cent of Australia's total mineral
production, also have thelargest proportion of potential claimable
land, such as vacant Crown land.Since the 19905, debates about
native title clams have had a marked negativeimpact on the mining
industry, particularly on account ofunclear legislationand the
impetus that the native title issue has had in international
fora.
In Australia, indigenous peoples'!O rights are not cnshrined in
theConstitution; they largely arise and are protected under common
law. Inthis role, common law is an evolving legal system. Given
that Australia sharesorigins with other common law countries with a
comparable history ofcolonisation, its courts also draw 00 the
experiences oreanada, New Zealandand the United States.
When English settlers arrived in 1788, they regarded the
Aborigines whooccupied Australia for over 40,000 years as
primitive. Thcre was no advancedsystem of government, and the
indigenous population laeked a well-organisedsocial systcm.
Subsequently, the Europcan settlers did not initially recognisethe
sovereignty of the Aborigines.31 No trcaties or agreements were
signed.In other words, the Austtalian indigenous people were
ignored52 and Australia
30 In Australia ihe term 'Aboriginal cornmunities' is generally
used when referring toindigenous peoplcs. The right.s and interests
ofindigenous pcoples derived frorn traditionallaws and customs over
land and water and recognised at common law are known as
nativetitIe.
31 BartIeu. when making reference to the legal history of native
title in Australia. says 'In theabsence ofwhat the common lawcourts
then perceived to be an ~eslablished system oflaw"the territorywas
considercd subject to "settlemcnt" and the introduction an
application ofcommon law.Australia was characterised as such a
territory. As the indigenous inhabitantsof the territory were so
disregarded, so initially did the common law of Australia enable
adisrcgard lO their rights to land. The common law of Australia has
only very belatedlyrecognised native titIe to traditional land and
only to the residue that was left to theindigenous inhabitants'. RH
Bartlen, Nativ~ Title in Australia (Sydney; Butterwonhs,
2000),p3.
32 The British Crown acquired sovereignty over Australian land
on the 'grounds ofinjustice',a" is pointed out by Wells and Doyle:
'The notion of the ~discovery~ of lands acquiringabsolute
sovereignty over those lands, is equally unjust: the principie that
the "discovery~of land'. inhabited by an iodigenous population
vests sovereignty in the "discovering~nation i5 (similarly) based
00 the proposition that Indigenous people are
insufficientIycivilised or Christian to merit being viewcd as
competing sovercign powers. Fortified bythe ilIusion of
superiority, European powers claimed that the act of settlement in
itselfdivests Indigenous Peoples of any and aH sovereign authority
over their land and their
Conlinued fJtJulzaj
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406 JOURNAL OF ENERGY & NATURAL REsoURCES L\w Vol23 No 4
2005 INDICENOUS COMMUNITIES' RICHTS A.'lD MINERAL DEVF.LOPMENT
407
was considered as terra nullius.3~As a consequence, the Crown
acquiredcomplete sovercignty ayer Australian tcrritory and absolute
property rightsayer the entire land.34 Between then and the early
1980s, Aboriginalcornmunities were grantcd sorne statutory rights
related lo lands that theyused for hunting or ceremonial purpases
and occasionalIy lo constructdwellings. Froro the middle of the
last century onwards, Aboriginal reserveswere cstablished for the
use and benefit oC the indigenous cornmunities.The land was sharcd
with Aboriginal cornmunities without the existence of aclearly
defined legal regime that reeognised their rights.
In 1982, thc Mabo case was initiated against the State of
Queensland overthe claims to lands of the Murray Islanders. In
1992, le High Court ofAustralia found sufficient evidence to decide
that these lands were theproperty of the indigenous community
before the British settlerncnt andconsequently the concept of land
ownership survived the annexation ofAustralia to the British Crown
and its assertion of sovereignty. The decisionrejected thc position
that declared 'Australia a vacant uninhabited landbelonging to
no-one - terra nuUius',35 because this was not the case, since
people': BWells andj Doyle, 'Reconciliation and the
Constitution', in Indigrnous AwtraLiansand the Law (E johnston, M
Hinton and D Rigney. eds, Sydney: Cavendish Publishing,1997), p
187. P Havemann, in providing a chronology oC the colonisation of
Australia bythe British, states; 'year 1776, Navy's First Fleet
under Captainjarnes cook claims to acquirecontinent for British
Crown by virtue oC "discovery" o Terra Nullius (land belong to
noone) Discovery consist oC coming ashore at Botany Bay: (Sydney).
Orders we~e to acquireterritory with the "consent oC the natives",
bOl Cook does not consider the Aboriginalpeople he encounters
capable oCgiving such consent': P Havemann (ed), lndigmous
Peoples'Rights in AUJtralia, Canada, &New ilaland (Auckland:
Oxford University Press, 1999), P 25.
33 Yerro nullius means empty land o~ no man's land. This term
was a legal fiction that in the17th ccntury allowed European
colonial pOWCrs to assume control of land that wasunclaimed. This
principie wasextended during the 18th century allowing European
powersto 'settle in lands occupied by "backguard" people where no
system o laws or ownership ofproperty was held to existo The Swiss
philosopher and internationallaw theorist Emerichde Vattel,
building on the philosophy ofjohn Locke and others, proposed that
tnTa nulliusalso applied where land was oot cultivated by
indigenous iohabitants. Since the land wasnot being cultivated, it
was not being put to good use, therefore those who could
cultivatethe land had a right to the land', at
hup://en.wikipedia.org/wiki/Terra_Nullius.
Bartlen states that 'by 1992 a distioction was recognised io
international law and thecoulInon law between territories acquired
by conquest or cession and those acquired bysettlement. Territory
inhabited bya people who did not have a recognised social or
polticalorganization was considered "terra nullius" in
international law. Sovereignty over terranullius was established by
settlernent or effective occupation by a sovereign states'.
SeeBartlen, n 31 aboye, at 23 (2.21).
34 For a comprehensive review o the legal history oC native
title, sce Bartlett, n 31 aboye, al3-32.
35 Brennanj, in his reasoning forjudgment, emphasised how in
cOJ}lemporary law the notionthat land inhabited by indigcnous
people who were regarded as 'Iow in the scale of
socialorganisation' may be c1assified as 'terra nullius' is not
acceptable. He went further, remarking~
indigenous people were living there first. The Mabo decision was
appliedinitially ooly to the Murray Islands, not to mainland
Australia.56
For Aboriginal people, thc Mabo decision was just recognition of
thcinjustice perpetrated whcn the colonists arrived and deprivcd
them of theirfreedom, culture and religious beliefs, which greatly
diminished the self-determination rights of their cornmunity. This
principie of self-detcrminationis upheld by the Australian
indigenous cornmunities, founded on the factthat the British
colonists arrived only 200 years ago, by which time theAborigines
had already been living there for more than 40,000 years,
with'total control ovcr their Uves'.The various 'indigenous rights
are channelledthrough the self-dctcrmiriatlon principie. These have
been classified intothree main categories:
'autonomy rights: which focus upon the right oC Indigenous
Peoples todetermine the wayin which they live and control their
social, cconomicand political systcm; identity rights: which are
related to thc right to existas distinct peoples with a distinct
culture; and territory and resource rights:which encompass such
things as land entitlements, the right to theresources of that
land, and the use of those resources.'"
The judgment was also seen as a success because it was based 00
laws thatthe same colonists brought with them and was not a
'political favour'. At thetime, this decisio~ led to the filing
ofmany claims - sorne of thern unfounded-with an obvious negative
consequcnce for the mining industry. The decisionalso posed severa!
politieal and legal problems for the states, including:
'The common lawofthiscountrywould perpetuate injustice ifitwcre
to continue to embracethe enlarged notion of terTa nullius and to
persist in characterising the indigenous inhabitanlSof the
Australian colonies as people too low in the scale o social
organisation t beacknowledged as possessing rights and interest~ in
landstates'; (1992) 175 CLR 1 at 39, 41-42,63.
36 The Mabo decision. which did no[ fix any scope and/or extcnt
o the nalure of the nativetille. created uncertainty in the land
holder and lease grant holder. This uncertainty iscaused by the
requirements lO establish native title, which are vague and
ambiguous; '(1)Traditional connection with or occupation of lands
under lhe laws and customs o thegroup, (2) The existence oan
idenlifiablc community or group which is entitled to NativeTitle
and (3) The substan(ial maintenance oC the connection with lhe land
since itsannexation by the Crown.' Therefore a plural presence in
the land is nol necessary toclaim il. This situation has resulted
in large tracts oC the terrain o mainland Australiacoming under or
being subject lo native tille claim. with unavourable consequences
forthe mining companies that sometimes have lo wait long periods
until the claim is resolved.In this comext, the difficulty oC
delermining thc connection oC lhe Aborigines with theland is thc
application of the cuslomary law of the Aboriginal community. which
is linkedwith spiritual beliefs; the rules do not bear any
comparison with Western property laws. WDKcn, Na/ive TitkLand
Rights inAwtralia and tite lmplicalions larResouraDt:tJeLopment
(Dundee:CPMLP, 1995), pp HH3.
37 See WeUsand Doyle, n 32 aboye, at 197.
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408 JOURNAL OF ENERCY & NATURAL REsoURCE.5 LAw Vol 23 No 4
2005 INDlGENOUS COMMUNITIES' RIGHTS AND MINERAL DEVELOPMENT 409
the need to validate titles issued after the cornmencement of
the RacialDiscrimination Act 1975, which might have becn rendered
invalid by thatAct;
a requirement lo make provision for permitted future development
ofland affected by native tille;
the need to provide a regime for the speedy and efficient
determinationof issues of native titlc.
The findings o the Mabo decision can be surnmarised as follows~:
the coun rejected the doctrine that Australia was ter7a nullius al
the timeof settlement;
the Crown gained radical title to the land of Australia on
settlement bUlthis did llot wipe out native title; ,
after scttlement, governments couId extinguish native title by
legislationor by granting interests in land (such as freehold
tille);
in the case of the states, the power to extinguish native title
is subject tothe overriding Racial Discrimination Act 1975;
subject to this Act, no cornpensatory damages are payable for
extinguishednative tille.
In 1993, !he Native Tille Act (NTA) was promulgated, as a
response to !heMabo decision. It uphcld !he Mabo decision and set
forth !he rights of !heAborigines in SOrnespecific cases to rule
their own land undcr their traditionalform of law and custom. The
NTA provides for the claimant of native tillethe right to
negotiate. This right is additional to the rights of native
titIeclaimants and will he used before any decision is taken, which
recognisestheir titIe at common Jaw.Noting that native titIe is a
'pre-existing titIe toland', the NTA sets out processes through
which native title can berecognised.39
In December 1996, !he High Courtof Australia, !hrough!he
Wikdecision,'"restated the fundamental principIes of its decision
on Mabo regarding theexistence and recognition of native title at
COrumon law and reaffirrned thatnative title was 'oot a common law
tenure but rather an interest in land thatwas capable of coexisting
with other interests in land'.~1 NevertheJess, thesubstance of the
interest in land was not specified, although the decision
38 SeeAustralians fol'"Native Title and Reconciliation (ANTaR) ,
at hup:/ /antal'".dovenetq.net.au/03_news/mabo.html.
39 F~~ a ~etailed analysis ~f the state of the native title, see
in general M Tehan, A hOfMdml1usumld, an opportumty lnsl?
&jlectiom on common Law, Native Tillt and Trn Years o/
tluNative Titk, al
www.austlii.edu.au/au/journals/MULR/2003/19.html.
40 (1996) 187 CLR 1.
41 M Tehan, Coexistmu o/Interests in Land: A Dominant FeatuTi!
o/ the Common Law, atwww.aiatsis.gov.au/rsrch/ n tru/ n tpapen/ n
tip 12.pdf.
made it clear that the scope of native title derived froID the
traditions andcustoms exercised by the Aboriginal communities
before the EuropeansettIers arrived and that each case needed
individual consideration on itsown merits.
The Wik decision was the first to establish that if there is a
conflict betweenpastoral leases' rights and nativc tille rights,
the former will prevail. Thenative tille rights were subordinated
to those of the pastoral lease-holders.The validity oE the
coexistence of different rights over the same land isspecified,
defining the interest of each of the parties to prevent
conflictoThe grant o a pastoral lease did not extinguish aH native
title rights .Therefore, as a consequence of the Wik decision, many
of the explorationand mining tenements were in dangcr of being
declared invalid, becausethe government granted them on me
assumption that the granting of pastoralleases had extinguished
native titIe and therefore there wasno need to complywim the
mechanisms established by the NTA. The grant of mining tcncmentson
pastoralleases from lJanuary 1994 should have gone !hrough the
rightto riegotiatc process. In response to the Wik decision, and
after severaJdiscussions, the Cornmonweallh Governmcnt issued the
'IO-Point Plan',which set up ten principJes for amendment o the
NTA. The Native TitleAmendment Act 1998 (NTAA) provided for !he
validation of potentiallyinvalid acts that created interests in
land belWeen the commencement of!he NTA (1 January 1994) and!he
Wikdccision (23 December 1996)."
In. August 2002, another important decision was delivcred by
theAustralian High Court known as the Ward decision.~3 This
decision ruledmat: rightc;under native titJe can be individually
extinguished by governmenlalactions, such as the granting of mining
leases;
a series of partial extinguishments can fully extinguish native
title; when the interests and rights granted by a mining lease
conflict with mosederived from native titJe, the rights and
interests under the mining leasewill prevail;
42 For a detailed 3tudy on this subject, see AustTaLian/orNative
Titltand RLconciliation (AGi), alwww.antar.org.au.
43 {2002] HCA 28. See Goldfields Land & Sea Council's repon
00 lhe Ward case
alwww.glc.com.au/pu_xx/IS%20MG-Ward.pdf.Inlheviewofsorneprac~itio.ne~.thisjudgmenl
'Ieaves continuing uncerlainty surrouoding the resolution of na~lve
utl~ ISS~CS.Mining companics will continue lO negotiate individual
agreements Wllh nat1v~ utleciaimants, which will take time and
resourccs as me only way lO avoid me alternallve ofdrawn-oul and
costly courl procccdings and subsequent appeals': 'Native tiue case
onlypartially conclusive', MiningJ(YUrna~ 16 August 2002, p
111.
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410 JOURNAL 01' ENERGY& NATURAL RF..SOURCES LAw Vol 23 No 4
2005INDlGENOUS COMMUNITIES' RIGHTS AND MINERAL DEVELOPMENT 411
any native title to minerals was extinguished by the mining
legislationpromulgated by the state.
Through the initiative o the Cornmonwealth Minister ror
Industry, Scienceand Rescarch, in 2001, the Indigenous
Cornmunitics/Mining IndustryRegional Parmerships Prograrnme was
initiated. Thc prograrnme was fundedthrough a budget of A$1.2
million over fout years, starting in 2001." Thisresulted [roID the
recognition o a cultural change in the relations bctweenthe mining
companies and the indigenous cornmunitics and the need [or
along-term partnership between these stakeholders. The government
providessupport [or the indigenous communities through building
capacity and thcdevelopmentof cornmcrcial cnterprises. The mining
companies participatingin such prograrnrnes are committed to:
providing jobs for indigenous people; providing pre-employrnent
training; providing skills and career development for indigenous
employees; offering business opportunities to local communitics;
and facilitating opportunities for investment by indigenous
businesses.In response to the Mabodcdsion, since 1995, Ro Tinto has
started to promotea new relationship with the Aboriginal and Torres
Strait Islander People,with the aim of assisting thero to achieve
'cconomic independence throughemployrnent, business development and
training'. Ro Tinto's Aboriginaland Torres Strait Islander Peoplc's
Policy states16:
'In aHexploration and devclopment in Australia, Ro Tinto will
considerAboriginal and Torres Strait Islander people's issues:Where
there are traditional or historicaI connections to particular
landand water, Ro Tinto wilI engage with Aboriginal and Torres
StraitIslander stakeholders and their representatives to find
mutuallyadvantageous outcomes.Outcomes beneficial to Aboriginal and
Torres Strait Islander peoplewilI result from listening to
thero.Economic indepcndencc through direct employrnent,
businessdevelopment and training are among the advantages that Ro
Tintowill offer. We will give strong support to activities that are
sustainableafter Ro Tin to has left an area.
44 For a delaled analysis ofthis decision, see specialEdition;
Natifl~ Titkafter Ward, 21-3AMPLA2002.
45 See Australian Department of Industry, Tourism and Resources,
Pursuing Common Goals, atwww.isr.gov.au/assets/ documen ts/ itrin
ternet/ overview.pdf.
46 Rio Tinto's complete document at
www.isr.gov.au/assets/documents/itrinternet/Rio_Tinto20040924112924.pdf.
This policy is based on recognition and res~ect. Ro !into
recognisesthat Aboriginal and Torres Islander people In AustralIa:
Have been disadvantaged and dispossessed Have a spedal connection
to the land and waters Have native title rights recognised by
law.Ro Tinto respects Aboriginal and Torres Strait Islander
people's: Cultural diversity Aspirations for sclf-sufficiency
Intcrest in land management.'
Sin~e 1994, Rio Tinto has signcd more than 30 mine dcvelopment
andexploration land access agreements that in many cases have taken
.placeoutside the native title proccss. Worth mentioning in this
context lS theYandicoogina Land Use Agreement signed in 1997 with
the Gumal,aAboriginal Corporation, for the developme~t of Hamersley
Iro~ sYandicoogina iron ore project in the Pilbara rcglOn of
Western Austr~la .Through this project Rio Tinto has provided
training an~ cducatlO.nprogramrncs for the Aboriginal cornmunity,
hclpcd to bU1~dup thelrbusinesses and given them employrncnt. This
new programmc mvolves thetraditional landowners in township
matters, environmental work, andheritage and culture protection. In
2000, Ha~ersle~ Iron signed aMemorandum of Undcrstanding with the
cornmumty of Eastern Guruma,in which the terms of negotiation for
an Indigenous Land Use Agrcement(ILUA)" covering 10,000 square
kilometres have been stipulated.48
47 'The main advantage of an ILUA is tllat it provides
contractual certai.nty. An IL~-:-,once. tered is a binding
agreement in respect of aH future acts, effecuvely permlttmg
the
regs , . . . It overcomesparties to contract out of the future
act and the right to ~le~Otlate proV1slOn~. ..the common law
principie that the contraet is only bmdmg on .the .par.ues who Slgn
It(personally or through their agent) and will bind all holders
ofnauv~ ~tle m th~ area eventhough they may not be parties to it':
M Hunt, 'Native Title andAbongmal Hentage IssuesMfecting Oil and
Gas Exploration and Production in Australia' (2?0l) .~9JE~ 368. For
adefinition, content and types o ILUAs, see National Natlvc 11l1e
Tribunal, atwww.nntt.gov.au/ilua/index.hunl. The total number
oflLUAs at ~ptember 2005 w~ 202.They are distributed asfollows:
Queensland, 120;Wester.n Australia, 3; Northern Terntory,56;
Victoria, 14; New South Wales, 4; and South Austraha, 5. ." .
48 P Cameron and E Correa, 'Towards the Contractual Management
of Pubhc.ParuclpauonIssues: A Review of Corporatc Initiative', in
Human Rights in NaturallU.sourceDcveWpment (DZ.llman A Lucas and G
Pring, eds, Oxford: Oxford University Press, 2002). Cameron and1,
RiT' dtheCorrea indicate as features o the development agreements
betwecn o UHO an
Indigenous Communities the following:Long.term benefits are
sought through the agreements. .
Negotiationsover company proposals are to be conducted through a
'medIator' and theprocess recorded in a Memorandum of
Understanding; the principIes and procedurestOguide negotiations
are describcd.
Can/inUffl ~af
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412 JOURNAL OF ENERGY & NATURAL REsOURGES LAw Vol 23 No 4
2005INDIGENOUS COMMUNITlES' RIGHTS AND MIl'.'ERAL DEVELOPMENT
413
There are many other cases in Australia of successful
partnershipprograrnmes between major mining companies and
indigenous communitics,sueh as those of Anglo Coal Australia Pty
LId, Auiron Energy Limiled, BHPIron Ore, Normandy Mining Limited,
Pasminco Century Mine and WM:CResources Ltd."9 Nevertheless,
despite the willingness showed bymajor miningcompanies to engage
with indigcnous communities in the dcvelopment ofmineral resources,
therc is still much to be done to find a mechanism thataddresses aH
the conflicting interests and so avoid the sprcad of stagnationin
the mining industry.
New 'kalmu1
The situation in New Zealand is different frorn that of
Australia for manyreasoos, including the differenee in the size of
the country and the fact thatthe Maori cornrnunity owns only five
per cent of the total land arca.Furthermore, mining activities are
not of great importan ce to the nationaleconomy. Moreover, New
Zealand differs from Australia in that thepreservation of the Maori
culture was recognised as an objeetive at the outsetof the European
oecupatioo. Therefore these indigenous peoples had a sayin the
political decision-making process in New Zealand. The legal
instrumentthrough which Maori rights were recognised is the Treaty
ofWaitangi, whichwas signcd in 1840 by a largc representative
proportion of the indigenouspopulation and the British Government.
This important document validatesthe transfer of the sovereignty of
the Ncw Zealand territones to the BritishCrown. In the case ofNew
Zealand, the colonisation scenario represented acomplete departure
froID the existing models.50 Through the adoption ofthe Waitangi
Trcaty, the Maoris obtained the same rights and duties
ofcitizcnship as the British people.
Committee structure set up to facilitate implementation oC the
agreement, with regularconsultations to take place among the
parties.Specific commitments to cover social impactassessments;
health facilities; compensational mine site and along pipeline
corridor, detailed provisions on employment and training.
Claimants undertake to support rnining company's exploration and
miniog activities,and oot to oppose the grant offuture grant oC
tenements.
49 For a review of cases of partnership agreements ~tween (he
mining industry and theindigenous communities, see Indigmous
Partnerships PTogram _ Case Studies, at www.isr.gov.au/ con ten ti
itrin ternet/ cmscon ten t.cfm
?ObjectID=5F6E940E-CB3E-4F32-82E6F79FlE07BE26.
50 See Brownlie, n 20 aboye, at 1-3 (Canada: Purich Publishing,
}992). Prau highlights thatthe Treaty represented a convergence of
three spccific issues:(l) lhe 'civilising purposc' that was then
uscd as a justification for land sei7.ure and ,British
expansionism;
The most important paiot hefe is that the colonisation of New
Zealandwas apparently lawful in relation lO the transfer of land.
The 'principIe oflegality' was recognised,51 However, it seems that
the real implementation ofthe principIes sel forth by the Waitangi
Treaty was nol aehieved until 1975with the promulgation ofthe
Waitangi Aet." This sel up aWaitangi Tribunal,which is empowered to
make recommendations to the government aboutany claim submitted to
it. Its work is eomplementary to that of the courts,although the
tribunal's decisions are not binding. Qne very important pointis
that the claims heard must be against the Crown and not against
privatcowners. This would be unsatisfactory as it stands, because
there are claims tolands that are now private property.
The ownership of sub-soil minerals by the Crown in New Zealand
is notas exclusive as in Australia. There are private property
rights to the sub-soil. Before 1913, the mineral rights on land
belonged lo the owner of theprivate property. During the colonial
era, the theory was that the develop-ment of natural resources
would bring advantages to aH members of thecommunity.
Thcrc are two theories that explain the origin of the governmen
tsimplanted over the British colonies. Qne is the theory of 'Divine
Right of,Kings' and the other is that promoted by scholars, that
the origin comesfrom the 'consent of the communities'. The latter,
for obvious reasons, isnow the commonly accepted interpretation and
the only one that stillsurvives. Accordingly, a sine qua non for
British Crown sovereignty was thatthe indigenous cornmunities'
consented to the ncw legal order, By that timethe clearIy
prevailing bclicf was that the official acquisition of tribal
consentwas a condition of the constitutionality of British
Government within thecolonies. An express consent was a
prerequisite to British annexation, Withinthis context, the Treaty
ofWaitangi is seen as a materialisation ofthe approach
(2) me demographyofNew Zealand, with the colonised Maori
significantlyoutnumberingtheir coloniscrs, as they did until around
1860;
(3) logistical practicalities determined by the distance between
this outpostofEmpire andCreat Britain .
J Pratt, 'Assimilation, Equality, and Sovcreignty in New
Zealand/ Aotearoa', in lndigmuusPeopLesRJghts in Australia, Canada
& New aland (P Havemann, ed, Oxford: OxfordUniversity Press,
1999).
51 The Waitangi Treaty inrroduced the exclusive right of
pre-emption or purchase ofland bythe Crown, as the legal insu-ument
for extinguishing Maori customary title.
52 'An Act to provide for the observance and confirmation, of
the principies ofthe Treaty ofWaitaogi by establishing a Tribunal
to make recommendations on c1aims rclating t~ thepractical
application of the Trcaty and to determine whether certain rnatters
are conslstentwith the Treaty: See Brownlie, n 20 aboye, at 83.
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414 JOURNALOFENEROY& NATURAl.REsOURCESLAw Vol 23 No 4 2005
INDlGENOUS COMMuNmES' RICHTS AND MINERAL DEVElOPMENT 415
of the contractual theory and the foundation of British
sovereignty ayer theMaori cornmunity.53
Despite the apparent Success in the treatment of the indigenous
peoplesof Ncw Zealand through the signing of the Waitangi Treaty in
1840,controversics related lO the interpretation of both versions
(Maori andEnglish) still exist. This is attributable to lbe large
cultural gap belWeen lbeMaoris and the Europeans and the difficulty
encountered in 1840 intranslating the indigenous language,
especially in the ahsence of a writtenformo It is hard lo knowwhat
right~, in reality, the Maori cornmunity thoughtit was transfcrring
lo the colonisers. Many debates aIid scholarlyinterprctations have
becn pro"duced since, oriented towards attaining aconclusive
determination of the differences and common ground of
bothparties.54 The Waitangi Tribunal and lbe Court of Appeal, after
recognisingsomc of the principIes of the Treaty, stated that these
must be interpreted ina dynamic sense.55
53 Jn the respon!>c ofLord Clcnelg to the proposal in 1837
ofthe New Zealand Association ofasystematic colonisation, he set'i
out the position ofthe Crown ofobtaining the permissionof the
tribes in order to establish iL'iimperium. 'It is difficult or
impossible to find in thehistory of British colonizalion an example
of a colony having ever been founded inderogation of such
aboriginal rights, whether ofsovereignty or ofproperty, as are
those oCthe chiefs and people ofNew Zealand. They are not savages
living by the chase, bul tribeswho have apportioneu the country
between them, having fixed abodes, with anacknowledged property in
the soil, and with some rude approaches to a regular system
ofinternal government It may be therefore be assumed as a basis for
aH reasoning and al!conduct on this subj~ct, that Grtat Britain has
no legal or moral right ro tStablish a colon, in NewZealand,
without tlu fret consmt o/ tlu natives, deliberatelygiven, without
ccmpulsion, and without/raud. To impart to any individuals an
authority lO establish such a colony, withollt firstascertaining
the consent ofthe New Zealanders. orwithout taking the most
effectual securitylhat the contract which is to be made with them
shall frcely and fairly be made, would, as itshould seem, be to
make an unrighteous use of our superior power.' (Emphasis
added.)This quotation can be found in 1H Kawharu (ed), Waitangi:
Maori and Pakeha PerspectivtS o/tM Treaty o/Waitangi (1989), p
30.
54 Walker, regarding the interpretation of the Waitangi Trcaty
and the establishment oC theBritish sovereignty, states that the
Treaty was 'tile first step in the subversion of Maorisovereignty.
The world subversion is appropriate, because none of the chiefs
signed withtheir intelligent consent They wcrc gulled ioto it by
deceptive translation'. What the Maorisintended to cede was the
governancc oftheir lands but oot the sovereignty as it appears
inthe offidal translatioo. See R J Walker, 'Maori Sovercignty,
Colonial and Post-eolonialDiscourses'. in Indigrmous Peopks' Rights
in Australia, Ganada &New lealand (P Havemann,ed, Oxford:
Oxford University Press, 1999). For an introduction to the Treaty
ofWaitangi,see J Davies, Basic !ntroduction to the Tuat, Q/
Waitangi, at www.arena.org.nz/tino %20rangatiratanga. h tm.
55 In the Atiawa Report, the Court of Appeal referred to the
Tribunal observations, whichstate: 'The spirit of the Treaty
transcends the sum total of its component written words andputs
narrow or literal interpretations out ofplaee. The Treaty was an
acknowledgement ofMaori existen ce, of their prior occupation of
the land and of an intent that the Maori
The new IegisIation, the Resource Management Act and the
CrownMinerals Act, which carne into force in October 1991, took
into account theprovisions of the Waitangi Treaty. The Resource
Managemcnt Act56slatesthe obIigations to:
'rccognise and provide for the relationship ofMaoris to their
ancestralland, watcr, sites, wahi tapu and other taanga (or
treasures) .... Rayeparticular regard to kaitiakitanga
(guardianship of resources) aod takeioto accouot the principIes of
the Waitangi Treaty. In consequcnce, toinitiate any kind of mineral
resource deyelopment, the deveIoper hasto negotiate with the
Iandowner, who cannot refuse access for minimurnimpact
developments. In the case of land belonging to the
cornmunity,th"eMaoris have the right to refuse access if it is
considered sacred bythe tribe. The refusa! of access can occur
during any stage ofthe mineraldeyelopmeot activity, but the
Mioister can overturn the decision if hcor she considers the
proposal to be in the public ioterest.'57
Canada
Iodigenous rights in Canada are protected by the Constitution,
aod there isa long history of treaties between indigenous
cornmunities and thegovernment. The recognition of indigeoous
rights was not as latc as inAustralia, but also llot as earIy as io
Ncw Zcaland, where it wasbrought aboutat the beginniog of
coIonisatioo.
In 1763, lbe Royal Proclamation issued by King George 1I of
Creat Britainstipulatcd that a portion ofland that remained vacant
(without the presenceof settlers) io possession of the indigenous
people must be reserved for them.However, it was also Slated that
the indigenous peoples couId transfer theirrights to the Crown.
Aftcr this, a series of treaties were signed between thecolonists
and the iodigenous communities while the new settlers
expandedacross the country. But what is the basis of Iegitimacy of
the Crown's
presence would remain and be respected .... The Treatywas also
more than an affirm~tionof existing rights. It was not intended to
merely fossilize a status quo but to proVlde adirection for future
growth and development The broad and general naturc of its
wordsindicates that it was not intended as a finite contract but as
the foundation for a developingsocial contracto We consider then
that the Treaty is capable of a measure of adoption tomeet new and
changing circumstances provided there is a measure of consent and
anadherence to the broad principIes': P Mac Hugh, TM Mami Mana
Carta: Nr:wZeaJand 1Awand tM Treaty o/Waitangi (1991), pp 4-5.
56 See in detail 'About the Resource ManagementAct' in New
Zealand Ministry for Environ-mento at www.mfe.govt.nz/laws/rma.
57 For a guide on how to get involved in resource management
decision-making. see NewZealand Ministry for Environment at
www.mfe.govt.nz/publications/ nna/
rma-guide-jul04/htrnl/page5.htrnL
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416 JOURNAL OF ENERey & NA:ruRAL REsOURCES LAw Vol 23 No 4
2005INDIGENOUS COMMUNmES' RICl-ITS AND MINERAL DEVELOPMENT 417
sovereignty ayer Canadian territory? Decisions of the Supreme
Court ofCanada asserted thal the Crown assumed sovereignty Qver the
territory ofCanada by conquest or discovery.In 1973, an important
decision was taken by lhe Supreme Court ofCanada
in lhe case of Calderv Attornry-GeneralBritish Columbia, 58 in
which itwasagreedby the majority of the justices that native title
existed al law and continued toexist unless it had beco validly
extinguished.!i9Mter this decision, the federalgovernment began a
comprehensive land claim process lOscttle aboriginaltirles ayer
land thal remained in the possession of Aboriginal peopIe.
Thegovernment has signed several agreerncnts with the indigenous
cornmunities.Within these modern land claim settlements, the
indigenous peopIe waivetheir rights to issue future land clairns in
exchange for participation in thcrnanagement of the land with
respect to aH the issues concerned with thisprocess, such as
environrnental protcction, tax regime, compensation,ernployrncnt,
and so 00_60
The Nunavut Land Agreement, signed in 1993 after 17 years
ofnegotiation,isa rnodel for transfcr of title and rnanagement
oflands and natural resourcesfrom indigcnous peoples to the Crown.
It is an important agrccment becausethe cornpromise it contains
seems to be relatively fair and equitable for bothparties. Whethcr
it proves so in practicc remains to be seen. It eovers an
58 'The decision in Caltkrv Atwrney-Gtm.eral o/British Columbia
washanded down by me SupremeCourt ofCanada on 31January 1973. It is
often credited with having provided the impetusfor the overhauling
of the land c1aimsnegotiation process in Canada. The case was
initiatedin 1968 by the Nisga'a Tribal Council against lhe
Government ofBritish Columbia. Thcmurt recognised the possible
exislence of Aboriginal rights to land and resources
(thusoverturning the Coun of Appeal's finding), butwas equally
divided on the issue ofwhetherthe Nisga'a retained title. The
decision nevertheless prompted the federal government todevclop new
policy to address Aboriginal land daims. 1976 saw Canada
commenccnegotiations with the Nisga'a Tribal Connl, however British
Columbia did notjoin thenegotiations unti! 1990. The Nisga'a Final
Agreemcnt was conduded in 1999 andimplemented by legislation in
2000', at www.atns.net.au/biogs/AOOI933b.htm.
59 1Isaac, Abmiginal Law: Cas~, Materials and Commmiary (1995),
pp 20-35.60 The most important land daim settlements - modem day
treaties _ after the Calderdedsion
are:James Bay and the Northem Quebec Agreement, in 1975; the
Northeastern QuebecAgreement in 1978; the Inuvialuit Final
Agreement in 1984; the Cwich'n ComprehensiveLand Claims Agreement
in 1992; the Claims Agreement with the Tungavik Federation
ofNunavut in 1993; the Final Agreement with the Coundl ofYilkon
Indians in 1993; theSahtu Dene and MetisAgreemcnt in 1994 and the
Nisga'aAgreement.in.Prindple in 1996.AlI these agrecments, which
had been confirmed by federallegislation, confer rights thatare
protected by me Constitution Act of 1982. The finalisation of the
agreements tookyears; for instanc:.e the Nunavut Claim Agreement
took 17 years to finalisc. See id, at255-266, and M Ivanitz, 'The
Emperor Has No Clothes: Canadian Comprehensive Claimsand Their
Relevance 10 Australia'. in P Moore, Land, Right.s, l.Aws: lssues
o/ Native Titk(1997), P 8.Also see Indian and Northern Affairs
Canada. at www.ainc.inac.gc.ca/pr/info/trty_e.html.
extensive area in the northwest of Canada (355,000 square
ki1or~et~es,including water and marine arcas). Through
th~sagreem~nt, the ~nUlttnbe'cede, release and surrender' all their
rights, tItles, and mterest l~, and .tolands and waters to the
Federal Crown, in exchange for flnanclalcompensation, participation
in the deve~opmen.t of their lands and theestablishment of a
special code for regulanng InUlt lands.
Notwithstanding this history of treaties, land clai~
s.ettlements and ~econstitutional protcction of indigenous rights,
there IS sull sco~e for conf1~~t. C nada - first because not all
the indigenous peoples have slgned treaUesIn a , . . h d
d secondly there are substantial tracts of land with unexungUls
ean , , th F deralaboriginal title that could be the subject of
claims. Furth.er~ore, e eIndian Act - the rnost important legal
framework for mdlgenou~ peoples,which endorses the holding of
lndian status, band counclls (lo~algovernment) and the rulesfor the
rnanagementand ad~ioistration ofIn~lanreserves- does not apply to
aHindigenous groups. For mstancc, the InUlt ofnorthern Canada do
not have reserves and are therefore not affected by thcIndian Act.
The Metis group, like the Inuits, have no reserves and al~oh~venot
signed a treaty. Their native rights are therefore subject to the
legIslatIonof the Province.lH
Latin America
Far-reaching mining and investrnent reforms in Latin America62
have placedsorne countries among the leaders in attracting
invesunent, and have ~sostirnulated their economic growth_ Recent
surveys have shown that d~nngthe last five or six years the Latin
American regioo ~as received more pnvateexploration invesunent than
any other region, and lt now attracts more than22 per cent of the
global exploration budget. . .
When the Spaniards arrived in Latio America 50? ~ear~ago, the
mdlgenouscornmunities already had a relativcIy advanced rnmmg
md~stry. In f~ct, fewnew discoveries of alluvial gold were made
under the Spamards du~ng thecolonial era. The difference was that
for the indigenous populatIons thcresources extracted had a
spiritual and religious value, not a monetar~ one.The Spanish
conquerors brought to lhe 'NewWorld' lhe co~cept of mIneralwealth.
At the time of the conquest in 1492, sorne 75 ffillhon people
wereliving in lhose lands, mainly in lhe highlands of lhe Andes and
lhe landslocated between Panama and Mexico. It is believed that
more than half of
. h' d agement of minerals in Canada,61 For further details
concerning natlve owners Ip an mansee BJ Barlon Canadian Law
o/Mining (1993), pp 80-113. . d th
' .. Ce IAro. S thAmencaan e62 The Larin American region
compnses MeXlco, ntra enca, ou
West lodies.
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418 JOURNAL OF ENERCY& NATURAL REsOURCESLAw Vol 23 No 4 2005
INDlGENOUS COMMUNlTIES' RICHTS ANO MINERAL DF.VELOPMENT 419
lhe indigenous population perished in less lhan 50 years. By
1592, probablyno more than a quarter survived.63
In most cases, the Spanish and Portuguese conquerors adjudicated
theowncrship afthe land by occupation. since there wasno legal
titIe that verifiedthe entitlement of the indigenous people.64 It
is suggested that in LatinAmerica indigenous peoplcs have different
kinds 01' titles that support theirtraditional rights over the
lands they occupy. Sorne are cornmunalland tides,which originated
in colonial times. Others are based 00 the materialpossession of
the land without the need for a written title. A third category
isthe title obtained as compensatian for injustice and
discrimination. Therehave beco different approaches related to land
ownership in accordancewith the era in which they evolved.65
The colonial period was characterised by the implementation of
coerciveregimes in which the indigenous cornmunities were required
to work in adetermined arca to produce a taxable surplus. Mter the
conquest, the Spanishcolonisers vested the property of the native
lands in the Spanish Crown.Before independencc, sorne indigenous
cornmunities managed to buy landsfrom the Crown. This produced the
so-called indigenous cornmunity. In thecase of the inhabitants of
the lowlands, they did not rcccive spedal protectionor recognition
of any rights, since the terrain theywere living in was
oflittleinterest to the colonisers. Thcse zones wcre consigned to
the missionaries,who organised the cornmunities within
reserves.
With independence, individual forms of land propcrty were
prornoted.Since the indigenous cornmunities were people with little
education, landownership became concentrated in a few hands.
Indigenous people were
63 See Latin Amtrica History, al the Latin American AlIiance
Web, 'W\W.latinsynergy.org/latinoamericahistory.h tm.
64 L Nesti, Indigen01.il ptop!e.s' right to land: InternationaJ
standards and possible thveWpments. TitecuLJuralvalue o/ land and
tM nk with 1Mprouction o/ the mvironmenl. The pmpective in the
caseo/ Mapuclu-Pechuenclte, European Masters Degree in Human Rights
and DemocratisationUniversity oC Padua-University of Deusto, 1999,
at www.xs4alI.nl/-rehue/art!nestl.hunl:Ne~ti ~es:. 'The lack of a
legal tit:1eand the non-recognition of their speciallink withthelr
terntones has been used by Slates until OUTdays to expropriate
indigenous peoplesla~ds for devel~pment projecls, military
occupation. border security. division into smallpnvale properues to
be sold to individuals or for tounsm projects. In other cases
Slateshave recognised Indigcnous peoples' right lO land bUl never
implemented il, n~r haveprotected these lands from exploitation
companies or rom people interested in theirresources. Many times
states have nOl made a distinction between the lands and the
resourcesof the subsoil. auributing to themselves the permanent
sovereignty over these latter andalIowing for exploration and
exploitation projects in indigenous peoples' lands
withoutconsulting them or compensating them for the 1055ofland or
the damage received.'
65 R Plant an~ S Hvalkof, Land Titling and Indigm01.il
Ptf>jJ[,s (Inter.American DevelopmentBank. Sustamable
Development Department, Technical papers. 2001).
given small pieces ofland for their subsistence in exchange for
chcap labour.This approach caused conflicts that gave way to the
crcation of specialresguardos that have their own political and
social organisation.
During the nventieth ccntury, many changes occurred in relation
toindigenous property rights over lands. Initially, lhe collective
ownership ofindigenous lands was recognised with the prohibition of
sale, mortgage,division or prescription. Policies varied across
Latin America. Around the1940s, there was a growing concero about
the marginalisation of indigenouspeople, which 1ed to lhe
development of policies of integration. During lhe1950s to 1970s,
many Latin American countries enacted agrarian reforms topromote
better managerncnt ofthe lands. In sorne cases, indigenous
peoplesreceived lands that were not suited to agriculture, leading
to poverty. In thelowlands, colonisation increased through farrning
and larger commercialcnterprises, which produced a need to
regularise the lands. Brazilpromulgated the Indian Statutc in 1973,
in which thc dcrnarcation ofindigenous lands was stipulated, with a
period of fiveyears to carry out thistask. During this period, the
titling of the Amazonian lands was initiated.Peru recognised the
inalienable collective ownership of the AmazonianIndians over their
lands in 1974 through its Native Communities Act. InColombia,
titling startcd in the 1980s and, in Ecuador and Bolivia, in
the1990s.
Qne issuc that has affected the regularisation of lands is the
concept ofproperty with a social function that irnposes limitations
on thc type ofdevelopment undertakcn. Within this context states
are empowered to decidewhich econornic activity is the one that
will have precedence in the use ofland. The use is left to market
forces. Plant and Hvalkofindicate the followi.ngapproaches in
indigenous land tenure: The protective approach, which is based on
the indigenous right to beprotected against extraneous impacts and
market forces - within thisapproach, the majority of Latin American
legislation stipulates thatindigenous lands are inalienable,
imprescriptible and not subject tmortgage.
The rights-based approach, which recognises the indigenous
ownershipover the land and its resources within a multicultural
state - this approachis in line with the recognition of the
traditional ownership of the landsbefore thc conquest, the native
title to land. It is comparable to theAustralian approach, in
which, as a part of the reconciliation for pastinjustices,
indigenous rights to the lands are recognised and affirmed.
The environmentally or ecologically determined approach, which
statesthe special capacity of indigenous cornmunities to Uveand
develop landslocated in ecologically sensitive areas - this
approach cmphasiscs the fact
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2005 INDlGENOUS COMMUNTTlF.5' RIGHTS AND MINERAL DEVELOPMENT
421
that rom time immemorial indigenous cornmunities have becn
living inecologically sensitive areas without causing advcrse
impacts. Indigcnouspeoples generally use the Iand with the
intention o prcscrving it for futuregenerations. Perhaps they have
a better idea oC sustainable developmentthan Westcrn societies.
The recent trend in Latin America is for the recognition and
affirmation ofindigenous rights. It has becn pointed out that 'a
new Latin AmericanConstitutionalism firrnly recognises an
increasing number ofLatin Americanrepublics asmultiethnic and
multicultural societies and often provides specialprotection for
indigenous lands and resources,.66 During the last
decade,Argentina, Bolivia, Brazil, Colombia, Ecuador, Guatemala,
Mexico,Nicaragua, Panarna, Paraguay and Peru have recogoised the
right