Professional Documents
Culture Documents
Energy
& Natural
Resources
Law
Vol23 No 4
SUBSCRIPTlONS
BOOKS
....,...
Managing Editor
Prafessor Thomas Walde, Centre for
Energy, Petroleum & Minerallaw
& Policy,
University of Dundee, Scatland
Editorial Assistant
Mahmoud Reza Firoozmand, Centre for
Energy, Petraleum & Minerallaw & Policy,
University of Dundee, Scotland
Anociate
Editor
Dr Alex Wawryk, lecturer, Law Schaol,
University of Adelaide
Assistant Editors
Or Arthur J Warden, Part-time lecturer
and Consu'ltant, Centre for Energy,
Petroleum & Mineral Law & Policy,
universlty of Oundee, Scotland
Janeth Warden-Fernilndez,
Centre for
Energy, Petroleum & Mineral Law & Palicy,
University 01 Oundee, Scotland (Mining)
Stephen Dow, Centre for Energy,
Petroleum & Minerallaw & Policy,
University of Oundee, Scotland
Bibliography
Mahmaud Reza Firoozmand
University of Dundee, Scotland
EXECUTlVE COMMITTEE
Chairman
Geaff Hewitt, London, United Kingdom
Or Philip Andrews-Speed,
University af
Oundee, Scotland
Jos A M Bos, Simmons & Simmons Trenit,
Rotterdam, Netherlands
Michacl Dale, Deneys Reilz, Marshalltown,
Soulh Africa
Professor Thomas Walde, university of
Dundee, Scotland
EDITORIAL BOARD
Pablo Javier Alllan!, Estudio Bruzzan &
Asociados, Buenos Aires, Argentina
Chief Sena Anthony, General Manager
legallCornpany Secretary, LNG ltd,
lagos, Nigeria
Robert A Bassett, Darsey & Whitney lLP,
Denver, USA
Patrick Blanchard, Head of Executive
Office, Fuel Division, Electricit de France;
Associate Professor of law, University 01
Pars 10 Nanterre, France
Jos A M Bos, Simmons & Simmons Trenit,
Rotterdam, Netherlands
Stphane A Brabant, Herbert Smith,
Paris, Franee
Professor Adrian J Bradbrook, Bonython
Professor of Law, Universily of Adelaide,
Adelaide, Australia
Albert T Chandler, Chandler & Thong-Ek,
Bangkok, Thailand
Graham (oop, General Counsel, Energy
CI='W
SQcrQ~i.;L8I'u=ok,
November 2005
pp 385-605
ISSN0264 6811
Contents
Introduetion
Janeth Warden-Femandez
385
and Mahmoud
Firoozmand
395
427
465
482
499
511
529
Bibliography
550
Generallndex
599
The views expressed in this Journat are those 01 the contributors, and not
necessarily those 01 the International Bar Association.
385
2006
Professional
DUNDEE
Training Seminars
and Conference Information
Aeadem/e Excellence
Professional Re/evance
1-5 May
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Analysls ami Deslgn*
FIscal Sptems
Fee: 1,795
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8.12 May
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5cotland,
PeboIeum
Introduction
Janeth Warden-Fernandez* and Mahmoud Firoozmandt
Centre for Energy, Petroleum and Mineral Law and Poliey, University of Dundee
UK
11-15 September
Fee: 1,995
UK
NegotIatIng
and Managlng
Natural Gas
ConVacts'
Location:
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15-19 May
Ucenslng*
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of Dundee,
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Development*
Lacatlan: University of Dundee, Scotland,
Fee: 1.795
Petroleum
An Introduction
18.22 5eptember
UK Gil
L~A#~~~
..
~~~.~~fu!~~alff~r~;~~(,
Location:
19.20 June
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Fee: 1,995
Seminar Directors:
Stephen Dow (CEPMlP)and
Penelope Warne (CMSCameron McKenna)
Fee: to be confirmed
Seminar Directors:
Dr Elizabeth Bastida (CEPMlP) and
Magnus Eficsson(Raw Materials Group, Sweden)
8-10 August
AsIa 011and Cas Law
Kuala Lumpur
ProJed NegotiatIDns
Carnoustie, 5corland
Fee:1,295
1993.
UK
Lo(ation:
global
In almost al! the remote areas of the globe, the presenee of peoples
considered indigenous is cncountered. They are spedal people and in many
cases they have inhabited countries or regions that have been subjected to
and
394
Vol
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No 4
2005
395
Indigenous Communities'
Rights and Mineral
Development
By Janeth Warden-Fernandez*
The contemporary trend in globalisation dedicated towards an integrated worfd
economy and rapid advances in technology have accelerated the development
of natural resources throughout the world. This fast tracking of such development has caused the migratan of mining companies into remoter regions,
hitherto untouched. In sorne cases these terrains are inhabited by indigenous
peoples who see in such development a threat leading to the infringement of
their traditional rights related to the use and management of lands which
they perceive are theirs by right of tradition and usage. Consequently, this
projected development of traditionallands has precipitated confliets that can
generate stagnation in the economic growth of countries, espedally those
that rely heavily on the development of their natural resources. If this is not
redressed it could be an on90in9 obstacle to the development of natural
resources. Such conflicts have arisen because of the diverging interests of the
principal stakeholders in mineral development namely sta tes, investors and
the indigenous communities. Therefore with the aim of avoiding this type of
conflict. it is imperative to find the fairest and most equitable approach, which
caters objectively for all the interests in volved.
Mining activities are.obviously limited to the areas in which mineral resources
are located. In many countries, the developrncnt of natural resources is seco
as ao esseotial prerequisite for economic growth. The accelerating
he conl.ac.l:e:d
nn_
<>r
le
396
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No
2005
Cordcs pointed OUlthal 'Remoleness, in the modcrn era, oflen prescnts companies with
two.unique challenges. Qne is the challenge lO engineering design posed by operating in
enVlronmentally extreme and umested terrain. This adds lOthe uncertainty associaled with
possible environmental failures and lhe prospecl of harsh economic and political
consequences. The other is the possibility of operating in areas populaled by indigenous
peoples 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 very
aggressively and with growing success': J ACordes, Mining and lndigenaus Peoples, paper
presen~ed al International Mining Coursc, CEPMLP, Dundee University, 1997.
2 See O OSlensson, 'The Stakeholders: Interesl and Objectives', in SustainableDeuelopmmt and
tht FutuTt: o/ Mineral Invtstmmt (2000).
3 The Sludy ofDiscrimination againsl Indigenous Peoples, prepared by the Special Rapporleur
J R ~artin~z Cobo, sta~es:.'Ilis essential lOknow and understand the deeply spirilual special
relauonshlp between mdlgenous peoples and their land as basic lo their exislence as such
and 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 spiritual
Jife of mdlgenous peoples and Mother Earth, and their land, has a greal many deep-sealed
implications. Their land is not a commodity which can be acquired, bul a malerial e1emenl
lO be enjoyed reely.' This lexl is ciled in the Final working paper on indigenous peoples
and 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
COMMUNmES'
DEVELOPMENT
397
4 The World Bank in its BO 4.10, which replaccs 00 4.20, recognises that 'thc identities
and cultures of indigenous peoples are inexuicably linked to the lands on which the
live and lhe nalural reSOUTceson which they dependo These distincl circumstance:
expose indigenous peoples to differenl types ofrisks and levels ofimpacts rom dcvclopment
projects, induding loss oC identity, culture, and cuslomary livelihoods, as well as exposure
lO 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 a
contribution lo the World Bank's Extractive Industries Review (EIR) , highlighted the lhreats
that resource developmenl projects can impose on indigenous peoples.
6 For a detailed analysis of the impacts of the mining, oil and gas industry on indigenous
peoples' rights, see Extracting.Pronlius: Indigenous Peop~, Extractiv~ IndustTUs and tht World
Bank, 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 involves
lhe promotion of and contribution lO the well-being and welfare of the people of the host
s~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 ICMM
principies, againsl which its members and other companies thal have agreed lO adopt the
samc pcrformance obligations as ICMM memhers should measure lhe suslainable
developmenl performance of lheir activities. Compliance with these principies will be
a measure of corporate performance: W'WW.icmm.com/publications/1CMM_Principles_
en.odf.
398
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Within this context, and with the aim o avoiding conflicts in the course
of the development o mineral resources, the important question is: what
will be the best, fairest and most equitable approaeh that respeets all the
interests involved? T help answer this question, this artide provides an
overvicw o the differcnt legal approaches related to the recagnitian and
affirmation of the existence of indigenous rights in countries and regions
with a history o colonisation.
Defhtion oC indigenous peoples
There is no universal definition of indigenous people. Many studies and
discourses 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 ofindigenous
peoples to exist as 'distinct, separate peoplcs.8 with tbeir own cultural identity.
Malanezuk highlights the diffieulty in understanding with clarity the main
difference between the definition of 'indigenous peoples' and 'minorities'.
He argues how the conceptof'peoples'
implies asocial identitywith particular
characteristics and with a relationship with a territory. Instead, minorities
suggest a 'numerical inferiority', which is not necessarily synonyrnous with
indigenous peoples. In the case of the concept of indigenous peoples he
concludes tllat it comprises elements of minorities and peoples. Nevertheless,
what in reality counts is the legal context and instrument in which this concept
is applied'
In 1982, the United Nations Economic and Social Council, Commission
on Human Rights, adopted a definilion as follows:
'Indigenous populalions are composed of the existing descendants of
the peoples who inhabited the present territory of a country wholIy or
partially at the time when persons of a different culture or ethnic origin
arrived there from other parts of the world, overcame them, and by
conquest, settlement or other means, rcduced them to a non-dominant
or colonial situation; who today live more in conformity with their
particular social, economic and cultural customs and traditions than
with the institutions of the country of which they now form a part,
under a state structure that incorporates mainly the national, social
and cultural characteristics of other segments of the population that
8 For a comprehensive
study 00 the evolutian of human rights standards and its impact 00
damestic laws in Australia, Canada and New Zealand, sce lorns Magallanes, CJ, 'International
Human 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).
INDIGENOUS COMMUNmES'
DEVELOPMENT
399
are predominant
Although they have llot suffered conquest ar
colonisation, isolated or marginal groups existing in the country should
be regarded as covered by the notion of Indigenous Populations for
the 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 ethnic
origins arrived there;
(b) preeisely beeause of their isolation from other segments of the
country's population they have preserved almost intact the customs
and traditions of their ancestors which are similar to those
characterised as Indigenous;
(e) they are, evell if only formally, plaeed under a state strueture, which
incorporates national, social and cultural characteristics, alien to
theirs.'lO
o
1993), p 5.
400
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INDIGENOUS
f
l.4:lIn regIDns
O
th e world;
(1) Other relevant factors.
On an individual basis, an indigenous person is aue who b 1
these indigenous populations through self-identificati
. cd.ongs to
(.
00 as In 1genous
group. conscIOusness) and is recognised and acccpted by these
populatIons as one of its members (acceptance by the group). This
preserves
the sovereign
fa:
OF7D6F3F04DD7039852~6;2C007D08:~~~
E B 2A 3 5 3 8 5 2 5 6 7 2 E OO7 75 F 6 6 /
DepartmentofEconomic and Soc'alAff: '
,penDocument
and UOlted Nations
PFII%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 d
natural reSOurceson indigenous rights , sec Cord eS,n 1 a bo ve.P
evelopment of
AND MINERAL
DEVELOPMF.NT
401
to be defined'. The group also concluded that the cntena set up in Martinez
eobo's report was enough to identify 'whether a person or community was
indigenous or not', Final1y, one of thc rccornmcndations of the Working
Group regarding the definition of indigenous peoples was 'to arrive at a
legal and social framework which could be used as a reference, and to
harmonise action and protect the rights of indigenous peoples' ,14 In
con sequen ce, what exists is a detailed concept of indigenous peoples, which
encapsulates
the spedal characteristics
that identify them: they are
descendants of the peoples who inhabited the country before colonisation;
they have preservcd their custorns and traditions - cultural distinctivenessand they are placed under a state structure different to their own.15 The
Organisation of American States, in the proposed American Declaration on
the Rights of Indigenous Peoples, says that the criterion to determine if a
particular group is indigenous is their self-identification as SUCh.16
00
indigeoous rights
,
402
JOURNAL OF ENEROY
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the new cornmunity moving iota their territory and have generally persisted
with the desire to preserve their own culture, ethnic identity and political
and social systems.19
The coloniser, conquerar or invader was generally motivated by the
acquisition of new terraio, which therefore - in the view of the legal system
they brought with them - usually negated the rights of indigenous peoples.20
In the last tWQ decades, however, internalional bodies have drafted
instruments that give the indigenous cornmunity rights over land and the
right to participate in the decision-making process in relation to issues that
affeet them, especially those related lo the development and management
of natural resources.21
There is clearly an increasing global awarencss concerning the rccognition
of indigenous rights over land. In the case of the development of natural
resources, espccially mineral resources, this issue is of great importan ce.
Mining companies are interested in finding good projects in which they can
invest to obtain a profit. In order to rcalise this aim, companies initial1y
select the most promising arcas in the New World countries situated in
Australasia and the Americas, and to sorne extent in Africa.22 AH these new
countries were and still are inhabited by indigenous communities who havc
INDlCENOUS
COMMUNI1lES'
RICHTS
403
404
JOURNAL OF ENERGY
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What is needed are tooIs that will facilitate a process that leads to an
equitable dcvelopment of the mineral resources of indigenous lands, where
appropriate, through the participation of these cornmunities in decisionmaking over a potencial mining project and the distribution of its wealth in
a fair and equitable way." Indigenous peoples should have the right to free,
.
d'C
d
27
pnor an mlorme
cansent. The ooly way lo guarantec that a mining
venture promotes sustainable development is through the participation of
aH key stakeholders in the decision-making proccss - governments, mining
companies and cornmunities, including indigenollS cornmunities, where their
rights are affected.28
Australia
The mining industry is a key activity to the Australian econorny.29 Australia is
a 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 own
pliorities for the process of development as it affects their lives, beliefs, institUlions and
spiritual well-bcing and the lands they occupy or otherwise use, and to exercise control, to
the extent possible over their owo cconomic. socia! and cuhuraI development. In addition
uley shall participate in the formularion, implementation and evaluation of plans and
programmes 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's
Iask tean) assists the borrower in carrying out free. prior, and informed consultation with
~fected ~om~unities about thc proposed project throughout the projcct cycle, taking
lOto conslderatlon lhe following: (a) "free, prior and informed consultation"isconsultation
lhat occurs freely and voluntarily, withOUl any externa! manipulation, interference, or
coercion, for which (he parties consulted have prior access to information on the iment
an~ 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 stakeholders
m ml~mg prOJects, see Ostensson, n 2 abovc, at 3-1/30. Also see O stensson, 'Playcrs in
the Mmeral Industry', in E Bastida, T W;iJdc andJ Warden-Fernandez, lntn'national and
Ormparative 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 of
Australia s Gross 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 mining
mdustry IS ~lle ofthe blg~est contributors to Austra.lia's export trade and it is a vital part of
the Australian economy: see Australian Stock Exchange, at www.asx.com.au/investor/
industry / mining/ overview.huu.
INDlGENOUS
COMMUNITIES'
RICHTS
At'ID MINERAL
DEVELOPMENT
405
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 acquiring
absolute 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 insufficientIy
civilised or Christian to merit being viewcd as competing sovercign powers. Fortified by
the ilIusion of superiority, European powers claimed that the act of settlement in itself
divests Indigenous Peoples of any and aH sovereign authority over their land and their
Conlinued fJtJulzaj
406
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35 Brennanj, in his reasoning forjudgment, emphasised how in cOJ}lemporary law the notion
that land inhabited by indigcnous people who were regarded as 'Iow in the scale of social
organisation' may be c1assified as 'terra nullius' is not acceptable. He went further, remarking~
INDICENOUS
COMMUNITIES'
RICHTS
A.
'lD MINERAL
DEVF.LOPMENT
407
indigenous people were living there first. The Mabo decision was applied
initially ooly to the Murray Islands, not to mainland Australia.56
For Aboriginal people, thc Mabo decision was just recognition of thc
injustice perpetrated whcn the colonists arrived and deprivcd them of their
freedom, culture and religious beliefs, which greatly diminished the selfdetermination rights of their cornmunity. This principie of self-detcrmination
is upheld by the Australian indigenous cornmunities, founded on the fact
that the British colonists arrived only 200 years ago, by which time the
Aborigines had already been living there for more than 40,000 years, with
'total control ovcr their Uves'.The various 'indigenous rights are channelled
through the self-dctcrmiriatlon principie. These have been classified into
three main categories:
'autonomy rights: which focus upon the right oC Indigenous Peoples to
determine the wayin which they live and control their social, cconomic
and political systcm; identity rights: which are related to thc right to exist
as distinct peoples with a distinct culture; and territory and resource rights:
which encompass such things as land entitlements, the right to the
resources of that land, and the use of those resources.'"
The judgment was also seen as a success because it was based 00 laws that
the same colonists brought with them and was not a 'political favour'. At the
time, this decisio~ led to the filing ofmany claims - sorne of thern unfounded
-with an obvious negative consequcnce for the mining industry. The decision
also posed severa! politieal and legal problems for the states, including:
'The common lawofthiscountrywould
perpetuate injustice ifitwcre to continue to embrace
the enlarged notion of terTa nullius and to persist in characterising the indigenous inhabitanlS
of the Australian colonies as people too low in the scale o social organisation t be
acknowledged as possessing rights and interest~ in landstates'; (1992) 175 CLR 1 at 39, 4142,63.
36 The Mabo decision. which did no[ fix any scope and/or extcnt o the nalure of the native
tille. created uncertainty in the land holder and lease grant holder. This uncertainty is
caused 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 the
group, (2) The existence oan idenlifiablc community or group which is entitled to Native
Title and (3) The substan(ial maintenance oC the connection with lhe land since its
annexation by the Crown.' Therefore a plural presence in the land is nol necessary to
claim il. This situation has resulted in large tracts oC the terrain o mainland Australia
coming under or being subject lo native tille claim. with unavourable consequences for
the 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 the
land is thc application of the cuslomary law of the Aboriginal community. which is linked
with spiritual beliefs; the rules do not bear any comparison with Western property laws. W
D Kcn, Na/ive TitkLand Rights inAwtralia and tite lmplicalions lar ResouraDt:tJeLopment (Dundee:
CPMLP, 1995), pp HH3.
37 See WeUs and Doyle, n 32 aboye, at 197.
408
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the need to validate titles issued after the cornmencement of the Racial
Discrimination Act 1975, which might have becn rendered invalid by that
Act;
a requirement lo make provision for permitted future development of
land affected by native tille;
the need to provide a regime for the speedy and efficient determination
of 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 time
of settlement;
the Crown gained radical title to the land of Australia on settlement bUl
this did llot wipe out native title;
,
after scttlement, governments couId extinguish native title by legislation
or by granting interests in land (such as freehold tille);
in the case of the states, the power to extinguish native title is subject to
the overriding Racial Discrimination Act 1975;
subject to this Act, no cornpensatory damages are payable for extinguished
native tille.
In 1993, !he Native Tille Act (NTA) was promulgated, as a response to !he
Mabo decision. It uphcld !he Mabo decision and set forth !he rights of !he
Aborigines in SOrnespecific cases to rule their own land undcr their traditional
form of law and custom. The NTA provides for the claimant of native tille
the right to negotiate. This right is additional to the rights of native titIe
claimants and will he used before any decision is taken, which recognises
their titIe at common Jaw. Noting that native titIe is a 'pre-existing titIe to
land', the NTA sets out processes through which native title can be
recognised.39
In December 1996, !he High Courtof Australia, !hrough!he Wikdecision,'"
restated the fundamental principIes of its decision on Mabo regarding the
existence and recognition of native title at COrumon law and reaffirrned that
native title was 'oot a common law tenure but rather an interest in land that
was capable of coexisting with other interests in land'.~1 NevertheJess, the
substance of the interest in land was not specified, although the decision
39 F~~ a ~etailed analysis ~f the state of the native title, see in general M Tehan, A hOfM
dml1usumld, an opportumty lnsl? &jlectiom on common Law, Native Tillt and Trn Years o/ tlu
Native 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
www.aiatsis.gov.au/rsrch/ n tru/ n tpapen/ n tip 12.pdf.
FeatuTi!
o/
INDlGENOUS
COMMUNITIES'
DEVELOPMENT
409
made it clear that the scope of native title derived froID the traditions and
customs exercised by the Aboriginal communities before the European
settIers arrived and that each case needed individual consideration on its
own merits.
The Wik decision was the first to establish that if there is a conflict between
pastoral leases' rights and nativc tille rights, the former will prevail. The
native tille rights were subordinated to those of the pastoral lease-holders.
The validity oE the coexistence of different rights over the same land is
specified, defining the interest of each of the parties to prevent conflicto
The grant o a pastoral lease did not extinguish aH native title rights .
Therefore, as a consequence of the Wik decision, many of the exploration
and mining tenements were in dangcr of being declared invalid, because
the government granted them on me assumption that the granting of pastoral
leases had extinguished native titIe and therefore there was no need to comply
wim the mechanisms established by the NTA. The grant of mining tcncments
on pastoralleases from lJanuary 1994 should have gone !hrough the right
to riegotiatc process. In response to the Wik decision, and after severaJ
discussions, the Cornmonweallh Governmcnt issued the 'IO-Point Plan',
which set up ten principJes for amendment o the NTA. The Native Title
Amendment Act 1998 (NTAA) provided for !he validation of potentially
invalid 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 the
Australian High Court known as the Ward decision.~3 This decision ruled
mat:
rightc;under native titJe can be individually extinguished by governmenlal
actions, 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 mose
derived from native titJe, the rights and interests under the mining lease
will prevail;
42 For a detailed 3tudy on this subject, see AustTaLian/orNative Titltand RLconciliation (AGi), al
www.antar.org.au.
43 {2002] HCA 28. See Goldfields Land & Sea Council's repon 00 lhe Ward case al
www.glc.com.au/pu_xx/IS%20MG-Ward.pdf.Inlheviewofsorneprac~itio.ne~.this
judgmenl 'Ieaves continuing uncerlainty surrouoding the resolution of na~lve utl~ ISS~CS.
Mining companics will continue lO negotiate individual agreements Wllh nat1v~ utle
ciaimants, which will take time and resourccs as me only way lO avoid me alternallve of
drawn-oul and costly courl procccdings and subsequent appeals': 'Native tiue case only
partially conclusive', MiningJ(YUrna~ 16 August 2002, p 111.
410
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INDlGENOUS
Natifl~ Titkafter
Ward, 21-3AMPLA
45 See Australian Department of Industry, Tourism and Resources, Pursuing Common Goals, at
www.isr.gov.au/assets/ documen ts/ itrin ternet/ overview. pdf.
46 Rio Tinto's complete document
Rio_Tinto20040924112924.pdf.
at www.isr.gov.au/assets/documents/itrinternet/
COMMUNITIES'
411
412
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INDIGENOUS
COMMUNITlES'
RIGHTS
413
The most important paiot hefe is that the colonisation of New Zealand
was apparently lawful in relation lO the transfer of land. The 'principIe of
legality' was recognised,51 However, it seems that the real implementation of
the principIes sel forth by the Waitangi Treaty was nol aehieved until 1975
with the promulgation ofthe Waitangi Aet." This sel up a Waitangi Tribunal,
which is empowered to make recommendations
to the government about
any claim submitted to it. Its work is eomplementary to that of the courts,
although the tribunal's decisions are not binding. Qne very important point
is that the claims heard must be against the Crown and not against privatc
owners. This would be unsatisfactory as it stands, because there are claims to
lands that are now private property.
The ownership of sub-soil minerals by the Crown in New Zealand is not
as exclusive as in Australia. There are private property rights to the subsoil. Before 1913, the mineral rights on land belonged lo the owner of the
private property. During the colonial era, the theory was that the development of natural resources would bring advantages to aH members of the
community.
Thcrc are two theories that explain the origin of the governmen ts
implanted over the British colonies. Qne is the theory of 'Divine Right of
,Kings' and the other is that promoted by scholars, that the origin comes
from the 'consent of the communities'. The latter, for obvious reasons, is
now the commonly accepted interpretation
and the only one that still
survives. Accordingly, a sine qua non for British Crown sovereignty was that
the indigenous cornmunities' consented to the ncw legal order, By that time
the clearIy prevailing bclicf was that the official acquisition of tribal consent
was a condition of the constitutionality of British Government within the
colonies. An express consent was a prerequisite to British annexation, Within
this context, the Treaty ofWaitangi is seen as a materialisation ofthe approach
414
JOURNAL
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of the contractual theory and the foundation of British sovereignty ayer the
Maori cornmunity.53
Despite the apparent Success in the treatment of the indigenous peoples
of Ncw Zealand through the signing of the Waitangi Treaty in 1840,
controversics related lO the interpretation of both versions (Maori and
English) still exist. This is attributable to lbe large cultural gap belWeen lbe
Maoris and the Europeans and the difficulty encountered in 1840 in
translating the indigenous language, especially in the ahsence of a written
formo It is hard lo knowwhat right~, in reality, the Maori cornmunity thought
it was transfcrring
lo the colonisers. Many debates aIid scholarly
interprctations have becn pro"duced since, oriented towards attaining a
conclusive determination of the differences and common ground of both
54
parties. The Waitangi Tribunal and lbe Court of Appeal, after recognising
somc of the principIes of the Treaty, stated that these must be interpreted in
a dynamic sense.55
53 Jn the respon!>c ofLord Clcnelg to the proposal in 1837 ofthe New Zealand Association of
asystematic colonisation, he set'i out the position ofthe Crown ofobtaining the permission
of the tribes in order to establish iL'iimperium. 'It is difficult or impossible to find in the
history of British colonizalion an example of a colony having ever been founded in
derogation of such aboriginal rights, whether ofsovereignty or ofproperty, as are those oC
the chiefs and people ofNew Zealand. They are not savages living by the chase, bul tribes
who have apportioneu
the country between them, having fixed abodes, with an
acknowledged property in the soil, and with some rude approaches to a regular system of
internal 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 New
Zealand, without tlu fret consmt o/ tlu natives, deliberately given, without ccmpulsion, and without
/raud. To impart to any individuals an authority lO establish such a colony, withollt first
ascertaining the consent ofthe New Zealanders. orwithout taking the most effectual security
lhat the contract which is to be made with them shall frcely and fairly be made, would, as it
should 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 the
British sovereignty, states that the Treaty was 'tile first step in the subversion of Maori
sovereignty. The world subversion is appropriate, because none of the chiefs signed with
their intelligent consent They wcrc gulled ioto it by deceptive translation'. What the Maoris
intended to cede was the governancc oftheir lands but oot the sovereignty as it appears in
the offidal translatioo. See R J Walker, 'Maori Sovercignty, Colonial and Post-eolonial
Discourses'. 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, which
state: 'The spirit of the Treaty transcends the sum total of its component written words and
puts narrow or literal interpretations out ofplaee. The Treaty was an acknowledgement of
Maori existen ce, of their prior occupation of the land and of an intent that the Maori
INDlGENOUS
COMMuNmES'
RICHTS
AND MINERAL
DEVElOPMENT
415
The new IegisIation, the Resource Management Act and the Crown
Minerals Act, which carne into force in October 1991, took into account the
provisions of the Waitangi Treaty. The Resource Managemcnt Act56 slates
the obIigations to:
'rccognise and provide for the relationship ofMaoris to their ancestral
land, watcr, sites, wahi tapu and other taanga (or treasures) .... Raye
particular regard to kaitiakitanga (guardianship of resources) aod take
ioto accouot the principIes of the Waitangi Treaty. In consequcnce, to
initiate any kind of mineral resource deyelopment, the deveIoper has
to negotiate with the Iandowner, who cannot refuse access for minimurn
impact developments. In the case of land belonging to the cornmunity,
th"eMaoris have the right to refuse access if it is considered sacred by
the tribe. The refusa! of access can occur during any stage ofthe mineral
deyelopmeot activity, but the Mioister can overturn the decision if hc
or she considers the proposal to be in the public ioterest.'57
Canada
Iodigenous rights in Canada are protected by the Constitution, aod there is
a long history of treaties between indigenous cornmunities and the
government. The recognition of indigeoous rights was not as latc as in
Australia, but also llot as earIy as io Ncw Zcaland, where it was brought about
at the beginniog of coIonisatioo.
In 1763, lbe Royal Proclamation issued by King George 1I of Creat Britain
stipulatcd that a portion ofland that remained vacant (without the presence
of settlers) io possession of the indigenous people must be reserved for them.
However, it was also Slated that the indigenous peoples couId transfer their
rights to the Crown. Aftcr this, a series of treaties were signed between the
colonists and the iodigenous communities while the new settlers expanded
across 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~tion
of existing rights. It was not intended to merely fossilize a status quo but to proVlde a
direction for future growth and development The broad and general naturc of its words
indicates that it was not intended as a finite contract but as the foundation for a developing
social contracto We consider then that the Treaty is capable of a measure of adoption to
meet new and changing circumstances provided there is a measure of consent and an
adherence to the broad principIes': P Mac Hugh, TM Mami Mana Carta: Nr:w ZeaJand 1Aw
and tM Treaty o/Waitangi (1991), pp 4-5.
56 See in detail 'About the Resource ManagementAct' in New Zealand Ministry for Environmento at www.mfe.govt.nz/laws/rma.
57 For a guide on how to get involved in resource management decision-making. see New
Zealand Ministry for Environment at www.mfe.govt.nz/publications/ nna/ rma-guide-jul04/
htrnl/page5.htrnL
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INDIGENOUS
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417
50?
418
Vol
23
No
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64 L Nesti, Indigen01.il ptop!e.s' right to land: InternationaJ standards and possible thveWpments. Tite
cuLJuralvalue o/ land and tM nk with 1Mprouction o/ the mvironmenl. The pmpective in the case
o/ Mapuclu-Pechuenclte, European Masters Degree in Human Rights and Democratisation
University 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 with
thelr terntones has been used by Slates until OUTdays to expropriate indigenous peoples
la~ds for devel~pment projecls, military occupation. border security. division into small
pnvale properues to be sold to individuals or for tounsm projects. In other cases Slates
have recognised Indigcnous peoples' right lO land bUl never implemented il, n~r have
protected these lands from exploitation companies or rom people interested in their
resources. Many times states have nOl made a distinction between the lands and the resources
of the subsoil. auributing to themselves the permanent sovereignty over these latter and
alIowing for exploration and exploitation projects in indigenous peoples' lands without
consulting 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 Development
Bank. Sustamable Development Department, Technical papers. 2001).
INDlGENOUS
COMMUNlTIES'
RICHTS
ANO MINERAL
DF.VELOPMENT
419
given small pieces ofland for their subsistence in exchange for chcap labour.
This approach caused conflicts that gave way to the crcation of special
resguardos that have their own political and social organisation.
During the nventieth ccntury, many changes occurred in relation to
indigenous property rights over lands. Initially, lhe collective ownership of
indigenous lands was recognised with the prohibition of sale, mortgage,
division or prescription. Policies varied across Latin America. Around the
1940s, there was a growing concero about the marginalisation of indigenous
people, which 1ed to lhe development of policies of integration. During lhe
1950s to 1970s, many Latin American countries enacted agrarian reforms to
promote better managerncnt ofthe lands. In sorne cases, indigenous peoples
received lands that were not suited to agriculture, leading to poverty. In the
lowlands, colonisation increased through farrning and larger commercial
cnterprises, which produced a need to regularise the lands. Brazil
promulgated the Indian Statutc in 1973, in which thc dcrnarcation of
indigenous lands was stipulated, with a period of five years to carry out this
task. During this period, the titling of the Amazonian lands was initiated.
Peru recognised the inalienable collective ownership of the Amazonian
Indians over their lands in 1974 through its Native Communities Act. In
Colombia, titling startcd in the 1980s and, in Ecuador and Bolivia, in the
1990s.
Qne issuc that has affected the regularisation of lands is the concept of
property with a social function that irnposes limitations on thc type of
development undertakcn. Within this context states are empowered to decide
which econornic activity is the one that will have precedence in the use of
land. The use is left to market forces. Plant and Hvalkofindicate the followi.ng
approaches in indigenous land tenure:
The protective approach, which is based on the indigenous right to be
protected against extraneous impacts and market forces - within this
approach, the majority of Latin American legislation stipulates that
indigenous lands are inalienable, imprescriptible and not subject t
mortgage.
The rights-based approach, which recognises the indigenous ownership
over the land and its resources within a multicultural state - this approach
is in line with the recognition of the traditional ownership of the lands
before thc conquest, the native title to land. It is comparable to the
Australian approach, in which, as a part of the reconciliation for past
injustices, indigenous rights to the lands are recognised and affirmed.
The environmentally or ecologically determined approach, which states
the special capacity of indigenous cornmunities to Uveand develop lands
located in ecologically sensitive areas - this approach cmphasiscs the fact
420
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66 Id.
67 A M Craio, lruligmousLand&gularizatitm
in Latn Amt"7'ca.atNauve Web, www.nauveweb.org.
Rodolfo Stavenhagen, the Special Rapporteur 00 the situation oC human rights aod
fundamental freedoms o indigenous people, Mission to Chile, stated io the executive
summary ofhis report 'In 1993, Chile adopted the Indigenous Peoples Act (Act No 19,253).
in which the State recognizes indigenous people as .the descendants ofhuman groups that
have existed in nacional territory since pre-Colombian times and that have preserved their
own forros of cthnic and cultural expression, the land being the principal foundation oi
their existence and culture". The main indigenous elhnic groups in Chile are listed as the
Mapuche, Aymara. Rapa Nui or Pascuense, Atacameo, Quechua, Colla, Kawashkar or
Alacaluf, aod Ymana or Yagn. Indigenous peoples io Chile currently represent about
700,000 persons, or 4.6 per cent oC the population. Despite the efforts made since the
country's retorn to democracy. the indigcnous population eontinues to be largely ignored
and excluded from public life as a result of a long history of denial, social and cconomic
exclusion and discrimination
by the m~arity in society. Chile has still nat undertaken constitutional reform in this arca and has not yet ratified the Indigenous and
Tribal Peoples Convention (No 169) of the International Labour Organization (ILO)':
E/CN .4/2004/80/
Add.3,
at
www.unhchr.ch/Huridocda/Huridoca.nsf/O/
333d 149685. 1198b, 1256<5bOO39fbO I!$FI LE! G031 7091. pdf.
INDlGENOUS
COMMUNTTlF.5'
421
422
]OURNAL OF ENERGY
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70 Arlicle 75 of the Argenlinian Constitulion states that it is the duty oE the Congress 'to
acknowledge the ethnic and cultural pre-existencc ofthe Argenlinean indigcnous peoples.
To guarantee lhe respect for tbeir identity and the right to a bilingual and intercultural
education; to acknowledge the legal incumbellCY of their communities and the community
possession and ownership of the lands that they traditionally occupy; and lo regulate the
conveyance oE their lands fit and sufficient to human devclopment; none of them will be
alienable, assignable or liable to bcing subjcct to liens or attachments. To ensure thcir
participation in the management of their natural resources and other interests that may
affect them. The provinccs may currently exercise these capabilities': in F Hercdia, 'The
Applicable Law to Indigcnous communities in Argentina and its Relation to the Mining
Activity', paper prescnted at thc Internalional Bar Association, Seclion ofEnergy & Natural
Rcsources Law, San Francisco Conference, April 2004.
INDIGENOUS
COMMUNmES'
423
424
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INDIGENOUS
COMMuNmES'
DEVELOPMF.NI'
425
Final considerations
With economic globalisation and the liberalisation of markets, aH the
countries endowed with mineral resources are competing to attract private
investment. They see the development of their natural resourccs as the key
to the growth of their economies. Countries with indigenous eommunities
are in the internationallirnelight beeause of global awareness of the need to
protect indigcnous right..;.Therefore in the delineation of their policies,
these countries must take into account the need to address the protection
of those indigenous rights that have already received recognition in the
international arena. Also, governments must offer systems through which
their laws can be implemented.
Arguably, the treatrnent of indigenous rights issues in Australia, which
until recently denied indigenous participation in the development of the
nationls natural resources on ajust and equitable ba~is, was the lcastjust of
the three British colonial systems analysed. This is a contemporary issue in
Australia and much remains to be done to achieve a fair solution. The
recognition and protection of indigenous rights are not enshrined in the
Constitution and therefore depend generally on coromon law. The eonflict
of interests between Aboriginal rights and the developrnent of natural
resources must be addressed as a matter of urgency. This issue has already
had a negative impact on the mineral industry during a vulnerable phasc of
low prices in metal commodity markets, rcsulting in a downgrading of
Australia's perceived attractiveness for exploration and an outflow of funds
to more competitive countries.
The Treaty of Waitangi in New Zealand in 1840 was hailed as a virtuous
rnodel agreement ahead of its time, as it safeguarded the interests of
indigenous peoples, upholding their equality with the European settlers.
However, a confliet related to its interpretation stiB exists, leaving the
recognition of the rights of indigenous peoples in the hands of the courts.
In Canada, where the rights of indigenous peoples were largely protected
from an early stage in the country's colonial history, the courts have provided
a successful mechanism through which indigenous pcople have secured their
rights. Furthermore, these rights and the treaties' principies are enshrined
in the Constitution, and modern land agreements have provcd to be a
workable system because they recognise and implement rights. Neverthelcss,
vast terrains in Canada are still subject to native title claims because their
indigenous owners never signed a treaty. Therefore, a more rapid strategy is
needed to fast track the settlement of conflicts arising in relation to the
development of natural resources locatcd in these territories.
In Latin America, the issue is not the recognition of indigenous rights,
which have been enshrined recently within the constitutions of sorne
426
]OURNAL
<
r
f,
427
of indigcnous
land daims;
to
Thc best way to resolve conflicts arising during the devclopment of natural
resources, especially in the mineral sector, could be the signing of specific,
comprehensivc
agrecments
between governments,
developers
and
indigcnous peoples who have interests in a particular project. This type of
special agreement will encapsulate all the rules that deal with the use of
land, environmental protection, employrnent, taxation, and so on, while
establishing aH lbe obligations and rights of lbe parties involved. With lbese
agreements in place, aH parries wiIl have securityin arcas ofpotential conflicto
The government and the indigenous communities will know that the invcstors
will comply with thcir obligations, whilc the investors will know that a contract
will havc the nccessary stability. The most important point is that the country
will maintain its international image, because these agreements will reflect
an equilibrium that harmonises the interests oC the states, the developers or
investors, and the indigenous peoples as traditional owners of the lands.
Any negotiation between stakeholders must be conducted within an
environment
of authentic goodwill, mutual respect and readiness to
compromisc intcrests. This negotiation
must have as a final goal the
achievement of fair, just and equitable agreements that can be of mutual
lasting benefit and can avoid the costs and delays associated with Jongjudicial
proccsses while promoting sustainable development.
between
where appropriate,
accommodate
Aboriginal
of
the' Crown and reconciliation have moved Canadian Aborigina/ law from a
comfortless uncertainty to a legal certainty in which Canadian governments
continue to manage natural resources, but do so subject to fair treatment of
Aboriginal
peoples.
This articlc was originalIy publishcd in (2003) 53 UNB Law J3, This version rcpr,cscn,ts th~
third edition ofthe paper first prescntedat thejoint meeting ofthe Rocky Mountam Ml~era
La F
d U. and the Section on Energy & Natural Resources Law of the lnternauon~
W oun a on
h
' ,
t t It
Bar Association held in Lima, Pero in April 2003. Along with sorne ot er revlSIons o ex
conlains new refcrences to several decisions rendered since April 2003, changes the or er
[d'
ss'oo of the Crown's fiduciary duty and impact and benefit agrccmcnts and a~ds a
o lseu I
, , al 'u
d
vate
slightly editcd vcrsion of the passage 00 the relationship between Abongtn u e an pn.
.
. Thomas 1saac, A"~'
ropertyrightsfirstpubhshedm
(IU"gma,lI.aw' Commen'''"'"'''
~',1> CasesandMate11als,
,
~rd edn (Saskatoon Purich, 2004), pp 14-18, The second edition was presented at, aJo~nt
.,
, San F'ranClSCO,USA' In April 2004, ThlS thlrd
meeting of the same, orgamsatlons
held In
..
edition is the same as the sccond edlUon
except th at a num ber of foolnotes have
, . beeo
su lemented or added in order to annotate the text in light ,of th~ l.andmark declslOIlSof
th~~upreme Court ofCanada in HaidaNatm v British Columbia (Mmu!? ojFrn:ests)[2004] 3
SCR 511 ('Haida') and Taku River Tlingit First Nation v British Columbia (Project Assm:;~
Director) [2004] 3 SCR 550 (' Taku'), which were pronounced by the Supreme Coml ofCan
in November 2004.
b) b th
Thomas Isaac BA, MA, LLB,l.l...M and Anthony Knox BA (Hon) , LLB, PhD (Canta 'dob
of McCarthy Ttrault l.l...P,Vancouver, British Columbia. The authors can be contacte
y
e-mail attknox@mccarthy.caandtisaac@mccarthy.ca.