Whiles I am a beggar, I will
rail and say there is no sin but to be rich;
and being rich, my virtue then
shall be to say there is no vice but beggary.
Henry IV, Part 2, Act one,
Scene two.
New research published in the Journal Resources Policy
(link
here) examines the impact of the various elements of the overarching institutional
prerequisites for mine approval via a comprehensive analysis of 409 mining
applications subject to regulatory approval in Australia between 2000 and 2020.
The authors, Lisa Nicole Mills, Jennifer Stewart and Graeme
Auld are resource policy experts based in Carleton University in Ottawa. The
Abstract of their paper states (inter alia):
In this paper, we examine the
pressures which affect business risk through the multiple dimensions of the
“licence to operate,” in the case of federally regulated mines in Australia.
Studying 409 mining applications that were under regulatory review, approved,
or withdrawn between 2000 and 2020, we use competing risk hazard models and
linear regressions to examine how measures of business risk (longer times in
review and more conditions) and choices to withdraw are affected by: the
attributes of the mine, competing rights claims and land-uses, levels of
oppositional mobilization, changes in political parties in power, and market
prices. We found that new projects, and those that triggered an independent
assessment of their impact on water, were likely to experience longer reviews.
Mines where agriculture was the competing land use also faced longer reviews,
and mine proponents were more likely to withdraw their proposal. Contrary to
our expectations, the mobilization of opposition to a mine was associated with
faster time to approval, but also a higher number of conditions.
In section 2.1 of their article, the authors identify three
broad elements of the regulatory process governing mine approvals in Australia:
the Environment Protection and Biodiversity Conservation Act 1999 (EPBC
Act) which applies to nine potential matters of national environmental
significance; the processes required to obtain secure mining title which are
state based; and the provisions of the Native Title Act which apply to lands with
either determined native title, or subject to claim. The empirical analysis
undertaken was limited to processes under the EPBC Act.
The analysis considers interactions among licences to
operate through the lenses of civil society mobilization, electoral and party
politics, and competing land-uses as these combine to affect the business risk
experienced by mine project proponents through the EPBC Act regulatory approval
process and outcomes. I don’t propose to attempt to summarise the details of the
statistical analysis and refer interested readers to the article itself. Not
will I focus on the outcomes apart from the one of most interest to readers of
this blog, namely in relation to Indigenous claims (emphasis added).
A third insight from the
analysis concerns the role of competing rights claims and land-uses. The
data indicated that Indigenous land rights claims did not have any bearing on
the length of time to approval, withdrawals, or conditions; indeed,
proposals to mine on land without any claims tended to take longer to be
approved than those on land with claims: but this association was not
statistically significant.
Further, the authors found that:
Higher levels of civil society
mobilization pushed regulators in apparently different directions. When
mobilization was high, more conditions were imposed upon the mine's operation,
a finding that is consistent with literature that suggests social pressure may
increase regulatory requirements… However, mines that faced mobilization were
not subjected to longer approval times; and, in the case where mines faced
opposition from actors who would be negatively economically affected by the
mine's development, approval times were shorter.
The overarching conclusion of the analysis (references
removed) is that
Unlike early work on social
licence to operate that conceptualized social pressures as working in synergy
with regulatory processes, often leading to higher requirements or even beyond
compliance behavior, we provided evidence that regulatory licences can serve as
a trump card to advance a project. In this respect, our analysis offers caution
for those that view economic licensing [ie investor approval] and
social licensing [ie community and social approval] as substitutes for,
or at least complements to, regulatory licensing.
For my purposes, this research offers at least preliminary
or provisional evidence that longstanding tropes embedded within Australian
politics in relation to Indigenous land rights are mistaken and wrong. Those
tropes, which underpinned the rationale for denying Indigenous interests a veto
over mining on their lands, were that land rights would be anathema to mining
development and indeed to the nation’s economic security. The experience of the
past two decades is that those fears have not eventuated. That experience
strongly suggests that the promulgation of those fears was designed to benefit
the minerals industry and to maintain the structural exclusion of Indigenous
interests within Australian society.
Having said that, hidden behind these issues, and embedded
in the current institutional architecture of native title and land rights, are a
set of public policy issues related to the equity of the current financial policy
frameworks which
(i)
privilege native title holders of land which
lies above mineral deposits over those Indigenous groups who do not have access
to native title, or those native title holders whose land does not lie above commercially
viable minerals; and
(ii)
with only some exceptions, fail to ensure that
the funds which flow to native title holders and Indigenous landowners are disbursed
within frameworks which privilege accumulation over consumption (or to put it another
way, which fail to ensure that future generations will benefit from the
compensatory negotiations undertaken by the current generation). If there is
any merit in the arguments of many scholars (and Indigenous activists) that colonialism
has ongoing impacts, and that intergenerational trauma is a reality, then any
argument against intergenerational benefit provision for beneficial payments arising
from mining on Indigenous land disappears.
These are public policy issues because it has been governments
that have devised the institutional arrangements that underpin the implementation
of native title rights and land rights, and while the issues identified above
may not have been intended or even recognised, they are now of very real
significance. I use the term ‘hidden’ because these issues have been largely
submerged in the public debates over Indigenous land rights over the past five
decades. With the turn to economic empowerment as an overarching priority in
the Indigenous policy domain (link
here and link
here) it is time that these issues were given greater profile and attention
by policymakers and Indigenous advocates.
5 May 2025
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