Returning land to country: Indigenous engagement in mined land closure and rehabilitation

Abstract

This article uses stakeholder and CSR theories to intentionally and meaningfully include Aboriginal and Torres Strait Islander peoples in planning for mined land rehabilitation and closure (MR&C). In the mining space, attention has been paid to securing land access, fulfilling Indigenous Land Use Agreement and Mine Participation Agreement requirements, undertaking initial consultations with communities and Traditional Owners, and setting the terms of reference for entry and mine operation. MR&C, in contrast, has been a distant priority for both mining companies and the relevant state or territory governments. Guidelines for MR&C practice is articulated even less clearly in relation to Indigenous engagement. In response to growing public pressure, the mining industry is focusing more on addressing MR&C issues. This article suggests that companies and governments engage Aboriginal and Torres Strait Islander peoples in plans for MR&C as an upgraded standard for MR&C practice.

JEL Classification: Q01, Q32

Keywords

Aboriginal corporate social responsibility theory Indigenous mine closure mining rehabilitation Torres Strait Islander

1. Introduction

This article discusses a scoping study looking at a range of engagement activities between Aboriginal and Torres Strait Islander peoples and Australian mining majors. This study is underpinned by the view that Indigenous people have a meaningful role to co-create the ‘doing’ of rehabilitation as well as the managing of post-closure use of mined land located on their country. For mining companies and governments to co-create the end-of-mine landscape with Indigenous communities, in a robust and meaningful way, has the highest potential to both bring localised economic opportunities (e.g. local content) and imbue the final land forms with cultural values and significance (e.g. culturally appropriate amenities). Using stakeholder and corporate social responsibility (CSR) theories, this article underlines the position that there is a particular duty of care that mining companies have when engaging with Aboriginal and Torres Strait Islander communities, whether Traditional Owners or not. This duty of care has been customarily expressed at the beginning of a mine’s life-cycle, but it could also extend in a meaningful way, to developing mined land rehabilitation and closure (MR&C) plans.

The data for this scoping study come from a desktop review of major Australian mining company community engagement reports (n = 18). In these reports, Aboriginal and Torres Strait Islander peoples are specifically mentioned around targeted engagement activities. The data are freely available on mining company websites. It is worth noting, however, that not all mining companies engaging with Aboriginal and Torres Strait Islander peoples publish their engagement activities. Exploratory conversations with lawyers, consultants, industry professionals and scholars working in the areas of cultural heritage management and environmental management confirm that not all engagement activities are accurately reported. However, these reports allow us to derive insights into the range of Aboriginal and Torres Strait Islander engagement underway related to MR&C. With this baseline established, it is then possible to make suggestions about further opportunities to deepen Indigenous engagement on MR&C practice.

2. Context

Australia is a land dotted by mines stretching from the bauxite mines in northern Australia, to rich coalfields in Queensland and New South Wales, to the vast iron ore mines in Western Australia. It also contains a wide variety of metalliferous mines from arid Australia to coastal and high-rainfall areas. All of the mines exist on lands managed and cared for over 65,000 years by Aboriginal and Torres Strait Islander peoples (Clarkson et al., 2017). Before the landmark Mabo ruling in 1992, the development of mines to exploit natural resources did not generally result in benefits for Aboriginal and Torres Strait Islander peoples (O’Faircheallaigh and Corbett, 2005). Since 1992, Aboriginal and Torres Strait Islander communities which could fulfil conditions of connection to country could petition for recognition as Traditional Owners of the land under the Native Title Act (O’Faircheallaigh, 2010). Once acknowledged, it then becomes possible to benefit from mining. The range of Australian protections of access to and ownership of land, as well as supporting international instruments, is presented in Table 1 and two examples are discussed directly afterwards.

Table 1.

Protections to land rights for Aboriginal and Torres Strait Islander Australians.

Year	Standards applicable to Australian mining environment
1976	Aboriginal Land Rights Act
1991	International Labour Organization Convention (No. 169, Articles 15 and 16)
1992	The Australian High Courts’ ‘Mabo’ decision
1992	National Strategy for Ecologically Sustainable Development
1993	Commonwealth Native Title Act
1994	Social Impact Management Plans (Environmental Protection Act)
1998	Native Title Amendment Act
2007	The United Nations Declaration on the Rights of Indigenous Peoples (Articles 25 and 40)
2011	International Finance Corporation (Standard 7: Free Prior and Informed Consent)

This suite of Native Title Act protections and instruments has been developed to safeguard Aboriginal and Torres Strait Islander communities’ interests in mining activities from 1998 through to the present. Two of the most relevant are Indigenous Land Use Agreement (ILUA) and Mine Participation Agreement (MPA). Mining companies intending to operate on any lands recognised in the Native Title Act now must negotiate an ILUA with affected Aboriginal and Torres Strait Islander peoples, usually the Traditional Owners. These agreements are intended to protect the interests of Aboriginal and Torres Strait Islander communities and cover a broad range of concerns from compensation, to future development, to employment and to cultural heritage. However, a less generous description of their purpose, in practice, is described alternatively by Aboriginal and Torres Strait Islander peoples: ‘Indigenous Land Use Agreements have arisen in Australia in response to native title legislation and the desire of mining companies to access mineral resources on Indigenous land with certainty and security of future access’ (Crooke et al., 2006: 9). A companion instrument is the MPA which details how a mine agrees to manage its activities and relationship with affected Aboriginal and Torres Strait Islander peoples. The process of establishing Traditional Ownership and negotiating ILUA and MPA within the Native Title Act can be long and difficult. However, Aboriginal and Torres Strait Islander peoples must use these three legal mechanisms to become beneficiaries of jobs, resource rents, social and environmental programmes and more (O’Faircheallaigh, 2013).

Even with these legal mechanisms for access to benefits from mining, no publicly available ILUA or MPA stipulate conditions for end-of-mine planning. For example, there are no guidelines for the inclusion of Aboriginal and Torres Strait Islander communities in co-designing the final landforms that result from rehabilitation and closure of mines. Nor are there accommodations for cultural values associated with songlines, as related to landforms, specified for consideration when mining companies and state/territory governments return or relinquish the mined landscape to the country. Notably, songlines are important in linking the oral history that maps culturally rich navigational and agricultural wisdom to the land and seascapes cared for by Aboriginal and Torres Strait Islander people (Huggan, 1991; Norris and Harney, 2014). Finally, it appears that the legal and regulatory landscape for MR&C around Aboriginal and Torres Strait Islander peoples’ rights is also quite indeterminate of which mined-land-stakeholder is to care for, and bear any ongoing remediation costs of, the land upon mine closure (Vivoda et al., 2019).

Cultural aspects related to mine closure and relinquishment back to communities are particularly fraught for mines that were established prior to the Native Title Act. Although mines established between 1975 and 1998 will have a mine closure plan, these plans are often simplistic and may only require land to be returned – in some form – to its previous use, frequently grazing. As well, not all mines are established on land that is subject to the Native Title Act. Alternately, there may be only a tiny section that is subject to the Native Title Act – without Native Title Act agreements required at any stage. A final exception is when a sub-section of a larger lease is subject to Native Title Act, it can be quarantined for separate legal treatment as in much of New South Wales (Vivoda et al., 2019).

Despite the lack of clarity on how MR&C will be managed in relation to Aboriginal and Torres Strait Islander peoples in the period leading up to and following mine closure, the mining industry in Australia is currently prioritising MR&C plans more broadly with relative urgency (Owen and Kemp, 2018; Unger et al., 2020). The increased focus on MR&C is due partly to both market pressures, as well as variable public opinions, linking some aspects of mining to climate or environmental change. Managing mine closure and rehabilitation is often tricky. There are always the physical aspects of closure including void management, rehabilitation of vegetation, and management of tailings, or runoff, from storage of mine-waste materials. Complicating the picture at the end of a mine’s life, the operator is usually cash poor, the affected community is facing economic stressors, and key services have dwindled. For Aboriginal and Torres Strait Islander communities, there are additional cultural factors, pressure to negotiate terms without sufficient time for consideration of long-term impacts and industry’s lack of understanding on how social implications of mine closure configure with environmental implications (O’Faircheallaigh and Lawrence, 2019). Consequently, without governmental incentives and careful oversight, it would be easy to miss emerging opportunities to repurpose, re-use or transfer ownership from mine owner to legacy mine holder appropriately (Holcomb and Bainton, 2018). However, as the Australian mining industry prioritises MR&C, a critical window of opportunity has opened to meaningfully reframe Indigenous stakeholder engagement concerning MR&C practices using the classic stakeholder theory.

3. Making stakeholder engagement work in context

Classic stakeholder theory is customarily traced to Freeman’s early work in late 1980s and early 1990s inaugurating the idea that firms have moral obligations to communities of people beyond the shareholders and employees who benefit financially from the economic activity of the firm (Freeman et al., 2010). Furthermore, stakeholder theory advocates for coincident attention to economic and moral aspects of doing business. In other words, all actions made by a firm are infused with ethical content (Freeman et al., 2010). Stakeholder theory is therefore a way for managers to systematically consider which groups of people might be affected by business decisions (Reynolds et al., 2006). However, scholars writing about the ethical nature of the behaviour of firms use stakeholder theory to do more than identify relevant internal and external factors.

Since the early 2000s, stakeholder theory began incorporating concepts of CSR and Social Licence to Operate or to emphasise the point that firms have an obligation to do more than consider how their actions affect stakeholders (Porter and Kramer, 2006). CSR asks firms to think holistically about partnering with affected communities in a meaningful way to achieve social, economic and environmental outcomes acceptable to both the firm and the communities affected by the firm’s activities (Carroll, 1999; Dahlsrud, 2008; Wilburn and Wilburn, 2011). Despite the rising importance of CSR, the content of these economic, social and environmental obligations is constantly changing (Porter and Kramer, 2006). Furthermore, decades of debate surround the definition, responsibilities, roles and impacts of CSR on stakeholders, which often necessitate change (Clarkson, 1995; Roberts, 2003). Although a debated point, firms with an expressed interest in CSR tend to view CSR activities are giving them a competitive reputation and therefore economic advantage (Carroll and Shabana, 2010; Porter and Kramer, 2006).

Internal corporate stakeholders charged with enacting CSR serve a strategic purpose as a conduit between the goals of business and society’s expectations (Carroll, 2000; Evan and Freeman, 1988; Schwartz and Carroll, 2003). Consequently, an appropriate response to external stakeholder needs and societal expectations includes ongoing education, learning and appropriate adaptive corporate behaviour. A generic response from a ‘good’ corporate citizen is no longer sufficient to drive strategic CSR (Porter and Kramer, 2006). Even strategic CSR theory can overlook the influence of institutional and governance arrangements, including stakeholder characteristics such as power and legitimacy (Banerjee, 2010; Carroll, 2000). Therefore, companies are continuously adjusting to the international trend towards more explicit and voluntary, rather than implicit and mandatory, CSR (Hiss, 2009; Wettstein, 2012). Within the last 10 years, CSR has become linked to international human rights standards (Ruggie, 2007; Wettstein, 2012). There is a now a need for CSR to represent genuine moral obligations, include international human rights standards, and put in practice more than voluntary attempts at satisfying the norms of moral conduct in business (Schreck et al., 2013; Wettstein, 2012).

As CSR terminology has grown in use across a broad swathe of business sectors, Social Licence to Operate has come into use as a related term that resonates specifically with extractive natural resources industries. Social Licence to Operate refers to the levels of credibility, trust and legitimacy earned by a firm in relation to local communities (Thomson and Boutilier, 2011). Large resource projects need to demonstrate capacity to fulfil stated commitments through their activities to gain or maintain a Social Licence to Operate, especially related to social and environmental performances (Prno and Slocombe, 2012). Diverse stakeholder groups exist within communities, meaning that not all groups share the same opinions or have the same amount of community influence on a wide range of items. Therefore, firms often must spend extended time becoming acquainted with a broad range of community concerns and factions before fully developing a project or recovering from an accident such as a tailings dam failure. Failure to earn community consent to operate can result in conflict, protests and cessation of operation (Cooney, 2017).

As a subset of CSR and Social Licence to Operate, firms engage with Indigenous communities on a specific set of ethical considerations under the umbrella term: Free Prior and Informed Consent. The Free Prior and Informed Consent is a relatively recent development in the space between firms and Indigenous Peoples. The United Nations officially recognised the principles of Free Prior and Informed Consent in Article 19 of the United Nations Declaration on the Rights of Indigenous Peoples (United Nations, 2008). Essentially, Free Prior and Informed Consent says that States, and by extension the firms who are granted development leases, must gain the consent of Indigenous Peoples in matters that affect them, their lands, territories and natural resources (Rodhouse and Vanclay, 2016). In more detail, Articles 20–29 of the Declaration articulate the freedoms Indigenous peoples are to have towards maintaining and enhancing their traditional ways of life while improving their economic well-being. In circumstances where states, and firms, have negatively affected the lives and livelihoods of Indigenous peoples, states and firms operating with the states’ permission must redress the imbalance. Despite the justice laden language of the declaration, states and firms have found enacting Free Prior and Informed Consent problematic where mining and forestry firms operate (Mahanty and McDermott, 2013; Rumler, 2011). In Australia, despite vigorous language around Free Prior and Informed Consent, regulators from Commonwealth, State and Territory governments retain the right of compulsory acquisition and do not cede to Indigenous communities the right to refuse resource development, even for cultural heritage reasons.

The latest development in the CSR space regarding mines is a very new concept called ‘Social Licence to Close’. In the last 5 years, some communities have begun to query the moral justification for mining commodities with enduring environmental impacts (e.g. coal, zinc, bauxite). Mining firms which decide the risk or cost of mining exceeds the financial benefit to the company and the community then need to garner support from affected communities to cease operations (Everingham et al., 2019). This is not always a straightforward process as some communities depend on the income from mining to remain viable. However, with appropriate planning, social, environmental and economic arrangements can be made to address the concerns of corporate and community stakeholders (Holcomb and Bainton, 2018). Even in these circumstances, it is not yet customary to include Indigenous people with the notable exception of the Argyle diamond mine as discussed in the subsequent section.

To date, there is no agreement between regulators, mining companies and mine-affected Aboriginal and Torres Strait Islander communities on what the terms CSR, Social Licence to Operate, Free Prior and Informed Consent, and Social Licence to Close mean in context. Moreover, neither do the mining stakeholders use these terms in precisely the same way. Furthermore, some firms will use the terms superficially within their stakeholder management plans while not actually fulfilling the activities to which the terms refer, a practice otherwise known as ‘greenwashing’ (Laufer, 2003). A discussion of these debates is outside the scope of this article. Acknowledging these ambiguities, this article proceeds with straightforward definitions of CSR and Social Licence to Operate (cf. Bice et al., 2017; Yakovleva, 2005).

Before discussing the case of Indigenous engagement by Australian mining companies on the topic of MR&C, it is necessary to define one more term which is nuanced for Indigenous engagement: cumulative impacts. When multiple firms operate in an area, or when a firm engages in activities that have multiple social and environmental impacts, then the phenomenon of cumulative impacts emerges. The term ‘cumulative impacts’ recognises that the activity of multiple firms may still exceed the capacity of social or receiving environment to absorb the collective impact of those activities (Franks et al., 2010). For example, if multiple mines operate in one area, the airborne particulate matter generated by any one mine within the group may be below the limits set by the governmental authority. However, the collective contribution may in fact exceed the allowable levels, at once levelling blame at all contributors but not laying the responsibility to control the impacts on any (Franks et al., 2010).

Cumulative impacts of mining activity occurring on Aboriginal and Torres Strait Islander communities and landscapes have implications not only for the environment but also for cultural heritage sites. There are no agreed measures to quantify cultural impact as they cause changes to air and water quality (Godwin, 2011). It is easier, although not without difficulty, to provide ‘offsets’ for disturbance to air and water quality than for cultural heritage sites. Offsets are understood as the practice when mines trade pieces of land disturbed by a resource project in one location for a similar piece of land elsewhere. The difficulty with this approach for cultural heritage sites is that there is no real way to evaluate one sacred or culturally rich site against or in priority over another. The concept of ‘offsets’ for cultural heritage, therefore, becomes problematic.

The next sections of this article will discuss the Indigenous context in which large resource projects operate in Australia. First, a brief discussion is carried out on which stakeholders are involved in negotiating ILUA and MPA. Second, the article describes the varieties of CSR and Free Prior and Informed Consent activities designed as part of the ILUA and MPA between mining companies and Aboriginal communities. Third, the article will look at evidence of mining majors’ engagement with Aboriginal and Torres Strait Islander peoples on the topic of MR&C. The article concludes with recommendations for future research.

4. Partners to ILUA and MPA

This section discusses ILUA and MPA. Each concept will be referred to with acronyms throughout the article (ILUA and MPA). The mining and extractives industry in Australia exhibits a range of approaches to stakeholder engagement with Indigenous people directly and indirectly affected by its activities. Legislation, landmark legal decisions and government regulation inform corporate-level interactions related specifically to Social Licence to Operate and Free Prior and Informed Consent. Along with these legal and regulatory requirements, various industry associations such as the Minerals Council of Australia, Australian Petroleum, Production & Exploration Association and the various State and government resource councils encourage partnerships between the resources industry, Indigenous communities and government. In addition, the industry peak body, the Australasian Institute of Mining and Metallurgy (AusIMM), has a Community and Environment Society where mining professionals can share practice and policy-based advice on Indigenous and cultural heritage issues. The mandate of these voluntary partnerships includes a commitment to facilitate mining and extractives company support for sustainable economic development and employment opportunities for Indigenous families and communities through ILUA and MPA. Both kinds of agreement satisfy classic understandings of gaining and maintaining a Social Licence to Operate and engaging in generally acceptable Free Prior and Informed Consent practice (Gawler, 2009).

In addition to the industry groups, there are various Land Councils which represent the interests of groups of Aboriginal and Torres Strait Islander communities and are funded by the relevant state or territory in most instances. The Land Councils are a point of first contact for mining companies, especially with Traditional Owners, regarding the use of their land. They facilitate Aboriginal and Torres Strait Islander peoples in protecting cultural heritage, establishing protections and protocols for sacred sites by negotiating on behalf of Traditional Owners, teaching traditional principles of land management and generally promote the strengthening of Aboriginal and Torres Strait Islander peoples’ ties to country. Land Councils represent communities involved in negotiating ILUA and MPAs with large resource projects. For example, the Western Australian diamond mine, Argyle, is owned by Rio Tinto. The Kimberley Land Council assisted in negotiating the Argyle ILUA and MPA (Argyle Diamonds and Kimberley Land Council, 2004).

It is worth looking more closely at the Argyle case as one of few with publicly available documentation. The voluntary Argyle ILUA encourages direct involvement specifically from Traditional Owners affected by the development of the mine (Doohan, 2013). In terms of fulfilling CSR, Social Licence to Operate, and Free Prior and Informed Consent responsibilities, the agreement recognises Indigenous interests at all levels of mine site operations in return for Traditional Owners recognising the validity of all Argyle’s mining interests within the agreement area. With regard to Traditional Owners, this arrangement for community and economic development extends beyond 2020 including their

Consent to ongoing mining operations, including the underground development;

Receipt of grazing lease when mining ceases;

Continuation of historical relationship and payments arising out of the 1980 Good Neighbour Agreement.

The Argyle Diamond MPA contains sub-components regarding Traditional Owners including

Assistance and preference n mine training and employment;

Cross-cultural training to all employees and long-term contractors by their businesses;

Advance notice to their businesses about contracts;

Decommissioning (remaining infrastructure);

Land-use issues including MR&C.

The Argyle MPA also establishes a Relationship Committee consisting of representatives of Argyle and Traditional Owners, to aid implementation of the MPA and even amend them when necessary. Rio Tinto’s planned closure and potential sale of Argyle is currently testing the strength of these agreements which, although not perfect, are among the only documents of their kind publicly available for study as examples of how CSR, Social Licence to Operate and Free Prior and Informed Consent can work in practice. The planned closure and sale of the mine is also testing how sincere Rio Tinto’s plans are to successfully rehabilitate and remediate the mine site over the next 10 years in collaboration with Traditional Owners, rather than just sell off the mine for AUD$1 and divest itself of the rehabilitation burden, as Rio Tinto did with the Blair Athol mine (Aston, 2019; Hastie, 2019; Kerr, 2019).

5. CSR and Social Licence to Operate activities of mining companies

Free Prior and Informed Consent principles of stakeholder engagement are required during exploration and construction phases, whereas CSR and Social Licence to Operate–related activities dominate the operations phase of mining, as with other extractives projects. Consequently, Australian mining and extractives companies have a range of goals, policies and actions designed in accordance with ILUA and MPA to provide social support to those impacted by mining activities, some of which are more successfully implemented than others. Companies list their CSR and Social Licence to Operate activities in company-published sustainability reports and on company websites. Some examples include the following: education, traineeship and pre-employment programmes, parenting and childcare support programmes, financial assistance (e.g. grants, business development opportunities) and community infrastructure programmes (e.g. sporting, education and health services and facilities). Mining companies and Traditional Owners’ communities, along with the various industry groups and land councils, put most of the effort for these programmes at the point of entry or commencement of a mine’s life. Then, mining companies and communities periodically review the desired outcomes of these activities and ideally make adjustments that take into account what a mining company is able to offer in response to the actual needs of the communities over time.

However, these arrangements to honour CSR and Social Licence to Operate–related activities do not always go as planned, especially relating to issues pertinent to co-design of cultural heritage and training or employment. A partial reason is that states and territories have differing arrangements for interpreting heritage guidelines. In addition, the Native Title Act governing cultural aspects of resource development does not actually represent Aboriginal and Torres Strait Islander ways of thinking, instead prioritising western/settler ways of assigning value (e.g. fiscally) without taking adequate measure of the complex inter-group relationships (Byrne, 2012; Marsh, 2013). In terms of employment opportunities over the life of mines, communities around some mines still experience inconsistent benefits over the life of mining projects, with opportunities tapering off further towards mine closure (Doyle et al., 2015; Everingham et al., 2013; Tiplady and Barclay, 2003).

These are only two categorical examples of a broader suite of sub-optimal outcomes for Aboriginal and Torres Strait Islander communities resulting from intentions captured in ILUA and MPA. A comprehensive understanding of what outcomes have or have not happened as planned is still emerging and the subject of ongoing research by scholars focusing at site and regional levels. Recent developments, however, indicate that Indigenous peoples are exerting increasing agency over local impacts of large resource projects as procedural rights of the Native Title Act are understood on an international, not just national, stage (O’Faircheallaigh, 2013). However, it is not yet clear how Aboriginal and Torres Strait Islander peoples are meant to use the available instruments of ILUA and MPA within the Native Title Act to honour their cultural heritage as they participate in all aspects of MR&C. Worth noting is that ILUAs sometimes suppress the full expression of Native Title during a mine tenure. When the ILUA returns in force upon relinquishment, there is a very real risk of leaving unremediated, and unusable, land as the responsibility of communities without resources to either manage legacy issues or design meaningful songlines to restore the now changed landscape to its place in the Aboriginal and Torres Strait Islander cultural heritage.

6. Evidence of engagement

Towards a better understanding of the opportunities for Aboriginal and Torres Strait Islander participation in MR&C, we collected evidence of what appears to be progress towards effective and enduring engagement with Indigenous stakeholders relating to MR&C in Australia. These examples include making provision for cultural heritage and Indigenous environmental values. Examples of engagement were sought from company publications, Land Council documents, ILUA and MPA where publicly available and web-links from those resources. The methods to scope the extent of MR&C engagement in the Australian mining and extractives sector are consistent with established stakeholder theory practices. We examined an indicative sample of resource projects that report on engagement with Aboriginal and Torres Strait Islander peoples.

Table 2 provides examples of Australian resource companies across a range of commodities, states and territories reporting engagement with stakeholders with a view to finding evidence specifically relating to Indigenous engagement in MR&C whereas Table 3 synthesises the variety of engagement methods used within the sample.

Table 2.

Forms of indigenous engagement (commitments but not necessarily results delivered).

Operating mines (unless shown as closed)	Resource	State or territory	Indigenous group	Financial benefits	Business development	Data collection	Consultation	Jobs	Skills/ training	Technical	Cultural heritage advice	Asset management plans	Family services and programmes	Environmental management	Aboriginal ranger	Evidence of real Indigenous engagement	Mine closure plan
Granites mine/Tanami (ABM Resources)^a	Gold	NT	Warlpiri					X	X		X	X		X		No specific information on mine closure for Tanami or Granites extension.
Old Pirate mine (ABM Resources) closed 2016	Gold		Warlpiri					X				X		X		Mandatory only – not specific post closure.
Anglesea mine (Alcoa) closed 2015	Coal	VIC				X	X									Mine closure and rehabilitation occurs with Indigenous consultation.	Rehabilitation and mine closure plan
Jarrahdale (Alcoa) closed 1998	Bauxite	WA	No information				X							X		Mainly environmental, total job numbers given for three mines.
Huntly (Alcoa Alumina Ltd.)	Bauxite	WA	Yolngu	X			X	X	X					X		Community consultative committee – little mention of Indigenous engagement.
Alligator Creek	Gold	QLD	Darumbal and Barada Barna					X	X			X
Various CSG projects (Origin APLNG)	UCG	QLD	No information	X	X		X	X			X	X	X	X	X	Indigenous engagement in Cultural Heritage Management Plan and Social Impact Management Plan (no closure).
BHP Billiton^b	Coal	QLD and NSW	No information	X	X	X	X	X	X	X	X	X	X	X	X	No separate reporting of different mining assets or closure. New 10 Deserts Project and Indigenous Peoples Policy Statement and Reconciliation Action Plan for 2017–2020.
Newman, Yandi, mining area C and Jimblebar (BHP Billiton: Western Australia Iron Ore)	Iron ore	WA	Banjima and Martu	X	X	X	X	X	X		X	X		X	X	Cultural heritage mentioned in general mine closure plan. Employment and financial assistance not reported per mine or re. closure. New 10 Deserts Project. Indigenous Peoples Policy Statement and Reconciliation Action Plan for 2017–2020.	Closure plan
Gregory Crinum mine (BHP Billiton) closed 2015	Coal	QLD	Western Kangoulu								X	X		X		Mandatory only – not specific post closure nor individual mines.
Olympic Dam mine (BHP Billiton)^c	Uranium, copper	SA	Barnala, Kokatha and Kuyani	X	X		X	X	X		X			X	X	No specific Indigenous closure arrangements (except artefacts). Indigenous Peoples Policy Statement, new 10 Deserts Project and Indigenous Peoples Policy Statement and Reconciliation Action Plan for 2017–2020.
Red Hill Mine (BHP Billiton Mitsubishi Alliance Coal operations)	Coal		Barada Barna people, Wiri Core Country and Wiri #2 cultural heritage groups.				X									Only survey, monitoring, mitigation and management of impacts of cultural heritage material during the construction and operation reported and discussion about infrastructure with groups post mine.
Timbarra (Delta Gold) closed 1999	Gold	NSW	Bundjalung Tabulim									X		X		Satisfactory rehabilitation completed 2003 via external management and focus group.
Golden Grove Mine (EMR BidCo)^d	Zinc and Copper	WA	Amangu		X				X							No mine closure engagement information.
Ranger (ERA)	Uranium	NT	Mirrar	X	X	X	X	X	X	X	X			X
Christmas Creek (Fortescue)	Iron ore	WA	Nyiyaparli	X	X	X	X	X	X	X	X		X	X		Not specifically mine closure or Christmas Creek for jobs, development and family services.
Westside Coal Mine (Glencore Xstrata) closed 2012	Coal	NSW	Awabakal people and descendants									X		X		Environmental closure progressing, no indication of Indigenous engagement or Aboriginal sites of significance as stated in Environmental Management Plan 2016) and Mine Closure Mining Operations Plan 2011.	Mine closure mining operations plan
Century Mine^e (MMG) closed 2015	Zinc	QLD	Waanyi, Mingginda, Gkuthaarn, Kukatj	X	X	X	X	X	X	X		X	X	X	X#	Closure managed under the Gulf Communities Agreement. 15-year review shows poor engagement.
New Century Mine (New Century Resources)	Zinc	QLD	Waanyi, Mingginda, Gkuthaarn, Kukatj	X	X		X	X	X					X	X#
Burton Mine (New Hope-Lenten JV)^f closed in 2017	Coal	QLD	Juipera or Yuwibara	X	X			X	X						X	Reconciliation Action Plan and Indigenous Engagement action plan show little mention of Indigenous engagement re-closure
Telfer (Newcrest)	Gold and Copper	WA	Martu	X	X	X	X	X	X		X	X		X		Good examples for future but not all post mining.
Newmont Boddington (Newmont Mining Corp)	Gold	WA	Gnaala Karla Booja				X		X		X			X
Mt McClure (Newmont) closed 2013	Gold	WA	No information				X							X		Satisfactory mine closure and rehabilitation using external consultants, but no Indigenous involvement stated.
Coppabella (Peabody)	Coal	QLD	Barada Barna People, Widi					X	X			X		X		Cultural Heritage Management Plan and engagement under ownership by Australian Premium Coals P/L (APC).
Rum Jungle (legacy site) closed 1971	Uranium	NT	Kungarakan and Warai	X	X		X	X		X	X	X		X		Successful engagement with indigenous due to government involvement after unsuccessful rehabilitation in 1986.
Argyle (Rio Tinto)	Diamond	WA	Miriuwung and Gidja communities.	X	X	X	X	X	X		X	X		X		Good example. Ongoing and reported for each mine but not necessarily closure.	Mine participation and management plan agreements
Dampier Salt Ltd. (Rio Tinto)	Salt	WA	Gnulli Group (and Ngarda-ngarli)	X	X			X	X		X			X		Good example. Ongoing and reported for each mine but not necessarily closure.
Kestrel (Rio Tinto)^g	Coal	QLD	Kangoulu	X			X	X	X		X	X		X		Good example of ongoing work reported for each mine but not necessarily closure.
Yandi Mine (Rio Tinto)^h	Bauxite	WA	Banjima, Nyiyaparli, Yinhawangka (formerly Innawonga)			X	X	X	X		X	X		X		Good ongoing and managed under the Yandi closure plan (Yandicoogina Agreement).	Yandi closure plan
Weipa (Rio Tinto)	Bauxite	QLD	Wik-Wayaⁱ	X	X		X	X	X		X	X		X	X	Good example of ongoing and reported work for each mine but not necessarily closure.
Maules Creek (Whitehaven Coal)	Coal	NSW	The Gomeroi		X		X	X	X					X

Source: Reconciliation Action Plan (Rio Tinto); Mine Closure Plans (Newmont, Newcrest, Yandi); Cultural Heritage Management Plans; Social Impact Assessment (Newcrest). NT: Northern Territory; VIC: Victoria; WA: Western Australia; QLD: Queensland; NSW: New South Wales; SA: South Australia.

Newmont has responsibility for previously drilled holes 2009/2010.

Queensland Coal comprises the BHP Mitsubishi Alliance (BMA) and BHP Mitsui Coal (BMC) assets in the Bowen Basin in Central Queensland, Australia. Bowen Basin mines include Goonyella Riverside, Broadmeadow, Daunia, Peak Downs, Saraji, Blackwater and Caval Ridge. BMC owns and operates two open-cut metallurgical coal mines in the Bowen Basin – South Walker Creek Mine and Poitrel Mine.

Does not include Olympic Dam expansion as there is limited reporting on outcomes to date.

Sold by MMG to EMR Bid Co from 1 January 2017.

Gulf Communities Agreement includes Century Mine, Karumba Port and pipeline (and native title holders).

Owned by Peabody prior to 2017 sale.

Native title extends only to original Kestrel mine and Kestrel south (not extension #4).

Alngith, Anathangayth, Ankamuthi, Peppan, Taepadhighi, Thanikwithi, Tjungundji, Warranggu, Wathayn, Wik and Wik-Waya and Yupungath people. The Yandi Mine is governed by the Yandicoogina Agreement, which exists between Rio Tinto and the Gumala Aboriginal Corporation, which represents the interests of the Nyiyaparli, Banjima and Yinhawangka people in the Pilbara, Australia. Yandi Mine closure plan.

The Aurukun community is comprised of people, including the Wik and Wik Way Traditional Owners of the area (Native Title decision 2009). Western Cape Region Indigenous population includes those in Weipa, Aurukun, Napranum and Mapoon people (ABS Census, 2011, https://www.qgso.qld.gov.au/statistics/theme/population/aboriginal-peoplestorres-strait-islanderpeoples/populationcharacteristics).

Table 3.

Variety of engagement methods used within the sample.

Term	Company involved	Definition
Ecosystem Re-establishment	ERA	Management of mine tailings.
Collective Memory	All	The way in which a society or social group recall, commemorate and represent their own history (as opposed to personal memory).
Cultural Heritage Management	All	Proven principles and practices for conserving cultural heritage that integrate Indigenous, community, professional, technical and administrative activities.
Cultural Heritage Management Plan	All	Established management issues and requirements of an area, or heritage place, object or practice, often incorporated into legal documents.
Cultural Heritage	Where applicable	The collective social aspects of a community, as passed down by tradition or historical association. The aspects are tangible (buildings, landscapes and artefacts) and intangible (language, art, music, performance and customs).
Cultural Significance	Where applicable	The aesthetic, historic, scientific or social value of cultural heritage (past, present or future generations) as determined by an assessment of cultural significance.
Environmental Management System	All	Organisational processes and practices for reducing environmental impacts, while increasing operating efficiency.
Engagement	Rio Tinto	Involves more than consultation, active exchange of information, active listening to concerns and suggestions, and active consideration of mutually accommodating options and potential responses.
Geographic Information Systems	All	Systems used to store, retrieve, map and analyse any geographic data.
International Committee on Archaeological Heritage Management	All	Provides advice on the management of archaeological sites and landscapes to the International Committee on Archaeological Heritage Management and the World Heritage Committee.
International Council on Mining and Metals	All	Membership by mining and metals companies and associations, and global commodity associations working towards more sustainable development in the industry since 2001.
Indigenous Land Use Agreement (Australia)	All	A voluntary agreement between a native title group and others on the use and management of land and waters, established by the Native Title Act 1993.
Social Impact Assessment	All	A lifecycle process identifying, analysing, assessing, managing and monitoring positive and negative potential social impacts of a project, on people and communities.

Companies and government departments commit to mine rehabilitation and engagement following mine closure, but rarely report statistics on this. Guidelines are agreed on following consultation with Indigenous people but few measures provided (mainly physical measures, for example, amount of land rehabilitated or number of Aboriginal employees or jobs created (rarely stated since mine closure)).

What Tables 2 and 3 reflect is that mining companies enjoying established relationships with Aboriginal and Torres Strait Islander communities are at least nominally aware that they must engage Indigenous stakeholders across a full range of MR&C activities. However, there are some limits in interpreting the data in these tables representing Indigenous engagement on CSR practice on MR&C. The data in company reports and on websites are generally qualitative and subjective. In addition, the definitions of the various types of engagement are approximations and not standardised across sites, commodities or mining regions.

However, very little planning for MR&C is done in detail, no matter the composition of the community. For example, after 46 years of operation, Alcoa ceased operations at the Anglesea mine (and power station) in August 2015. Only then did the mine plan for the rehabilitation and closure of the mine site. Moreover, Anglesea’s MR&C plan is quite general and refers mainly to mining operations’ rehabilitation ‘program completion criteria’ for heritage surveys (Alcoa, 2017). This example also lacks measures for engagement with Indigenous stakeholders.

However, some mining companies are starting to recognise the value of planning for mine closure. Newcrest commenced its ‘Social Performance Architecture’ in 2015–2016 with integrated social closure planning. This is an attempt to provide auditable elements for social performance including Free Prior and Informed Consent, Indigenous consultation, and human rights considerations (Newcrest, 2016). Another case is MMG which utilises agreed stakeholders and engagement avenues that include the following: post-closure community expectation; community and regional development; impacts on local communities; community investment and development; local amenities; and housing. These activities are based on regular communications, community investment programmes, sponsorships and a Social Impact Assessment (MMG Mining, 2016).

It bears repeating that there are not many publicly available ILUA and MPA to demonstrate Aboriginal and Torres Strait Islander consultation. The Argyle Diamond MPA is both rare in its public availability and for incorporating a basic provision for MR&C. Another mine with some publicly available details is Century Mine. Its documents reveal that there appear to be few mining jobs and business opportunities in the ‘caring for country’ phase (25 years) after closure. Factors affecting the long-term MR&C plans for Century Mine include funding cuts to the Aboriginal Development Benefits Trust; Gulf Aboriginal Development Corporation; general administration; investment in community programmes; and long-term government support (Everingham et al., 2013). In contrast, the Australian Government committed AUD$7 million over 4 years for the Rum Jungle mine, from 1982–1986, to improve the environmental management following its closure and unsuccessful remediation in 1971 (Laurencont et al., 2013). Rum Jungle did incorporate some Aboriginal engagement, but not in a robust way.

Part of the challenge for mining companies is that there is no one place they can go for guidance on designing an MR&C plan, in the first instance, nor is there on how to meaningfully include Aboriginal and Torres Strait Islander peoples in delivering those solutions. The company reports cited above each look for direction to different instruments. For example, some companies look for guidance to the Environment Protection and Biodiversity Conservation Regulations 2000 as they offer some protection for Indigenous land and values. These include Indigenous Protected Areas and associated Indigenous Ranger programmes and Caring for Country programmes. The Indigenous Ranger and Caring for Country programmes feature controlled burning to mitigate fire hazards, managing feral animals, protecting threatened species, and overseeing environmental impacts of tourist visitation. For example, the ranger project in Nhulunbuy in the Northern Territory has been in operation since 1992. The project receives funding from Indigenous Protected Area and Caring for our Country programmes and offers potential future opportunities for Indigenous input (Northern Land Council, 2017).

7. Opportunities and direction for future research

The Australian mining and extractives sector will need to engage increasingly with Aboriginal and Torres Strait Islander peoples regarding MR&C activities as part of its overall response to global market demands and pressure from civil society to attend to the long-term social and environmental impacts of mining. The high-level scoping project underpinning this article indicates that there is much more rigour needed in both reporting and actualising durable MR&C outcomes for Indigenous people in Australia. In addition, there is yet more work to be done on legacy mines, where closure and abandonment has left a chequered legacy, frustrating remediation.

As with many aspects of mining and extractives projects, Aboriginal and Torres Strait Islander peoples can and should benefit from being substantially involved in rehabilitation, future monitoring and retraining opportunities in environmental management (including rangers), agriculture, fishing, tourism, public administration, transport and construction (Everingham et al., 2013). Some mining and extractives companies and governments managing a legacy mine site reflected in Table 2 are already active in this space (Unger, 2016). Yet, for many more mining and extractive companies with ILUA and MPA governing their engagement with Aboriginal and Torres Strait Islander peoples, there are few real improvements planned for the long-term benefit of Aboriginal and Torres Strait Islander people and their countries (Brueckner et al., 2013). Government economic priorities further marginalise Aboriginal perspectives on preserving their cultural heritage on their ancestral lands both during mining and at closure (Altman, 2009; Howlett, 2010). Even where Aboriginal people are successful in protecting cultural heritage sites, governments can overturn such agreements and prioritise mining interests (O’Faircheallaigh, 2006). Furthermore, even when economic benefits do flow to Aboriginal and Torres Strait Islander communities with long-term employment, reliable incomes and home ownership, the way these economic benefits are provided is often at odds with the cultural values of Indigenous communities and greater Aboriginal and Torres Strait Islander participation in the resources sector (Altman, 2009; Tonkinson, 2007).

Stakeholder theory suggests that mining companies and regulatory bodies need a more comprehensive understanding of what Aboriginal and Torres Strait Islander communities would like as preferred outcomes from MR&C. To date, CSR, Social Licence to Operate, Free Prior and Informed Consent and cultural heritage management plans focus heavily on the front end of mining, and even on operations – up to the point where mines start their trajectory towards rehabilitation, closure and relinquishment. What this article advocates for is a proportionate application of stakeholder engagement at the end-of-mine life to support Aboriginal and Torres Strait Islander inter-generational cultural practices, songlines and values. A meaningful process would include deep and sustained engagement as well as adequate funding to ensure the proper design of the shape of the remediated landforms; the kinds of flora and fauna reintroduced by whom and in which sequence; attention to terrestrial and subterranean water courses; and re-incorporation of the mined land into cultural and spiritually relevant songlines about country. International instruments such as the United Nations Declaration on the Rights of Indigenous Peoples, International Finance Corporation and International Labour Organization (No. 169) could all be used to provide guidance in these areas. Further investigation into the Indigenous engagement practice at Rum Jungle and Century Mine and more recently at the Yandi Mine could provide models of how to include Aboriginal and Torres Strait Islander community values towards leaving as positive a legacy as possible from the activity of mining, rehabilitation, closure and intentional relinquishment (instead of abandonment).

Future clarification is required on who or which organisation is ultimately responsible for any long-term environmental and human health consequences from Australia’s mines, given the substantial ongoing costs involved in mine closure. It would be helpful for more transparency about ILUA made between mines and Aboriginal and Torres Strait Islander peoples pre- and post-mine operation/closure. The most pressing issue seems to be inconsistent frameworks for reporting on mines’ relationships with Indigenous communities, how non-performance is identified and addressed, and acknowledging the absolute power imbalance that exists between states, firms and Indigenous communities. Our hope is that this article will encourage other scholars and MR&C practitioners to scrutinise the mining sector on their Indigenous MR&C practice to avoid the possibility that the Indigenous communities are going to be left with broken promises and insufficient cultural and environmental resources to restore land to country.

Footnotes

Final Transcript accepted 24 March 2020 by Martina Linnenluecke (AE, Strategy).

Funding

The author(s) declared no potential conflicts of interest with respect to the research, authorship and/or publication of this article.

ORCID iD

Carol Bond

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