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Alternative Law Journal |
James J. Rose
James Rose is a global affairs analyser and writer
and Editor of the newletter Integrative Strategies which looks at relationships
between companies and civil associations. Email jpjrose@tig.com.au
As we
all are aware by now, the end of each century tends to bring about a speeding-up
of the processes of change. New structures and systems under consideration
suddenly become more prominent and mainstream. Hitherto marginal streams begin
flowing into the main tributary of public discourse. In the presence of such an
atavistic government as the current Federal Coalition, this natural course has
become dammed in the interests of the superficial ideologies and election-cycle
thinking it carries as part of its public policy baggage. This truth has been
displayed consistently in the course of this government’s actions. Most
significantly, it has been evidenced by the government’s native title
legislation. The passage of legislation amending native title arrangements has
major ramifications for the future of justice and equity in this country as it
has severely undermined, perhaps fatally so, the relationship between the
parliamentary institutions and civil society, on which basis a modern,
functioning society depends.
Given that the Native Title Amendment
Act (NTAA) is now law, and assuming that alterations to it will not be
forthcoming (both the Coalition and the ALP have more or less squashed such a
possibility), the atmosphere now calls for workable, contemporary solutions to
the problems which infest the Act. These solutions rest on an increased role for
civil sector organisations, particularly mining, environmental and indigenous
groups. It also requires an on-going dedication by all to ensure that the
right-to-negotiate vacuum in the new NTAA is adequately filled in the interests
of all concerned.
It is noteworthy that around the time the NTAA was inching through
parliament, the major resources conglomerate, the Royal Dutch/Shell Group, was
putting the final touches to a report which illuminates some of the flaws built
into the Act and the erroneous foundations on which it is built. The report
lends enormous weight to the increasingly popular belief that, as governments
fade in influence, it is incumbent on both civil sectors, private and public, to
take up the slack.
The Shell Report centres on a Statement of General
Business Principles — a series of commitments in nine broadly categorised
areas such as Health, Safety and the Environment, the Community, as well as
broad consultation with concerned communities. It must be said that the report
is, at least in part, a public relations response to the battering Shell
received as a result of its misendeavours in Nigeria and on the Brent Spar,
where the company made world headlines by virtue of its violations of basic
human rights and environmental principles. It remains to be seen whether their
self-styled ‘Road Map’ of progress is followed.
Nevertheless, the principles informing The Shell Report are significant
in that they identify the problems inherent in an approach which is dedicated to
getting governments on-side, and then, as in the case of the Ogoniland fields in
Nigeria, working through the government, or even standing over it, to
strategically remove the perceived impediments to their operations. Implicit in
Shell’s change of tack is the effective rejection of the omnipotence of
governments, and an opening up to the possibility of working directly with
non-government actors. In the words of the report: ‘Our commitments are to
the communities and the nations in which we operate, not just to the government
of the day.’[1] This indicates a
move by Shell to acknowledge not just the laws introduced by governments, but
the wider mores of a social or civil character, which, according to the Chairman
of the Committee of Managing Directors, Cor Herkstroter, ‘reinforce[s] the
ethical underpinning of the Group as it enters the next hundred
years’.[2]
In the
context of the NTAA, the implications of this new environment for mining
companies and their relations with green and indigenous groups are powerful.
Despite the increasingly inescapable spread of those implications, many mining
companies have been slow to recognise the sea change around them. Like a tanker
full to the brim with crude oil, they are proving to be slow to turn. This need
not cause alarm, conditioned cultures do not change overnight, but it does
indicate that structural impediments do exist within the managerial and
administrative infrastructure of many in the resources sector. Given the radical
change in culture, and the size of the Royal Dutch Shell group, Shell is leading
the way in this gigantic cultural change.
The report, in principle, marks
a trend returning to 19th century principles of liberal democracy, one of the
conditions of which, according to historian Eric Hobsbawm, was that
‘democratic governments did not have to do much governing’. He added
that ‘nineteenth-century bourgeois society assumed that the bulk of its
citizens’ lives would take place, not in the sphere of government, but in
the self-regulating economy and in the world of private and unofficial
associations (civil
society)’.[3] Hobsbawm goes on
to note that governments have traditionally acted as brakes to a social,
economic and political machine that constantly threatens to go too fast and
plunge over the edge into anarchy. The role in which governments have been cast,
and, in which they have cast themselves, in the last decade or so, has seen them
not only taking their foot off the brake, but attempting to sell the car itself
to those commercial interests which can afford to pay. They now seem quite
prepared to sit and watch the vehicles of commercialism pass them by, and to
have very little control over where they go, or how fast they travel. Moreover,
governments are less concerned with those who are run over.
As governments continue to lead the charge for freer and freer trade,
breaking down barriers to business, it would seem that, perversely, they are
making themselves redundant. Governments appear to have awakened to a decision
that if they don’t work with business, then business will swamp them
anyway. So, better to continually show to the commercial sector what government
can do for them, even if this only involves removing more and more of the
institutions that have been built up over the last century, which are now seen
as obstacles to trade rather than components of an increasingly functional
relationship between the various sectors of contemporary society. This strategy
is clearly designed to generate the political pay back of bringing business
closer to government, and the mutual, if somewhat exclusive, benefits a cosy
relationship between the business and political elites will bring to
each.
But, in the process, significant concepts in the process of law
making in a democratic country are being undervalued and are threatening to drop
off the scale in considerations of public policy. What can be characterised as
the ‘social ethical quotient’ (the set of broadly accepted norms
through which fairness and equity can be tested, established and maintained) is
diminishing in the face of governmental shrinkage. Civil society is the most
appropriate sector from which an ethical component in public policy might
emerge, but governments have proven to be unwilling to open up to, and maintain
relations with, the large part of the civil community which does not have a
trade agenda. As such, an important mechanism in the construction of workable
public policy initiatives is being largely ignored.
This governmental
and business sector spurning of civil society runs counter to a mass move in the
opposite direction. A study published recently in
Society[4] reported that the
civil society sector absorbed 11.9 million workers in the eight varied countries
its authors studied. This translates to one in every 20 workers employed and one
in eight in the respective service sectors. In France, 60,000 civil associations
were formed in 1990 alone. Sweden has about 200,000 civil associations, and even
formerly Communist Hungary had established 13,000 within two years of the Soviet
withdrawal. The USA has upwards of one million. In Australia, it was estimated
in the early 1990s that more than 100,000 had been established. While it is
impossible to put an exact figure on the number of civil associations around the
world — both domestically and globally engaged — a recent estimate
put it ‘certainly in the millions’.
The fact that civil
society has not had much input into the globalisation process, exemplified by
the lowly position usually afforded labour unions in many regional economic
organisations, such as the Association of South East Asian Nations (ASEAN) and
Asian Pacific Economic Co-operation (APEC), or the marginal status of
non-government organisations (NGOs) at the Kyoto greenhouse conference, has
resulted in a globalisation process which has been largely untempered by
non-economic concern.
For those working in the mining and resources
industry, the image of the rapacious multi-national casts a large shadow. Many
civil associations and pressure groups have effectively demonised the industry,
and many of the accusations have been legitimate. A recent editorial in New
Internationalist noted that ‘Mining companies are good at issuing
statements but not at answering
questions’.[5]
Perhaps
the most salient example of this failure was the British mining corporation, Rio
Tinto’s (RTZ-CRA), in its approach to the Panguna copper mine on
Bougainville. This mining deal was done in the name of a distant, central
government in Port Moresby among politicians, bureaucrats and business in 1972
without input from either local residents or civil associations. This led to a
ludicrous and untenable situation where the local community felt they were far
worse off than before the establishment of the mine. The company failed to take
into account the long-running issue of succession on the island, and paid no
attention to the concerns of the local communities. By way of a final insult,
local Bougainvillians were allotted less than one percent of the profits, an
offer which was merely a token as the mine was going ahead anyway.
This
set-up would simply not cut it in the new era we are entering. In a contemporary
context, Panguna’s fate was predictable. And there are others dealing with
similar land rights issues. Freeport (West Papua), Ok Tedi and Porgera (PNG),
Yana Machi/Pilcomayo Rivers (Peru), Wassa Fiase (Ghana) and in Australia,
Olympic and Ranger. Most recently we have Jabiluka.
The Jabiluka experience presents many of the issues surrounding current land
rights and mining issues in Australia. The flak sustained by Energy Resources of
Australia (ERA), who run Ranger and who purchased the Jabiluka lease from
Pan-Continental in 1982, has been the result of not engaging adequately with the
changing circumstances of the environment in which they operate. Ignoring the
trend towards more open and holistic business practices, ERA rode roughshod over
civil and community concerns, despite the fact that they were clearly expressed
and articulated at the time. Their current operations are founded on the now
anachronistic actions of previous governments, particularly the Fraser
government which were clearly unjust and unethical in that they were not
established on the premise of parity and justice. Their actions, now and then,
are strategies from an era now past on the global socio-political landscape.
Issues of consent were usually skirted around or left until everything
else had been decided, making the consent by local custodians of the land
virtually a fait acompli, by virtue of the pressure that could be brought
to bear by the federal government and ERA at the final stages of the negotiation
process. Often, indigenous landholders were not even aware that they were being
consulted about mining at all. Ian Viner, then the Aboriginal Affairs Minister
in the Fraser government, in his first and last on-site meeting with the Mirra
people in 1979, made the position clear: ‘The question now is not whether
or not there is going to be mining, but how it is to be carried
out’.[6] By that time, the
government had clearly decided to move ahead with the mine. Negotiation had
become instruction. It is difficult to find any ethical component in the actions
of either governments or the mining companies involved in the whole process in
this area.
The Ranger and Jabiluka settlements also call into question
the validity of government-appointed ‘civil’ groups to act on behalf
of communities. In both cases, evidence suggests that the Northern Land Council,
interestingly formed in 1979, at the same time as the final negotiations on the
mine were taking place, were bullied into making a decision to go ahead with the
mine which was contrary to the views of the community they represented. Speaking
at one meeting between the NLC and local Aborigines in 1978, an NLC
representative summed up their position: ‘We are entitled to be pushed
around by any government in power ... that is a fact of life’.
[7] Moreover, another
government-appointed body, the Office of the Supervising Scientist, established
to ‘independently’ monitor the Ranger mine has been so under-staffed
and under-funded that it cannot effectively do its job. Clearly, civil groups
can only be effective when they emerge ‘spontaneously’ from a
society and when they have little or no financial connection with other
stakeholders.
The determination of the Howard government to amend the
Native Title Act, which ATSIC Chairman Gatjil Djerrkura had described as
‘still settling in, and, despite all articulation to the contrary, working
quite well’[8] emphasises their
tenacity to continue to force the concept of progress through the filter of a
comparatively narrow idealism. This creates an imbalance disfavouring the
ethical in comparison with the political/economic components in public policy
making. The stress that has been placed on driving the legislation through
parliament has been in the face of an enormous amount of research and analysis
undertaken by hundreds of groups and individuals, conducted to impart an ethical
ingredient in the legislation. Indeed, the NTAA is a watershed in the manner in
which public policy is constructed in this country. It is more than a question
of law. There is a question mark over the ethics, or lack of, that have informed
this legislation, and over the future of law making in this country in its wake.
In the words of ATSIC Social Justice Commissioner, Mick Dodson: ‘Our
Parliament’s handling of the Native Title Amendment Bill 1997, will be a
measure of the values by which we live and work together as a
nation’.[9]
As such, the
Jabiluka decision to go ahead with the mining of uranium in the Kakadu region
sits on unstable and potentially volatile ground. The parliament has effectively
got this one wrong, leaving both mining and ‘green-black’ concerns
in the lurch. The ‘green-black’ groups have been severely undermined
and their vital role as the central civil sector medium has been fatally
affected. Mining groups, on the other hand, have been left without a secure
legislative environment, one which promises them a sustainable, and
uninterrupted, future.
So, what are mining companies to do? If they
operate to the letter of the amended Native Title legislation, they seem doomed
to become ostracised by every fair-thinking citizen in the country, not the
least being the increasingly prominent and influential indigenous groups,
environmentalists and associated issue groups. They may well be forced to deal
with legal challenges that may be encouraged by future legislation recognising
the unfairness of the law and making amendments to it in favour of indigenous
interests. They will almost certainly attract the worst PR they have ever had.
The NTAA is a national time bomb. Indigenous and green groups have identified it
as such, but, most mining companies, unfortunately, have not.
The enactment of the NTAA raises one of the anomalies in the representative
democratic system: that decisions made in parliament are often seen as being
intrinsically right and just. This belief, backed by an array of state
institutions, is based on an ignorance of the overt politicisation of any issue
that lands in parliament, and of the effect that has on the voting patterns.
The question arises, is a law, passed through parliament, even if it
had, say, a 51% public support quotient, right and just, given that at least 49%
of the population may disagree with it. The only way it can be justified is by
applying the most hardened and mathematical principles of utilitarianism, which
offer support for a fuzzy ‘for the greater good’ ideology, but seem
deficient when ‘greater good’ and ‘greater evil’ are so
closely matched. This though, is the state-based democratic principle. It is the
embodiment of the ‘mass man’ consciousness famously identified by
Jose Ortega y Gasset in the 1920s — ‘The mass man does in fact
believe that he is the state, and he will tend more and more to set its
machinery working on whatsoever pretext, to crush beneath it any creative
minority which disturbs it — disturbs it in any order of things, in
politics, in ideas, in
industry’.[10]
The
numbers upon which virtually all political decision making is based, even
when party lines are abandoned, do not always provide an appropriate basis
on which to make laws which will be binding for the entire population.
Parliaments get it wrong. In our society, the most apt medium for such a debate
to be carried on is not in the parliament, but in the zone between the public
political and bureaucratic apparatus and the private space of the individual:
that is, in the space we call civil society. This process should inform the
Parliament, both prior to drafting the initial legislation, and during the
enactment of the law.
The value of civil society in this respect and others was noted relatively
early-on in the great democratic experiment of the western world in mid-19th
century America by Alexis de Tocqueville. In his seminal study of the American
system, written in the 1840s, he noted that, while dangers to the state clearly
existed with the presence of such potentially powerful non-state actors,
‘the omnipotence of the majority seems to me such a danger to the American
republics that the dangerous expedient used to curb it (the freedom of civil
associations) is actually something
good.’[11] He goes on to
suggest that ‘there are other nations who pervert (civil association) by
their excesses and turn a fount of life into a cause of
destruction’.[12] While he
does not mention it as such, it appears that de Tocqueville’s notions
encourage the belief in the vital role played by ethics in the modern state, and
that this function is assured by the specifically tailored and perhaps more
responsive inputs of the civil associations he identified in 19th century
America.
The importance of de Tocqueville in the context of this article
arises from his unique ability to judge comparatively the workings of a nascent,
and original, democratic structure against that which had emerged in Europe. He
was clearly aware of the damage caused by directly tearing down the belief
system of one group in the community in order to promote the rise of an elite
agenda, the result of the ‘tyranny of the majority’, because he had
seen its consequences in Europe. It is one thing to disagree — this was
pluralism, it is another to entirely disallow the presence of an alternative
view — this was tyranny — even if it emerged from a parliamentary
system.
Currently, of course, the denial of civil communities is clearly
managed via the wielding the hatchet now known by its generic term: economic
rationalism. This is curious because the major impetus for the ideology’s
thrust into the mainstream itself came from the margins of civil society. The
work of the Mont-Pelerin Society in the 1940s and 1950s, led by Frederich von
Hayek, can easily be traced as the source of ‘Thatcherism’, and
latter day derivatives and misinterpretations of that society’s belief in
individualistic economies. Perhaps even more curious, one of the early members
of that mostly academic group, was Karl Popper, who was a great believer in
civil society and who so heavily influenced George Soros and his pro-civil
society beliefs. Soros openly credits Popper’s work as his major
influence. Drawing on Popper, he wrote in his now famous Atlantic Monthly
essay ‘The Capitalist Threat’: ‘When a society does not have
boundaries, where are the shared values to be found? I believe there is only one
possible source: the concept of the open society
itself.’[13] For both Popper
and Soros, this is the realm of civil society.
The inability to elicit
input from the civil sector, and to incorporate its principles, challenges our
current parliamentary system in its propensity to operate ethically, even as the
Parliament itself is quite clearly operating legally within the Constitution
(notwithstanding potential challenges to the NTAA’s constitutional
legitimacy). It leads to the conclusion that laws made in the hitherto
unchallenged regime of a parliamentary democracy, imbued with the ideologies of
economic rationalism, can be unethical in the context of a truly pluralist and
modern socio-cultural milieu.
This raises the further issue of the extent to which citizens are obliged to
comply with laws which they know to be universally unethical. This issue was
famously raised during the post-WWII Nuremburg Trials. In the face of the
political failure of the NTAA and the undeniable value of civil sector harmony,
mining companies need to find answers to this question. They have the
opportunity to go beyond the law — not outside the law — and enact
the ethical roles to which they, and their fellow civil society travellers, can
mutually sustain without conflict.
The business sector as well as parts
of the indigenous and green movements have been characterised by their tendency
to take an adversarial approach when they move into zones of interaction with
their civil society co-members. The inability of members of the civil sector to
adopt a more conciliatory tone in their dealings at this level seems to
epitomise the fear of losing, and the consequential unwillingness to give any
ground, engendered in a society imbued with economic rationalist
ideals.
The clashes so often seen between mining concerns and anti-mining
civil groups and civilians attest to a failure in the system to adequately allow
for different agendas to meet and for ethical outcomes to be constructed which
can then be entered into the public policy arena and, eventually, into law.
Civil associations (NGOs, religious groups, students, unions) and the
private-for-profit sector (business, financiers, investors), must enact the
principles that govern their activities on the basis of the test articulated by
Immanual Kant: ‘Act as though the maxim of your action were by your will
to become a universal law of
nature’.[14] Or, to put it
slightly differently, on the basis of ‘do unto others as you would have
them do unto you’. If, therefore, we assume that all rational human beings
desire a more fair and ethical world, mining companies will need to consider
whether utilising the framework set up by the amending native title legislation
was in their best ethical interests. If they correctly conclude that it
is not, there is only one real strategy left to them: negotiate.
Negotiation between native title holders and miners has been greatly
criticised by influential mining industry bodies such as the Association of
Mining and Exploration Companies (AMEC) and the Minerals Council of Australia
(MCA). The mining industry’s concerns surrounding the right to negotiate
can be summarised as: costs, uncertainty, delays, and lost opportunities through
denial of access. These claims do not stand up to closer scrutiny, and rest
perhaps, on the ulterior motives of mining interests too slow to adapt to
changing circumstances. In a research paper commissioned by ATSIC, and included
in its submission to the Senate Committee on the Native Title Bill, the
National Institute of Economic and Industrial Research noted that: ‘the
major cost to mining companies is probably not the relatively small claim on
cash flow, nor the negotiation cost, nor the cost of delays, but the cost of
changing management to allow co-operation with indigenous
people’.[15] It goes on to
conclude ‘there is strong evidence that the benefits of the right of
indigenous people to negotiate reasonable terms and conditions for mining
projects outweigh the
costs’.[16]
Some
mining companies have seen this future and are creating it. The conciliatory
approach by these mining companies and the indigenous custodians, such as
Hamersley Iron and the Pilbara people, Pegasus and the Jawoyn, and various
miners in the Tanami desert and the Warlpiri, and others involved in similar
relationships, should be commended. Yet, while these companies are working
ethically, the unethical legislation which purports to rule their affairs will
allow unethical concerns a competitive advantage by encouraging corporations to
override indigenous concerns. When unethical operators are given such
legislative leverage, it is surely time to reconsider how our public policies
are constructed and maintained.
The system of public policy making is being short-circuited. This has been
clearly evidenced by the debate surrounding the amendments to the Native
Title Act which has been highly politicised. Civil society has been banished
from its rightful place in the debate and negotiation process in the formulation
of sustainable laws. This has led, in turn, to the marginalisation of ethical
considerations in current and evolving government legislation and in commercial
relationships with communities. Civil society, trade and non-trade interests
alike need to re-enter the policy debate. Salaman and Anheier drew a similar
conclusion: ‘developing mutually supportive relationships between the
non-profit sector and the state, and with the business community as well, may be
one of the highest priorities for the promotion of democracy as well as economic
growth throughout the
world’.[17]
In the
context of the NTAA, mutually supportive relationships can be achieved by direct
negotiations between commercial mining interests and indigenous landholders and
custodians, above and beyond the NTAA. State, federal and local governments can
only open-up to this trend and adapt appropriately. Along with the mainstream
political shift towards a closer relationship with principles increasingly
driven by economic values, ethical treatment for all in a democratic society has
faded as a right and become cast as a privilege. We are conditioned to believe
that it is impossible in a capitalist society for everyone to be treated fairly
with respect and dignity. Winners are Grinners and the Vanquished are Anguished.
Many seem to accept this dogmatic truth. Yet, this adherence to capitalist
‘tooth and claw’ dogma threatens to undermine democracy as we know
it. In the current context, a closer relationship between businesses and civil
associations is not only advantageous, it is vital.
References
[1] ‘Profits and Principles
— Does there have to be a choice? — The Shell Report 1998’,
p.38.
[2] The Shell Report 1998,
above, p.48.
[3] Hobsbawm; E.,
Age of Extremes, The Short 20th Century 1914-1991, Michael Joseph,
London, 1994, p.139.
[4] Salaman,
L.M. and Anheier; H.K., ‘The Civil Society Sector’, (1997) 34(2)
Society 60-66.
[5] New
Internationalist, March 1998,
p.1.
[6] ‘Jabiluka’, TV
documentary initially screened on SBS-TV on 11 August
1998.
[7] ‘Jabiluka’,
above.
[8] Aboriginal and Torres
Strait Islander Commission submission (reference AB144) to the Parliamentary
Joint Committee on Native Title and the Aboriginal and Torres Strait Islander
Land Fund, 24 September 1998, p.2
.
[9] Aboriginal and Torres Strait
Islander Social Justice Commission submission (reference AB645) to the
Parliamentary Joint Committee on Native Title and the Aboriginal and Torres
Strait Islander Land Fund, 3 October 1997, p.2 (emphasis
added).
[10] quoted in Cockett;
R., Thinking the Unthinkable — Think-Tanks and the Economic Counter
Revolution 1931-1983, Fontana Press, London,
1995.
[11] de Tocqueville, A.,
Democracy in America, Fontana Press, London, 1994,
p.192.
[12] de Tocqueville, A.,
p.193.
[13] Soros, G., ‘The
Capitalist Threat’; (1997) 279(2) The Atlantic Monthly
55.
[14] Quoted in P. Singer
(ed.), Ethics, Oxford University Press, 1994,
p.274.
[15] Manning, I.,
‘Native Title, Mining and Mineral Exploration’, Attachment B to
Aboriginal and Torres Strait Islander Commission, above,
p.24.
[16] Manning, I., above,
p.26.
[17] Salaman L.M. and
Anheier, H.K., above. p.65.