24 April 2008
The apology
"The time has now come for the nation to turn a new page in Australia's history by righting the wrongs of the past and so moving forward with confidence to the future.
We apologise for the laws and policies of successive parliaments and governments that have inflicted profound grief, suffering and loss on these our fellow Australians…
We today take this first step by acknowledging the past and laying claim to a future that embraces all Australians…
A future where we harness the determination of all Australians, indigenous and non-indigenous, to close the gap that lies between us in life expectancy, educational achievement and economic opportunity…
A future based on mutual respect, mutual resolve and mutual responsibility.
A future where all Australians, whatever their origins, are truly equal partners, with equal opportunities and with an equal stake in shaping the next chapter in the history of this great country, Australia."
Prime Minister Kevin Rudd, address to Parliament, 13 February 2008.
With these words, the Prime Minister apologised on behalf of himself, the Government and Parliament for past policies and actions that removed Aboriginal children from their families and created the "stolen generations".
But what implications, if any, does the apology have for the energy & resources and infrastructure development industries?
While on the face of it the apology was rooted in the past, the Prime Minister identified that moving forward from the apology will require:
Reconciliation - alive and well at the coalface
Persons involved in native title and cultural heritage negotiations with Aboriginal communities will already be familiar with aspirations from Indigenous communities which are the same as or similar to those articulated by the Prime Minister.
For more than a decade now industry has been dealing with Aboriginal parties as equals across the negotiating table, exploring employment and training opportunities and funding community development projects. In the field, the resources sector has spent millions employing Aboriginal surveyors and monitors to assist with the protection and management of Aboriginal cultural heritage.
In short, some of the Prime Minister's views on how to achieve reconciliation are alive and well at the coalface.
"Moral obligations" - challenges in the wake of the apology
Many of the outcomes from the past 10-15 years of native title and cultural heritage arrangements represent industry commitments to Indigenous communities above and beyond legal obligations under native title or cultural heritage legislation.
So the Prime Minister's comments do not represent a radical new challenge or direction for industry. However, in the wake of the apology, whether or not any legal obligations actually arise, industry may find they face greater demands and higher expectations from Aboriginal communities that companies not only meet their obligations under legislation, but also their perceived "moral obligations" to assist Aboriginal communities. There is anecdotal evidence to suggest that this has indeed already started to happen at the negotiating table.
Parliament's apology provides companies with a reminder that it is timely to develop and/or reassess their internal policies on managing Indigenous relationships and their education & training and community development funding requests.
In some quarters at least, the resources industry has been expected to exceed its legal obligations in dealing with Aboriginal communities. The question that may now be asked of the industry by Indigenous groups and possibly also by government is:
"How much further than its legal obligations is your company prepared to go to meet Aboriginal community expectations for education & training opportunities and community development financial assistance?:
Critically, will these expectations influence determinations made by decision-making bodies such as the National Native Title Tribunal?
Developing an effective policy response to the apology
Answering the first of these questions is not easy and company approaches will vary on a case-by-case basis.
There are many complexities and hurdles to effective development and implementation of policies designed to assist Aboriginal communities. And while industry cannot, and should not, be expected to shoulder the entire burden of addressing Aboriginal community disadvantage on behalf of Government, imaginative solutions can be effected by industry that have tangible positive outcomes for Aboriginal communities in the areas of education and training and community development.
Only a carefully considered and articulated internal policy, supported at both executive and operational levels, can provide an effective framework for operational officers and negotiators to settle agreements, maintain relationships and address both community and company requirements.
The answer to the second question, ie. whether the expectations will influence the decisions of bodies such as the National Native Title Tribunal, is open to speculation and may only be revealed in the fullness of time.
Conclusion
Without proper consideration of these complex policy issues, companies risk delays to negotiations and project approvals. Companies also risk undermining the authority of company officers entrusted with maintaining relationships with Aboriginal communities. This is particularly so now, as the Government's apology may have raised community expectations.
If an appropriate policy approach can be developed and implemented, companies should be able to enhance their community relationships and strengthen their standing in both the Indigenous and broader communities.
* Director, Land & Heritage Pty Ltd
Land & Heritage and Clayton Utz have a strategic relationship, jointly providing strategy, negotiation and legal services to public and private energy and resources and infrastructure clients.
