This working paper examines transparency requirements in agreement making with Indigenous People. In particular, this working paper examines resource payments provided to Indigenous entities or individuals, under a variety of types of agreements made by Indigenous peoples with resource companies, and/or governments. In general, these resource payments are made as part of obtaining a social licence to carry out resource activity on Indigenous lands, and in a process of a resource company gaining approval for exploration or production licenses.
Benefits made under agreements can include monetary and non-monetary benefits such as training, education and employment benefits. Payments or other benefits are provided by resource companies to Indigenous peoples in relation to investment in oil, gas, mining exploration or production in Australia under various legal regimes and in a range of forms. We call the many diverse payments and benefits that may be provided to Indigenous people under these regimes resource payments for ease of reference in this working paper. Resource payments may be provided to Indigenous entities or individuals, under a variety of types of agreement made by Indigenous peoples with resource companies, and/or governments.
In general, these resource payments are made as part of obtaining a social licence to carry out resource activity on Indigenous lands, and in a process of a resource company gaining approval for exploration or production licenses. Overall, there are minimal or no public disclosure requirements for most types of resource payments, in law and practice in Australia. There is also, in general, no legislative prohibition of disclosure or public reporting of resource payments. Most resource payments are made under contractual agreements between resource companies and Indigenous communities. Subject to normal contractual rules, the parties (resource companies and Indigenous communities) could agree to disclose or report resource payments. However, most do not. Australian law does require some reporting of the existence of agreements under which resource payments are made and the parties to those agreements, and also requires some reporting by Indigenous entities of sources of income including resource payments that they receive. There is a spectrum of legal requirements for public disclosure and transparency of resource payments made to Indigenous people by governments and resource companies.
Consequently, in this working paper, we organise the different entities and agreements under which resource payments are made, along a spectrum of transparency from those agreements or entities with the greatest amount of publicly available information, to those agreements which are least transparent.
- While it is widely accepted that agreements may generate significant benefits for Indigenous communities, there is also a consensus that we know little about the making, content and substantive outcomes of agreements for Indigenous communities.
- To enable more comprehensive analysis of the outcomes of agreement-making for Indigenous people because there are some valid concerns about whether or not agreement-making is actually delivering positive outcomes for all Indigenous communities.
- Power imbalances need to be addressed. There are concerns that packages may not be appropriate for the scale of impact, exacerbated by the asymmetry of information and perceived or actual (in some instances) of power imbalances between companies and indigenous communities.