Charles Pakana:

In July of this year, I caught up with the then interim CEO of the Federation of Victorian Traditional Owners Corporation, Kaley Nicholson. Recently, she was appointed full-time CEO. And with that, a clear call from the Federation on the Victorian government’s failure to follow through on commitments to share the benefits of critical minerals mining with the Traditional Owners of country. In fact, rushing through mine approvals before promised benefit sharing partnerships have even been put into place. I’m catching up with Kaley today to talk about this all important matter. Kaley, thanks for joining me again on the program.

Kaley Nicholson (FVTOC):

Thanks for having me. It’s good to be back.

Charles:

Kaley, the Victorian government’s Critical Minerals Roadmap promises what it says is a world leading ethical sector, and quote, strong and lasting partnerships with Traditional Owners across Victoria. But given that six mine approvals are reportedly in the final stages without a benefit sharing model in place, what’s the most critical example of the government talking the talk, but failing to walk the walk on this issue?

Kaley:

I think the situation as a whole is probably the most critical example of government talking a big game and failing to back it up right now. They’ve made some very real commitments to developing a shared benefits model that is world-class, and so far we’ve had some really good engagement from government and key stakeholders in the space. However, whilst we’ve had those commitments, we’ve failed to see those, I guess, be put in place. So the government have, I guess, talked a big game, but at the moment they’re failing to back it up. What we’ve seen is a whole raft of mines being approved or exploratory licenses being issued without the agreement in place around the benefit sharing model. So we’ve been working with ResVic and government for quite some time now around developing a shared benefit model and our ask is really simple and clear, and that’s for mandatory agreement making across the board. And up until now, we haven’t seen that materialize. And so we’re calling on government to stop issuing mine licenses and to immediately implement the legislation.

Charles:

What are you actually asking for in the legislation? Some of the key asks.

Kaley:

I think the key ask when we discussed with Traditional Owner groups around what was the red line issue with relation to critical minerals, it really just comes back to mandatory agreement making. Now, when we put that on the table, I think there was a misconception that we were asking for a veto, and that’s certainly not the case. Traditional Owner corporations have, I guess, a level of maturity and understanding around what critical minerals bring, and that is renewables, devices, batteries, all those important things that are vital to the function and running of our lives in the 21st century. And so in pushing for mandatory agreement making as a condition of a license, we’ve been able to balance the need to care for country, to have Traditional Owners at the bargaining table, and to be able to uphold our inherent rights and ensure that self-determination is a part of this process in establishing a new economy in Victoria in critical minerals.

Charles:

Now, critical minerals mining happens right across the state. And some of the Traditional Owner groups that come to mind when I think about this are, of course, the Gunaikurnai Land and Waters Aboriginal Council, the Taungurung Land and Waters Council, [inaudible 00:03:20] and quite a number of others. These are Traditional Owner groups that over the years, the state government has worked extensively to build strong relationships. Now, given that you believe the state is rushing through these mine approvals, in approving these mining projects before the partnerships agreement with TOs, how profoundly do you think or the Federation believe that it will impact on the relationship and trust that has been developed over the years?

Kaley:

I think it’s a good point because the places that trust and those relationships in real jeopardy, we understand that this is a global issue. There’s pressure from around the world that’s leading to the need to establish this industry quickly. And we understand that we are allied with different nations around the world and that this is an important part of the global economy. That being said, we cannot see another industry established without First Nations people being at the table. And if you look at what happened with the gold rush and with other mining around the rest of the country, often those industries were established without us being there and we’ve been left out of not only the economic benefit of those, but the opportunity to advise how those things should take place and to make sure that care for country remains central in all things within the space.

Charles:

I think that’s an important point you bring up when you say care for country, because let’s be realistic. A lot of people out there, especially on the conservative side, will be pointing to the First Nations communities across Victoria saying, “You’re just in there for your own good.” But the reality is that care for country is very much at the core of all this. Let’s just expand on that a bit and look at some of the impact that has occurred across Victoria since 1851, the gold mining, up until the present time.

Kaley:

I think it’s an important point to make, and this is why mandatory agreement making is so important because ultimately, an agreement is an agreement. It’ll be up to the individual Traditional Owner groups to determine what should be and shouldn’t be in their agreements. So agreements might include things like a revenue share or compensation of some sort or other, but that will be just one element of an agreement. There’ll be all sorts of things in an agreement around employment and economic impact at a local level, so driving that local economy. And then like we discussed, caring for country. So there’ll be Traditional Owner groups that will push for certain practices to be in place to make sure that harm to country is minimized, and then there’ll be agreements in place around how to repair country at the end of a mine’s life cycle. So agreement making is essentially a broad term, but it really creates a space for self-determination and the care of country to remain primary in this whole process.

Now, if we look at the gold rush, for example, you can still see the environmental degradation and impact across that whole region of Victoria, and that was over a hundred years ago. So I think it’s really important to understand that this agreement making, having Traditional Owners at the table is good for everybody, not just Traditional Owners. It’s good for the broader community because they don’t have their local environment damaged or put at risk in the same ways, and it’s good for generations to come.

Charles:

How important is it, do you believe, that the broader community needs to gain a deep understanding of just how much damage has been done to country, not just during the mine’s life cycle, but actually post that? Because we often hear of stories from right around the world where leachates are constantly polluting waterways and underground water. Just what is the role of broader community to understand these long going issues?

Kaley:

I think the average Australian, when it comes to critical minerals, we’ve been, I think, blissfully unaware of the broader economic environmental impacts that are a byproduct of the industry. I think most of the critical minerals mining and processing takes place in China, and so it’s never really been a priority for us to know or understand how that work really takes place. And so for us as Traditional Owners, we’re really trying to get on the front foot to get a better understanding of the possible impacts to community and to country, and to be able to make sure we understand what good mitigation looks like. Now, that’s, I think, one thing for us to do to be prepared well to enter negotiations, but the broader community also have a responsibility to care for country. This is essentially all our place. And so it’s really important for us to make sure we’re not the only voice in the room calling for the safe care and management of country in this new industry.

Charles:

You mentioned a few minutes ago that legislation or agreement making between the mining operations, the state government and the Traditional Owners could include things such as land remediation if we just spoken about a degree of compensation. But if we look at the proposed legislation or the legislation that you and the federation would like to see pass through both houses of parliament, what are some of the key factors that you want in there?

Kaley:

I think that’s a great question. So first and foremost, as I’ve said, it has to be mandatory agreement making as a condition of a license. Now, that does not equate to a veto of a mine. It’s important to understand that we want genuine and real agreement making to be a feature of this model. The next thing that we’re calling for is tenure-blind. So we want to make sure that it doesn’t matter where a mine is taking place. Every part of this country is still Aboriginal country, and so there are Traditional Owners with representation across the entirety of the state, and they should always be at the table no matter where a mine is taking place. And then finally, we’re thinking a pathway to arbitration is really important to have in place. Agreement making is one thing, but sometimes negotiations stall, sometimes an agreement isn’t upheld, and we think that any good agreement making model or benefit sharing model will have an independent pathway to arbitration to ensure that any issues that arise can be dealt with and managed quickly, efficiently, and fairly.

Charles:

What impact do you think this might have on mining operations currently underway, or is it just for new mining project licenses?

Kaley:

Well, we would like to see the level of goodwill that is promised being upheld. So there are obviously many mines exploration licenses and fast track approvals in place in parts of the state for the development of new mines and government have made promises around the benefit sharing model. So I would encourage anyone in the mining industry, anyone that has an exploratory license, anyone that has a mine license to prioritize agreement making. It’s really important that existing operations are adhering to what’s on the table.

We’re not hopefully that far out from being able to see this legislation being put in place, and agreement making is pretty standard practice across the mining industry at large. And so most good and ethical operators are not going to be doing anything that’s trying to, I guess, minimize the voice of Traditional Owners. They understand that it’s really important to have Traditional Owners at the table. And so we think adhering to what is currently in development and being committed to is really important to maintain that goodwill into the future.

Charles:

Are you basing your asks on initiatives have been launched successfully in other jurisdictions across Australia, or is this something totally new?

Kaley:

What we’ve tried to do as a team is look at what is best practice around the world and across the country and to take what we think works really well from those examples and keep out the things that don’t necessarily work really well. And so what we’ve developed is essentially a hybrid model of what we think looks like best practice and what ensures fair and equitable operations for everybody that’s involved in critical minerals and mining.

Charles:

But have you seen it played out successfully in other jurisdictions, whether Australia or internationally?

Kaley:

I think what we’re proposing really aligns with native title rights that are currently upheld across the continent. And so whilst there are, I think, a lot of benefits of what a Traditional Owner group might be entitled to through their native title rights, there are probably a few processes within those systems that currently don’t operate as well as we think they should. That’s why we’ve proposed the arbitration model within that, because we felt that tenure is a really important consideration in making sure that Traditional Owners are at the table no matter where a mine is taking place, but also understanding that for all parties, current arbitration models haven’t really been working that well. And so we’ve been really keen to design something that looks and feels right across the industry that offers efficient and equitable arbitration.

Charles:

It really does, and I’m sure for many listeners of this program, it’s almost reminiscent of the early days of the modern treaty process. And you as the reserve seat holder for Taungurung, I’m obviously very well aware of this, but when you’re speaking about an arbitration, of course, the treaty authority comes to mind. Do you see an arbitration model being similar to that that we see with the treaty authority independent of government and Traditional Owners?

Kaley:

Yeah, I think that’s a very interesting question because I guess it’s similar in some ways, but different in others. So what’s being proposed is an independent arbitration model where it would be separate from government, but have representation from both sides. So we’re looking at a model where Traditional Owners could nominate a person to be on the arbitration panel, the mining company could nominate somebody to be on a panel, and then there would be a third independent person nominated. And so everything needs to be based on evidence, based on best practice, and based on industry knowledge to make sure that decisions are made around enabling equitable and fair operations, number one, but number two, that align with the standards and practices of the critical minerals industry.

Charles:

So I assume that this has all been discussed in some detail with representatives from the state government. What have been their verbal commitments to date?

Kaley:

Verbal commitment, and this is, I think, a really important distinction to make where, as we’ve said, government are talking the talk, they’re saying the right things. They’ve agreed that mandatory agreement making as a condition of a license should be a feature of the benefit sharing model. They’ve made commitments in the critical minerals roadmap. They’ve talked at length with us about the need to develop a fit for purpose model here. Members of government have also talked in the Yoorrook Justice Commission interviews about the past wrongs and the harms that have been committed against Aboriginal people and against country itself. And they’ve all agreed that that cannot be allowed to happen again.

And so it’s really important that we get this benefit sharing model in place, that there is fair and reasonable and equitable arbitration in place, and that there is mandatory agreement making as a condition of a license. And so we’re really keen to see government hold the things that they’ve said that they’re going to do. And to do that, they really need to stop issuing mining licenses until the legislation is in place.

Charles:

Do you see that the First People’s Assembly of Victoria or next year, Gellung Warl, the formal treaty process, will be able to lend some strength to this particular call and future calls as well?

Kaley:

Yeah, absolutely. I think there’s a lot of power in democratically-elected body that is representative of First Nations people across the entire state, and they’ve given their support to the work around critical minerals, and we keep them briefed all the time around where the work is and how it’s progressing. And so if we come to a time where we need to call on the Gellung Warl and the assembly to have our back on this, we’re confident that they will do so and that they’ll step up. I think there is going to be the accountability arm of Gellung Warl and we look at the development of treaties and all of these things are interconnected. And I think any agreement making that is developed and is in place needs to be able to, I guess, demonstrate that it is being upheld. And so again, if need be, we would be including Gellung Warl into that advocacy at the right time.

Charles:

Now, I just want to go back to the previous question because you mentioned that government representatives have given the verbal assurance that yes, these agreement making processes should be in place, and I noticed the emphasis on should be in place, before the license has been issued. But what about timing? Has there been any commitment, verbal, written, or otherwise from the government to realistically set expectations for this is when it’s going to happen?

Kaley:

I think I’ve had a number of discussions about the need to give a firm commitment to when the legislation will be in place. And to date, we haven’t had that commitment made, I think, in a real and meaningful way. So I would love for government to back in what they’re saying and give us a verbal commitment as to when the legislation will be in place publicly and to stick to those commitments. I think we’ve got an election coming up next year, and so government are keen to bed down all of their important priorities in the lead up to that one. And we understand that critical minerals has huge potential for the state to become a major source of revenue generation. And we don’t want to be in the way of that. And we certainly don’t want to see that being put in place in our absence or without us. And so yeah, it’s really important that government give this commitment and it be as soon as possible.

Charles:

Let’s just focus on the criticality of the minerals mining because it’s all in the name itself, and they are essential for key things such as renewable energy transition. So how does the federation balance the global urgency of green mining with the need to protect country and ensure that TO rights are respected, especially when approvals are being rushed in the name of climate action? How do you balance that and justify?

Kaley:

I think that’s really the importance of getting this benefit sharing model right. We developed this to ensure that it benefits all Traditional Owners, no matter what state they are in terms of their level of recognition that they have with the state of Victoria. So at the moment, there are, I think, mineral sands mines that are currently looking at being developed around Barapa Barapa Country up around Kerang, and they currently don’t have a registered Aboriginal party or a traditional-owned corporation operating with recognition from the state in that area yet. And so the team and I have been very cognizant of the fact that any benefit sharing model needs to ensure that it protects their rights and interests as well as the bigger corporations that have been in operation for quite a while now.

Charles:

How long have these conversations with the government been going on?

Kaley:

Well, they predate me, I’ll say that. They were, I guess, underway prior to my commencement with the Federation, but they’ve really geared up in the last six months. And so we’re reaching a point now where we need to see public commitments made and public promises, I think, locked in, and the legislation just needs to really get over the line.

Charles:

Kaley, before we sign off on this particular episode of the program, I just want to ask you one last question. And that is, what is it that the average Victorian should be really thinking about when it comes to critical mining and mining in general in… Shit. When it comes to critical minerals mining and mining in general across Victoria?

Kaley:

I think that’s a really important question for the average Victorian. It isn’t top of mind. Mining hasn’t been one of our major industries in this state for decades upon decades now. And so the reemergence of mining should be at the forefront of every Victorian’s mine. There’s real risk here to our beautiful environment, and it’s on all of us to make sure that any mining that takes place in this state really does incorporate the guidance and the wisdom of First Nations people who’ve been caring for this continent for 60,000 years, but also protects our beautiful environment for generations to come, whether you’re Aboriginal or not.

Charles:

Kaley Nicholson, thanks for your time today.

Kaley:

Thank you.