There is a story, possibly apocryphal, about a frog and a scorpion. On the bank of a river, a scorpion approaches a frog and asks to be carried across. The frog, initially suspicious, is ultimately convinced by smooth scorpion words and the pair proceed into the water. Half way across, the scorpion stings the frog and dooms them both to murky waters. To the frog’s last question of why, the scorpion replies, “I could not help it. It’s in my nature.”
And so we turn to Rio Tinto and its lawful destruction of Juukan Gorge and Aboriginal rock shelters in the Pilbara, which were blasted into non-existence to facilitate the expansion of an iron ore mine in the Hammersley Ranges.
According to Dr Samantha Hepburn of the Centre for Energy and Natural Resources Law, Deakin University, the shelters are ‘the only inland site showing human occupation though the last ice age.’
The shelters were in use some 46,000 years ago, which makes them approximately twice as old as the Lascaux Caves in France.
Now they are gone.
It’s worth repeating that, in destroying our heritage in this way, Rio acted lawfully. Neither Commonwealth nor Western Australian law stood in the way of Rio lighting the fuse and blowing the shelters in Juukan Gorge to kingdom come.
The site had no heritage listing under the Commonwealth Environment Protection and Biodiversity Conservation Act 1999 and so had no status or protection under Commonwealth law. The relevant Western Australian legislation, older than Methuselah, allowed the holder of a mining licence, Rio, to destroy or damage an Aboriginal site if consent were obtained. Under state law, Rio is not obliged to consult with or defer to the wishes of traditional owners.
Now Rio is a large mining and metals company that makes much of its relationship with Indigenous communities in Australia: ‘Our relationships with local and regional communities are a key part of our projects and operations…We respect the special connection of local and Indigenous people to land and waters.’
The questions now, however, are whether or not these words mean much at all and what lessons should governments draw in a time of COVID-19. It may well be that we are all made better off by Rio. Iron ore revenues are important; tax revenues are important; and only fools would prefer a cave to a mine.
Well, first up, the idea of corporate social responsibility—the idea that financial, social and environment factors should be equally important in the thinking of companies—is a worthy but useless model for government action and regulation.
We do not have to be as reckless as Milton Friedman, a Nobel Prize winner who argued that the social responsibility of business should be to increase profits. Rather, we only need understand that this is just what business does. For companies the imperative to make profits is at the core of their nature. Profits, not the environment and not the community, trump everything.
It is true that some companies provide services to the community or protect the environment to some extent, but they only do so to protect profits and polish the value of their reputation, which is the same as protecting profit. The relationship remains transactional, only the time horizon is longer.
It is also true that the private sector comprises individuals and professionals who are ethical, honest and professional. However, as energy, aviation, banking, hospitality, construction and waste disposal companies—to list just a few—attest, ethical considerations sometimes walk softly and carry the smallest of sticks.
Because business first looks after business, governments must be especially wary now of the idea that deregulation is a magician’s wand that will create jobs and increase growth.
If poorly executed, deregulation is a sugar hit, provoking manic activity and a precipitous crash. Social benefit and private benefit are not the same and markets that are unregulated or deregulated are sometimes neither efficient nor fair. The entire point of regulation is to create public value in the form of reduced economic, social or environmental harm. The idea is that the value created for society is greater than the compliance costs imposed on the regulated entity. In the temple of deregulation, however, things are different: public value is sacrificed on the altar of private gain.
So we must be careful.
Since we started with Rio and mining, let’s finish with mining and the review of the Environment Protection and Biodiversity Conservation Act 1999. The title gives the game away because the imperative is to protect the environment and conserve biodiversity. At this time, in 2020, the damage and the threat of damage to our environment is so great and so all other considerations are secondary.
Because it is in their nature—because profit compels it—mining companies have always expressed concerns about the restrictions they have faced in their work; the restrictions on exploration; the approvals they’ve had to obtain; the processes they’ve had to endure; the overlap between the Commonwealth and the states; the taxes they’ve paid; the costs and burdens that have been imposed; the sovereign risks they face; the need to compete for capital in a hostile world.
But while a review will necessarily consider such concerns, they only warrant a focus on improved processes rather than reduced standards. And to the extent that changes to processes trash our environment and Australia’s natural heritage, then, like the bombing of Juukan Gorge, they should be rejected.
This article was first published in The Canberra Times on 5 June 2020. It has not been changed to reflect findings of the Auditor-General, published on 25 June 2020, on the administration of the Environment Protection and Biodiversity Conservation Act 1999.