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Comments on Draft Recommendations Prepared by the Strategic Leaders Group (2003)

5 May 2003

The Secretariat
Mineral Exploration Action Agenda
Resources Division
Department of Industry, Tourism & Resources
GPO Box 9839
CANBERRA ACT 2601

by e-mail and post

Dear Sir/Madam

Comments on
Draft Recommendations

Thank
you for Ms Lisa Melville's e-mail of 2 April inviting comments on the
Draft Recommendations Prepared by the Strategic Leaders Group (Paper).
The Aboriginal and Torres Strait Islander Social Justice Commissioner
(Commissioner) is grateful to Ms Tania Constable for
the extension of time within which to provide comments on the Paper.

As
part of the Commissioner's functions,1 he
has provided submissions to similar State and industry based inquiries2
and reported on Indigenous-mining relationships in the Native Title
Report 2001
(Report). A copy of the Report is enclosed
for your reference. The remainder of this letter addresses issues relating
to human rights, native title, and mineral exploration in Australia.

I
understand the Action Agenda's main purpose is to make recommendations
to increase mineral exploration in Australia. In undertaking its work,
the Strategic Leaders Group (SLG) should be careful to
avoid focussing solely on mineral exploration and economics if the resultant
approach and recommendations are inconsistent with Australia's human rights
obligations. To do so would be unlikely to result in a sustainable relationship
between exploration companies and Indigenous communities.3
In any event, if the Action Agenda concludes with recommendations contrary
to Australia's human rights obligations, governments (both Commonwealth
and State) would be precluded from acting on the recommendations.4

There
are four main issues I wish to address arising from the Paper:

(1) sustainable
development and human rights;
(2) human rights and native title;
(3) common misconceptions of native title; and
(4) analysis of exploration trends.

1. SUSTAINABLE DEVELOPMENT
and HUMAN RIGHTS

Increasingly, sustainable
development plays an important role in guiding commercial project development.
Multinational corporations are committing to United Nations strategies
to incorporate sustainable development approaches in project development5
. The key concept of sustainable development can be neatly summed up by
the term 'triple bottom line'. Triple bottom line directs attention to
social, economic and environmental issues. Importantly, an approach that
emphasizes one of these components to the long term detriment of the others
cannot be described as a sustainable development approach.

Human rights standards
play a critical role in informing the socio-economic issues of the triple
bottom line approach. This is another reason for attention on some of
the key human rights standards in relation to native title in Australia.

Australia has accepted
various international treaties and obligations regarding the promotion
and protection of human rights within this country. Examples include the
International Covenant on Civil and Political Rights (ICCPR),
International Covenant on Economic, Social and Cultural Rights (ICESCR),
and International Convention on the Elimination of All Forms of Racial
Discrimination (ICERD). These treaties contain standards
including: the protection of culture; the right to equality before the
law; and the right to self determination. More detailed explanation of
these matters is provided in the enclosed Report.6

The basic international
standard for the right to enjoy culture is drawn from the ICCPR, which
provides that persons belonging to ethnic, religious or linguistic minorities
'shall not be denied the right, in community with the other members of
their group, to enjoy their own culture'. The reference to 'ethnic, religious
or linguistic minorities' also includes Indigenous groups. Australia,
having joined the ICCPR, is under an obligation to ensure the existence
and the exercise of the right to enjoy culture. This requires positive
measures of protection against the acts of other parties (including the
legislative, judicial and administrative arms of government, and also
non-government parties within Australia).7
Where land is of central significance to the culture of a group, then
the right to enjoy and maintain a distinct culture includes the protection
of Indigenous rights and interests in land.

The right of self
determination specified in both the ICCPR and ICESCR, and the principle
of effective participation emanating from this right is significant. The
right of self determination supports and promotes the development of Indigenous
communities.

The principle of
'effective participation', drawn from requirements of ICERD, ICESCR and
ICCPR, has important implications for Australia. A human rights approach
requires that policy and government decisions relating to the interests
of Indigenous people be made only with their effective participation.
Decisions directly affecting the traditional country and interests in
that country of Indigenous people should be made only with their informed
consent. Such an approach is not only appropriate from a human rights
perspective but also assists in building a relationship of trust between
Indigenous peoples and the state.

2. HUMAN RIGHTS and NATIVE
TITLE

Native title recognition
provides an important mechanism for the exercise and enjoyment of culture.
That is, the cultural characteristics of a native title group are the
basis of native title recognition, because the traditional law and custom
define the nature and extent of native title rights. The recognition and
protection afforded by the Native Title Act 1993 (Act)
provides an important legal measure for the protection and enjoyment of
culture.

The right to negotiate
enjoys protection within the international framework of human rights,
including the treaties recognised in the Act's Preamble. Of particular
significance is the principle that members of minority and indigenous
cultures have the right to maintain, enjoy and develop their cultures
protects the right of Indigenous peoples to effective participation in
decisions regarding their lands and territories. The 'right to negotiate'
reflects this internationally recognised human rights principle.

The right to negotiate
is a substantial right within the scheme of the Act.8
It provides for notification of and negotiation with native title parties
for most mining future acts and is the pre-condition to the validity of
all future acts to which it applies.

The right to negotiate
assists the effective participation of Indigenous groups, consistent with
human rights principles including: right to equality before the law; the
right to self determination and principles of prior informed consent.9
However, some mineral tenement systems have functioned in such a way as
to undermine these important human rights principles.10
There have been State-based procedural reviews and pro-forma agreements
seeking to achieve a more equitable and co-operative process. In Western
Australia, the Taskforce was developed with the active involvement of
key Indigenous stakeholder groups. In Victoria and Queensland respectively,
pro-forma agreements11 and a Model ILUA12
have been negotiated with peak Indigenous groups and provide an alternative
to accessing procedural rights under the Act. The Commission urges the
SLG to give consideration to these developments.

Effective participation,
sustainable development

The Commissioner
encourages strategies that ensure the effective participation of native
title holders and commends such an approach to the SLG. A recent report,
Facing the Future,13 produced as part
of the Australian Mining Minerals and Sustainable Development Project14
recommended a stronger focus within the mining industry on sustainable
development. One of the critical issues identified in the report was:

The promotion
of the rights and well-being of Indigenous communities by ensuring that
operations receive the prior informed consent of local indigenous communities;
that traditional owners are able to assess and respond to mining proposals;
and equitable distribution of benefits between companies, communities
and government.15

Fundamental to achieving
such an outcome is maintaining procedural rights under the Act and allowing
Indigenous groups to be active participants in development on their land.

The Paper makes reference
to the concept of sustainable development. The SLG notes that 'industry
needs to show up-coming generations of bright students that a career within
exploration can make a positive and sustainable difference when viewed
from a triple bottom line perspective'. This is commendable, but the SLG
needs to ensure that the triple bottom line is not just advocated in public
relations, but is met in the practice. An earlier statement in the Paper
could be understood as weakening a triple bottom line perspective: 'To
ensure viability of the agreements, they should be commercially sound'.
Certainly, to be viable, agreements must be commercially sound, but viability
also depends on agreements being sound from an environmental and social
perspective.

There appears to
be no Indigenous participation in the SLG. The lack of Indigenous input
is, of itself, a matter of concern. As noted above, various human rights
standards indicate that effective Indigenous participation is essential
in decision making that will affect their traditional lands and lifestyles.
The Commissioner recommends the SLG ensure that its deliberations are
well publicised to Indigenous organisations and people who may be affected
by those deliberations, and that those parties have every opportunity
to effectively participate in the SLG's work.

Human rights guidance

Key human rights
principles that should be reflected in the SLG's recommendations include:

  • the principle
    of equality that requires that Indigenous interests in land be protected
    equally to non-Indigenous interests;
  • the unique nature
    of native title means that equal protection of native title interests
    will sometimes require native title to be treated differently to non-Indigenous
    interest; and
  • processes should
    recognise and respect Indigenous peoples' rights to effective participation
    in decisions affecting their traditional lands.

Some of these principles are already supported recommendations
in the Paper. For instance, the attention to the funding of NTRBs is a
matter which does need urgent attention and the Commissioner supports
the SLG's comments that 'the level of funding by the Commonwealth of NTRBs
needs to be reviewed to ensure that adequate representation for native
title parties is possible'.

Expedited procedure

One particular area of concern is the Paper's recommendation
that government and industry promote the use of the expedited procedure.

The expedited procedure is a limited exception to the
right to negotiate. The Act allows the expedited procedure to avoid the
right to negotiate only when the government considers that the proposed
activity is not likely to (a) interfere directly with the community or
social activities, (b) interfere with significant areas or sites, and
(c) involve major disturbance of land.
Contrary to this process specified
in the Act16 , some governments use the expedited
procedure in relation to any mineral tenement other than mining leases.17
Cases from the National Native Title Tribunal show such a policy is flawed
because numerous non-mining lease tenements have been adjudged inappropriate
for the expedited procedure.18 What should
be occurring is that the Act is followed by considering tenement applications
and determining whether the expedited procedure is justified in each case
(and such justification is where the tenement only allows activities19
that are not likely to interfere with the relevant community and sites
and are not likely to be a major disturbance to
the particular land).

The SLG may wish carefully consider the proper operation
of the expedited procedure and re-examine its encouragement of the expedited
procedure.

'Black Hole' expenditure of native title costs

The Paper discusses various costs associated with mineral
exploration in Australia. Most of the costs are simply explained by their
practical effect, but in relation to some native title expenses, the Paper
adds an additional comment that these costs are 'the so called "black
hole" expenditure'.

The SLG may wish to consider the appropriateness of such
a phrase.

3. COMMON MISCONCEPTIONS about NATIVE TITLE

Discussion of mineral exploration in Australia frequently
includes common misconceptions about native title. The Commissioner considers
it useful to address some relevant issues for the SLG.

Recognition of native title

The Act, commencing in 1994, introduced a change in the
granting of exploration tenements. The Act regulates the administration
of native title and exploration tenements. The right to negotiate and
other procedures under the Act require that before allowing exploration
to proceed, governments must address matters that, prior to 1994, were
not required. However, the time periods for the 'extra' processing under
the Act are not prohibitive20 and should
not, of themselves, impede investment in mineral and petroleum exploration.

The fact that the Act imposes extra requirements in granting
exploration rights, and that grants cannot be made as 'easily' as they
could before 1994, should be unremarkable. Australia's land administration
can no longer operate on a 'terra nullius' basis; a Joint Parliamentary
Committee recently heard of the change of mind-set this requires for land
use and planning:

[P]lanners need to change their mind-set. They
used to operate on the basis that greenfields were vacant and available
for chopping up for land development and that nobody else had an interest
in it, other than the Crown. That is now no longer the case. Planners
have to shift the paradigm away from that. Land is no longer vacant. In
fact, I do not use the term 'vacant crown land' any more. I use the term
'unallocated', because that is what crowns do. They allocate interest
in land, and they do that on the basis of radical title, not beneficial
title, in most cases, which means that native title may still exist.21

This call for an examination of attitude and approach
is as relevant for exploration as it is for urban planning. Many companies
and mining groups say they accept native title and Indigenous rights.
These expressions do not reconcile with the common industry comparisons
and calls for return to earlier exploration practices and levels. By recalling
times when exploration was conducted through a 'terra nullius' management
system, these comparisons are encouraging an approach as dismissive of
Indigenous rights as it was then.

Tenement backlogs

The Commissioner is aware that substantial 'backlogs'
of exploration tenements have emerged in the last few years and this may
discourage exploration investment. However, if Western Australia is indicative,
the main reason for tenement 'backlog' is not because of the actions and
objections of Indigenous people, or even because of the provisions of
the Act, but because of government and company decisions. 22

4. ANALYSIS OF EXPLORATION TRENDS

The Paper seeks to address the Minister's challenge,
of September 2002, to find ways to revive interest and investment in exploration.
Attention to, and recommendations to address, a decline in mineral exploration
is entirely appropriate. I am sure the SLG will be careful in its analysis
of exploration trends and the resultant influence that perceived trends
and causes have on proposed recommendations.

The Paper contains repeated references to the drop in
exploration from 1997 to present. At one point, the Paper describes the
history of exploration in Australia as 'a sustained exploration effort
that Australia has enjoyed until recently'. These references suggest that
the 1997 levels were normal and are the appropriate level by which to
gauge development and proposed reforms. The SLG may wish to consider Rio
Tinto's evidence to the Commonwealth Parliament's Inquiry into Impediments
to Resources Exploration:

The level of exploration activity is cyclic
and is driven by relatively short-term business fundamentals, most notably
metal price and competitive discovery. ... There is little
correlation between the overall level of exploration expenditure and discovery
rate, and therefore there is little reason to use boom periods as the
benchmark for a healthy industry.
23

The Commissioner urges the SLG to address, in its analysis
of mineral exploration in Australia, the human rights of Indigenous peoples
and their relationship to that exploration. The content and value of the
Action Agenda will be diminished if it contains material or recommendations
that are inconsistent with Indigenous human rights. Exploration and mining
can, and regularly do, occur consistently with human rights standards,
just as many government and private activities do. However, where exploration
is encouraged in a manner contrary to human rights, it is unlikely to
lead to a sustainable result, it may discourage various companies, and
it breaches Australia's human rights obligations creating potential future
complications from a Commonwealth or international level.

Yours faithfully,

John Southalan
Acting Director, Native Title


1. The Commissioner has statutory functions
to promote discussion and awareness of human rights in relation to Aboriginal
and Torres Strait Islander people and to report to the Commonwealth Government
on the enjoyment and exercise of human rights by Indigenous Australians:
s46C, Human Rights and Equal Opportunity Commission Act 1986 (Cwlth)
and s209, Native Title Act 1993 (Cwlth).
2. Copies of these submissions are available at www.humanrights.gov.au/social_justice/native_title
3. This caution is consistent with industry views: 'Purely
economic criteria are clearly not sufficient to determine issues of land
access. The mining industry must accept, for example, that mineral deposits
in areas of high biodiversity or cultural value may be off limits', Sheehy
B & Dickie P, Facing the Future: The Report of the MMSD Australia Project,
2002, Australian Minerals Energy Environmental Foundation, Melbourne, p66.
The MMSD Australia Project was an industry-established and funded two-year
review of the minerals industry and its role in sustainable development.

4. See point 1 of letter Ministerial Inquiry into Greenfields
Exploration in Western Australia
, January 2003, available at: www.humanrights.gov.au/social_justice/native_title/greenfields/doc1.html.
5. United Nations Global Compact on Human Rights, Labour
and Environment, www.unglobalcompact.org/Portal/.
6. Pages 13-14.
7. Human Rights Committee, General Comment 23, Article
27 (1994) para 6.1, in Compilation of General Comments and General Recommendations
adopted by the Human Rights Treaty Bodies UN Doc HR/GEN/1/Rev.1, p147.
8. North Gaanalanja Aboriginal Corporation v Queensland
(1996) 185 CLR 595 at 235-236.
9. See Aboriginal and Torres Strait Islander Social Justice
Commissioner, Native Title Report 2001, Human Rights & Equal Opportunity
Commission, Sydney, pp13-14.
10. See Native Title Report 2001, p24-53.
11. Pro forma Exploration Deed, negotiated between
Mirimbiak Nations Aboriginal Corporation, Victorian Government Department
of Justice (Native Title Unit), and Victorian Minerals and Energy Council.
Version 1, 11 December 2001.
12. See www.premiers.qld.gov.au/about/nativetitle/newweb/pages/statewide_ilua.htm.
13. Review of the Project Development Approvals System:
Interim Report for comment
, p39.
14. The Australian project (see note 3, above) was part
of the Global Mining Initiative (GMI). The GMI was established in 1999 in
association with the World Business Council for Sustainable Development,
against a background of considerable public concern about the mining industry's
social and environmental performance. The GMI aimed to: review the international
minerals sector; conduct an independent study of the broad community issues
confronting the industry; and inform debate at the Rio + 10 Conference and
a major industry conference in Toronto in 2002.
15. Facing the Future: The Report of the MMSD Australia
Project
, p7.
16. Sections 29(7) & 237.
17. Technical Taskforce on Mineral Tenements and Land Title
Applications, Final Report, Western Australian Government, Perth,
2001 ('Taskforce Report'), p157.
18. Examples include Freddie -v- Western Australia &
Povey
(19 December 2001, Member Stuckey-Clarke), Velickovic -v- Western
Australia & o'rs
(8 June 2001, Member Franklyn), and Young on behalf
of the Ngadju People -v- Western Australia & South Coast Metals
(7 June
2001, Member Sosso). There are also many cases where, after the native title
party has had to prepare and lodge an objection to the expedited procedure,
the tenement application has been withdrawn or the expedition notice dropped.
This indicates either the government or applicant did not want, or was unable
to justify, that tenement's proceeding under the expedited procedure. Examples
of this type include Gulngarring & Luwanbi on behalf of the Warai -v-
Northern Territory of Australia & o'rs
(19 December 2001, Member Sosso),
Johnny & o'rs for the Kunapa/Kurtinja/Mangirriji and Kunakiji/Lurrkunu
Peoples -v- Northern Territory & Rio Tinto Exploration
(28 November
2001, Member Franklyn), and Lansen on behalf of the Mara, Alawa,Yanyuwa
and Gurdanji Peoples -v- Northern Territory & North Mining Limited
(22
October 2001, Member Sumner).
19. The question of whether a tenement properly falls within
the expedited procedure focuses on the full range of rights permitted under
the tenement, and is not decided only by considering the applicant's proposed
activity on the tenement: Dann -v- Western Australia (1997) 74 FCR
391.
20. A Western Australian inquiry noted that processing
a tenement application through the expedited procedure (where there has
been objection) takes around six months: Technical Taskforce on Mineral
Tenement and Land Title Applications, Final Report, Government of
Western Australia, Perth, 2001 (Taskforce Report), p40. National Native
Title Tribunal (Tribunal) statistics indicate that, nationally, nearly 70%
of expedited procedure applications are not objected to, allowing the relevant
tenements to be granted within six months (Neate G, Native Title and
Mining Industries In Australia: Meeting The Challenges And Pursuing The
Possibilities
, paper delivered at Australian Mining Seminar Australia
House London, 7 February 2001, pp23-24). Where a tenement goes through the
longer negotiation procedure there is a six month period for 'good faith'
negotiation and, if no agreement is reached and the Tribunal is asked to
arbitrate, a decision is required within a further six months (Taskforce
Report, p43).
21. Evidence of E Wensing (Australian Local Government
Association) to Parliamentary Joint Committee on Native Title and the Aboriginal
and Torres Strait Islander Land Fund, Official Committee Hansard,
9 November 2000, pp NT27-28.
22. The Taskforce Report shows that over two thirds of
the 'backlog' comprise tenement applications that haven't been submitted
to the native title process (7,428 from a total of 11,081 'pending tenements',
or 67%, are 'awaiting submission to the NTA process' -figures compiled from
Taskforce Report Appendices 8 to 14). 'Because of the numbers [of 'backlogged'
tenement applications] involved, lease applications are only being put into
the [native title] process at the request of the applicant', Independent
Review Committee, Review of the Project Development Approvals System:
Interim Report for comment
, Government of Western Australia, Perth,
January 2002, p39.
23. E Finlayson, Rio Tinto Exploration Pty Ltd, Hansard,
30 October 2002, p116 (emphasis added).

Last updated 7 July 2004.