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Comments on Review of the Project Development Approvals System (2002)

28 June 2002

Ms Susan Kelly
Department of Mineral and Petroleum Resources
PO Box 7606, Cloisters Square
Perth WA 6850

Dear Ms Kelly

Comments on Review
of the Project Development Approvals System

I refer to the 9
May letter from Mr Jim Limerick inviting comments on the Review of
Project Development Approvals System by the Independent Review Committee
('Review'). The Government's media release of 7 June extended
the period for comment on the Review to 28 June. Thank you for the invitation
to comment and for providing me with a copy of the Review. My comments
on this document are noted below.

I provided submissions
to the Review Committee in relation to its interim report ('Submissions')
[1]. I am pleased to see some aspects of the interim
report were altered following my Submissions. However, I remain concerned
the Review has several inconsistencies with Australia's human rights obligations.
I enclose a copy of my previous Submissions, section 2 of which addresses
various human rights standards and why they are relevant to the Review.

The Review encourages
a 'whole of government' approach,[2] with the benefits
this brings in ensuring integrated and consistent government decision-making
across agencies. The Review emphasises the importance of resolving native
title issues by agreement, [3] an approach which, when
based on the free and informed consent of all parties, is consistent with
human rights principles. However, when the Review is read as a whole,
there is a contradiction: the resolution of native title issues by agreement
(and the Review's endorsement of the Wand Report )[4]
is inconsistent with the Committee's attention to development at the expense
of Indigenous rights.[5] This inconsistency is apparent
in the following seven areas, which I urge the Government to consider
in determining any response to or use of the Review.

1 The Review, although
using ambiguous language, seems to advocate that land must be continuously
open and available for exploration. [6] The Review's
call for access to all land contrasts with the recent report of the
Mining Minerals and Sustainable Development (MMSD) project in
Australia. [7] The final report of MMSD Australia [8]
noted 'The Mining Industry must accept...that mineral deposits in areas
of high biodiversity or cultural value may be off limits'. [9]
I trust the Government will heed industry's caution in this regard and
not follow the Review's encouragement of unlimited access.

2 The Review's
recommendations [10] and approach are inconsistent
with the principle of prior informed consent of Indigenous communities
before development occurs on their land. Take, for example, the Review's
statement that '[L]and access is crucial to project planning and funding
[and so] any difficulty that the State may have in quickly providing
available land is a major weakness in efforts to attract investment,
especially where there are location alternatives in other countries'.
[11] This analysis considers only non-Indigenous (development)
interests. Land access is also 'crucial' to many Indigenous interests.
As explained in my previous submissions, [12] the
concept that 'the State' 'provid[es] available land' to development
is a dated concept belonging to Australian laws and attitudes of an
earlier era.

The importance
of prior informed consent was addressed in the Submissions.[13]
The Government should also consider, on this point, the emphasis on
prior informed consent in the MMSD reports:

'Companies need…to
demonstrate that operations are established with the prior informed
consent of local Indigenous communities', MMSD Australia [14];
and
'Governments and companies could make considerable progress by maintaining
respect for the principle of prior informed consent freely given.
For companies, this would mean behaving as if consent is required
to gain access to indigenous lands even when this is not the case
in law', global MMSD Report. [15]

The Government should
note the Review's inconsistency with mining & minerals industry views
in this regard. I urge the Government not to adopt any of the Review's
recommendations or analysis that is inconsistent with the concept of prior
informed consent of Indigenous communities.

3 The Review appears
not to have comprehensively assessed the possibilities for Indigenous
interests to be better incorporated into WA's development approvals
system. Despite the Review Committee's study of Queensland and New South
Wales [16] , examples from those States of Indigenous
inclusion in development approvals are not addressed in the Review.

By way of illustration,
the WA Government should note: in New South Wales a mining tenement
cannot be granted without the relevant Government Minister first accounting
for the need to conserve and protect features of Aboriginal interest,
[17] and in Queensland a cooperative approach between
the Government and Indigenous groups produced a standard agreement for
exploration on native title land in Queensland.[18]
Neither of these matters, despite their significance in the relationship
between native title and development approvals, is considered by the
Review. The WA Government should consider these developments in seeking
to better integrate Indigenous interests into the development approvals
system.

Also, on the issue
of greater incorporation of Indigenous interests into WA's development
approvals system, I refer the Government to its Sustainability Research
Group Discussion Paper on Indigenous Sustainability Issues. [19]
This paper notes:

'Within the current
climate of negotiated outcomes, a truly sustainable outcome must
be adopted whereby Indigenous communities are able to negotiate directly
with government and industry
on all the above issues [including
environmental management, country management, biodiversity conservation,
mine rehabilitation, heritage, housing, infrastructure, and economic
development]. Such negotiations must aim to cover the types of
services, plans, and support that Indigenous communities will require
to be able to achieve sustainable control and management of Indigenous
natural and cultural resources, as well as the ownership, control
and maintenance of Indigenous community lands'.
[20]

I encourage the
Government to ensure that any use of the Review accords with the sustainability
principles outlined above.

4 The Review notes
deficiencies in WA's Aboriginal Heritage Act ('AH Act') [21],
although the final report differs from the interim report in this regard.
In the interim report, the Committee itself identified the racially
discriminatory operation of these laws, [22] whereas
in the final report the Committee removed that text and instead stated
'The ATSI Social Justice Commissioner…claims that the AH Act in
its current form is racially discriminatory'. [23]

My main concern,
however, is that the Review identifies problems in the AH Act but does
not reflect these in any recommendation. Although not part of the Review's
recommendations, I draw the Government's attention to the Committee's
identification of the need for 'an assessment of the adequacy of the
procedures and protection offered to Indigenous sites under the AH Act'.
[24]

5 The Review, at
no place, considers the non-extinguishment principle. As explained in
the Submissions [25], the non-extinguishment principle
allows development to occur and, when the non-Indigenous interest in
land is removed or expires, native title interests can have full effect.
The Government should seek to ensure that the non-extinguishment principle
applies in all its dealings with land.

6 The Review presents
15 case studies, four of which feature interaction of Indigenous people/issues
and the approval process. Every one of these four case studies presents
a negative outcome as a result of that interaction. Not one case study
in the Review shows Indigenous involvement leading to a positive outcome.
There is also no case study assessing the detrimental effect of development
approvals on Indigenous people. This was an issue I raised with the
Committee.[26] Given that Indigenous perspectives
of development approvals process come within the Committee's Terms of
Reference,[27] I do not understand why the Committee
has chosen to focus almost exclusively on the developers' perspective.
[28]

I recommend the
Government, in its assessment of the Review, ensure adequate attention
is given to Indigenous perspectives and involvement in development approval
procedures, consistent with Australia's human rights obligations. I
refer the Government to the MMSD Australia report on this matter. The
MMSD report accepts that, in relation to decisions that affect them,
Indigenous communities cannot be seen simply as another stakeholder
with the same rights to participate in decisions as any other stakeholders
group. [29]

7 The Review largely
perceives native title issues as involving intra-Indigenous disputes,
with the main question being to establish who are the appropriate Indigenous
people to 'speak' for an area of country. [30] As
explained in the Submissions,[31] most native title
determinations (and all the main ones in WA to date) do not relieve
the government or proponents from having to negotiate with the traditional
owners of the land. Accordingly, Indigenous rights in land need to be
accommodated in the development approvals system both before and after
a native title determination.

A whole of government
approach should be seeking to incorporate native title and effective Indigenous
participation into government decision making. Instead, the Review, as
shown in the above points, has subjugated the human rights of Indigenous
people to economic development. I understand the Review's main purpose
was not to protect Indigenous rights, but to make development approval
system more efficient. That, of itself, is not a problem. However, recommendations
and approaches focusing only on streamlining development approvals and
inconsistent with Australia's human rights obligations, are unlikely to
result in a sustainable relationship between developers and Indigenous
communities.

In the interests
of transparency and openness, I consider it useful for matters to be widely
discussed. Accordingly, I intend to make this letter (together with links
to the Review and the Submissions) available on the Commission's website.
[32] If you have any difficulties with this please contact
John Southalan to discuss.

If you have any questions
regarding this matter, please contact John Southalan. John's direct telephone
number is (02) 9284 9728, or you can use e-mail to johnsouthalan@humanrights.gov.au

Yours faithfully
Dr William Jonas AM
Aboriginal and Torres Strait Islander Social Justice Commissioner

ENDNOTES

1. Submissions
and covering letter dated 4 March 2002 from Aboriginal and Torres Strait
Islander Social Justice Commissioner to Independent Review Committee.
2. The terms of reference specify the Review's outcome to
be for 'a system of government decision making which is co-ordinated and
integrated [and] balanced between community and developer needs', Review,
p165.
3. Review, p81 and recommendation 13, p83.
4. Review, p36.
5. '[L]and access is crucial to project planning and funding
[and so] any difficulty that the State may have in quickly providing available
land is a major weakness in efforts to attract investment, especially where
there are location alternatives in other countries', Review, p43.
6. 'The Mining Warden should only deal with matters and
objections that relate to the provisions of the Mining Act, and the Mining
Act should be amended to make this explicit [preventing 'public interest
considerations', including Indigenous interests, being considered by the
Warden]', Review recommendation 28, p96.
7. 'The State should open negotiations with the Commonwealth
to mesh the State Aboriginal Heritage Act with the Commonwealth Aboriginal
and Torres Strait Islander Heritage Protection Act…such that a Section
18 clearance under the State Act entirely satisfies the protection requirements
of the Federal legislation in relation to the land which is the subject
of the clearance', Review, recommendation 15, p83.
8. '[I]t is important that high levels of exploration are
encouraged. One way to do this is to ensure that land is continuously open
and available to exploration and this is not the case at present', Review,
p44.
9. MMSD was a two year, industry established and funded,
review of the minerals industry and its role in sustainable development.
The global MMSD process included a discrete two-year project in Australia.
10. Sheehy B & Dickie P, Facing the Future: The Report
of the MMSD Australia Project, 2002, Australian Minerals Energy Environmental
Foundation, Melbourne.
11. Facing the Future, p66.
12. Particularly 13 and 28.
13. Page 43.
14. Section 3.4(a).
15. eg. Submissions, section 2.2.
16. Facing the Future, p34.
17. Breaking New Ground: The Report of the Mining, Minerals
and Sustainable Development Project, 2002, Earthscan Publications Ltd, London,
p402.
18. 'In order to consider the practices used in other relevant
States…the Review secretariat undertook research to identify those
places confronted with similar resource-based development opportunities,
larger regional and remote land areas, and native title issues. It was decided
Queensland and New South Wales offered useful comparisons. Some members
of the Review Committee travelled to…Sydney and Brisbane and met with
senior government officers to discuss practices in…those States', Review,
p13.
19. Mining Act 1992 (NSW), s237(1).
20. Submissions, section 4.3(c).
21. Kinnane S, Beyond the Boundaries: Exploring Indigenous
Sustainability Issues Within a Regional Focus Through The State Sustainability
Strategy, WA Department of Premier and Cabinet, April 2002.
22. Beyond the Boundaries, p5 (emphasis added).
23. Review, pp76-77.
24. Section 18 of the AH Act allows a person to destroy
an Indigenous site if the Minister has approved that occurring. The Committee
noted that 'Under the AH Act, an owner of land can appeal [to the Supreme
Court] the Minister's decision regarding a Section 18 application, however,
the legislation provides Aboriginal people with no such recourse [because
'owner of land' is defined to exclude an owner of Indigenous interests in
the land: AH Act, ss18(1) and (1a)]': Interim Report, p36.
25. Review, p79
26. Review, p80.
27. Submissions, section 3.4(b).
28. Submissions, section 3.3.
29. Submissions, section 3.1.
30. In addition to the skew in case studies, the new heading
included after the Interim Report is 'Issues of Concern to Proponent' (Review,
section 4.1.3). No similar analysis is made of Indigenous concerns.
31. 'Indigenous communities cannot be seen simply as another
stakeholder, with the same rights to participate in decisions as any other
stakeholders group. The International Convention on the Elimination of all
Forms of Racial Discrimination - under which Australia has voluntarily accepted
obligations - requires that states balance the rights of different racial
groups. It does not require balance between the interests of different stakeholder
groups - but rather that they balance the rights on [sic: of] indigenous
and non-indigenous title holders', Facing the Future, p58.
32. 'A common theme in the submissions to the Committee
was concern over the difficulties of working through the native title processes.
One area of particular difficulty was the uncertainty over who held native
title, which could result in a proponent having to deal with multiple claimants
under the Native Title Act processes. … In view of the importance of
this matter to proponents and the evident value in an approvals process
of knowing who holds native title, the Review welcomes the Wand Report.
It is anticipated that the implementation of the government's response will
do much to overcome the uncertainty in relation to who holds native title
over land', Review, p36.
33. Section 4.1(b).
34. <www.humanrights.gov.au/social_justice/native_title&gt;

Last updated 2 September 2002