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INQUIRY INTO GREENFIELDS EXPLORATION in WA (2001)

25 September 2001

Mr John Bowler
Ministerial Inquiry into Greenfields Exploration
c/o Department of Mineral & Petroleum Resources
PO Box 7606
Cloisters Square
PERTH WA 6850

BY EMAIL AND POST

Dear Mr Bowler

INQUIRY INTO
GREENFIELDS EXPLORATION in WA

I refer to your letter
of 14 August inviting further submissions following the High Court's Miriuwung
Gajerrong
decision, and the ABC's 22 August report of your comments
on that case.

In your written response
to my submissions of 25 June, you conclude by stating "Again, thank
you for your submission, which hopefully will get the drilling rigs, geologists
and prospectors back in the bush". The ABC reported that, following
your 'talks with a native title expert [which] revealed that it [native
title] is now extinguished on conservation parks and reserves', you said
"while it's difficult for the mining industry to get on some of those
types of reserves, the good news is there's no native title there...".

I am surprised by
both your written and reported statements following the High Court's decision.
Your comments indicate a preference for mineral exploration over the human
rights of Indigenous interests. I consider a more prudent approach would
be to recognise the importance of both interests [1]
and wish to make several points on this matter.

1. Relevance of human rights
to mineral exploration and government activity

I accept that the
Inquiry's main purpose is to make recommendations for the sustainability
of greenfields mineral exploration in Western Australia. In undertaking
this work, however, your Inquiry should not focus solely on exploration
investment if the resultant approach and recommendations are inconsistent
with Australia's human rights obligations. If the Inquiry makes recommendations
contrary to some of Australia's human rights obligations, governments
(both Commonwealth and State) would be precluded from acting on the recommendations.
This is because government officials and processes must act in a manner
consistent with various human rights, as a requirement of both international
law [2] and Australia's domestic law. [3]

Quite apart from
the legalities, if the Inquiry advocates an approach inconsistent with
human rights, it is unlikely to result in a sustainable relationship between
exploration ventures and Indigenous communities. This caution is consistent
with mining industry views that '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'. [4] It is also
relevant to note the WA Premier recently released the draft State Sustainability
Strategy which addresses mineral activity and sustainable development.
The document acknowledges that the social and economic impacts of resource
projects require greater attention. [5]

2. Scope of inquiry - effect
on native title and Indigenous rights

Submissions to the
Inquiry, and its outcomes, may result in conditions more conducive to
exploration such as financial incentives, improved efficiency of tenement
applications, or greater availability of geological information. Where
matters such as these are implemented consistent with the human rights
of Indigenous Australians, no issues arise. However, a difficulty does
arise where increased exploration is to occur in a manner that over-rides
human rights.

Given the Inquiry
is focusing on greenfields exploration, I understand the exploration
being considered is into areas where no mineral activity has previously
occurred (or at least not occurred pursuant to Australia's legal system).
This makes it more likely that native title interests may exist in these
areas and I would expect that any party considering the possibility of
new development in such an area would recognise and respect any prior
Indigenous rights in that area.

As you would know,
before the Mabo decision in 1992, [6] Western
Australia's land management system made no provision for traditional owners.
Land without non-Indigenous interests was called 'vacant crown land' and
the Government dealt with this land largely as it pleased. The Commonwealth
Native Title Act (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 to be addressed. However, the time periods for the 'extra'
processing under the Act are not prohibitive [7] and
should not, of themselves, impede 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. [8]

Any reflection on,
or reference to, exploration procedures and levels before 1994 needs to
recognise that the pre-94 situation was based on a 'terra nullius' approach
to land management. WA's State Sustainability Strategy, referred
to earlier, also reports on mining views that 'From a mining industry
perspective, many of the practices of years gone by are no longer valid'.
[9]

3. Mineral activity in conservation
parks and reserves

The ABC's report
of your comments addresses mineral activity in conservation parks and
reserves. I understand the Labor government's policies 'as presented and
accepted by the people of Western Australia on 10 February' [10]
specifically state that 'Labor will prohibit mineral and petroleum exploration
and mining in National Parks and nature reserves'. [11]

I also note the WA
Government advocates the protection of Indigenous values in national parks
and nature reserves. [12] In particular, the Government
explained that some land will be added to a national park to 'protect
Aboriginal heritage values'. [13] Your reported comments
that "the good news is there's no native title there" seem at
odds with the approaches of the WA Government in relation to Indigenous
interests in conservation parks and reserves.

I would not want
this letter to be taken as any discouragement of ongoing discussion on
issues of mineral exploration and native title. I consider dialogue on
these issues most valuable and it compliments my statutory function to
promote discussion and awareness of Indigenous human rights. [14]
The Commission's Director of Native Title, Margaret Donaldson, and I will
be visiting WA in mid-November 2002. I would be happy to meet with you
if convenient during our visit.

Your letter asked
whether I have any objection to my earlier submission being made available
as a public document - I do not. In fact, the majority of Commission's
work is available on our website, [15] and subject to
your comments, I propose to also make this letter available on our website.

If you have any questions
regarding this matter, please contact John Southalan who is the Commission's
Senior Policy Officer, Native Title. John's direct telephone number is
(02) 9284 9728, or you can use e-mail to <johnsouthalan@humanrights.gov.au>.

Yours sincerely

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


1.
This is consistent with the statement in the WA Premier's recently released
draft report Focus on the future: The Western Australian State Sustainability
Strategy
(September 2002) which states 'Certainty for industry's development
proposals and security for Aboriginal peoples' cultural heritage and values
must be equally respected within the overall development of the State',
p61. Document available at <www.sustainability.dpc.wa.gov.au/docs/Draft_Strategy.htm>,
accessed 24 September 2002.

2.
The Vienna Convention on the Law of Treaties, which Australia joined
in 1974, provides that a country 'may not invoke the provisions of its
internal law [which would include laws enacted by state governments] as
justification for its failure to perform a treaty': article 27. Australia
has ratified various human rights treaties including the International
Convention on the Elimination of all forms of Racial Discrimination (ICERD)
and the International Covenant on Civil and Political Rights (ICCPR).
In joining these treaties, Australia accepted various obligations including
to: eliminate racial discrimination and to amend any racially discriminatory
laws (ICERD art 2); guarantee equality before the law in ownership of
property (ICERD art 5); and protect language, religious and cultural rights
of members of Indigenous groups (ICCPR art 27).

3.
Australian domestic law indicates that Australian States and Territories
should exercise their powers and functions consistently with international
human rights principles. Where the language of a statute permits a construction
of the statute that is consistent with international human rights law,
the Western Australian Government should act in accordance with Australia's
human rights treaty obligations by adopting that construction because
parliament is intended to legislate in accordance with its international
obligations.

The Commonwealth
passed the Racial Discrimination Act to implement some of Australia's
international obligations in relation to human rights. This legislation
prohibits States from enacting legislation or exercising their powers
in a racially discriminatory manner.

4.
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.

5.
'[The] assessment of resource projects on local environmental criteria
is now well advanced but…the integration of social, economic and
strategic issues needs more attention', p111.

6.
Mabo & o'rs -v- Queensland (1992) 175 CLR 1.

7.
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).

8.
Evidence of Wensing E, (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.

9.
p111.

10.
from <www.wa.alp.org.au/policy/>,
accessed 23 September 2002.

11.
from 'Environment' policy statement, p17, on <www.wa.alp.org.au/policy/>,
accessed 23 September 2002.

12.
The WA Department of Conservation and Land Management (CALM) states
that the Regional Forest Agreement 'includes commitments by the WA Government
to:

  • develop a formal
    consultation process with Aboriginal people about policy and procedures
    for the protection of Aboriginal heritage values on CALM-managed lands;
    …
  • establish CALM
    procedures and protocols, in consultation with AAD [WA's Aboriginal
    Affairs Department, now Department of Indigenous Affairs] and Aboriginal
    people, and include relevant Aboriginal heritage expertise in CALM,
    to identify early and protect Aboriginal sites as identified in the
    Act;
  • introduce amendments
    to the CALM Act to permit Aboriginal people to undertake traditional
    and cultural activities including hunting, gathering and ceremonies
    on State forests and public land;
  • ensure, in consultation
    with Aboriginal people, that Aboriginal heritage values, especially
    those associated with old-growth forest, are recognised and managed
    in culturally appropriate ways; [and]
  • facilitate access
    to and use of CALM-managed forests by Noongars for culturally important
    activities',

from <www.calm.wa.gov.au/forest_facts/rfafs_indigenous_new.html>,
accessed 23 September 2002.

13.
'Dombakup Block south of Pemberton will be added to the D'Entrecasteaux
National Park to protect Aboriginal heritage values', from <www.calm.wa.gov.au/forest_facts/rfafs_indigenous_new.html>,
accessed 23 September 2002.

14.
Human Rights and Equal Opportunity Act 1986 (Cwth), s46C.

15.
<www.humanrights.gov.au/social_justice/native_title>

Last updated 30 January 2003.