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Ministerial Inquiry into Greenfields Exploration in Western Australia (2003)

4 January 2003

The Hon. Clive
Brown MLA
Minister for State Development; Tourism; Small Business
Level 19
197 St George's Terrace
PERTH WA 6000

By e-mail and post

Dear Minister

Ministerial
Inquiry into Greenfields Exploration in Western Australia

Thank you for your
letter of 5 December 2002, extending the time within which I may comment
on the report of the Ministerial Inquiry Into Greenfields Exploration
In Western Australia ('Report'). My comments on the Report are
noted below.

The Report contains
33 recommendations addressing the reduction in mineral exploration from
1997. Despite the Report demonstrating that this reduction is not due
to native title, four of the Report's 'seven highest priority recommendations'
concern issues of native title and Indigenous heritage. The Report repeats
several recommendations from previous reports commissioned by the Western
Australian Government. [1] The fact that a proposed course
of action has been repeated elsewhere should not lead the Government to
overlook difficulties in the proposed solutions. My key concerns with
the Report are:

  • recommendations
    focus on the reduction of the 'backlog' of mineral tenement applications
    rather than the development of a long-term approach including Indigenous
    rights within mineral exploration in Western Australia;
  • the Report recommends
    removing or limiting options for Indigenous input into the management
    and consideration of mineral tenement applications (e.g. confining the
    Mining Warden's jurisdiction, limiting objections to the expedited procedure);
  • heritage agreements
    are substituted for more substantial negotiation with native title parties;
  • there was an absence
    of effective participation by Indigenous interests in the process leading
    to the Report's publication; and
  • a policy of non-extinguishment
    is not adopted for all dealings with native title land.

None of the points
I made in my submission to the Inquiry were discussed in the Report. This
is unfortunate because, had the Report commented on the issues covered
in my submission (by explaining how the relevant human rights matters
had been addressed in the Report, or why the Inquiry had not followed
such a course) the Government would know the Inquiry's views on these
issues. I enclose a copy of my submissions to the Inquiry and a
subsequent letter to Mr Bowler, both of which remain relevant to the Government's
assessment of the Report. To assist in the Government's consideration
of this matter, I also emphasise the following six matters.

1. Relevance of human rights

I consider it useful
to briefly outline the relevance of human rights standards to the matters
covered in the Report and any Government use of the Report. These human
rights standards are drawn from treaties that Australia has joined and
consensus resolutions of the United Nations General Assembly in which
Australia participated. Human rights are internationally agreed standards
to which Australia has subscribed, and provide a yardstick against which
to assess the particular issue/law/action being considered, free from
perceptions of economic or self interest.

Australia has agreed
that the international treaties it joins, including human rights treaties,
should be implemented throughout the nation and that the existence of
different levels of government provides no reason for Australia's international
obligations to be neglected in any part of the country. [2]
Additionally, the Commonwealth Government has explained to international
treaty bodies, that 'The Federal Government, in general, relies on States
to give effect to international treaties where the particular obligation
assumed affects an area of particular concern to the States'. [3]

Human rights are
not simply a responsibility of national government, but also provide standards
for parliaments, courts, State governments, companies and individuals.

  • Government officials
    are expected to act in conformity with human rights obligations under
    Australia's international treaties, unless the parliament or government
    has indicated to the contrary. [4] Government officials
    are also required to take Australia's international obligations into
    account when making decisions. [5]
  • The courts accept
    the relevance of international human rights obligations to their decision-making
    processes. [6]
  • Parliaments, although
    they have authority to pass any law within their power, have each statute
    interpreted and applied, as far as the language permits, so that it
    conforms and does not conflict with Australia's international obligations.
    [7]
  • Even though the
    primary responsibility for implementing treaties falls on the national
    government, every organisation within the nation must refrain from breaching
    the provisions of the two main human rights treaties. [8]
    Other international standards impose obligations directly on individuals
    or organisations. [9] There is also an increasing move
    for the general application of human rights to businesses. [10]
    This move is being welcomed or accepted by companies. [11]

Mr Bowler appears
to have misunderstood my submissions to the Inquiry. He responded to me,
after the Report was published, indicating that he believed my position
was:

  • to 'dismiss [Indigenous]
    employment prospects within the mining sector';
  • 'attracting more
    exploration investment is inconsistent with Australia's human rights
    obligations';
  • 'mineral exploration
    and the human rights of Indigenous interests cannot co-exist'; and
  • to 'treat...the
    mining industry as a threat to indigenous Australians'.

None of these points
are correct. Exploration and mining can, and regularly do, occur consistently
with human rights standards, just as many government and private activities
do. My point was, and remains, that if 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.

2. Lack of Indigenous participation

The Report indicates
that no submission was received from an Indigenous organisation. [12]
This is despite the Inquiry's process in which 'A series of meetings was
held with key industry bodies, stakeholders, and government agencies...to
explain the Inquiry in a little more detail and to have an open discussion
on any concerns any types of approach that the inquiry was to take'. [13]
Given that Mr Bowler identified, from the outset, that his 'thoughts centred
on native title problems', it is unfortunate the Report does not demonstrate
any input from Indigenous people or organisations on how to address these
'problems'.

One of the relevant
human rights principles I covered in my submissions to the Inquiry was
the importance of effective participation of Indigenous groups in decisions
affecting them. Unfortunately, the Report appears not to have any effective
(or perhaps at all) Indigenous input. Interestingly, however, the Report
'strongly endorses' a suggestion from the Wand Review that a strategic
approach to native title be developed from a meeting 'with representatives
of all those involved, including the peak industry bodies'. [14]

The Government should
be reluctant to act on the basis of recommendations regarding exploration
and Indigenous interests if relevant Indigenous parties (such as land
councils, community groups, ATSIC, Western Australian Aboriginal Native
Title Working Group, or the Aboriginal Legal Service,) have not been involved
in developing the proposals. To act on the Report's recommendations in
the absence of such input would seem inconsistent with the Governments'
Statement of Commitment to a New and Just Relationship. [15]

3. Real impact of native title
on mineral exploration

The report suggests,
but provides no evidence, that native title has contributed to the fall
in exploration in Western Australia. Mr Bowler's foreword is illuminating:

The Minister for
State Development...asked me to investigate the reasons for the reduced
levels of private investment in greenfields exploration in Western Australia...
I have no doubt action is needed by government at all levels to turn
the situation around. Living in Kalgoorlie-Boulder I see, first hand,
the drilling rigs parked in depots. I do not need statistical proof
that the exploration industry is in a dire situation... [W]hen I commenced
this Inquiry my thoughts centred on native title problems. Whereas that
remains a big issue, the further the investigation progressed, the greater
was the number of disparate issues that surfaced. It soon became obvious
that there was no 'silver bullet' - had there been one, I imagine it
would have been fired well before now. [16]

The body of the report
contains similar remarks:

International perception
is that Australia has introduced a problem in Native Title that does
not exist elsewhere. So why should industry put money there? [17]

The introduction
of the Commonwealth Native Title Act 1993 (NTA), and the subsequent
impact it has had on the grant of exploration and mining titles over
much of Western Australia, has been seen by many as one of the significant
contributing factors to the downturn in greenfields exploration. The
most obvious manifestation of this impact is the build-up of a very
large backlog of over 10 000 exploration and mining titles, either already
in the native title process or waiting to be put into the process. These
delays in obtaining title, and the additional costs and administrative
complexity of the native title processes, have created negative perceptions
in the exploration industry about its ability to gain access to land
for exploration or mining purposes in a reasonable time frame and at
a reasonable cost. This in turn has led a number of exploration companies
to shift the focus of their activities to areas that do not have native
title issues; i.e. overseas countries where access to prospective areas
can be more easily obtained or to brownfields areas where titles have
already been granted. [18]

Various points can
be made in response to these comments. Most importantly, the Report demonstrates
that, contrary to its imputations, reduced exploration is not because
of native title, and Western Australia is not losing its share of exploration:

[T]he reduced
level of private investment in greenfields exploration...is a world-wide
trend and...although Western Australia is following that trend, it is
not losing ground in its share of the world market for exploration investment
[19]

Further evidence
of native title's non-influence on global exploration was provided by
a mining magazine article published two days after the Report was released
for public comment. The article discussed the latest study by Canada's
Metal Economics Group and explained that Australia has 'the title of the
biggest individual exploration destination in the world' meaning more
money is spent on exploration here than in any other country. The article
also noted that there was an 'exploration boom of the 1990s which peaked
in 1997...[and] was way above a 50 year-trend'. [20]

The Government will
also have received the ABARE research Mineral Exploration in Australia:
trends, economic impacts and policy issues
, which was commissioned
by the WA Department of Mineral and Petroleum Resources and other parties.
The ABARE document was not published until after the Report was finalised
but the ABARE material should guide the WA Government's response to the
Report. ABARE shows that the drop in exploration expenditure in Australia
from 1996/1997 until present is part of a worldwide trend during which
Australia has actually increased its share of exploration. [21]
If native title and other domestic issues were of such negative impact
that they discouraged exploration, one would expect to see Australia's
share of exploration expenditure decreasing.

I was disappointed
to read the comments about a 'backlog' and the NTA being a 'significant
contributing factor to the downturn in greenfields exploration... [in
the] the build up of a very large backlog of over 10,000 exploration and
mining titles'. [22] The 'backlog' is a common theme
of parties calling for amendment to the native title system to reduce
its effect on mining. The flaw with this argument is that the main reason
for tenement 'backlog' is not the actions and objections of Indigenous
people, or even because of the provisions of the NTA, but because of government
and company actions. [23] The Report shows that, but
does not address why, two thirds of the tenement applications [24]
have not even entered the native title procedures. A recent report by
the Auditor General for Western Australia emphasised that delay in processing
titles applications is not simply caused by native title and that the
Government's processing required attention. [25]

4. Relationship between mining
and Indigenous rights

Comparing pre-1994
exploration with exploration occurring after the NTA commenced (in 1994)
is comparing two different systems of land management. As I outlined in
submissions to the Inquiry, Australia's historic land management and mining
practices were conducted on a basis that all land was 'vacant' and Indigenous
people had no rights in that land or what occurs on that land. Necessarily,
with the introduction of a new system, exploration could not be managed
and conducted in an identical way to that which occurred before. Certainly,
the native title procedures established in 1994 (and amended in 1998)
require Government and companies to address extra matters before a mining
tenement is granted, but the time periods for this processing need not
be prohibitive. [26]

Various parties involved
in, or associated with, exploration and mining have adjusted their method
of operating to provide recognition and input by traditional owners, [27]
or have acknowledged that Indigenous people were excluded and disadvantaged
from Australia's mineral history. [28] Contrary to these
positions, nowhere in the Report is there any acknowledgement or accommodation
that contemporary exploration needs to be considered and addressed in
a different manner to that before native title, if discriminatory practices
of Australia's history are to be avoided.

5. Report's recommendations
in relation to Indigenous rights

The Report calls
for native title to be 'streamlined' or 'more timely' and for 'access
to land for exploration and development to be attainable on reasonable
terms'. The Report adopts recommendations by the Technical Taskforce in
relation to the expedited procedure, specifically noting that Government
should continue to use the expedited procedure for all exploration tenements
with a heritage arrangement designed to address all Indigenous concerns.
As I have previously explained to the Government, [29]
the use of the expedited procedure as a 'blanket' application for all
exploration tenements is an incorrect application of the NTA, and heritage
agreement is not sufficient protection for the rights that Indigenous
parties are expected to forego. I enclose a copy of my previous
submission in relation to the Taskforce's recommendations, which cover
this matter in greater detail.

I noted in my submissions
to the Inquiry that the recommendations from the Technical Taskforce that
have progressed are those of most benefit to industry. It appears no recommendations
of direct benefit to Indigenous interests have been implemented, such
as: compulsory heritage agreements, use of non-extinguishment principle,
conditions in title for enforcing heritage agreements, and compensation.
The Government's consideration of the Report, and its re-appraisal of
progress from the Technical Taskforce, provides an appropriate opportunity
to ensure that the manner in which the Government deals with exploration
in Western Australia is consistent with the human rights of Indigenous
Australians.

The Report repeats
a recommendation from the Development Approvals Review that the Mining
Warden's role be confined to administration of the Mining Act. [30]
Such a change would restrict the opportunity for public input into the
processing of mineral tenement applications. In particular, the recommendation
would prevent the opportunity Indigenous objection and this is proposed
without providing an alternative forum in which such objections could
be dealt.

The Report demonstrates
a difference in how it deals with property interests granted through the
non-Indigenous system, as opposed to property interests derived from Indigenous
laws and customs. The Report is forthright in its discussion of native
title as a 'problem' and various ways in which to limit Indigenous involvement
in the system. This occurred, as noted above, without evidence of any
Indigenous input into the Inquiry. However, when the Report comes to deal
with farming interests, it is far more circumspect and the recommends
merely that government should consult with agricultural lobby groups with
a view to establishing changes.

6. Prior informed consent

I consider it is
worthwhile to reinforce the importance of prior informed consent in the
issue of exploration and Indigenous human rights. The Report emphasises
the importance of resolving native title issues by agreement, an approach
which, when based on the free and informed consent of all parties, is
consistent with human rights principles. However, when the Report 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 [31]
) is inconsistent with the attention to development at the expense of
Indigenous rights. [32]

The importance of
prior informed consent was addressed in my submissions. The Government
should also consider, on this point, the emphasis on prior informed consent
in the work of the Mining Minerals and Sustainable Development ('MMSD')
project:

'Companies need…to
demonstrate that operations are established with the prior informed
consent of local Indigenous communities', MMSD Australia ; [33]
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. [34]

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

In the interests
of transparency and accountability, the majority of Commission's work
is available on our website. [35] My submissions to
the Inquiry are posted on this website and also wish to have the Report
and this letter available on the website. If you do not want this to occur,
please can one of your staff contact John Southalan to discuss this matter
before 24 January. John is the Commission's Senior Policy Officer, Native
Title. John's telephone number is (02) 9284 9728 and his e-mail is <johnsouthalan@humanrights.gov.au>.

I would like to conclude
with a personal comment on the predictable, tiresome and irrelevant
views that I am opposed to all mining and development. Such a view is
incorrect, as consistently evidenced in my work at the Human Rights and
Equal Opportunity Commission. The key determinant, on which I am statutorily
required to focus, is human rights and it is against Australia's human
rights obligations that I consider and analyse mineral exploration on
Indigenous land. Many developments on Indigenous land occur in a manner
consistent with the human rights of traditional owners and I hope the
Western Australian government will use the opportunity provided by the
Report to ensure that mineral exploration in the State is managed and
conducted in accordance with human rights.

Yours faithfully

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

encl


1.
Technical Taskforce on Mineral Tenements and Land Title Applications
(November 2001) and Review of the Project Development Approvals System
(April 2002).

2.
Article 27, Vienna Convention on the Law of Treaties, 1155 UNTS
331 (Australia ratified 1974).

3.
Core Document forming part of the reports of State Parties: Australia,
27 June 1994, (UN doc HRI/CORE/1/Add.44) para 181.

4.
Minister for Immigration and Ethnic Affairs v Ah Hin Teoh (1995)
183 CLR 273 ('Teoh'), per Mason CJ & Deane J at 291-292; Toohey
J at 301-302, Gaudron J at 305.

5.
Luu v Minister for Immigration & Multicultural Affairs [2002]
FCAFC 369 ('Luu'), per Gray, North & Mansfield JJ at [93].

6.
Mabo & or's v Queensland (No 2) (1992) 175 CLR 1 per Brennan
J (Mason CJ and McHugh J concurring) at 42; Teoh per Mason CJ &
Deane J at 288 and per Gaudron J at 304.

7.
Luu, per Gray, North & Mansfield JJ at [73]; Teoh, per
Mason CJ & Deane J at 287 and per Gaudron J at 304.

8.
The two International Covenants (on Economic, Social and Cultural Rights;
and on Civil and Political Rights) both state 'Nothing in the present
Covenant may be interpreted as implying for any...group or person any
right to ... perform any act aimed at the destruction of any of the rights
and freedoms recognized herein': art 5(1).

9.
'Individuals, groups, institutions and non-governmental organizations
have an important role to play and a responsibility in...promoting human
rights and fundamental freedoms', Declaration on the Right and Responsibility
of Individuals, Groups and Organs of Society to Promote and Protect Universally
Recognized Human Rights and Fundamental Freedoms
(UN doc A/RES/53/144,
8 March 1999), art18(2).

Other examples of
individual obligations in international include the prohibitions on piracy,
slavery, genocide and crimes against humanity.

10.
The preamble to the Universal Declaration of Human Rights provides
that 'every organ of society...shall strive by teaching and education
to promote respect for these rights and freedoms...[and] to secure their
universal and effective recognition and observance', (UN General Assembly
resolution 217A (III), 1948).

The UN Sub-Commission
on the Promotion and Protection of Human Rights noted the various sources
in which human rights standards for companies are being developed, including:

  • Guidelines for
    Multinational Enterprises, from the Organisation for Economic Co-operation
    and Development;
  • Tripartite Declaration
    of Principles covering Multinational Enterprises, from the International
    Labour Organisation; and
  • Global Compact,
    from the UN Secretary General;
    (from Principles relating to the human rights conduct of companies,
    UN doc E/CN.4/Sub.2/2000/WG.2/WP.1, 25 May 2000).

11.
Examples include 'BHP Billiton endorses the principles set out in the
Universal Declaration of Human Rights and will support the fundamental
human rights of…communities in which we operate. BHP Billiton has
full responsibility for meeting human rights standards for those operations
over which it has control', BHP Billiton, Guide to Business Conduct,
2001, p12.

The Rio Tinto mining
group 'have adopted a formal policy on human rights based on our support
for the United Nation's Universal Declaration of Human Rights', Rio Tinto
website <http://www.riotinto.com/community/humanRights/default.asp>
accessed 1 November 2001.

12.
A list of all submissions is provided in the Report's appendix. Obviously,
it is not possible to determine from a list whether an organisation or
individual is Indigenous, but the Report's discussion and recommendations
have no material specifically protecting of Indigenous rights and interests.

13.
Report, p14.

14.
Report, p94.

15.
Signed by the Government of Western Australia and ATSIC, 10 October 2001.

16.
Report, pp1-2.

17.
Report, p51.

18.
Report, p81.

19.
Report, p124.

20.
T Treadgold, Exploration dollars continue their flight to safety,
Mining News, 13 November 2002.

21.
L Hogan & o'rs, Mineral Exploration in Australia: trends, economic
impacts and policy issues
, Abareconomics, December 2002, p2.

22.
Report, p81.

23.
The Technical 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 Technical
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.

24.
7786 of 11781, Report p86.

25.
Auditor General for Western Australia, Level Pegging: Managing Mineral
Titles in Western Australia
, Government of Western Australia, (Report
1, June 2002) available at <www.audit.wa.gov.au/reports/report2002_01/pfreport2002_01.html>
(accessed 25 June 2002).

26.
The Technical Taskforce notes that processing a tenement application through
the expedited procedure (where there has been objection) takes around
six months (Technical 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
(Report, p43).

27.
For example, Western Australian operation Hamersley Iron acknowledges
the difficulties of earlier practices: 'In the 1960s, when Hamersley began
its operations, mining companies typically did not consult or engage with
Aboriginal people. This approach continued for many years and for Hamersley
it culminated in conflict over the Marandoo development in the early 1990's.
Since 1992 Hamersley has steadily worked to overcome the problems of the
past' Hamersley Iron Social and Environment Report (1999) p18.

28.
Hancock, P & Roarty, M, Baseline Assessment Australia, (30
November 2001), available at <www.iied.org/mmsd/wp/index.html>,
pp 15-16 & 33-34.

29.
Letter to A/Principal Policy Officer, Ministry of Premier & Cabinet,
29 January 2002.

30.
Recommendation 20, Report p120.

31.
Report, p94.

32.
Such as limiting objections to the expedited procedure, and confining
the Mining Warden's jurisdiction (see section 5, above).

33.
Facing the Future, p34.

34.
Breaking New Ground: The Report of the Mining, Minerals and Sustainable
Development Project
, 2002, Earthscan Publications Ltd, London, p402.

35.
<www.humanrights.gov.au/social_justice/native_title>

Last updated 30 January 2003.