25 June 2001
Mr John Bowler
Ministerial Inquiry - Greenfields Exploration
PO Box 7606
PERTH WA 6850
Dear Mr Bowler,
INQUIRY INTO GREENFIELDS EXPLORATION - BOWLER INQUIRY
Thank you for the
opportunity to make submissions to the Ministerial Inquiry to identify
strategies to increase resource exploration in Western Australia - the
Bowler Inquiry. Enclosed is a copy of my submission which contains several
I acknowledge the
importance of resource exploration to the economy and community of Western
Australia and encourage the Inquiry, in its recommendations, to adopt
a sustainable development approach in promoting the further development
of resource exploration in Western Australia.
A sustainable development
approach, as it relates to human rights, is founded on the acknowledgement
and recognition of human rights principles within development strategies.
These strategies are particularly important as they relate to the recognition
and exercise of Indigenous rights within Australia, including the recognition
and protection of native title rights and interests.
In the interests
of transparency and openness, I consider it useful for matters to be widely
discussed. Accordingly, I intend to make my submission (together with
links to the Terms of Reference of the Inquiry) available on the Commission's
website. If you have any queries in relation to this,
or any aspects of the submission please do not hesitate to contact Yvette
Park. Yvette's direct telephone number is (02) 9284 9785, or you can use
e-mail to firstname.lastname@example.org
Dr William Jonas AM
Aboriginal and Torres Strait Islander Social Justice Commissioner.
AND TORRES STRAIT ISLANDER SOCIAL JUSTICE COMMISSIONER'S SUBMISSION TO
THE MINISTERIAL INQUIRY TO IDENTIFY STRATEGIES TO INCREASE RESOURCES'
EXPLORATION IN WESTERN AUSTRALIA
On April 26, 02 the
Western Australian Minister for State Development; Tourism and Small Business,
Clive Brown announced a ministerial inquiry (Inquiry) to identify
strategies to increase resource exploration levels or 'greenfields exploration'
in Western Australia.
The inquiry, to be
conducted by Mr John Bowler MLA, Member for Eyre will investigate reasons
for the downturn in greenfields exploration and make recommendations at
a State and Commonwealth level to promote greater exploration in Western
Australia. Within the terms of reference, national and international issues
were identified, that may have contributed to lower levels of greenfields
exploration in Western Australia. Of the national issues, 'land access
difficulties related to native title issues ' was identified for
analysis and recommendation.
The Aboriginal and
Torres Strait Islander Social Justice Commissioner (Commissioner)
has statutory functions under the Native Title Act 1993 (NTA)
to promote discussion and awareness of human rights in relation to Aboriginal
and Torres Strait Islander people, to report to the Commonwealth Government
on the enjoyment and exercise of human rights by Indigenous Australians,
and to recommend where necessary on action that should be taken to ensure
these rights are observed.  These submissions are
made pursuant to the Commissioner's functions.
In this capacity
the Commissioner has made submissions to a number of reviews and inquiries
conducted by or on behalf of the Western Australian government, in relation
to the administration of native title and development. We anticipate that
in examining issues relating to 'land access difficulties' and native
title that the Inquiry will take account of these reviews in developing
its recommendations. Hence, we summarise our submissions to these reviews,
provide examples of alternative strategies adopted in other states and
make recommendations based on principles of human rights and sustainable
of the Western Australian government is required under domestic and international
law to operate in a manner that is consistent with human rights principles
.  The following human rights principles are directly
relevant to the administration of native title and mineral tenements and
should underpin any recommendations made in relation to the administration
of native title rights and interests.
This is required
by the International Convention against the Elimination of Racial Discrimination
(ICERD), article 5 and the Universal Declaration of Human Rights (UDHR),
article 17. This guarantees the right of Indigenous people to the equal
protection of their property rights before the law, without distinction
as to race, colour or ethnic origin. Importantly, the meaning of equality
under international law is not limited to equal treatment before the law.
To ensure the protection of minority groups or Indigenous people, mechanisms
for protection may require differential treatment under the law, to ensure
equal outcomes and to take account of cultural specificity - this differential
treatment is the principle of substantive equality.
In practice, the
principle of equality in the administration of native title rights requires
that Indigenous and non-Indigenous interests are administered equitably
without non-Indigenous interests being privileged over the rights of Indigenous
groups.  Recent sustainability commitments by the
Western Australian government discussed below, contemplate such an outcome
- where sustainable development can occur 'without trade-offs or compromise.'
This right ensures
the protection of the distinct characteristics of a minority group and
the protection of the circumstances required to maintain and develop the
culture of the group. 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.
Respect and protection
of minority or Indigenous culture also contemplates the exercise of culture
and rights in a contemporary context and does not restrict the circumstances
of minority or Indigenous culture to an anachronistic, 'frozen in time'
interpretation. Rather, respect for Indigenous culture includes a right
to social, cultural and economic development. In its General Recommendation
on Indigenous People, the CERD Committee recommended that States, "provide
Indigenous people with conditions allowing for a sustainable economic
and social development compatible with their cultural characteristics."
This right requires
that Indigenous groups are able to maintain and protect the unique characteristics
of their culture, thereby requiring adequate protection of Indigenous
spiritual and cultural interests in land. Based on the General Recommendations
summarised above, this right also requires that States allow for the social
and economic development of Indigenous groups .  The
administrative process of mineral tenement applications provides the States
with the opportunity to promote this important human right principle,
by allowing Indigenous organisations the flexibility to advance the social
and economic interests of Indigenous groups by promoting human rights
and sustainability principles and through the full use of provisions under
This is required
under Article 1 of the International Convention on Civil and Political
Rights (ICCPR) and Article 1 of the International Covenant on Economic,
Social and Cultural Rights (ICESCR). The enjoyment of culture requires
the provision of 'measures to ensure the effective participation of minority
communities in decisions which affect them'. The Human Rights Committee
and the Committee on the Elimination of Racial Discrimination have called
on States to ensure the effective participation of Indigenous groups in
public life and in decisions directly relating to their rights and interests.
 This principle of effective participation requires
that Indigenous groups are able to participate in decision making from
a position of prior informed consent.
core human rights principles are supported and espoused by sustainable
development initiatives. A recent project, 'Facing the Future, The Report
of the MMSD Project' conducted by the Australian Minerals and Energy Environment
Foundation, in accordance with the Global Mining Initiative 
provides important guidance for the development of sustainable development
and the application of human rights principles within Australia's mining
The study defined
the key elements of sustainable development which extend beyond the sustainable
use of natural resources and include responsibility for maintaining and
enhancing the health and wellbeing of individuals and social structures
that are affected by project development. 
Key issues addressed
in the study that may have relevance to the Inquiry's analysis and recommendations
for native title administration include:
- Respect for Indigenous
peoples - promoting the legal and social recognition of Indigenous peoples
rights and interests. Promoting the development of long term relationships
between stakeholders from the earliest stage of exploration.
- Stakeholder engagement
- promoting rights and wellbeing of Indigenous communities by ensuring
that operations receive the prior informed consent of local indigenous
communities. The prior informed consent of native title holders in the
grant of exploration licence applications will provide a strong basis
for future negotiation that may arise from successful exploration of
- Adoption of a
rights based approach which is founded on the standards established
by a wide range of codes, conventions, declarations and legislation
and clearly establishes the rights of a stakeholder group, particularly
Indigenous stakeholders, whose rights and interests in the land surpass
those of 'just another stakeholder group'.
by the study apply fundamental human rights principles of the right to
equality before the law, the right to enjoy and maintain a distinct culture
and the principle of effective participation, through the recommendations
of prior informed consent.
Hence, the study
provides an analysis of the way in which the mining industry in Australia
can effectively make the transition to sustainable development, particularly
by building effective working relationships between stakeholders and adopting
strategies that respect the rights and interests of Indigenous peoples.
As such it provides an excellent background to international approaches
to sustainable development and useful recommendations for the Australian
In December 2001
the Western Australian government launched the State Sustainability
Strategy, Focus on the future: Opportunities for Sustainability in Western
Australia. Central to the sustainability strategy is the need
'to find new approaches to development that contribute to our environment
and society without degrading them over the longer term'. Importantly,
the government recognised that such an outcome can be achieved 'simultaneously
without trade-offs or compromise'. 
As part of the State
Sustainability strategy, an analysis of Indigenous sustainability issues
was prepared in a paper by Steven Kinnane, entitled 'Beyond the Boundaries
- Exploring Indigenous Sustainability Issues within a Regional Focus,
through the State Sustainability Strategy'. The report identified a number
of key principles that are consistent with a human rights approach and
may assist the Inquiry in making recommendations that provide a sustainable
approach to the process of native title and mineral tenement applications.
The report identified the recognition of native title rights and interests
as a necessary part of any consideration of sustainability ;
emphasised the importance of Indigenous participation in all aspects of
decisions making and offered principles for an Indigenous sustainability
It is fundamental
to the Inquiry, in developing recommendations for the administration of
native title and mineral tenements within an overall strategy of sustainability,
that it give consideration to the human rights principles outlined above.
Recently the Commissioner has made submissions to a number of Western
Australian government reviews relating to native title, highlighting human
rights principles relevant to issues raised by the reviews.
To date, the Western
Australian government has commissioned a number of reports addressing
the administration of native title rights and interests, including:
- Review of the
Native Title Claim Process in Western Australia.
- Technical Taskforce
on Mineral Tenements and Land Title Applications and;
- Project Development
It is anticipated
that the Inquiry will give due consideration to these reports, hence I
briefly reiterate my submissions to each of these reports.
In April 01, the
Deputy Premier of Western Australia announced a review of the Government's
native title negotiating principles, expressing a desire to move away
from litigation to pursue negotiated native title outcomes. The purpose
of the Review was to develop and assess a set of principles to guide the
Western Australian government in negotiating native title determinations
and agreements. The Review provides a broad analysis of the native title
recognition process, recommending greater emphasis on negotiated native
title outcomes. While not dealing directly with the processing of mineral
tenements and land titles, the report provides a valuable analysis of
the recognition process and would assist in informing the Inquiry of this
important aspect of native title administration.
has made submissions on the 'General Guidelines - Native Title Determinations
and Agreements' proposed by the Review, advising that the 'process approach'
promoted by the Review takes place under the provisions of the Native
Title Act 1993 which fails to meet minimum human rights standards
. The Commissioner made recommendations that the Review seek to incorporate
principles  within the Guidelines to ensure the
process established by the Guidelines met minimum human rights standards
that the NTA fails to achieve.
In April 01, the
Western Australian government announced the formation of a Technical Taskforce,
to assess how mineral and land title applications could be dealt with
more efficiently while at the same time recognising and protecting the
native title rights of Indigenous people.  In September
01 and January 02 the Commission made submissions to the Taskforce commending
the work undertaken by the Taskforce and the broad representation and
participation of Indigenous stakeholder groups. However, the Commission
maintains concern regarding Taskforce recommendations relating to the
processing of exploration and prospecting licence applications.
In its assessment,
the Taskforce has made recommendations to continue to submit exploration
and prospecting licence applications to the expedited procedures process.
Despite the inclusion of heritage survey agreement conditions, such a
recommendation disregards the right to negotiate provisions conferred
under the Native Title Act 1993 and is inconsistent with human
rights standards . 
While this approach
offers an expedient process of administering native title, it reduces
the already inadequate procedural rights  available
to Indigenous groups under the NTA. Such an approach does not support
human rights and sustainability principles and I encourage the Western
Australian government to develop a more equitable process for the administration
of mineral tenements and native title.
We also note, the
There are major
difficulties in attempting to quantify the impact native title has had
on the State's mining industry beyond delaying the grant of titles
because far more prominent issues have contributed to the fall
in exploration expenditure, not only in Western Australia but worldwide.
understands that the Western Australian government is yet to formally
respond to the recommendations. There has been action in relation to a
few recommendation but this does not appear to have occurred in a co-ordinated
manner. For example:
- a pilot heritage
scheme (per recommendation 3.5(2)) involving relevant Indigenous parties
and mining groups, was completed in the goldfields region;
- a working group,
comprising NTRB's, mineral bodies and mining companies, has considered
legislative changes to WA's mining laws (per recommendation 3.2(5));
- the government
is considering funding future acts officers (per recommendation 3.6(1))
and establishing a Heritage Protection Working Group (per recommendation
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 (3.2(4)) use of non-extinguishment
principle (3.4(2-4)), conditions in title for enforcing heritage agreements
(3.4(7)) and compensation (3.4(8)). The lack of a formal and comprehensive
Government response to the Technical Taskforce report leaves various parties
uncertain as to how matters should proceed.
In September 01,
the Western Australian government established a review of the Project
Development Approvals System (Review). The Commissioner provided submissions
on the 'Interim Report for Comment' in January 02. Central to our submission
was the apparent lack of Indigenous involvement in the Review and the
subsequent emphasis on development above human rights principles and the
protection of Indigenous rights and interests.
The initial review
was conducted without the effective participation of Indigenous groups.
This lack of inclusion is not only contrary to fundamental human rights
principles but undermines the objectives of the review in that, by failing
to obtain the views of a significant stakeholder group, particularly in
relation to the operation of the Aboriginal Heritage Act 1972 and
the Native Title Act 1993 the Review will inevitably fail to achieve
a system of decision-making which is co-ordinated and integrated, clear
The Final Report
of the Review supports the negotiated outcome approach and makes recommendations
for the use of a broad range of agreement mechanisms, such as protocols,
regional heritage agreements, memoranda of understanding and indigenous
land use agreements.  However, the broad tenet of
the Review promotes development interests above those of native title
rights and interests,  this is contrary to principles
of human rights and sustainability.
recommends the Inquiry give full consideration to his submissions when
examining the recommendations made by the reviews summarised above, to
ensure recommendations by the Inquiry, arising from these reviews meet
minimum human rights standards in relation to native title rights and
also refers the Inquiry to a recent report conducted by the Auditor General
for Western Australia, entitled Level Pegging: Managing Mineral Titles
in Western Australia . The report examines the
administrative processes of the Western Australian Department of Mineral
and Petroleum Resources and makes recommendations to improve administrative
processes within the Department. The Auditor General indicated that delay
in processing titles applications is not simply caused by native title,
and that processing by the Department of Mineral and Petroleum Resources
the impact of native title, the mineral titles application process can
take as long as 22 months. Significant delays occur in the initial recommendation
to grant by the Mining Registrar and by applicants failing to respond
to requests for information. Of the 1 798 applications lodged in the
first six months of 2000, 50 per cent still had to be referred under
the Native Title Act 1993 (Cth) at the time of this audit examination
The Inquiry should
carefully consider the Auditor General's report in conducting its investigations
and coming to conclusions.
by the Inquiry in relation to the administrative process of exploration
tenement applications would be lacking without careful consideration of
The backlog of exploration
and mineral tenement applications in Western Australia is not uncommon.
Tenement backlogs have also occurred in Queensland and the Northern Territory.
Many states and territories have developed strategies to address this
problem and examples of these are summarised below.
with the effective participation of Indigenous people offer a way in which
an efficient and flexible system of administration may operate to the
benefit of all stakeholders. In Queensland, Victoria and the Northern
Territory agreements have been negotiated between governments, mining
companies and Indigenous stakeholder groups to effectively administer
the backlog of exploration and mining tenement applications in each respective
state or territory.
In Queensland and
Victoria, peak Indigenous bodies and state governments have successfully
negotiated standard agreements for the grant or renewal of exploration
licence applications or mineral tenements. These standard agreements function
as an alternative to pursuing provisions under the NTA, ensuring that
native title rights and interests are not further eroded by the use of
a prescriptive process of administration. Such an approach also allows
the flexibility for the negotiation of a more comprehensive agreement
similar to that achieved in the Northern Territory between the Northern
Land Council and Rio Tinto. Each of these types of agreements are briefly
During 2000 the Queensland
government and the Queensland Indigenous Working Group (QIWG), successfully
negotiated a Model ILUA to assist in the effective processing of the exploration
backlog in Queensland. The Model ILUA acts as an alternative to the right
to negotiate provisions under the NTA, allowing companies and native title
parties to either adopt the model or conduct their own negotiations and
agreement under the right to negotiate provisions of the NTA.
The effective participation
of the peak body of Indigenous land councils during the development of
the Model ILUA ensured human rights standards were satisfied and that
the outcome addressed the concerns of both the Government and Indigenous
interests - leading to a more workable result. Hence, we recommend the
Inquiry seek the active participation of peak Indigenous groups in the
development of its recommendations.
Similarly, in Victoria
the Mirimbiak National Aboriginal Corporation, the Native Title Unit of
the Victorian Department of Justice and the Victorian Minerals & Energy
Council recently concluded negotiations of Pro forma agreements
for the granting of Exploration and Mining Deeds. The purpose of the negotiated
Deed is to provide a guide to facilitate the grant or renewal of exploration
licences and mining licences issued under the Mineral Resources Development
Act 1990 that are subject to the right to negotiate provisions of
the Native Title Act 1993.
These Pro forma deeds
offer another example of negotiated agreements that have proceeded with
the effective participation of Indigenous groups and have successfully
negotiated outcomes that allow for the expeditious administration of native
title and mineral tenements without undermining rights conferred under
In the Northern Territory,
the Northern Land Council has successfully negotiated a template agreement
with Rio Tinto and more recently a Memorandum of Understanding with De
Beers .  The Rio Tinto Agreement is over 47 existing
applications and all future Rio Tinto applications. The agreement addresses
site protection, community benefits including employment and training
opportunities and contains environmental protection mechanisms. 
Such large scale
agreements must take into account broader issues of compensation, training
and employment etc that may not be accommodated within the limitations
of the expedited procedures process recommended by the Technical Taskforce
in Western Australia. Such agreements can function to the benefit of both
native title holders and mining proponents and also lead to an effective
negotiating relationship that will be helpful if exploration proceeds
to the next stage of mineral extraction.
The template agreements
developed in Queensland and Victoria, demonstrate the way in which the
effective participation of Indigenous stakeholders can lead to a more
workable and efficient system. However, the flexibility of these administrative
systems in allowing stakeholders the option to adopt the administrative
process that is most appropriate for their needs allows for the negotiation
of the type of agreement achieved in the Northern Territory.
The success of the
Rio Tinto agreement in the Northern Territory demonstrates the way in
which a flexible system may be shaped to benefit all parties. The Commissioner
therefore recommends the adoption of a flexible solution that can both
offer parties a simple solution but also allow for the negotiation of
more complex, sophisticated agreements that can address tenement grants
in a more comprehensive manner as has been demonstrated in the Northern
pursuant to statutory functions under the Native Title Act 1993,
makes the following recommendations to the Inquiry:
made by the Inquiry are developed with the effective and active participation
of Indigenous stakeholder groups.
by the Inquiry ensure the equal protection of Indigenous rights and
interests by maintaining the operation of all procedural rights under
the NTA in any recommendations affecting the administrative process
of native title and mineral tenements.
- The Inquiry conduct
its analysis and make recommendations in consideration of human rights
principles and the increasing emphasis on sustainable development approaches.
- The Inquiry make
recommendations that allow for a flexible system which can accommodate
stakeholder interests more effectively than a prescriptive system that
may prevent the negotiation of more comprehensive regional agreements.
2. s46C, Human Rights and Equal Opportunity Commission
Act 1986 (Commonwealth) and s209, Native Title Act 1993 (Commonwealth)
3. 'A party may not invoke the provisions of its internal
law as justification for its failure to perform a treaty'. Art. 27 of
Vienna Convention on the Law of Treaties Vienna, 23 May 1969, AUSTRALIAN
TREATY SERIES 1974 No 2.
Aboriginal and Torres Strait Islander Social Justice Commissioner, Native
Title Report 2001, HREOC, Sydney.
5. Government of Western Australia, 'Focus on the Future:
Opportunities for Sustainability in Western Australia - a consultation
paper for the State Sustainability Strategy for Western Australia, December
6. Committee on the Elimination of Racial Discrimination,
General Recommendation XXXIII (51) concerning Indigenous Peoples, CERD/C/51/Misc.13/Rev.4
(1997), para 5.
7. Aboriginal and Torres Strait Islander Social Justice
Commissioner, Native Title Report 2001, HREOC, Sydney
8. General Recommendation XXIII (51) concerning Indigenous
Peoples (para.4) adopted on 18 August 1997, CERD/C/51/Misc.13/Rev.4
9. The Global Mining Initiative 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 purpose of the Initiative was
to; review the international minerals sector, conduct an independent study
of the broad community issues confronting the industry and, to inform
debate at the Rio + 10 Conference and a major industry conference in Toronto
10. Australian Minerals and Energy Environment Foundation,
Facing the Future - The Report of the MMSD Australia Project, 2002
11. Government of Western Australia, 'Focus on the Future:
Opportunities for Sustainability in Western Australia - a consultation
paper for the State Sustainability Strategy for Western Australia, December
12. Finnane, S., 'Beyond the Boundaries, Exploring Indigenous
Sustainability Issues Within a Regional Focus - through the State Sustainability
Strategy', prepared for the Sustainability Policy Unit, Department of
Premier and Cabinet. April 2002
13. Aboriginal and Torres Strait Islander Social Justice
Commissioner, Native Title Reports - 1998, 1999, 2000, AGPS, Canberra
14. Aboriginal and Torres Strait Islander Social Justice
Commissioner, 'Comments on draft "General Guidelines - Native Title
Determinations and Agreements"', 14 August 02.
15. Government of Western Australia, Technical Taskforce
on Mineral Tenements and Land Title Applications, pg. 9, November 2001
16. Aboriginal Torres Strait Island Social Justice Commissioner,
'Comments on The Taskforce Report Recommendations', 10 Sept 01 and 'Comments
on Final Report of Technical Taskforce (November 2001), 29 January 02.
17. Aboriginal and Torres Strait Islander Social Justice
Commissioner, Native Title Report, 1998 - 2001, HREOC, Sydney.
18. Government of Western Australia, Technical Taskforce
on Mineral Tenements and Land Title Applications, Discussion Paper, pg
12, August 2001.
19. Government of Western Australia, Review of the Project
Development Approvals System, prepared by the Independent Review Committee,
April 2002 - Recommendation 13.
20. Aboriginal and Torres Strait Islander Social Justice
Commissioner, 'Submissions of the Aboriginal and Torres Strait Islander
21. Report 1, June 2002, available at www.audit.wa.gov.au/reports/report2002_01/pfreport2002_01.html
accessed 25 June 2002.
22. Ibid, 'Executive Summary', heading 'Timeliness and
23. The MoU with De Beers builds on the agreement made
with Rio Tinto and establishes a procedure for dealing with ELAs on 57
of the company's tenement applications. Northern Land Council, 'MoU's
smooth explorers' path in Top End' - Media Release, 5 June 02.
24. Northern Land Council, 'Breakthrough in NT's backlog
of exploration applications' - Media Release, February 6, 02.
Last updated 2 September 2002.