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.
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.
Last updated 30 January 2003.
