Campione M
In this case, following objections by the Kuruma Marthudundera native title claim group, the Mining Warden decided to recommend to the Minister that certain Mining Lease applications by Minerology Pty Ltd should be refused.
Background
Kuruma Marthudundera are the registered native title applicants for land over which Mineralogy applied for Mining Leases. Mineralogy already held an underlying Exploration Licence over the relevant areas. Mineralogy said that it would most likely build an open cut mine, and would propose to store mining waste in the same area.
Submissions
Kuruma Marthudundera objected to the grant of the leases on the grounds that this would be contrary to the public interest. Specifically, they argued that the activities that would be allowed under the tenement could have an adverse impact on their exercise of native title rights and interests, cultural heritage (including significant sites) and lifestyle. They also argued that the probable impacts on flora and fauna would make the grant of the tenements against the public interest.
Mineralogy’s managing director asserted in evidence that Mineralogy would comply with all requirements of the Native Title Act 1993 (Cth) (NTA) and state Aboriginal heritage and environmental protection laws. Mineralogy argued that since it had complied with the requirements of the Mining Act 1978 (WA), and the application was covered by the Iron Ore Processing (Mineralogy Pty Ltd) Agreement Act 2002 (WA), the company was entitled as a matter of right to have its applications granted. It argued that the Warden’s role was to ‘rubber stamp’ rather than actively consider objections. Further, Mineralogy argued that Kuruma Marthudundera’s objection reflected private interests rather than public interests, and were therefore irrelevant.
Decision
Campione M considered that the evidence presented by Mineralogy was very poor, consisting mainly of assertions about the law rather than statements of fact. Campione M accepted and was impressed by the evidence given on behalf of Kuruma Marthudundera by two senior men, both about the likely impact of mining activities on the land and its people, and about the past conduct of Mineralogy in dealing with Kuruma Marthudundera. The evidence, which was not challenged, established that the proposed leases were in the vicinity of three important sites, and covered a number of important waterways and waterholes. There was evidence about the bush food and medicine taken from the area, the burial grounds in the area, artifacts and engravings, and people’s residence and activities. The witnesses stated that based on their previous dealings with the company, they did not believe that Mineralogy was genuine in its promise to consult with Kuruma Marthudundera about the proposed mining. Campione M agreed that the company had a poor record in its approach to cultural and heritage matters.
On the matter of the contract between the state and Mineralogy, Campione M considered that there was nothing in that agreement or its statutory counterpart to exempt Mineralogy from the statutory regime applying to tenement applications. The Minister might well give such matters considerable weight in making an ultimate decision, but the Warden’s task was to make a recommendation on the material available. Campione M endorsed the view of the Warden’s task as a ‘filter for the Minister’.
On the question of private versus public interests, Campione M applied case law that held that while private interests were not directly relevant to matters of public interest, there could nevertheless be a public interest in the protection of private interests. For the purposes of the Mining Act 1978 (WA), non-compliance with the Act was not the only basis for findings about the public interest. Campione M considered that Kuruma Marthudundera’s evidence about the impacts on the land and people, as well as the general approach of Mineralogy, could be relevant to an assessment of the public interest.
Overall, Campione M did not consider that Mineralogy had presented enough material to allow him to discharge his function as Warden. Mineralogy had not given information about the exact location of proposed mines or waste dumps, or about the use of ground water. This made it impossible to assess the impact on the proposed tenements on the public interest. That was so even though the onus is on the objecting party to establish that the grant of the tenement would not be in the public interest. Campione M recommended that the Mining Lease applications be refused.