Why care about the Cultural Heritage Duty of Care?

Resources Newsletter October 2013 INSURANCE CONSTRUCTION & ENGINEERING RESOURCES CORPORATE COMMERCIAL PROPERTY LITIGATION & DISPUTE RESOLUTION AVIATION Why care about the Cultural Heritage Duty of Care? By James Plumb, Partner and Audine Bartlett, Senior Associate Aboriginal Areas Protection Authority v OM (Manganese) Ltd [2013] NTMC 019 Background A recent landmark decision in the Northern Territory (NT) against a mining company for desecration of an Aboriginal sacred site, Aboriginal Areas Protection Authority v OM (Manganese) Ltd (decision), is a timely reminder that sites of cultural heritage signifi cance are irreplaceable heritage places for the Aboriginal custodians. Project proponents are obliged to act responsibly and be extra vigilant when operating on land where cultural heritage exists. This case is the fi rst successful prosecution of a company for desecration of a sacred site in the NT. The traditional owners, the Kunapa People, were left greatly distressed 1 by the desecration of the site which was estimated to be tens of thousands of years old. How is this case relevant to you? The decision is a timely warning to the mining and petroleum industries that taking a cavalier approach to operations in areas where Aboriginal cultural heritage is known to exist may result in signifi cant legal and reputational impacts. It is highly likely that, given Queensland s more prescriptive cultural heritage regime compared to that of the NT, if the event had transpired in Queensland the company could have found itself liable for fi nes of up to $1.1 million (and individuals such as the mine manager, liable for fi nes of up to $110,000 or two years imprisonment). However, this example of extreme harm to cultural heritage is potentially less likely to eventuate under the Queensland regime given: the clearly defi ned cultural heritage duty of care which places a strict onus on the proponents (rather than a statutory body) to decide how to best protect heritage values. an approved cultural heritage management plan is mandatory for most high impact activities (e.g where an Environmental Impact Statement (EIS) is required for development) Resources Newsletter - October 2013 Carter Newell 2013

which, in turn, ensures the duty of care is carried out on any cultural heritage values the land may have. there is clear guidance on what constitutes consultation with the relevant Aboriginal party when developing a cultural heritage management plan. The decision illustrates the importance of: 1. exercising due diligence and reasonable precaution before undertaking activities which may harm Aboriginal cultural heritage; and 2. engaging in genuine and meaningful negotiations with the relevant Aboriginal party for the area in order to properly assess and manage activities likely to harm Aboriginal cultural heritage. The decision In the case of Aboriginal Areas Protection Authority v OM (Manganese) Ltd, the defendant company OM (Manganese) Ltd (OM), a subsidiary of Singapore based OM Holdings Ltd, contested two charges of desecration of a sacred site contrary to s 35 of the NT Aboriginal Sacred Sites Act 1989 (Sacred Sites Act), with both offences alleged to have occurred at the company s Bootu Creek Mine site at the Masai Pit during March and September 2011. OM was fi ned $150,000 in Darwin s Magistrates Court for one count of desecration to, and one count of damaging a known sacred site at the mine on Banka Banka station, 170km north of Tennant Creek. A further charge of desecration was not made out. The company is said to have spent approximately $1 million fi ghting the case. The Magistrate held the company had chosen profi t before protection at its mine and had therefore contravened the Sacred Sites Act. The story of the Sacred Site is of two female dreaming fi gures which are represented by the rocky outcrops of the area itself. 3 A signifi cant and very important identifying feature of this Sacred Site was a horizontal rock arm off a pillar that was part of the Sacred Site (which protruded from one of the large rocky outcrops which represents the two women). This feature made the site readily identifi able by the OM mine workers. Northern Territory Heritage Protection Regime The legislative regime in the NT differs significantly from that of Queensland in that Aboriginal cultural heritage protection is essentially covered by two distinct pieces of legislation. The Heritage Act 2011 (NT) 4 (HA) provides for the conservation of the NT s (indigenous and non-indigenous) cultural and natural heritage including places or objects with aesthetic, historical, scientifi c or social signifi cance. All Aboriginal archaeological places have been declared to be heritage places (i.e. tangible reminders of Aboriginal occupation such as rock art sites or middens). The HA sets out the process for gaining approval to carry out works on heritage places as well as allowing owners of a heritage place or object to enter into a heritage agreement with the NT with respect to the conservation, use and management of the place or object (including restricting the carrying out of works). However, the HA expressly excludes the application of heritage agreements to sacred sites. 5 The sacred site Sacred sites are places within the landscape that have a special signifi cance under Aboriginal tradition (e.g hills, mountain ranges, rocks, ochre deposits, waterholes, trees and plains and other natural features). 2 In this case, the sacred site is known as Two Women Sitting Down (Sacred Site). It has been a recorded site since 2004. This Sacred Site is a story place which is an area of landscape or specifi c natural features of spiritual or historical signifi cance. Such sites do not necessarily contain any physical or archaeological evidence and may be linked to other story places. This Sacred Site is described as one of a number along this song line. The underlying object of the Sacred Sites Act is to encourage the pursuit of economic development in a manner which will not compromise the integrity of Aboriginal sacred sites. Specifi cally, under the Sacred Sites Act: the law relies on mutual trust and respect of the land over which the authority for use or work on the land is given; the proponent is to observe broad conditions related to the preservation and respect of sacred sites such that the proponent is left to determine the manner of use that will ensure that protection; www.carternewell.com Page 2

the procedure in place for the protection of sacred sites is the grant of an Authority Certifi cate (AC) by the Aboriginal Areas Protection Authority (AAPA) in cases where the Aboriginal custodians and miner have reached agreement on the use of the land, or the AAPA believes there is no substantive risk of damage to, or interference with the site. Subject to the conditions of the AC, a company can enter or remain on part of the land and engage in such things as are reasonably necessary for carrying out the works. In this case, the approval for works given under the AC was granted on the basis that mining operations could proceed without there being a substantive risk of damage to, or interference with any of the sacred sites on the ML (there were seven sites in total). That is, the AC provided that the Sacred Site must not be entered or damaged. a key function of the AAPA is to facilitate discussions between custodians of sacred sites and persons performing works on land where a sacred site exists with a view to agreeing on an appropriate means of site avoidance. Whilst the AAPA must consult with affected persons, the legislation does not obligate project proponents to consult with custodians directly. However, proponents can request a conference with custodians, if they so desire. An outcome of such a meeting between custodian and applicant may inform the conditions that are placed on any AC granted. the desecration of a sacred site (s 35) attracts a maximum fi ne of $288,000 for a corporation (and a fi ne of $57,600 for an individual or two years imprisonment). The Queensland courts will consider various factors to ascertain whether the cultural heritage duty of care has been complied with including (but not limited to) 10 the following matters: the nature of the activity and the likelihood to cause harm; the nature of the cultural heritage likely to be harmed; the extent to which the person consulted with the Aboriginal parties about the carrying out of the activity and the results of such consultation; the extent to which the person has complied with the cultural heritage duty of care guidelines (DCG) which identify reasonable and practicable measures for ensuring activities are managed to avoid or minimise harm to Aboriginal cultural heritage. While it is not an offence in Queensland to fail to comply with the DCG, complying with the DCG affords strict compliance with the cultural heritage duty of care. 11 It is worth applying the above factors to the facts of the decision (as if the event arose in Queensland and not the NT). What if the Queensland regime was applicable to this case? If this event transpired in the Queensland jurisdiction, any legal action would be governed by the Aboriginal Cultural Heritage Act 2003 (Qld) (ACHA). 6 The Sacred Site would most likely be deemed a signifi cant Aboriginal area under the ACHA. That is, an area of particular signifi cance to Aboriginal people because of Aboriginal tradition or history, including the contemporary history, of any Aboriginal party for the area. 7 It is likely that OM would have committed an offence under ss 23 (cultural heritage duty of care) and 24 (unlawful harm to Aboriginal cultural heritage) 8 of the ACHA. We note that in 2011, MCG Quarries Pty Ltd was charged with one count of failing to comply with their cultural heritage duty of care under the ACHA when machinery used to construct a gravel track disturbed approximately 30 to 35 Aboriginal artefacts. The company was fi ned $80,000 by Moranbah Magistrates Court. 9 Nature of the activity and the likelihood of it causing harm The nature of the mining activity was such that there was a high risk that the mining operations could harm cultural heritage. 12 The DCG provides that particular care must be taken where it is proposed to undertake activities causing additional surface disturbance to features likely to have cultural heritage signifi cance, such as rock outcrops and small hill and mound formations. 13 If activity is proposed where the feature is located, or in the immediate vicinity, it is necessary to notify the Aboriginal party and seek advice as to whether the feature constitutes cultural heritage and Page 3 Resources Newsletter - October 2013 Carter Newell 2013

if it does, reach agreement as to how to best manage the activity to avoid or minimise harm to the feature. In this case, OM was well aware that the activity had the potential to harm the site. This is evidenced by: the mine workers themselves having expressed concerns about the fragility of the rock formation and the impact the mining activity may have on that fragility, specifi cally that the impressive horizontal arm may be damaged. These concerns were related to the impact of vibrations from blasting activities. It was estimated that the closest drill hole to the horizontal arm feature was approximately 30 to 40 metres. OM not regarding damage to the site to be a vague and remote possibility given the fact that design of the pit would take the pit crest within close proximity to the Sacred Site. The mine manager recognised that the brilliant feature of the horizontal arm could be destroyed if mining activities (including pit design and blasting to open the pit) got too close. The extent of consultation with the Aboriginal parties Queensland s DCG emphasise the importance of gaining the views of the Aboriginal party for the area as these are key in assessing and managing any activity likely to harm cultural heritage. OM failed to consult with the Kunapa People s representatives in any meaningful way. This is evidenced by: OM staff having met with Kunapa People representatives to gain their approval to carry out the steeper (and more risky) batter angle mining approach. OM wanted to extract the maximum amount of ore from the mine. However, the Aboriginal custodians had no experience with mining and no individual authority to approve a mining plan that posed a risk to the integrity of the Sacred Site. If the company wished to undertake works that posed a real or actual risk of damage to the Sacred Site with the agreement of the custodians than the miner had to apply for a variation of the AC with the AAPA (which it failed to do). OM was aware that damage to [the Sacred Site] would carry a risk with respect to its sacred nature. a lack of formal agreement being reached with the Aboriginal custodians with respect to any of OM s activities near the Sacred Site. The custodians having expressed concern that the mining activities were too close to the Sacred Site. The nature of cultural heritage likely to be harmed OM was also aware that the Sacred Site held a spiritual signifi cance to the Aboriginal custodians. This is evidenced by: the site being a registered sacred site 14 and OM was therefore aware that damage to it would carry a risk with respect to its sacred nature. This was particularly so with respect to the horizontal arm because it was a signifi cant identifying feature of the Sacred Site. OM being required to gain an AC under the Sacred Sites Act in order to carry out the mining works. Under the AC, OM had an obligation to ensure that all those involved in the mining were aware that the Sacred Site could not be desecrated. www.carternewell.com Page 4

Conclusions on OM s cultural heritage duty of care As discussed, OM s breach of the duty of care is evident in that: 1. OM took a cavalier approach to its mining operations by developing a plan for the Masai Pit that it knew presented a high risk of damage to the Sacred Site, including the real potential for destruction of the horizontal arm. The executed mine plan resulted in most of the rocky outcrop (of which the Sacred Site was a part) being removed; the vibrations from the blasting ultimately leading to the destruction of the horizontal arm. 2. OM was fully aware of the sacredness of the site to the Aboriginal custodians and therefore ought to be aware that damage to the Sacred Site may diminish or destroy the sacredness. Ultimately, destruction of the horizontal arm offends Aboriginal law which says that such sites must not be disturbed. The spiritual meaning or signifi cance of the Sacred Site was damaged with the loss of the horizontal arm to the extent that it makes it diffi cult for Aboriginal people with traditional interests in the Sacred Site to recognise it and the dreaming it represents. 3. Throughout the process, OM had failed to engage in any genuine consultation with the Kunapa People about the mining activities. OM could have employed different techniques to protect the Sacred Site such as starting the pit wall further to the east but this would have prevented it from accessing substantially more ore. It thus put profi t ahead of heritage protection. Key distinctions in application of a NT decision to Queensland It must be noted that the serious nature of the harm evidenced in the NT case may refl ect the fact that there are key regulatory differences between the NT and Queensland cultural heritage protection regimes. Overall, the Queensland regime is far more prescriptive about the obligations project proponents have in protecting cultural heritage. This potentially decreases the likelihood that such an extreme example of cultural heritage harm would eventuate in Queensland. For example, in Queensland: order to meet this obligation, proponents are obliged to contact the relevant Aboriginal parties to seek guidance on how best to manage the activity to avoid harm. In the NT, the AAPA, not the proponent, takes on the primary responsibility to consult with the Aboriginal party and the proponent itself is not obliged to consult directly with custodians. However, the proponent can request an opportunity to meet with and consult with custodians directly and the outcome of such a conference may be an agreement which can inform the conditions placed on the grant of an AC by the AAPA. 2. An approved Cultural Heritage Management Plan (CHMP) is mandatory for most high level activities under Part 7 of the ACHA (e.g. an EIS is required for development). CHMPs ensure the duty of care is carried out on any cultural heritage values the land may have. OM would have required a CHMP (and a cultural heritage study could be undertaken as part of this process). The project proponent is required to give notice to Aboriginal parties to enable them to participate in the process and the law requires each party to negotiate and make every reasonable effort to reach agreement on the contents of the CHMP. The ACHA even gives clear guidance on what constitutes consultation with an Aboriginal party. 15 Where agreement cannot be reached, disputes can be referred to mediation and the Land Court. Importantly, having an approved CHMP provides a complete defence under the ACHA in relation to any activity which is carried out in accordance with the CHMP. Curiously, there is no provision for cultural heritage management plans under the Sacred Sites Act and relevant provisions of the HA do not apply to sacred sites. 3. Penalties for breach of the ACHA are severe. Currently, the maximum penalty for breach of the cultural heritage duty of care and unlawful harm to cultural heritage is $1.1 million for a corporation. If the cultural heritage is a registered signifi cant area, an individual could be fi ned up to $110,000 or face two years imprisonment. Although fi nes for offences under the NT cultural heritage regime are far less severe, individuals can still face jail time. 1. There is a clearly defi ned cultural heritage duty of care which places a strict onus on the proponents (rather than a statutory body) to decide how to best protect heritage values. This is supplemented by the DCG which provide parameters to assist the proponent to meet their duty of care. In this case, the DCG would have advised the proponent not to proceed unless a cultural heritage assessment is completed. In Page 5 Resources Newsletter - October 2013 Carter Newell 2013

Conclusion As at 1 October 2013, no appeal has been lodged by OM with respect to the decision. This precedent setting case serves as a timely reminder to mining and petroleum companies not to make operational decisions that favour business and profi t over cultural heritage protection. In this case, nothing could be done to rehabilitate the Sacred Site. OM s conduct seriously diminished 16 the sacredness and damaged the spiritual signifi cance 17 of the Sacred Site. This decision serves as a prime example of the magnitude of damage to cultural heritage that can eventuate if a company proceeds with its operations in a reckless manner and fails to take any reasonable and practical measures to ensure its resource activities pose no harm to sites of cultural heritage signifi cance. 1. Aboriginal Areas Protection Authority Media Release dated 2 August 2013 (http:// www.aapant.org.au/bootu-creek-site-damage.html). 2. http://www.aapant.org.au/. 3. One was a bandicoot and the other was a rat. They had a fi ght over bush tucker fruits and their blood spilled on to the rocks in the area. 4. This Act commenced on 1 October 2012. It replaced the former Heritage Conservation Act, which had been in operation since 1991. No reference was made to the former Act in the decision. 5. Refer to section 15 of the HA which excludes Part 3.1 of the HA (heritage agreements) in relation to a place which is a sacred site, or an object that is a sacred site. Part 3.1 does not relate to sacred sites as defi ned in the Cth Aboriginal Land Rights (Northern Territory) Act 1976 (Land Rights Act). The Sacred Sites Act defi nes sacred site by reference to the Land Rights Act. 6. The Torres Strait Islander Cultural Heritage Act 2003 (Qld) is essentially identical and both this Act and the ACHA form the basis of Queensland s indigenous heritage protection scheme. 7. In identifying such areas regard can be had to authoritative anthropological, biogeographical, historical and archaeological information. 8. Section 24 provides that a person must not harm Aboriginal cultural heritage if the person knows, or ought reasonably to know, that it is Aboriginal cultural heritage. 9. Please refer to the Queensland Government media release at http://statements.qld. gov.au/statement/id/77847. 10. The other factors the court may consider under s 23(2) of the ACHA include whether the person carried out a study or survey of any type to ascertain the location and extent of any cultural heritage in the area affected; whether the person searched the database and register for information about the affected area; the extent to which the person has complied with the DCG and the nature and extent of past uses in the area affected by the activity. 11. A proponent also has a complete defence under the ACHA if undertaking activities in accordance with a cultural heritage management plan. 12. This is a category 5 activity (activities causing additional surface disturbance) under Queensland s DCG. A category 5 activity is any activity in an area that does not fall within category 1, 2, 3 or 4. 13. See paragraph 5.15 of the DCG. Other such features include caves, foreshores and coastal dunes, sand hills, waterholes and natural springs. 14. Under Division 2 of the Sacred Sites Act, there is an ability of the AAPA to register sacred sites. 15. Refer to s 104 of the ACHA. 16. Aboriginal Areas Protection Authority v OM (Manganese) Ltd [2013] NTMC 019 [42]. 17. Aboriginal Areas Protection Authority v OM (Manganese) Ltd [2013] NTMC 019 [41]. Authors James Plumb Partner P: 3000 8367 E: jplumb@carternewell.com Audine Bartlett Senior Associate P: 3000 8331 E: abartlett@carternewell.com 19 Oct Senior Associate Kelly Pain will examine implications for contractors working in the resources sector at the AMPLA National Conference this Saturday 19 October. Kelly will provide an analysis of the important elements of the Court s decision in Agripower Australia Ltd v J&D Rigging Pty Ltd and what it means for the mining and petroleum industries. To fi nd out more or to register, visit www.ampla.com.au. To tell us what you think of this newsletter, or to have your contact details updated or removed from the maililng list, please contact the editor at privacy@carternewell.com. If you would like to receive newsletters electronically, please go to www.carternewell.com and enter your details in CN Newsletter signup. The material contained in this newsletter is in the nature of general comment only, and neither purports nor is intended to be advice on any particular matter. No reader should act on the basis of any matter contained in this publication without considering, and if necessary, taking appropriate professional advice upon his own particular circumstances. Carter Newell Lawyers 2013 Brisbane Level 13, 215 Adelaide Street Brisbane QLD Australia 4000 Phone +61 7 3000 8300 Sydney Level 6, 60 Pitt Street, Sydney NSW Australia 2000 Phone +61 2 9241 6808 All correspondence to: GPO Box 2232, Brisbane QLD 4001 www.carternewell.com ABN 70 144 715 010