By Melanie Debenham, Naomi Hutchings and Nigel Amigh
A recent decision of the Supreme Court of South Australia has reinforced the significance of Aboriginal cultural heritage issues in the process of obtaining approvals for mining and exploration activities. In Dare, Bilney & Ors v Kelaray Pty Ltd, Premier of South Australia  SASC 91 (Dare v Kelaray), Chief Justice Kourakis set aside the authorisation granted by the Minister (former Premier Steven Marshall), pursuant to section 23 of the Aboriginal Heritage Act 1988 (SA) (the Act) which was a requirement for Kelaray Pty Ltd (Kelaray) to commence drilling at the Lake Torrens exploration site.
In summary, Kourakis CJ held that Kelaray’s proposed procedures for dealing with the identification of suspected Aboriginal heritage sites or objects during exploration activities subverted the requirements of the Act. In particular, Kelaray’s cultural heritage and management plan (CHMP) set out a procedure to first obtain initial advice from expert anthropologists or Aboriginal representatives of its choice in order to determine whether identified objects or sites should be bought to the Minister’s attention (the Chance Find Procedure or CFP), such procedure being inconsistent with the statutory requirements under section 20 of the Act to report such finds ‘as soon as practicable’ after discovery.
Kourakis CJ set aside the authorisation on the basis that the Minister misdirected himself, and/or acted ultra vires, by relying upon Kelaray’s Chance Find Procedure which ultimately compromised the Minister’s statutory powers to protect items of Aboriginal heritage.
For the time being, the decision leaves Kelaray without the appropriate approvals to continue exploration activities while it considers the available options for progressing the project.
Aboriginal Heritage Act 1988 (SA)
The Aboriginal Heritage Act 1988 (SA) provides for the protection and preservation of Aboriginal heritage through (among other things) conferring certain powers in the Minister. Under section 23 of the Act, the Minister has the power to authorise otherwise prohibited conduct that may damage, disturb, or interfere with any Aboriginal site. The effectiveness of section 23 is interrelated with section 20 of the Act, which requires a person to report the discovery of such an Aboriginal site, object or remains to the Minister ‘as soon as practicable’. This reporting requirement allows the Minister to consider the exercise of his powers under section 20 to direct a person making a report to take such immediate action for the protection or preservation of the remains as the Minister considers appropriate.
Kelaray held two exploration licences granted over areas at Lake Torrens (Site). Part of the Site falls within an area recorded on the Register of Aboriginal Sites and Objects maintained under the Act. It follows that it was necessary for Kelaray to apply, and obtain authorisation from the Minister under section 23 because the exploration activities would inevitably disturb and interfere with the Aboriginal site itself.
In February 2020, Kelaray made an application to the Premier (in his capacity as the Minister charge with the administration of the Act) for an authorisation pursuant to section 23 of the Act. The application did not seek permission to damage or interfere with any particular or identified Aboriginal sites, objects or remains. Rather, it sought a general authority to disturb or interfere with any Aboriginal sites, objects or remains in undertaking the proposed exploration activities.
In June 2020, the Department of Premier and Cabinet (DPC) commenced a consultation program regarding the application with an elder of the Barngarla people (first applicant), a member of the Barngarla Determination Aboriginal Corporation (BDAC) (the second applicant), among others. BDAC provided a submission on behalf of the Barngarla people opposing the grant of an authority.
On 29 December 2020, the Minister granted the application, authorising any conduct damaging or interfering with Aboriginal sites or objects in the course of undertaking the exploration program, subject to certain conditions.
Drilling pursuant to the authorisation commenced during March 2021.
Application for judicial review
BDAC and the other applicants opposed the authorisation, seeking judicial review to set aside the Minister’s decision on seven grounds. Of the grounds put forward by BDAC, Kourakis CJ only agreed to set aside the authorisation on one of them. Specifically, that the Minister had misdirected himself and/or acted ultra vires by relying on Kelaray’s Chance Find Procedures to protect Aboriginal sites objects and remains.
In considering the application for judicial review, the Chief Justice considered the broad nature of the authorisation under section 23, and the Chance Find Procedure which operated inconsistently with section 20 due to Kelaray’s process to seek initial advice before deciding whether to report any finds to the Minister, rather than reporting as soon as practicable.
In his decision, Kourakis CJ held that the authorisation granted to Kelaray (and the failure to appropriately provide conditions) immunised it from prosecution for a breach of the prohibition under section 23 for interfering with items of Aboriginal heritage in a way which undermined the effectiveness of section 20. While the Chief Justice acknowledged that a person may still be liable to prosecution for failing to report a chance find under the Chance Find Procedures as soon as practicable pursuant to section 20 of the Act, he reconciled that an authorisation which is not conditioned in a way which allows section 20 its full operation would permit that person to escape the burden of any direction which might be given by the Minister in order to protect the item of Aboriginal heritage.
Ultimately, Kourakis CJ determined that an authorisation granted under section 23 of the Act must not substantially detract the conferral of the powers in the Minister to determine, preserve and protect Aboriginal heritage, leading to the conclusion that the failure to impose conditions on the Kelaray authorisation, in particular in relation to reporting discoveries to the Minister as soon as practicable and determining whether items are of Aboriginal heritage, resulted in the invalidity of the Minister’s authority.
Kourakis CJ allowed the application for judicial review, setting aside the determination made by the Minister to grant the authorisation pursuant to section 23 of the Act.
The decision, and its impact on Kelaray’s development activities, reinforces the importance of Aboriginal cultural heritage issues in applications and approvals for mining and exploration activities. Specifically, Dare v Kelaray highlights the significance of consistency between a cultural heritage management plan, Chance Find Protocols, and the requirements of the Act, and consultation with the relevant Aboriginal parties in obtaining a valid authorisation under section 23.
We recommend that mining and exploration companies continue to work on relationship building with the communities in which they operate. The case is a good reminder to carefully review CHMPs, Chance Find Protocols and other relevant internal procedures, to ensure that all relevant statutory steps are incorporated, including duties to report. It is important to ensure there is a good awareness of these requirements amongst relevant personnel.
While mining and exploration activity currently remains stable with strong commodity prices, we anticipate that a pipeline of new project developments will continue with a mixture of new entrants to the mining sector to the region and companies with an existing presence. These circumstances are likely to see similar issues to those raised in Dare v Kelaray as companies work to obtain all relevant approvals to commence exploration and mining activities.
If you would like to discuss what this case means for you, please do not hesitate to get in touch.