EBSWORTH & EBSWORTH have advised the Wik and Wik Way native title holders and the Aurukun Shire Council on the first indigenous land use agreement [ILUA] to be developed for the feasibility stage of a major mining project.
The ILUA is in relation to the $3 billion Aurukun Bauxite Project for the development of the Aurukun bauxite resource in Western Cape York and the establishment of a Queensland east coast alumina refinery, and will grant Chinese developer, Aluminum Corporation of China Limited (CHALCO), a mineral development licence over approximately 400 square kilometres of the traditional lands to the north of the remote indigenous community of Aurukun.
As part of the ILUA, the native title holders have consented to the undertaking of a range of feasibility activities, including further exploration and sampling as well as the conduct of a detailed environmental, social and economic impact assessment process, that will be completed to enable CHALCO to make a decision on whether or not to proceed with the project, said Philip Hunter, partner at Ebsworth & Ebsworth.
“It’s basically allowed an intensive drilling program to gain data about the quality of the bauxite resource that would be available to bidders who lodged expressions of interest,” Hunter said.
In exchange, CHALCO will commit more than $2 million during the feasibility study as part of a detailed sustainable development plan for the Wik and Wik Way peoples and the Aurukun community, while $3 million will be committed by the Queensland government over two years. The ILUA also details the processes to be followed for the negotiation of agreements for the construction and mining stages of the Project.
“The commitments from CHALCO and the Queensland government go to a range of initiatives to build capacity within the Aurukun community in terms of training, employment, business development, active involvement in the conduct and joint management of the various feasibility activities; and better engagement with the state and CHALCO to ensure that if, at the end of the day, CHALCO decides to proceed with the project, the native title holders and the community are in a far better position to take advantage of the opportunities that are going to present themselves during the construction and mining stages of the project,” Hunter said.
The negotiations for the ILUA took place as part of a competitive bid process after the Queensland government decided to call for tenders in 2005 for the rights to develop the bauxite resource, after it legislated in 2003 to repeal the original bauxite mining lease which had been granted in 1975. The grant of the original mining lease had been historically contentious and was unsuccessfully challenged by the Wik and Wik Way people and the Aurukun community before the Privy Council.
After CHALCO was selected by Queensland as the preferred developer in the middle of 2006, the negotiations-proper commenced in August 2006 and were completed in May this year.
Hunter said the outcome was a positive one for the Wik and Wik Way peoples who Ebsworth & Ebsworth have represented in relation to their native title claims since 1994, including during the historic Wik decision handed down by the High Court in 1996.
“The innovative issue in relation to the competitive bid process and the negotiation of the ILUA was that the state actively involved the Wik and Wik Way peoples who were recognised as the native title holders of the land and waters comprising the Aurukun bauxite resource in October 2004. The competitive bid process outlined the core principles for sustainable development for the project to which all the bidders had to demonstrate a clear commitment. The goal of the sustainable development plan is to optimise the benefits to the Wik and Wik Way peoples and the Aurukun community in relation to the project. But at the same time respecting their traditional culture and recognising that the native title holders have ultimate responsibility for the land,” Hunter said.
Dominic McGann, partner at McCullough Robertson Lawyers, who represented CHALCO said the ILUA was a good result for all the parties involved.
“In terms of the content, it is a ‘partnership’ which has as its purpose a win-win-win for each of the participants. For the Wik and Wik Way people, it is the opportunity to participate in all the benefits of the proposed mine. For Queensland, it is the opportunity for further development of its economy. For CHALCO, it is the opportunity to establish a presence in Australia in a unique setting. Finally, and it is what best symbolises the enduring partnership, the ILUA has as its core a sustainable development plan, which is intended to provide a long-term framework for a fair and responsible relationship between the parties.
“From time to time, you are aware that a matter is very special. I regard the ILUA between the Wik and Wik Way people, Queensland and CHALCO as such an occasion. The work, although challenging, was inspirational and I am confident it will represent a new benchmark for developments of its type,” McGann said.
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