Groote Eylandt – BHP / GEMCO and the Warnindilyakwa / Anindilyakwa
people
Name of Project: Groote Eylandt
Company: BHP (majority shareholder in local operator GEMCO, Anglo American hold a 40% share)
Location: Northern Territory, Australia
Indigenous Peoples: Warnindilyakwa people, referred to by their language name Anindilyakwa
Minerals: Manganese
Current Status: Open pit mining operations under way since the 1960s. Some areas of the island
are under moratorium following withhold of consent.
Groote Eylandt, an island of approximately 2,300 square km, is located about 600km from Darwin
in Australia’s Northern Territory of the coast of Arnhem Land. It is home to the Warnindilyakwa/
Anindilyakwa people who consist of 14 clans. The archipelago was declared an Indigenous Protected
Area in 2006. During the 1960s, the Church Missionary Society who were under the belief that
mining would be beneficial to aboriginal peoples of the island, negotiated mining leases on their
behalf. GEMCO, now a subsidiary of BHP, commenced mining on the island during this period.
Following the passage of the Aboriginal Land Rights (NT) Act (ALRA) of 1976 land was converted
to Aboriginal freehold title land. Since this time Aboriginal lands in Groote Eylandt not already under
lease, as well as some that were under lease,164 are subject to the veto right under section 42 of
the ALRA. Under the ALRA, Land Councils are established which are responsible for identifying
traditional owners, consulting with and informing them in relation to any proposals on their lands
and communicating their permission or rejection of those proposals to the proponents. This veto
right has been exercised by the traditional owners on occasion. Once consent is withheld a five
year moratorium period is initiated. As a result there are areas on the island that are currently under
moratorium. The law was amended in 2006 such that the traditional owners can bring an area out of
moratorium before the five year window expires. Mining companies are not permitted to approach
the traditional owners on this matter.
The procedure for engagement with the traditional owners is regulated under the ALRA, which limits
the company to two opportunities to meet with the traditional owners to discuss project proposals. The
remainder of the engagement is through the Anindilylakwa Land Council which negotiates on behalf
of the traditional owners, if they give their in principle consent to enter into those negotiations. The
Land Council ensures that the appropriate representatives of the traditional owners are consulted
and that they are provided with sufficient information upon which to make an informed decision.
The negotiations are to be completed within a 22 month window, but this window can be extended
by mutual agreement between the Land Councils and the applicant.165 The Northern Territory and
Federal governments’ role in the consent seeking and negotiation process is minimal and limited to
ensuring that agreements entered into are valid.
Following an amendment in 1987 the veto requirement under the ALRA was limited to the exploration
stage. Previously a second veto right existed at the exploitation stage. As a result conjunctive
agreements are entered into at the exploration stage with traditional owners who provide their
consent.166 The Land Council emphasises to traditional owners that providing consent to exploration
implies that they are providing their consent to mining.
GEMCO perspective:
The GEMCO representative explained that, in areas where they have secured mineral rights (i.e.
where consent has been obtained) the company has adopted the practice of ‘walking the land’
with the traditional owners some months prior to conducting any activities. The purpose of this is
to identify any areas of particular cultural or spiritual significance. These areas are then removed
from the area to be exploited. This practice is above and beyond the requirement of the ALRA. In
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Making Free, Prior and Informed Consent a Reality