Miners and explorers are among those calling for clarity on the impact of a new Aboriginal heritage act in WA some believe could stall exploration and introduce costs likely to put a handbrake on the industry.

It comes with the sector struggling to contain the fallout from a ‘liquidity crunch’ which has seen IPOs and capital raisings slide hard in recent months amid a weakening global economic outlook.

The rewrite of the State’s Aboriginal Heritage Act, which has not changed substantially since 1972, has been in train since the McGowan (now Cook) Labor Government came to power in 2017 and risen in importance since the disgraceful destruction of 46,000-year-old Aboriginal artefacts in a rock cave at Juukan Gorge by Rio Tinto (ASX:RIO) in 2020.

The new legislation will, in a nutshell, remove the section 18 consent process that provided Rio a legal (though not, obviously, moral) exemption to obliterate the site, a disastrous operational decision that prompted scorn from the wider community and the ousting of then Rio CEO Jean-Sebastien Jacques.

Intended to promote ‘agreement-making’ between proponents and Traditional Owners, the new legislation has been criticised for allegedly ambiguous definitions of what is an Aboriginal heritage site, a schedule of fees for heritage services that provides no capped rate for consultants like anthropologists and the fact the Aboriginal Affairs Minister will have the final incontestable say on whether an Aboriginal heritage site can be destroyed if no agreement is made.

This all comes into force on July 1, with a powerful protest movement starting from the farm lobby and backed by the State’s Lib-Nat Opposition emerging to try delay the rollout, something the Government refuses to do.

Some explorers are concerned it will have a chilling effect on drilling at a time demand for critical minerals hosted in WA like nickel, copper and lithium is on the rise.

“Unintentionally, that’s an own goal by the government in terms of it’s going to be a broader economic impact. There’ll be a lot of smaller drilling companies who might be struggling to keep rigs busy, bigger companies have to stand rigs down, exploration companies will have to stop work until they get their ducks in a row,” Andrew Paterson, MD of explorer Great Boulder Resources (ASX:GBR), told Stockhead.

“And then in the broader economy, I think that agricultural sector is far less prepared, just because they’re not really as active in this space.

“Often, for example, in the Wheatbelt, there’s a lot of people operating in areas where there’s not a formal Aboriginal group in place to go and talk to. So I think that kind of transition stage from the old act to the new one is going to be absolutely chaotic, right across the economy.”


Why does this matter?

If you’re an investor in small cap mining stocks, there’s a fair chance they create value by getting on the ground and drilling (as opposed to paying money to regulators and stuffing cash in directors’ pockets).

WA is the king when it comes to that on the ASX. Over half of all drilling in Australia is conducted in the State, according to the latest figures from the ABS.

Paterson says Great Boulder, which owns the 518,000oz Side Well gold deposit near Meekatharra and wants to expand that to over 1Moz through the drill bit, has its approvals sorted.

But for others that may not be the case.

“We’re pretty well prepared and it won’t cause any immediate impact on timing for us,” Paterson said.

“I think in the longer term, it will make everything slower, make the approval process more expensive.

“I know however there are other companies who are less prepared and in extreme cases, there’ll be people who stop drilling on the 30th of June because they don’t have approvals in place to keep going. So that’s quite serious.”

Warren Pearce, CEO of the Association of Mining and Exploration Companies, said land access costs had risen for explorers in recent years for multiple reasons, not just Aboriginal heritage.

He said the world is “not going to stop” on the 1st of July, but that some of AMEC’s member, largely exploration and smaller mining companies, were having anxiety over the changes.

“There’s a process to sort of work your way through you can start that now, to ensure if you’ve got drilling programs that are running on 1 July, you can either go ahead or if there’s a risk that you’re likely to damage or impact cultural heritage under the new definition – because it’s wider than the old definition – stop for the process you need to go through in order to receive approval or permitting,” he said.

The inclusion of ‘intangible’ heritage is among the biggest changes for miners and explorers to deal with.

“I guess that’s the piece which is … hard to know because it means that if the definition is broadened, then you don’t necessarily know where heritage sites are until they’ve been assessed,” Pearce said.

“So there will be areas that would not have been considered heritage currently that will be considered heritage moving forward.”

Aboriginal Affairs Minister Tony Buti denied in parliament last week that the specific inclusion of ‘intangible elements’ in the new legislation was a shift from the old system, saying a broad definition of Aboriginal cultural heritage had been established by a Supreme Court decision in 2013.


The wrong side?

A hot button issue in recent days, new WA Premier Roger Cook has stirred the ire of those asking for the act’s delay by saying they were on the ‘wrong side of history’.

To be fair, it wasn’t miners Cook was sinking the boot into, but his opponents on the other side of politics, the Lib-Nats, who can barely really be described as an Opposition after the bloodbath they endured at the last State Election.

Farmers, whose lobby groups contain leaders closely aligned with that side of politics, have been the most vocal opponents with Tony Seabrook of the Pastoralists and Graziers Association lobbing a petition with almost 30,000 signatures calling for a six-month delay to the law’s introduction.

Fat chance of that happening, it seems. For his part, Pearce said a delay would only add further uncertainty.

Paterson said the use of the words ‘wrong side of history’ rankled with people trying to progress exploration and agricultural activities in the State.

“I think instead of standing up in the parliament and posturing about being on the wrong side of history, I think they should actually sit back and have a good hard think about how it’s going to work because you get the impression they live in bloody lala land of bloody, rainbows and unicorns,” he said.

“Out in the real world, we’ve actually got to make these things happen.

“From my perspective, the vast majority of mining and exploration companies are trying to do the right thing and benefit people in the communities that they work in, so I think comments like that about standing on the wrong side of progress are just insulting and ridiculous.”


Land use concerns

The other controversial land access decision of what was until recently the McGowan Government was a landmark and land use agreement with the Tjiwarl native title claimants, who have rights to a large swathe of the northern Goldfields and land use agreements with major operations like BHP’s Nickel West and Liontown Resources’ (ASX:LTR) Kathleen Valley lithium mine.

Pearce says the agreement embeds a payment of 7% of exploration spend for explorers planning to drill on Tjiwarl ancestral lands.

Pearce says those come in around 1.5-2 times higher than standard land use agreements for explorers. Completed without consultation with mining companies and based on land use agreements with companies with far larger budgets, he is concerned it could set a precedent for other areas of WA.

“Anyone who wants to access land has to sign up to that agreement (which) sets a very, very high bar in terms of cost, which starts at 7% of in ground exploration expenditure, which is substantially higher than most exploration companies across the state,” he said.

“The reality is that cost will now flow through and the way in which we understand the cost is based on the agreement the State Government’s struck with the Tjiwarl.”

Pearce said investors would be less likely to tip money into companies knowing less of their money was going in the ground, with WA moving closer to jurisdictions like the NT where exploration investment is impacted by high pre-drill costs.

“If we keep seeing costs increase at this rate, it’s going to be a significant barrier to exploration across the state. We’ll see less of it,” he said.

Paterson, whose company’s tenements are near the Mid-West town of Meekatharra where it works with the Yugunga-Nya People, said it would make him think twice about exploring within the Tjiwarl claim area.

“We don’t have any tenements in that claim area, but I certainly wouldn’t be surprised to see that rolled out as a kind of standard structure,” Paterson said.

“I think it was unrealistic to use that pricing for the heritage agreement, because it was based on the most expensive agreements in the area, which I think was one of the bigger companies.

“Small companies can’t afford to pay that much and it would be a disincentive to operate there. Specifically, I wouldn’t be in a hurry to pick up any tenements in the Tjiwarl area.

“And if it were to be rolled out more broadly, I think it would be a handbrake on the whole state. That sort of thing will impact with Australia’s sovereign risk rating.”


No time like the present?

While many groups have called for a delay to the incoming process, AMEC’s Pearce does not think that would be helpful for the mining industry.

“We want this to start at 1 July. Delays won’t help us,” he said.

“All we’re going to do is create more delay in terms of being able to get on ground. So we’ve already got the TO bodies under immense pressure.

“There’s a huge workload already built up there with applications to get on the ground.

“We need to start working through the new system, because there’ll be more problems that emerge as we start to implement it and work through it.”

He said exploration companies yet to receive heritage approvals are effectively working through the new system already, waiting for it to start in earnest.

There is drive at the Federal level also to reform Aboriginal heritage laws nationwide in the wake of the Juukan Gorge destruction.

That means the issue with cost competitiveness is likely to be less about a trade-off between different states in Australia.

Instead it will be a question of Australia’s investment attractiveness compared to other jurisdictions internationally, with costs related to managing cultural heritage likely to rise across the board.

“Although WA will be the first state to have significant contemporary Aboriginal cultural heritage legislation with significant new costs, ultimately, the rest of Australia will have to follow,” Pearce said.

“If other states and territories don’t, it’s likely the federal government will step in and legislate that space. And I would expect that legislation to be similar to what’s taking place in Western Australia.

“WA had to make a change, we’re doing that. But I don’t think it’s going to be Western Australia taking the stance that won’t happen in other places, the Commonwealth’s been really clear they intend to step in if other states don’t.”

Paterson views any delay as unlikely, but thinks it would be a “reasonable compromise”.

“Not only are companies ill prepared, but you know the Aboriginal groups aren’t prepared to deal with it either. So there’s going to be chaos on all sides.”

In response to the PGA’s petition Aboriginal Affairs Minister Tony Buti told the ABC the new legislation would be less onerous than the old one.

“The act needs to get up and running, but as we have stated numerous times if there is a need to review the regulations in a year’s time, we will review the regulations,” he said.

“There is so much misinformation going on here.

“In many respects the current system that people work under is more onerous than what the new system will be.”