O, what may man within him
hide, though angel on the outward side!
Measure for Measure, Act two,
Scene four
Under the Aboriginal Land Rights (Northern Territory)
Act 1976 (ALRA), Land Councils whose primary statutory responsibility is to
protect the interests of Traditional owners, have responsibility for managing
negotiations over consent and the terms of any mining. Additionally, Ministers
have explicit responsibility to approve key elements of any negotiated
arrangements in addition to their overarching responsibility to ensure
accountability for agencies within their portfolio to the Parliament and thus
the public.
The NIAA has now released in accordance with the Freedom
of Information Act 1982 (FOI Act) (link
here) an updated version of a request for documents related to approvals by
Commonwealth ministers under the Aboriginal Land Rights (Northern Territory)
Act 1976 (ALRA) related to the proposed manganese mine on Akwamburrkba
(Winchelsea Island) by Winchelsea Mining. The initial tranche of documents was
released on 24 December 2025, and following a request for an Internal Review,
an updated tranche of documents has recently been released. The documents released
after the Internal Review are available on the NIAA FOI log and listed under
FOI reference number FOI/2526/013IR.
Three documents within the scope of the initial request but
not assessed in the initial release process have also been released under a
separate FOI request (link
here) and are available on the NIAA FOI Log under reference number FOI/2526/031.
The analysis below and the following post amalgamates both
sets of documents. References to documents in the first tranche are identified
as Document A#, and those in the second tranche as Document B#.
The released documents provide a comprehensive, but perhaps
still incomplete account of the Commonwealth approval processes related to the
fact that the proposed mine is on Aboriginal land which comes within the ambit
of the Anindilyakwa Land Council based on Groote Eylandt in the NT.
This post comprises Part One of an analysis of the
documents released under FOI and constructs a summary chronology of the salient
events related to the Commonwealth side of the approval processes related to
the proposal for the establishment of the proposed Winchelsea mine. A second
post to follow will focus on analysing the major implications arising from the
release of these documents, particularly focussing on the complex issues
related to potential conflict of interest arising from the highly unusual governance
structures adopted by the ALC in relation to the proposed mine.
Winchelsea Approval Summary Chronology
Ø On 10
October 2017, the ALC wrote to Minister Scullion and NT Resources Minister
Vowles updating them on the proposed Winchelsea project. This letter was not
identified by NIAA in their FOI searches and thus is yet to be released. It is
unclear whether this correspondence dealt with the issue of the proposed dual
roles of the ALC Chair and CEO. This correspondence is mentioned in Document
B1 at para 22 of Attachment B.
Ø On 15
August 2018, the ALC wrote (in a letter jointly signed by Chair Tony Wurramarrba
and ALC CEO Mark Hewitt) to the Minister to provide a further update (refer Document
B1 Attachment B). This correspondence is important as it outlines for the
first time (based on currently available information) the proposal for the ALC
Chair and CEO to undertake dual roles within both the ALC and Winchelsea
Mining. It also mentions a shareholders agreement between AAAC, Aus China and
somewhat strangely Winchelsea Mining in its own right (at this point informally
controlled by its two ALC associated Directors) and the existence within that
agreement of a ‘fall back provision’ which deals with the possibility that AAAC
equity in Winchelsea Mining may be reduced in the future.
Ø On 6
September 2018, the ALC provided a further update to Minister Scullion
(again jointly signed). Refer Document B1 Attachment D. This
correspondence outlines in some detail the steps taken to mitigate the impact
of the potential conflicts of interest arsing from the dual roles of the ALC
Chair and CEO. The letter mentions the involvement of Melbourne law firm Arnold
Bloch Liebler (ABL) and mentions the recommendations of the Independent Chair
of the ALC Audit Committee. In neither case was there any reference to potential
conflicts of interest which may have related to the consultancy work of either
ABL or Enmark (the accounting firm owned by the Audit Committee Chair). Both
these firms have been engaged by the ALC and/or ALC associated corporations in
receipt of section 64(3) payments beyond their advice here. The accuracy of the
Audit Committee Chair’s advice to the ALC is questionable (see para 16 (d)).
Ø On 13
September 2018 the ALC wrote to Minister Scullion, NT Minister for
Resources Ken Vowles, and Mr Dongfang Yu, Co-CEO of Winchelsea Mining notifying
them that the Land Council had on 10 September consented to the grant of the
relevant Exploration Licence under s.42 of the ALRA. Refer to Document A2.
Ø On 18
September 2018, PMC provided a brief to Minister Scullion recommending he
note the information provided by the ALC in the two previous letters and
providing a draft reply which recommended he seek further information related
to the remuneration of Mr Wurramarrba and Mr Hewitt related to their dual roles
in the ALC and Winchelsea Mining. (see paragraph 9). As the released document
is unsigned, it is unclear if the Minister noted the brief and sent the letter;
he may have amended the letter (which in any case has not yet been released by
NIAA). Refer Document B1.
Ø On 12
October 2018, Minister Scullion consented to the grant of an Exploration
License to Winchelsea Mining and approved the ALC entering into the Winchelsea
Island Exploration Agreement. In doing so he explicitly agreed that he was
satisfied that the ALC had complied with its statutory obligations under the
ALRA. Documents A1 to A5 refer.
Ø On 14
July 2020, the CEO of the NT Department of Primary Industry and Resources
wrote to the Minister Wyatt supporting the Winchelsea project and mentioning
the desire of AusChina International (then holding 40 percent ownership in
Winchelsea Mining) to divest their shares in the joint venture, thus providing
in his words ‘a significant opportunity for AAAC [the holders of 60 percent
equity in Winchelsea Mining] to significantly increase their investment should
they be able to access appropriate financing arrangements’. Document A6 refers.
Ø On 16
April 2021, Mr Hewitt as CEO of Winchelsea Mining wrote to Minister Wyatt
and the NT Minister for Mining regarding the nature of proposed works for the
mine. Document A7 refers.
Ø On 13
May 2021, NT Minister for Mining and Industry, Nicole Manison wrote to
Minister Wyatt confirming that she had considered (under delegation from the
Commonwealth) the proposal for the grant of a mining lease and as it was
consistent with the previously approved Exploration License, she was required
by the provisions of ALRA to grant the lease. She added a handwritten
annotation: ‘A very exciting project!’ Refer Document B2 Attachment B.
Ø On 18
June 2021, NIAA provided a brief to Minister Wyatt recommending he confirm
that the national interest provision of the ALRA mining regime does not apply
to the Winchelsea proposal, thus clearing the final hurdle for the grant of a
mining lease by NT Minister Manison. Document B2.
Ø On 30
June 2021, Minister Wyatt provided his consent under s47 of the ALRA. This
is a precondition to the consideration of the Mining Agreement. The substantive
content of the determinations is not evident from the documents released. Document
A8 refers.
Ø On 30
June 2021, an official of the ALC (either the then Chair or the Mining
Manager; the name has been redacted) emailed the Minister requesting his
approval of the Winchelsea Island Mining Agreement. Documents A9 and A10
refer.
Ø On 20
July 2021, the NIAA briefed Minister Wyatt recommending he agree that he is
satisfied that the ALC has complied with its statutory obligations in seeking
consent and approval for the grant of the relevant Mineral Lease to Winchelsea Mining
and providing consent to the ALC to enter into the related Mining Agreement.
Ø On 2
August 2021, Minister Wyatt accepted the NIAA recommendations that the ALC
had complied with its statutory obligations and that he should consent to the
grant of the Mineral Lease and to the ALC entering into the Mining Agreement. Document
B3 refers. Minister Wyatt also wrote to the ALC (presumably the Chair, but
perhaps the Mining Manager) and the NT Mining Minister advising his approval of
the proposed Mining Agreement. He also wrote to Mr Hewitt, a Director of
Winchelsea Mining advising Winchelsea that he has given his consent to the
mining agreement. Documents A11, A12 and A13 refer.
Ø On 2
November 2022, a representative of CDM Smith, an environmental consulting
firm wrote to Minister Burney updating her on the ongoing consultations with
relevant stakeholders regarding the preparation of the EIS for the project. Documents
A14 and A15 refer.
Ø On 28
February 2023, Minister Burney responded to CDM Smith noting the consultation
process, and noting that royalties for the project are proposed to replace
royalties from the existing GEMCO mine which is expected to cease operations
within five years. She also noted that AAAC ‘ownership of the mine’ [sic: of
the joint venture company Winchelsea Mining] has increased to 70 percent. Document
A16 refers.
Ø On 23
August 2024 the Chair of the ALC wrote to Minister McCarthy seeking
additional funding for a range of projects due to the cessation of s64(3)
payments arising from the impact of Cyclone Megan on GEMCO operations. Document
A17 refers.
Ø On 30
January 2025 [five months later!] the Minister responded to the ALC Chair
politely refusing her request and redirecting her elsewhere. Document A18
refers.
Reflections on transparency and accountability
I am cognisant that very few readers will have the time or inclination
to read the chronology outlined above and cross reference or access the actual
documents. I have included it nevertheless to demonstrate the significance and
extensiveness of the engagement between the ALC and the Commonwealth (PMC and
NIAA). Yet over that period there were no ministerial media releases by the
Commonwealth related to the development of the mine. There was a highly curated
public relations narrative on the ALC web site, but minimal attempt to provide
the transparency one might expect from a Commonwealth agency. There remain
unanswered questions.
The transparency and accountability issues related to the
proposed mine arising from the direct involvement of Commonwealth Ministers
over the period from 2017 to the present, and which are embedded and identified
in the documents released under FOI discussed in this post have not previously
been disclosed. Moreover, they are extremely unlikely to have seen the light of
day except for the existence of the FOI Act. The Executive dominance over the
Parliament and an apparent consensus shared by both ALP and LNP that any
exposure of the issues involved would be politically harmful has meant that the
Senate Estimates process since 2017 and particularly since 2023 when the ANAO
performance report on the ALC was tabled has failed to consistently ask and
follow up the hard questions (link
here).
The ALC Annual Reports which are required by the Public
Governance, Performance and Accountability Act 2013 (PGPA Act) and PGPA
Rule 2014 identify a range of high-level requirements for Annual Reports
including audited financial statements, annual performance statements, a significant
issues report, and governance structures. Agency Annual Reports are provided to
and approved by the portfolio minister for tabling in Parliament. Yet over the
period since 2017, neither the portfolio agencies (PMC and NIAA) nor any portfolio
minister ever took action to ensure core information regarding the potential
conflicts embedded in the dual employment relationships of the ALC Chair and
CEO were included in the ALC Annual Reports notwithstanding that they were all
aware of the existence of these issues.
Along with ensuring a wet blanket was placed over successive
Senate Estimates discussions and failing to ensure that ALC Annual reports were
fully transparent, the current ALP Government has pursued a determined and
ongoing strategy to distract and obscure attention related to the accountability
issues on Groote. This has been aimed at downplaying the knowledge and
involvement of Commonwealth Ministers and their agencies in facilitating the
development of the Winchelsea Mining proposal and in oversighting the (mis)use
of section 64(3) funds intended to benefit Aboriginal people on Groote for mine
related purposes. This strategy included the refusal to investigate the
underlying issues raised in the 2023 ANAO performance audit of the ALC (link
here) instead engaging a consultancy firm to review the implementation of
the ANAO recommendations. As I have previously pointed out, that review was far
from independent despite NAIA claims to the contrary (link
here).
Following a media story in the SMH and Age by investigative
reporter Nick McKenzie sourced to an ALC whistle-blower which alleged that the
former CEO was seeking to be granted up to ten percent equity in Winchelsea
Mining by AAAC, the NIAA (presumably with the Minister’s approval) referred the
matter to the National Anti-Corruption Commmission. The NIAA then (again almost
certainly with the knowledge of the Minister or her Office) directly injected
itself into internal ALC affairs and played a prime role in the meeting of the
ALC (without any ALC staff present) where the ALC Board terminated the former
CEO Mr Hewitt (link
here). One might surmise that the foundation is being laid to place the
primary blame on the former CEO for any maladministration that may be found to
have occurred by the NACC. Such a framing would in my view be deeply dishonest
and would be extremely problematic insofar as it would necessarily leave deeper
systemic accountability shortcomings (that apply well beyond the ALC)
unaddressed.
While the documents released under FOI reveal the extent to
which potential conflicts of interest were embedded within the ALC and its
associated corporations funded under s64(3) of ALRA, they do not shed light on
the deeper reasons governments since 2017 have been determined to turn a blind
eye. That is a matter that will hopefully emerge from the shadows over the
course of the next year or so.
In the second part of this post, I seek to explore in
greater detail the extent to which the potential conflicts of interest embedded
within the processes described the documents released under FOI were created
and granted legitimacy.
29 March 2026
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