That palter with us in a double sense,
That keep the word of promise to our ear,
And break it to our hope.
Macbeth Act five, Scene eight.
At
the close of my previous post (link here) I mentioned Mr T. Wurramarrba
— formerly a longstanding Chair of the Anindilyakwa Land Council (ALC) and,
simultaneously, a director of Winchelsea Mining — who resigned as ALC Chair in
May 2024 and died on 30 June 2024. The ALC issued a statement mourning his
passing which is available on its website (link here).
The
primary focus of this post are the documents released by NIAA in relation to my
requests for documents related to the approval of the various agreements negotiated
by the ALC to facilitate the development of the proposed Winchelsea mine. They
are available on the NIAA FOI Disclosure log (link
here) and are listed as FOI/2526 013 and FOI/2526/031.
To
provide context for the argument and case study below, it is worth considering
the change in tone between the two most recent ALC Annual reports on the issue
of the ALC’s engagement with the Winchelsea mine proposal and ALC
accountability issues generally.
The
ALC 2023-24 Annual Report (link here) was finalised in late
September and provided to the Minister on 14 October 2024 including a letter of
transmittal signed by the new Chair and then CEO Mark Hewitt. In a section
titled ‘Message from the CEO’ Mr Hewitt wrote inter alia (see pages
5-10):
The reporting period saw significant
progress for the ALC across the strategic plan, amidst challenging times with
the passing of the ALC’s long standing former Chair, the late Mr T Wurramarrba
AO in June 2024….
Groote Holdings Aboriginal Corporation
has completed the workers accommodation and kitchen at Pole 7A, adjacent to the
Alyangula township. The kitchen facilities will provide meals to support the
larger developments at Little Paradise. [Little Paradise was intended as the
base for operations of the adjacent Winchelsea mine].
Significant progress has been achieved
in the past year in the development of the Winchelsea Island (Akwamburrkba)
resource. A key industry standard report indicating the size of the resource
was achieved (Measured JORC report) as well as the completion of a Definitive
Bankable Feasibility Study. The environmental approvals process for the
Winchelsea resource development is now at an advanced stage.
In
a section providing a short profile of the CEO (page 19), the Annual Report
states inter alia:
Mark Hewitt started in the role as CEO
of the ALC in September 2011. One of his first tasks as CEO was to work with
TOs to develop a strategic plan. …. Mark is an advocate for creating structural
change to the way services and businesses operate on the Groote Archipelago to
increase TOs ownership, decision-making and participation.
During the reporting period Mark held
positions as the Co-CEO of Winchelsea Mining and as the Executive Director of
Groote Holdings Aboriginal Corporation…
Mark has previously held roles with the
Australian Government Department of Families, Housing, Community Services and
Indigenous Affairs (2005-2011) including as Acting Branch Manager Indigenous
Programs Branch (Native Title Representative Bodies and the Aboriginals Benefit
Account)…
A
summary of determinations (see pages 80-81) under section 35(3) relating to
section 64(3) allocations reveals that GHAC received $15.4m and the majority
owner of the Winchelsea mine, Anindilyakwa Advancement Aboriginal Corporation (AAAC)
was allocated $2m from a total annual allocation of $38.28m. In other words, in
2023-24, the ALC allocated 46 percent of its available s.64(3) funds to
Winchelsea mine-related projects.
Note
9 to
the financial statements (see page 130) list Mr T. Wurramarrba’s various
Directorships including as a Director of Anindilyakwa Royalties Aboriginal
Corporation (ARAC), Anindilyakwa Mining Trust (AMT), … Winchelsea Mining Pty
Ltd, and Groote Holdings Aboriginal Corporation (GHAC). The report notes that ARAC,
AMT, and GHAC receive Section 64(3) royalty distributions under Section 35
determinations by the Anindilyakwa Land Council as outlined in Note 10. The
Note also states that the spouse of the late Chair of the ALC is an elected
member of the ALC and receives sitting fees. In relation to Mr Hewitt, the Note
confirms that he is also a Director of Groote Holdings Aboriginal Corporation
(GHAC) and Winchelsea Mining Pty Ltd, and that his spouse was employed by the
Royalties Development Unit of the ALC on a part time basis.
I
have included these extracts from the 2023-24 report to provide a sense of the
extent to which the ALC (and not just its CEO) was embedded either directly or
indirectly, in the development of the Winchelsea mine proposal. Moreover, this
was in plain sight.
In
the 2024-25 Annual Report (link here), reporting on the
proposed Winchelsea mine is much more muted.
There
is a detailed chapter (pages 37ff) on governance practices including sections
on risk management, on the PGPA fraud and corruption rule, related entity
transactions and conflicts of interest policy, all framed as upgraded responses
to the 2023 ANAO Audit and the subsequent BellChambers review. But the elephant
in the room, the Winchelsea mine proposal, is largely absent.
The
only substantive references to the Winchelsea mine are at pages 71 and 72 within
a section on Mine Monitoring and Mine Closure where, embedded within a larger
discussion of the GEMCO mine, the report discusses the Winchelsea Island Lease
Mining Agreement, and Winchelsea Island Lease Exploration Agreement:
In each agreement there are numerous
contractual obligations that the mining companies need to meet. These
compliance requirements can be split into three groups: • payment requirements
– which covers the payment obligations • operational requirements – which deals
with how the companies operate, and • administrative requirements - which
covers the documentation/ reporting requirements. …
Winchelsea Mining is yet to commence
production and during the period was, in ALC’s opinion, dormant. There were no
activities on Winchelsea during the reporting period.
It
is worth remembering that these two agreements are the core of the FOI requests
considered in my two most recent previous posts (link here and link here), and in the two posts
published in March this year (link here and link here).
What
is apparent in the contrast between these two annual reports is that there has
been both a significant change in tone, but also in strategic direction since
Mr Hewitt was terminated without explanation by the ALC. This was a decision
literally made in the shadow of a National Anti-Corruption Commission visit to
Groote to investigate as yet unspecified allegations. More generally, there has
been no explanation for that change in direction, no admission that mistakes
may have been made or alternatively that the change arises from some other
factor.
Given
this, it is worth asking a broader question: are these silences (about the
reasons for the termination of the CEO, about the change in the ALC’s strategic
direction regarding the proposed Winchelsea mine) merely isolated events, or
part of a wider pattern? And if it is a pattern, how far does it extend and
what is its purpose?
A
pattern, not an incident
Consider
what has happened, entirely separately from any FOI process, since Mark
Hewitt's termination as ALC CEO in October 2024. Virtually every reference to
Hewitt, multiple videos about the proposed mine and other ongoing matters on
Groote Eylandt were quietly removed from the ALC's website. No public
announcement of the CEO’s termination was made — not by the Board, not by the
Minister. As I have previously pointed out, the Board's own minutes record no
reasons for the decision. And on the substantive question of where the
Winchelsea mine project stands today, there has been near total silence: no
public statement of continued ALC support, no public statement of withdrawal of
support, simply an absence — this notwithstanding that, as recently as a few years
ago, the mine was being promoted by the ALC in its formal strategic documents
as the mechanism for ensuring economic independence for Groote subsequent to
the closure of the GEMCO mine. An ASIC extract dated 22 July 2026 shows no
filings beyond routine officeholder changes since November 2024, consistent
with the Annual Report's own description of the project as dormant.
My
own reading of this silence, and the passive comment cited above assessing the
Winchelsea project as being ‘dormant’ is that the Council is distancing itself
from the proposed mine and thus its proponents while leaving the door open for
AAAC and its partners to pursue their future involvement and assess the proposed
mine’s commercial viability independently of the ALC. In this context, it is
worth noting that there are multiple overlaps in Directorships between the ALC,
AAAC and GHAC.
An
ASIC search confirms that the current AAAC nominated Directors are Bradley Bara
and Lionel Jaragba, both appointed in November 2024. The AUS China
International Mining Pty Ltd Directors remain unchanged since 2018.
Interestingly, the formerly high quality and informative Winchelsea mining
website (wmining.com.au) is no longer operational.
In
relation to the documents released by NIAA in relation to the Winchelsea mine
approvals processes (FOI/2526/013 and FOI/2526/031) there have been multiple seemingly
arbitrary redactions and obstructions that on their face serve little purpose.
First,
AAAC's changing ownership stake in Winchelsea Mining — reported elsewhere as
rising from 60 to 70 percent — has been redacted in multiple places even though
the figures are publicly available from multiple sources. They have been
provided in evidence to Senate Estimates and are published by ORIC. The ASIC
Current Company Extract, a public document, confirms that AAAC owns 70 percent
of the shares in Winchelsea Mining.
Second,
from a 2018 ALC submission to the Minister recording a previously agreed
determinative secret ballot of senior Traditional Owners on the proposed Exploration
Agreement, the tallies have been redacted: we know the ballot favoured approving
exploration, but not by how many votes, against how many, or how many voted at
all. It is hard to identify a privacy interest in a numerical tally that attaches
to no individual name. The same dynamic has played out previously in at least
three other instances:
·
at
ORIC over its decision to redact the entirety of the Cor Cordis GHAC
examination report (link here); and
·
in
earlier FOI decisions to impose fees which have the effect of deterring further
use of the FOI legislation in relation to matters which were subsequently
provided to the Senate by the ALC (link here); and
·
with
the case study below regarding the multiple redactions of the names of deceased
persons ostensibly for privacy reasons, and likely a decision without precedent
in the administration of FOI, and arguably without legal justification.
Taken
together, these amount to an emerging pattern of employing barriers and redactions
which have the effect of undermining the capacity of those seeking to follow
events to understand what has occurred, and in the case of the Winchelsea mine
proposal, of obstructing the line of sight from:
·
on
the ground consultations with TOs; to
·
negotiations
between Winchelsea Mining and the ALC over the exploration agreement; to
·
the
ALC’s largely invisible role in (a) directly and indirectly funding and (b)
monitoring the activities of the mining company as it pursued both detailed
environmental approvals and sought to identify the extent and potential value
of the manganese resource able to be extracted, and on to
·
submissions
to the NT Government seeking relevant environmental and other approvals; and
then to
·
submissions
to Ministers from the ALC and Winchelsea seeking necessary legislative
approvals under ALRA.
Return
to Mr Wurramarrba. He died in June 2024. The ALC's own death notice at the time
referred to him, in keeping with ordinary practice, as "Mr T
Wurramarrba" — replacing his first name with an initial, not a blank. As
the longstanding Chair of the ALC, his name also continues to appear, entirely
unredacted, in ALC governance documents published on the Department of
Finance's Transparency Portal. Both facts sit awkwardly beside what has
happened inside the NIAA's own FOI releases, where due to the redaction of the
names of deceased individuals his name (and likely only his name) has been repeatedly
redacted. I calculate that his name may have been redacted on around 60
occasions in a cache of documents comprised of around 140 pages. Moreover,
these redactions survived an internal review process to which I specifically
pointed out the flaws in the assumptions related to cultural sensitivity that appeared
to underpin it and proposed alternative ways of referring to Mr Wurramarrba such
as using initials without using his first English name. In addition to these
instances, there were numerous other s47F redactions that appeared to relate to
other persons, to the identification of clans being consulted, and to other ALC
staff.
The
justification offered by the NIAA decision makers rested on the application of
the privacy exemption in the FOI legislation (s.47F), which is conditional and
requires a balancing to determine that such a redaction is in the public
interest. In turn, the context of applying this to a remote Aboriginal
community with strong cultural attachments to country and culture, combined
with the consultations with the ALC, created an implicit and putative rationale
for redacting the names of deceased individuals in the cache of released
documents. In fact, there was (to the best of my knowledge) only one deceased
person whose name was redacted: Mr Wurramarrba. The decision makers did not explicitly
base their decisions on a cultural rationale, but left it implicit, reinforced
presumably by the views of the ALC (sought on both occasions).
In
my arguments supporting my request for an internal review I directly addressed
the issue of cultural sensitivity — specifically, that Anindilyakwa custom
counsels against naming the recently deceased. I don’t question the existence
nor the legitimacy of Anindilyakwa customs. But as I put it to NIAA in my own
submissions: Aboriginal societies generally do not erase all reference to a
deceased person: they cease using the name and substitute an indirect reference
— a kinship term, or a coded reference such as "the former Chair," or
initials — usually for a finite period. Indeed, I subsequently learned that the
ALC explicitly did this in its notice mentioned at the beginning of this post
announcing Mr Wurramarrba’s death in June 2024.
Moreover,
Mr Wurramarrba was the Chair of a Commonwealth statutory entity, responsible
for spending and allocating millions of dollars, and with important statutory
responsibilities for protecting the interests of traditional owners. It is
clearly in the public interest that statutory officeholders are able to be held
accountable for their actions. I cannot imagine any Australian parliamentarian
arguing that as a general principle this is not important and not in the public
interest. The application of a blanket privacy redaction, more than two years
subsequent to Mr Wurramarrba’s death, when the ALC's own practice and the Commonwealth
Transparency Portal's own published record do neither, is not obviously an act
of cultural respect, and nor is it obviously in the public interest.
A
review that reviewed itself
There
is a second, more structural form of obfuscation at work here: not what has
been redacted from documents, but how the review of those redactions has itself
been conducted.
The
FOI Act's internal review mechanism exists to provide a genuinely independent,
merits-based second look at a refusal — undertaken by an officer who was not
the original decision-maker (s.54C(2)), consistent with the OAIC's own guidance
that such reviews be conducted independently of the original decision (FOI
Guidelines, paragraphs 9.34 and 9.37). In this case, NIAA advised me that the
internal review would involve a meeting between the original decision-maker,
the internal reviewer, and the agency's legal team — and that the internal
review decision would be the subject of a briefing to senior NIAA executives before
it was finalised.
Raised
directly with NIAA at the time, and in the absence of a response to my concern,
the concern remains and is straightforward: a review conducted in the same room
as the original decision-maker, and briefed to senior executives before it is
finalised, creates at least the appearance — whatever the actual outcome — that
the reviewing officer's independence could be compromised.
The
public interest the Commonwealth set aside
The
personal-privacy exemption used to justify most of these redactions is meant to
protect against the ‘unreasonable’ disclosure of personal information — and ‘unreasonable’,
under the OAIC's own Guidelines (paragraphs 6.133–6.134, drawing on the Chandra
formulation), requires weighing the public interest in disclosure against the
private interest in an individual's privacy. It is not an automatic blanket
protection.
Weighed
against what, exactly? A mining agreement related to a proposal to develop an
ore deposit likely worth in excess of $1bn, whose negotiated royalty
arrangements are not public, but which has benefited from the commitment of some
$80 million in community royalty-equivalent funds in mine related
infrastructure (normally funded by the mine owners) and with an associated
opportunity cost to alternative and arguably high priority community
priorities. Consultations undertaken and oversighted, and an agreement
negotiated, on the ALC's side, by individuals — Wurramarrba and Hewitt among
them — who simultaneously sat as directors of the company on the other side of
the table. A subsequent referral of unspecified matters concerning Mr Hewitt (likely
related to media reports of his attempt to be granted a significant equity stake
in the proposed project) to the National Anti-Corruption Commission. A petition
to Parliament signed by more than 200 Groote Eylandt residents concerned about
the ALC's management during exactly this period. And a community of roughly
1,200 residents facing enormous socio-economic challenges.
Against
that, the NIAA decision-makers’ own reasons record factors such as a concern
that disclosure might discourage the flow of information to government, and a
general assertion of unfairness to third parties — neither, on close reading,
well supported by evidence or particular to this case. A public interest test
conducted in the abstract, without weighing the scale of public money involved,
the fundamental conflict of interest at the heart of the agreement, the
referral to the NACC, or the rights of more than a thousand Groote residents to
understand just what has transpired in relation to the proposed project, is patently
unbalanced and incomplete in its method. You cannot properly balance interests
you have not identified
None
of this, taken redaction by redaction, looks dramatic. A name here, a
percentage there, a set of vote tallies, a review conducted alongside the
people whose decision it was meant to test. But taken together, the effect is
cumulative: it becomes genuinely difficult — for an interested member of the
public, and even for someone who has tracked the issues surrounding the
Winchelsea project closely — to reconstruct a clear account of what happened, when,
and why in relation to this narrow sliver of the ALC engagement in developing a
mine on Winchelsea Island, and ultimately, more generally. That difficulty is
not an accident of bureaucratic process. It is, functionally, a form of policy
— achieved not through any single decision but through the accumulation of many
small ones, each individually arguable even if not entirely defensible, none of
which invites scrutiny on its own.
What
this decision does bring about however, both in its own right due to the number
of redactions encompassed in the decision, and in combination with other
redactions whether justified or not, is the creation of apparent
transparency and compliance with due process which nevertheless obscures and makes
impenetrable to all but the most determined readers, the decision-making
processes that were actually undertaken by ministers and public servants.
Notwithstanding the volume of unclearly organised documents released, replete
with technical legal and policy advice, an assiduous reader can discern
emerging from the obfuscatory textual mists a set of different, and more
awkward facts, which lead to the following uncomfortable conclusions.
First, it was not only the
former CEO who sat on both sides of the negotiating table, but also the
longstanding and highly influential ALC Chair. Second, the ALC itself
was aware of this prima facie conflict and nonetheless gave its formal
consent to the two agreements needed for the mine to proceed — consent obtained
through a mix of strategies that created the appearance, rather than the
substance, of conflicts being managed. Third, and most significant: two
successive ministers were explicitly advised that Hewitt and Wurramarrba sat on
both sides of the negotiation, and both decided in writing that this conflict —
one fundamentally at odds with the land council's statutory functions — could
be set aside on the strength of a light-touch process that left the conflicted
individuals and the land council to manage themselves. Each minister then gave
formal approval to the agreements, the final step in the checks and balances
the ALRA mining regime exists to provide, precisely so that Aboriginal
interests are not manipulated or coerced into unfair arrangements on their own
land.
These
submissions, their assessment by the DPMC and NIAA, and the terms of the decisions
have lain quiescent in the files, describing events that were neither hidden
nor revealed. It was only when I asked to see them that the reality of the consideration
given these matters came to the surface.
As
I pointed out in my previous posts on these matters, NIAA’s advice to the
relevant Ministers in relation to their approvals for the Winchelsea project was
in my view inexplicably and seriously deficient, but it is the Minister who
makes the decision and who must take responsibility.
A
further inexplicable element in this story is that NIAA and ORIC do not appear
to have raised this fundamental conflict of interest issue with subsequent
ministers (though I cannot rule this out absolutely), and nor did they take adequate
action to increase the level and intensity of the regulatory oversight of the
ALC’s engagement with the owners of the mine and other related corporations
such as GHAC so as to prevent adverse outcomes. The revelations in the 2023
ANAO Performance Audit report (link here) makes this quite
clear. While there is no way of knowing whether the subsequent ministers
understood what had transpired and that there was a fundamental structural
conflict of interest in place, my own policy experience suggests that their
ignorance of the reality (if that was the case) is almost as problematic as
being aware and doing nothing; it would reflect a substantive lapse in the
quality of the advice available to them from both the agency and their private Offices.
It
is worth noting that the two most recent ALC Annual Reports discussed above,
which are normally approved by the Minister prior to tabling in Parliament,
include within their financial statements explicit Notes on Related Party
Disclosures by Board members and staff identifying these potential
conflicts. See the extracts for the 2024 Annual report quoted above and Note
10 to the Financial Statements in the 2025 Annual report (link here).
What
is clear is not only that the ALC Board and its members dropped the ball, but
so did NIAA and its predecessor DPMC, and arguably ORIC, and most importantly,
so did successive ministers.
The
elephant in the room for ministers is not the history of the approvals for the
Winchelsea mine, but the impending publication of the NACC investigation into
matters related to Groote and the ALC. It is not clear whether the NACC briefs
the Government on its progress with individual investigations. Given what I
have documented over the course of more than 20 Groote related posts based solely
on publicly available information, the public record alone raises multiple questions
an anti-corruption body would have reason to pursue. My interpretation is that
the Winchelsea mine will be at the centre of the NACC investigation, but it may
also extend beyond to other issues.
In
the event that the NACC finds administrative deficiencies, fraud or corruption,
there will inevitably be a desire within the government and perhaps even the
opposition to cauterise the political wound and minimise the reach of
responsibility and blame. If I can think ahead to such an eventuality, then it
is not beyond the wit of politicians to do so also.
What
a close reading of the documents released relating the approvals of the
Winchelsea agreements tell us is that in the event that serious maladministration
and misfeasance is uncovered, the responsibility should be shared. Individual
perpetrators are clearly responsible. So too are those who may have formally
agreed to the actions that contribute to any such misfeasance. And so too would
be the ministers who turned a blind eye to any such misfeasance or negligently
overlooked its possibility. In my view, even if the NACC focusses its findings
on a small number of individuals, under the rarely mentioned these days
doctrine of ministerial responsibility, successive ministers are at risk of
being criticised and held to account either by the Parliament, the media or
perhaps even the electorate.
Searching
for a single word that best describes the FOI processes applicants face in
matters like these, I eventually landed on one of two terms: equivocation, or
prevarication. Take your pick. Whether intentional or not, the pattern points
to a public sector ill-disposed to scrutiny of its own decisions.
But
the redactions are, in the end, a symptom rather than the disease. They merely
leave an impression that there is something untoward worth dissembling and
obscuring. The documents that survive the redactions still show two ministers
approving agreements they knew were negotiated by structurally conflicted
parties, and two regulators — NIAA and ORIC — who neither escalated the existence
of this structural reality to those ministers' successors nor lifted their
oversight of the ALC and its associated corporations in response.
If
the NACC's findings, when they finally emerge, focus narrowly on individual
conduct, that account will be incomplete. The doctrine of ministerial
responsibility exists precisely for cases like this — where a structural
conflict was disclosed, understood, and left in place by the public officials whose
job was to manage it. In such an eventuality, whether Parliament, the media, or
the electorate chooses to take action is a separate question. But the record,
once assembled, and placed into the sunlight of publication, no longer permits
the claim that no one knew.
This
post was prepared with research assistance from Claude Sonnet 5
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