Mining companies in WA are forking out $23,000 per day for Aboriginal cultural heritage surveys, as the industry warns the cost of complying with the “burdensome” laws has blown out by 50 per cent in three years.
The Association of Mining and Exploration Companies (AMEC) surveyed 59 member organisations — representing about 40 per cent of the total number in the state — which identified 85 Aboriginal cultural heritage activities mostly undertaken since 2022.
Internal and external costs reported by respondents totalled $17.8 million, $10.5 million of which (59.1 per cent) was spent on cultural heritage surveys.
The average cost of cultural heritage surveys was $23,817 over the typical 10-day period. The median per-day cost of surveys has increased by 46.6 per cent when comparing the 2023-25 period to 2018-22, AMEC found.
Alex Dorsch, chief executive of Chalice Mining, said the while the majority of the industry supported “meaningful engagement with traditional owners and genuine benefits flowing to communities … the current process is drowning under layers of administration, legal costs and consultant fees”.
“Our exploration projects are in the South West Settlement area, where native title has been extinguished and the state is paying significant compensation to these groups as well as agreeing to arrangements for future exploration,” Mr Dorsch said in a statement.
“This should be one of the easiest places in WA to get on ground to conduct exploration, yet we still face lengthy, costly delays, which is holding back the next generation of mineral discoveries in the state.”
Mr Dorsch said WA was “becoming less competitive for exploration investment given these issues are seemingly allowed to continue unchecked”.
“We’re talking about small and mid-tier explorers that have no production revenue, yet they are carrying compliance costs that continue to escalate by multiples year after year,” he said.
AMEC’s survey found the average per-activity cost was $513,864 and the median cost was $214,884, with cultural heritage surveys accounting for the majority at an average cost of $366,630 and a median cost of $137,500.
Four out of five organisations in the state described the compliance processes as “onerous”, while nearly two-thirds indicated that it took much longer than expected.
Just over half of respondents said they had been asked to resurvey an area where previous work had been undertaken.
Managing and complying with Aboriginal cultural heritage took an average of 552 days and a median of 260 days, with timelines significantly longer for larger organisations.
The agreement-making process took the most time, averaging 333 days at a median of 180 days.
AMEC said medium- to large-sized businesses were found to typically spend 800 days and $450,000 on required processes per activity, 3.1 times and 2.1 times higher than the industry median, respectively.
Nearly half (45.8 per cent) said they had experienced a situation where after the conclusion of an agreement-making process and entry into a formal contract, the native title group “has been unwilling to be bound by the agreement”.
Just over half (54.1 per cent) were able to complete their planned works.
In one case study, a small critical minerals explorer in WA’s northern region reported spending a total of $924,000 to conduct exploration of a new prospect on a licensed area, mostly through $860,000 on three separate cultural heritage surveys.
“Processes were described as ‘extremely onerous’ due to a lack of communication and organisation between the native title group and prescribed body corporate,” the report said. “Poor organisation and a lack of process was said to contribute to outcomes and actions being repeated across multiple meetings.”
The quality of cultural heritage consultants was described as “poor”, as there is no requirement for registration to be certified. “Consultants are also said to send out people to site with no experience of Australian Aboriginal heritage,” the report said.
“Challenges” in the survey phase were cited as, “Invoice received with no cost breakdown of costs from the consultant, and unable to provide. Challenges meeting with the consultant to discuss report inconsistencies. Quality and delivery frustrations associated with archaeological work.”
The same company spent an additional $40,000 in the consultation phase, including upfront payments to the Aboriginal group which charged $10,000 to attend a pre-scheduled board meeting.
“The organisation involved calls for a review of the costs in general across the industry, as smaller companies cannot afford to match the costs of larger operators,” the report said.
The AMEC report estimated that for every $100 spent by industry complying with cultural heritage laws, just $40 flowed to Aboriginal groups and associated bodies, with most going to consultants, lawyers and other internal costs.
Western Australia’s Aboriginal Heritage Act (AHA) makes it an offence to disturb or damage an Aboriginal site without approval, and sets out processes for mining and exploration companies to follow including cultural heritage surveys, agreement making and consultation with native title groups.
Nearly 90 per cent of WA’s landmass is covered by registered or determined native title claims.
In 2023, the Cook Labor government ditched new, more onerous cultural heritage legislation after widespread backlash from farmers and landowners, reverting to the 50-year-old law it had replaced.
The government announced last May it would conduct a review into native title and cultural heritage processes to identify “options to improve the efficiency, effectiveness and equity” of the scheme, in response to concerns about slowing exploration activity and reduced investment in mining projects.
AMEC’s member survey, conducted by consulting firm ACIL Allen, concluded that “most organisations viewed Aboriginal cultural heritage processes as more burdensome than the risks they address, with organisations observing a lack of capacity, resources, or efficiency of native title groups to act in a timely and cost-effective manner”.
“While experiences differ in undertaking the required management and compliance processes, generally agreement-making takes time while surveys incur cost,” the report said.
AMEC chief executive Warren Pearce said the “real tragedy is that too much of this money disappears into process costs instead of creating lasting benefits for Indigenous communities”.
“Money that could be making a difference for Aboriginal people is currently being diverted into the hands of an army of lawyers and consultants bleeding the process dry,” Mr Pearce said in a statement.
“These costs have gone beyond reasonable cultural heritage protection and into a system that is economically unsustainable for explorers. The people who should be benefiting most from these agreements are often seeing the least return from the money being spent.”
Mr Pearce said there was a “growing disconnect between the intent of the system and the way it is operating on the ground”.
“No one is arguing against protecting heritage,” he said.
“The issue is whether the system is efficient, transparent and delivering outcomes where they matter most. There needs to be far greater transparency around where this money is going and how much is actually reaching traditional owner communities.”
Mining and exploration companies are “prepared to invest in respectful heritage processes, but they also need certainty that the system is fair, practical and fit for purpose”.
“We’re seeing exploration budgets redirected away from drilling and into process costs, and that should concern everyone who cares about WA’s economic future,” Mr Pearce said.
“The longer reform is delayed, the harder it becomes for smaller companies to survive in an already challenging investment environment.”
A WA government spokeswoman said in a statement, “The Cook Labor government acknowledges the considered feedback from the Association of Mining and Exploration Companies (AMEC) members on the timeframes, complexity and costs associated with managing Aboriginal cultural heritage requirements.
“The government is currently considering the Kelly Review’s findings and will work closely with native title holders, government agencies, and industry to progress any of the agreed-upon recommendations.
“Negotiations on a bilateral agreement with the Commonwealth government are continuing with the aim of reducing duplication and ensuring decisions can be made on major job-creating projects without delay.
“WA continues to advocate for changes to National Environment Standards which recognise the role of local industry in leading national economic growth.”
Opposition leader Basil Zempilas said, “Since this government’s failed Aboriginal Heritage reforms in 2021, we’ve seen no certainty on Aboriginal heritage issues for our resources industry. Those reforms were unclear, unwelcome from both industry and traditional owners, and ultimately damaging to our economy.
“This survey of mining explorers and producers is a reminder that we need action when it comes to land access in WA to ensure timely approvals.
“It’s a concern that Minister Punch and Premier Cook are still sitting on the Glen Kelly Review into Aboriginal Heritage and Native Title — why is it still shrouded in secrecy?
“The opposition has recently introduced an Order to Produce in Parliament to immediately release the Glen Kelly Review and to provide certain to industry and traditional owners.
“AMEC’s survey also shows clearly that WA Labor’s current regulatory framework is pricing out small explorers, who cannot afford the million-dollar compliance costs.
“The government has built a bureaucracy in Aboriginal heritage where lawyers and consultants pocket 60 cents of every dollar, while traditional owners are left with very little tangible economic benefits.”
