Publications / Native Title
THINGS YOU NEED TO KNOW
- Mining companies are on the Australian Competition and Consumer Commission’s (ACCC) watch list following allegations that some have engaged in ‘cartel’ conduct by paying ‘registered Aboriginal parties’ the same pre-fixed rate to conduct cultural heritage surveys and to manage or salvage artefacts affected by mining development.
WHAT YOU NEED TO DO NEXT
- Mining companies should ensure that their planning and heritage assessment processes comply with approvals and the requirements of the law.
The Competition and Consumer Act 2010 (Cth) (CCA) espouses fairness of competition amongst businesses, and makes it a criminal and civil offence for businesses to collude in anti-competitive conduct such as price fixing. This issue has recently become relevant for the pre-feasibility stages of the mining industry following recent claims of price fixing for consulting work carried out on Aboriginal heritage survey in the Hunter Valley and the destruction of cultural artefacts and sites for mining development purposes.
The ACCC’s investigations
The ACCC is conducting investigations following allegations that mining companies have engaged in cartel conduct by paying ‘registered Aboriginal parties’ the same pre-fixed rate to conduct cultural heritage surveys and to manage or salvage artefacts affected by mining development, and that only certain aboriginal groups listed on a roster were given work by mining companies, to the exclusion of others.
A number of big mining players have been investigated in light of these allegations.
From a commercial perspective, price fixing and market sharing pushes out the small players in the industry, and increases the concentration of market power in the big companies. Not only is this illegal under the CCA, this also commodifies Australia’s heritage when Aboriginal groups start making decisions that are driven by a quantifiable reimbursement or compensation instead of their heritage.
How will this affect you?
The ACCC has warned that although it would only continue to monitor the situation rather than act on claims, there is a possibility that action will be taken if further allegations are brought to its attention.
With such close scrutiny on the Aboriginal cultural heritage survey industry by the ACCC, it is prudent to ensure that your planning and heritage assessment processes comply with approvals and the requirements of the law. Reviews of your internal policies and business practices need to be conducted regularly going forward.
McCullough Robertson has an expert Projects practice focused on the resources industry and native title. Our team is available to assist with any discussion of the impacts of the ACCC’s investigations or to advise on updating your business practices.
Focus covers legal and technical issues in a general way. It is not designed to express opinions on specific cases. Focus is intended for information purposes only and should not be regarded as legal advice. Further advice should be obtained before taking action on any issue dealt with in this publication.