Peter Burdon
What would you say if you were told that a large portion of South Australia is subject to an entirely different set of laws to the rest of the state? How would you feel if you knew that those legally responsible for this land consume more energy and water, create more waste and dangerous material, and extract more resources than any other body in SA?
More than 20 years ago, the SA government enacted the Roxby Downs (Indenture Ratification) Act 1982 (Indenture Act). In a single document the government legislated that some 1.5 million hectares in central SA, including the Roxby Downs uranium mine and surrounding areas, would be exempt from some of our most important environmental and Indigenous rights legislation. The act provides BHP Billiton the legal authority to override the:
- Aboriginal Heritage Act 1988;
- Development Act 1993;
- Environmental Protection Act 1993;
- Freedom of Information Act 1991;
- Mining Act 1971; and
- Natural Resources Act 2004 (including the Water Resources Act 1997).
This decision undermines community expectations that corporations should be regulated to limit the potential damage they can cause and ensure they remain accountable. It also challenges the SA government's expressed commitment to the "strictest environmental standards" for the Roxby Downs/Olympic Dam mine. Such sweeping legislative power is unprecedented and inconsistent with modern practices and government promises.
Aboriginal heritage
The inclusion of the Aboriginal Heritage Act 1988 (AHA) in the Indenture Act has significant consequences for equality and questions how seriously the SA government treats Indigenous rights and interests.
The AHA is the key legislative enactment aimed at protecting Indigenous heritage in SA. Before the operation of native title in the early 1990s, the AHA governed most government-Indigenous relations concerning land and cultural heritage. The act continues to play an important function for Indigenous cultural heritage. However, under the Indenture Act the traditional owners of the land surrounding Roxby Downs, the Kokatha, Arabunna and Barngarla peoples, are forced to deal with BHP Billiton to have their heritage recognised.
As Australian Conservation Foundation nuclear campaigner David Noonan noted, BHP Billiton is: "[I]n a legal position to undertake any consultation that occurs, decide which Aboriginal groups they consult and the manner of that consultation. As the commercial operator and proponent of expansion within these areas, [BHP Billiton is] in a position of deciding the level of protection that Aboriginal heritage sites received and which sites they recognised."
Through the Indenture Act, the government has placed BHP Billiton in a legal position to:
- ignore the provisions of the 1988 Act designed to protect Aboriginal heritage;
- determine the nature and manner of any consultation with Indigenous communities;
- choose which Aboriginal groups to consult with;
- decide the level of protection that Aboriginal Heritage sites receive; and
- decide which Aboriginal Heritage sites they recognise.
As owners of the Olympic Dam mine, BHP Billiton clearly cannot participate in decisions concerning the recognition and protection of Aboriginal sites without a gross conflict of interest.
Freedom of information
In October 2002, Premier Mike Rann and the administrative services minister Jay Weatherill signed the "Citizens Right to Information" charter. This charter commits the SA government to make information in government documents and records readily accessible to the state's citizens. It promises that the "South Australian Government is committed to attaining the highest standards of openness and accountability".
To fulfil this promise, the charter directs citizens to the Freedom of Information Act 1991 (FOI) and provides information about how to use the legislation. On this point, Friends of the Earth campaigner Joel Catchlove notes: "Freedom of Information legislation is an indispensable element of any society represented by a government. The legislation promotes government accountability and fosters informed public participation in government."
Legally, the FOI consists of rights and obligations concerning access to and amendment of information in the hands of government. The principal right conferred is a general right of access to a document of an agency or an official document of a minister. However, under confidentiality clause 35 of the Indenture Act, BHP Billiton has veto power over information relating to activities undertaken within the 1.5 million hectares covered by the indenture.
Catchlove says: "There is thus a massive portion of South Australia where mining giant BHP Billiton operates which is not subject to open public review or discussion and the fundamental tenancies of representative government have been laid to waste. The government promises openness and accountability with one hand and takes it away with the other."
Hedley Bachmann, in his August 2002 report to the state government on reporting procedures for the SA uranium industry, recommended: "In order to allow the release of information about incidents, which may cause or threaten to cause, serious or material environmental harm or risks to the public or employees, the government should revise and appropriately amend the secrecy/confidentiality clauses in the legislation."
The Bachmann report addressed a range of transparency or secrecy clauses contained in legislation relating to uranium mining. At the conclusion of his work, the state government amended two pieces of legislation to comply with his recommendations. These were the Radiation Protection Act 1982, section 19 and the Mines and Workers Inspection Act 1920, section 9.
While the veto power held by BHP Billiton remains intact, citizen confidence and faith in the SA government cannot. South Australian citizens have a right to know exactly what actions, decisions or activities our representatives and corporations are undertaking, particularly in such a high-risk operation as the Roxby Downs mine.
The mine consumes more resources than any other enterprise in the state and has the potential to seriously damage the health of workers and our natural heritage. Many natural wonders, which are of deep significance to the land's traditional owners, come under the indenture area. Responsible, accountable governments and corporations should have no need for secrecy, and in a project the scale of Roxby Downs, there is too much at stake to maintain it.
Environmental protection
At 2006 levels of operation, the Roxby Downs/Olympic Dam uranium mine is licensed to take 40 million litres of water a day from the Great Artesian Basin. The GAB is a vast and ancient body of water that lies deep under the surface of central Australia. It begins in far north Queensland and is a source of water for many pastoral properties and habitats, including the fragile and unique mound springs in SA's arid north.
BHP Billiton currently extracts 33 million litres a day from the GAB and farmers, environmentalists and traditional owners have reported dramatic reductions in water pressure, threatening and sometimes extinguishing rare ecosystems.
The radioactive waste tailings dam at Olympic Dam amounts to 60 million tonnes and is growing at 10 million tonnes annually. The tailings dam has been plagued by spills — most significantly in 1994, when the mine operators admitted some 5 million cubic litres had leaked from the dams over two years. Environmental audits provided to the Rann government continue to emphasise that the mine tailings are inadequately managed and require the implementation of urgent remedial measures.
BHP Billiton has no long-term plans for the management of these tailings, which because of their radioactivity may remain dangerous for thousands of years. When all valuable resources have been extracted, BHP Billiton plans to simply "cap" the tailings dump with soil.
Olympic Dam consumes more electricity than any other body in the state, 10% of the state's production, making it SA's single biggest producer of greenhouse gas.
The Indenture Act provides an override to the Environmental Protection Act and the powers and functions contained within. The EPA was to provide for the protection of the environment and the establishment of an Environmental Protection Authority to monitor and enforce compliance with the act.
The key objective of the legislation is the avoidance of "environmental harm", defined to mean any harm or potential harm to the environment, of whatever degree or duration. Potential harm includes risk of harm and future harm.
This legislation embodies SA's most important and strongest environmental safeguards but its provisions are absent from BHP Billiton's Olympic Dam operation. In fact, under the indenture, Primary Industries and Resources South Australia is responsible for overseeing the project's environmental standards. As a government body dedicated to promoting mining, PIRSA has a clear conflict of interest in this role.
Take action
Legal accountability and guarantees of BHP Billiton's environmental performance are crucial, particularly in light of the proposed expansion of the Olympic Dam mine into the largest open-cut mine in the world. The scale of this operation and the associated risks threaten damage to the environment on a scale we have not yet seen.
With BHP Billiton seeking a four-fold expansion of its Roxby Downs/Olympic Dam uranium mine and the Indenture Act due to come up for review in the next 18 months, now is a crucial time to act for government and corporate accountability. For more information, contact Peter Burdon of Friends of the Earth at <peter.burdon@foe.org.au> or 0401 751 285, or visit <http://www.geocities.com/olympicdam>.
[Friends of the Earth is a federation of autonomous local groups working towards an environmentally sustainable and socially equitable future. FoE seeks to work in alliances with other like-minded groups and individuals to achieve the necessary social change that will allow for environmental protection, with full protection for the rights of all people. For more information, visit <http://www.foe.org.au>.]
From Green Left Weekly, May 31, 2006.
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