13th July 2015
SCARCELY ACCURATE: NUCLEAR FUEL CYCLE ROYAL COMMISSION ‘ISSUES PAPER’ INACCURATE
Friends of the Earth have informed Royal Commissioner Kevin Scarce and the Nuclear Fuel Cycle Royal Commission of a significant inaccuracy in Issues Paper 1, regarding the current and future legal framework for the nuclear industry in South Australia. According to the Royal Commission, the Issues Papers are intended to provide factual information and background to assist the public in making submissions.
Issues Paper 1, which deals with the exploration, extraction and milling of uranium, states that Aboriginal sites of significance are protected by the Aboriginal Heritage Act 1988.
“This is not the case for BHP Billiton, South Australia’s biggest miner,” explained Nectaria Calan of Friends of the Earth Adelaide. “Under the Indenture Act, which applies solely to BHP Billiton, the company’s Olympic Dam mine and some 15, 000 square kilometres of the surrounding Stuart Shelf, are exempt from the Aboriginal Heritage Act 1988. This exemption would also apply to any future expansion of uranium mining by BHP Billiton at Olympic Dam or in the surrounding area.”
“This inaccuracy is significant as it misrepresents existing regulatory and legal arrangements and potential arrangements in the future, issues on which the Issue Paper invites public comment,” said Ms Calan. “The largest of the two operating uranium mines in the state is exempt from the Aboriginal Heritage Act 1988, alongside a further 15, 000 square kilometres of South Australia. BHP Billiton is also the most likely candidate for the expansion of uranium mining, also the subject of Issues Paper 1. It is negligent to omit that this company is subject to a different legal framework than other companies operating in the state.”
“We have requested that the Royal Commission address this mistake, adequately publicise the required corrections, and extend the upcoming deadline for submissions to allow people to consider the new information that the Royal Commission should provide. The public cannot make submissions based on inaccurate information.”
N.B. Legal details are provided as an appendix.
For comment contact:
Friends of the Earth Adelaide
- Pursuant to section 9(10) of the Roxby Downs (Indenture Ratification) Act 1982, the Aboriginal Heritage Act 1988 does not apply to the Olympic Dam mine. Rather, the Indenture Act recognises the Aboriginal Heritage Act 1979, a historical version of the Act that was effectively repealed by the Aboriginal Heritage Act 1988. The Aboriginal Heritage Act 1979 was never proclaimed, so has never operated as a law in South Australia. Section 9(10) of the Indenture Act further states that any subsequent amendment or repeal of the 1979 Act shall not affect its application for the purposes of the Olympic Dam mine, without the consent of the Joint Venturers (now BHP Billiton).
- Section 9 of the Indenture Act also grants BHP Billiton exemptions from the Aboriginal Heritage Act 1979. In particular, section 9 exempts BHP Billiton from provisions in sections 21 and 26 of the Aboriginal Heritage Act 1979 which relate to protected sites and the removal of artefacts. Broadly, the significance of these exemptions is that lands subject to a mining lease (currently the Olympic Dam mine), may not be declared by the Minister to be a protected area in order to protect an aboriginal heritage site without the agreement of BHP Billiton, or unless the site has already been identified by the company in the Environmental Impact Statement (Section 9(5) and 9(6)). The company must also agree before a person may enter and excavate the land to remove an item of aboriginal heritage, on land subject to a mining lease or associated infrastructure, and lands subject to exploration licences granted subject to the Indenture Act (Section 9(7)(c)) . Under the Aboriginal Heritage Act these matters are decided by the Minister, whereas the Indenture Act grants BHP Billiton ultimate discretion.
- Although most parts of the Roxby Downs (Indenture Ratification) (Amendment of Indenture) Amendment Act 2011 are yet to commence, this Act would extend the application of the Aboriginal Heritage Act 1979 to the future expansion of mining activities by BHP, alongside exemptions similar to those outlined above.
- Pursuant to sections 9(1) and 9(10) of the Roxby Downs (Indenture Ratification) Act 1982, the application of the Aboriginal Heritage Act 1979, subject to the exemptions outlined in Section 9, extends beyond the Olympic Dam project area to cover the much larger geographic area of the “Stuart Shelf Area.” This covers most of the Stuart Shelf at some 15 000 square kilometres. This estimate was provided in the Legislative Council by Gail Gago, with the qualification that it is an estimation as the government did not have an exact figure (South Australian Parliament, Legislative Council, Hansard, 24th November 2011, p. 4719). The Stuart Shelf Area is defined in Schedule 6 and Map B of the Roxby Downs (Indenture Ratification) Act 1982.