Olympic Dam expansion: above the law?

ONLINE opinion By Peter Burdon -, 9 October 2009

In the heart of the South Australian outback, rests the Olympic Dam mine, owned and operated by BHP Billiton. The project currently mines iron oxide, copper, gold, silver and uranium and is seeking to extend its operations with the largest open pit operation in the world. Concerns raised by environmental groups relate to carbon pollution, water use, indigenous land rights, the location of the proposed desalination plant and broader concerns relating to democracy and the rule of law. This article will address this last point and in particular the Roxby Downs (Indenture Ratification) Act 1982 (Indenture Act) which operates in the lease area.

The Indenture Act

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).

The Indenture Act undermines community expectations that corporate bodies 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. Further, such sweeping legislative power is not consistent with modern practices and government promises. I will consider some of the acts powers in more detail, beginning with the inclusion of the Aboriginal Heritage Act 1988 (AHA).

Aboriginal Heritage Act

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.

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 Act

Freedom of information is vital to the functioning of an open and transparent society. Speaking to 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 notes:

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.

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

The Olympic Dam mine is licensed to take 42 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 37 million litres a day from this source – a number set to increase to 42 million litres following the expansion. Farmers, environmentalists and traditional owners have reported dramatic reductions in water pressure, threatening and sometimes extinguishing rare ecosystems.

Radioactive waste tailings dam at Olympic Dam is 80 million tonnes and growing at rate of 10 million tonnes per annum. 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 per cent of the state’s production, making it SA’s single biggest producer of greenhouse gas. The expansion will increase this number to 25 per cent and when combined with carbon emitted from digging the open pit, this will make it impossible for South Australia to meet their Kyoto targets.

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.

Conclusion

The Indenture Act has no place in a society which values, equality and which takes seriously environmental protection. The Act should play no role in the proposed expansion of Olympic Dam and should be substantially amended in 2010 when it comes before the South Australian Government for review.
http://www.onlineopinion.com.au/view.asp?article=9527

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