2019: See David Noonan’s short briefing paper on the Indenture Act
See also 2011 information posted at this link.
Click here to download a 3-page 2008 PDF statement about the Roxby Downs Indenture Act:
In this webpage:
* Peter Burdon’s article
* Greens MP Mark Parnell’s speech in SA Parliament.
BHP’s Olympic Dam copper/uranium/gold/silver mine in South Australia is a state within a state; it operates under a unique set of laws enshrined in the amended Roxby Downs Indenture Act. That would be unobjectionable except that the Indenture Act allows Olympic Dam wide-ranging exemptions from environmental laws, water management laws, Aboriginal Heritage laws, and it curtails the application of the Freedom of Information Act.
Then SA Liberal Party industry spokesperson Martin Hamilton-Smith said “every word of the [Indenture] agreement favours BHP, not South Australians.” It beggars belief that the SA Labor government would agree to such one-sided terms; and it beggars belief that Mr Hamilton-Smith and his Liberal colleagues waved it through Parliament with no amendments.
The only politician to insist on some scrutiny of the amended Indenture Act was SA Greens MLC Mark Parnell. He was accused of holding the state’s economy to ransom. Yet the transcripts of his late-night Parliamentary questioning of the Labor government ought to be required reading (see here and here). Time and time again the government spokesperson said that BHP wanted such-and-such a provision in the Indenture Act, and the government simply agreed without further consideration or consultation.
For example, Parnell asked why the Indenture Act retains exemptions from the SA Aboriginal Heritage Act. The government spokesperson said: “BHP were satisfied with the current arrangements and insisted on the continuation of these arrangements, and the government did not consult further than that.”
Above the law? Roxby Downs and BHP Billiton’s Legal Privileges
Friends of the Earth, Adelaide
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 South Australia?
Over 20 years ago the South Australian 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 South Australia, including the Roxby Downs mine and surrounding areas, would be exempt from some of our most important environmental and indigenous rights legislation. The Indenture 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
· 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 to ensure they remain accountable for their actions. It also challenges the South Australian 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.
To view the Roxby Downs Indenture Act:
- search via: legislation.sa.gov.au/index.aspx
The Indenture Act and Aboriginal Heritage
The inclusion of the Aboriginal Heritage Act 1988 (AHA) in the Indenture Act has significant consequences for issues of equality and questions how seriously our State Government treats Indigenous rights and interests.
The AHA is the key legislative enactment aimed at protecting Indigenous heritage in South Australia. Prior to the operation of Native Title in the early 90s 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 now forced to deal with BHP Billiton to have their heritage recognised. As ACF 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 abdicated its responsibility to address Aboriginal Heritage issues in relation to the Roxby Downs mine. They have 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
· 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 Minister for Administrative Services, Jay Weatherill, signed the ‘Citizens Right to Information’ charter. This Charter commits the Government of South Australia to making information in Government documents and records readily accessible to the citizens of South Australia. Contained within this document is a promise 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. The other basic rights and obligations which FOI confers or imposes are, in summary:
“The obligation of the responsible minister to publish certain information, including: a statement setting out the organization and functions of agency; a statement of the categories of the document that are maintained in the possession of the agency; and a statement of any information that needs to be available to the public concerning particular procedures of the agency in relation to obtaining access to documents.”
“The obligation to make available for inspection and purchase documents that are used by the agency in making decisions, such as manuals containing guidelines and practices.”
Under confidentiality clause 35 of the Indenture Act, BHP Billiton have veto power over information relating to activities undertaken within the 1.5 million hectares covered by the indenture. Mr 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.”
This fact was also commented on by Hedley Bachmann in his 2002 report to the State Government on reporting procedures for the South Australian uranium industry. In his report Bachmann 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 causes 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. They were the
· Radiation Protection Act 1982: Section 19
· Mines and Workers Inspection Act 1920: Section 9
While the veto power held by BHP Billiton remains intact, citizen confidence and faith in the South Australian 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 uranium mine. The mine consumes more resources than any other enterprise in the state and has the potential to serious damage the health of South Australian workers and South Australia’s 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.
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 (GAB). 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 South Australia’s arid north. Currently BHP Billiton 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. Under the Indenture Act, BHP Billiton is not required to pay for this water.
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 five 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 “an issue of real concern” requiring “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 simply plans to ‘cap’ the tailings dump with soil.
Additionally, Olympic Dam consumes more electricity than any other body in the State, ten percent of the state’s production, effectively making it SA’s single biggest producer of greenhouse gas. This impact will only increase with the mine’s projected expansion.
The Indenture Act provides an override to the Environmental Protection Act 1993 (EPA) and the powers and functions contained within. The EPA was enacted 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 this legislation is the avoidance of ‘environmental harm’, a term that is defined in the legislation to mean any harm or potential harm to the environment, of whatever degree or duration. Potential harm includes risk of harm and future harm.
The legislation imposes different penalties for offences causing environmental harm. The most heavily penalised offence is the offence of causing serious environmental harm by polluting the environment intentionally or recklessly and with knowledge that serious environmental harm will or might result. A lower penalty is imposed where a person, by polluting the environment, causes serious environmental harm.
The Environmental Protection Authority is charged with enforcing these provisions. The Authority has the power to:
· Serve notices on people violating the EPA and order them to comply.
· Place conditions on licences and other environmental approvals.
· Impose or vary a condition of an environmental authorisation.
· Demand financial assurance to be made where there is a high risk that operation will result in environmental harm. This money is used to counteract resulting environmental or community damage.
· Require an organization to prepare a plan of action in the event of emergencies that might arise out of the operation.
These provisions are South Australia’s most important and strongest environmental safeguards and they are absent from BHP Billitons Olympic Dam operation. In fact, under the Indenture, Primary Industries and Resources South Australia (PIRSA), 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. Friends of the Earth Campaigner Sophie Green notes:
“Whether you support the mining operations at Olympic Dam or not commonsense dictates that where a massive project is being undertaken which has the potential (and indeed likelihood) of damaging vast portions of the environment, our strongest environmental safeguards should apply. We are only asking that BHP Billiton be held to the same standard as every other corporation in Australia.”
In reviewing the conditions surrounding the massive 1994 leak, Dr. Gavin Mudd emphasises that the Indenture Act essentially prevents the mine from environmental responsibility and “until the [Indenture] Act is revoked entirely there can be no truly independent, external environmental assessment of the impacts of Olympic Dam”.
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. Ms Green notes,
Our Government is playing a dangerous balancing game with promises on one hand and contrary legislative action on the other. Actions speak louder than words and its time we demanded more from our representatives.
1 Noonan, D 2006, personal communication, 30 March 2006
2 Government of South Australia, ‘Citizens Right to Information’, accessed 1 May 2006.
3 Catchlove, J 2006, personal communication, 7 April 2006.
4 Catchlove, J 2006, personal communication, 7 April 2006.
5 Bachmann, H 2002, ‘Reporting Independent Review of Reporting Procedures for the SA Uranium Mining Industry, August 2002, p. 1
6 Wiese Bockmann, M 2006, ‘Waste fears at uranium mine’, The Australian, 10 March 2006, p. 7
7 Green, S 2006, personal communication, 7 April 2006.
8 Mudd, G 1997, ‘SA Parliamentary Inquiry into the Tailings System Leakage’, Sea-US, accessed 11 May 2006, <http://www.sea-us.org.au/roxby/sa-inquiry.html>
Greens (SA) Amendment Bill
The Greens’ Bill to repeal the legal privileges was rejected by Liberal and Labor parties.
GREENS BILL: Roxby Downs (Indenture Ratification) (Application of Acts) Amendment Bill
June 6th, 2007
On the 6th of June, Mark Parnell introduced and spoke about his Greens Private Members bill, for an act to amend the Roxby Downs (Indenture Ratification) Act 1982
The Hon. M. PARNELL: The Roxby Downs (Indenture Ratification) Act 1982 was created to fast-track and protect the establishment and operation of the Olympic Dam copper and uranium mine, which was then owned by a joint venture comprising BP and Western Mining Corporation (which later became WMC Resources Ltd). In 2005 BHP Billiton acquired WMC Resources Ltd and the benefits of this act passed to that company.
The bill I have introduced deals with a small but important aspect of the indenture legislation, that is, the parts of the act that provide that this indenture act takes precedence over other laws of South Australia. Section 7 of the Roxby Downs (Indenture Ratification) Act provides:
“The law of the state is so far modified as is necessary to give full effect to the indenture and the provisions of any law of the state shall accordingly be construed subject to the modifications that take effect under this act.”
The Act, having created that general precedence over other state law, then goes on to list a large number of public statutes that are to be construed subject to the provisions of the indenture. These include the Commercial Arbitration Act, the Crown Lands Act, the Development Act, the Electricity Corporations Act, the Environment Protection Act, the Harbors and Navigation Act (although, given the location of the Roxby Downs mine, one wonders where this act might fit in; nevertheless, it is subject to this indenture), the Mining Act, the Petroleum Act, and it goes on, finishing with the Water Resources Act. These acts of state parliament are secondary to the provisions of the indenture; the Indenture Act prevails.
The purpose of this bill is basically to say that enough is enough when it comes to exemptions from state law. The deal to get the Roxby Downs (Indenture Ratification) Act through and get the mine up was made in the 1980s. It is 25 years ago now that this bill went through and standards of law, especially environment protection provisions, have advanced greatly in that time. The special exemptions that helped get the Roxby Downs mines up and running are simply no longer relevant or appropriate in the 21st century. In short, the world’s biggest miner does not need a free kick from the South Australian government or from this parliament. There is absolutely no reason for the mine operators to be granted special favours that give them a potential commercial gain over other miners and other developers.
It will come as no surprise to honourable members to know that my view that indenture laws are bad law applies to this legislation, as it did to the Whyalla legislation passed before I got here. The issue is one of levelling the playing field, of equity, so that corporate players in South Australia are all bound by the same rules and that we do not have special rules for some players over others. What I need to make abundantly clear is that this legislation is not about repealing the indenture act or about closing the Roxby Downs mine: it purely seeks to remove the special exemptions from state law that apply pursuant to this Indenture Act.
The uranium industry has also been calling for a level playing field and, as members might recall, one of the key recommendations of the Uranium Industry Framework Steering Group, which was released in 2006 by commonwealth industry minister Ian Macfarlane, was:
“The Australian government and state and territory governments [to] work cooperatively to ensure that, where possible, environmental and other regulatory arrangements across jurisdictions are harmonised.”
They are important words. Harmonisation means a level playing field, that the law applies equally to all players. The framework document goes on as follows:
“. . . coherent and consistent policy framework reflecting the respective policy objectives, roles and responsibilities of the Australian government and state and territory governments in relation to the regulation of the uranium industry.”
So in a way, my bill puts into effect what the uranium industry itself is calling for — harmonisation and uniform standards to apply to all.
I point out that one piece of legislation which does not apply to Roxby but which would apply to any other miner in South Australia is the Aboriginal Heritage Act. This is the primary piece of legislation in this state to protect our indigenous cultural heritage. However, the indenture act places BHP Billiton in a legal position so that it can choose which Aboriginal groups it acknowledges and consults with, what form that consultation takes, which Aboriginal heritage sites it recognises, and what degree of protection to offer to those sites.
In response to media interest in this bill, Richard Yeeles from BHP Billiton said yesterday in a statement that he released to ABC radio:
“Olympic Dam complies in all respects with Aboriginal heritage legislation — in fact, in making its relationships with Aboriginal groups and protecting Aboriginal heritage, Olympic Dam does much more than the Aboriginal heritage legislation requires.”
My response to that is to thank Richard Yeeles, because that is exactly my point, that is, the indenture act is an anachronism. If we do not need these special privileges, let us get rid of them. It should not be up to BHP Billiton to determine which laws it complies with in this state and to what extent it complies with them. So, I am as one with Richard Yeeles. If he is saying that BHP Billiton is already complying with the law, let us remove the exemption from the indenture legislation.
The Environment Protection Act is another act of this parliament that is part of the exemption in the indenture act. Some aspects of the mine’s operation are monitored by the EPA, but one environmental aspect that is outside that is water resources. The water resources laws now contained in the Natural Resources Management Act do not apply to the Roxby Downs mine. As members would know, because it has been mentioned in this place many times, whilst irrigators and householders are suffering water restrictions, BHP Billiton’s arrangements provide that it gets its water for free and there is no risk to the quantities it can take. That is directly against the national water initiative which says that, when we need to reduce allocations, we need to share the pain of those cuts around. This particular corporate operation does not need to share any of the pain of water cuts to which irrigators and householders are subject.
One question honourable members might be asking themselves is: why bother with amending this indenture act now? Clearly, if and when the expanded open-cut mine is given approval, we will need to rewrite the laws anyway because, clearly, the current indenture act does not apply to a big open-cut mine. The current indenture act applies to a mine with a production of 350 000 tonnes of copper per year, and it is limited to the current method of operation, which basically means that it is underground mining. The Olympic Dam mine currently produces some 235 000 tonnes of copper, and the expansion is projected to increase its output to 500 000 tonnes — and possibly up to one million tonnes — and that will be through an open cut, which will necessitate a review and updating of the act to apply to the mine’s changed circumstances. However, I think it is important that we consider now the appropriateness of an approach that exempts a corporate player from complying with the laws of this state. If the Roxby extension goes ahead, we can reflect the decision we make now in any new arrangements that are put in place.
I do not propose to go into a lot of detail about the explanation of the clauses of the bill. It is a very simple bill. There are two main operative sections, the first of which amends section 7 —modification of state law. The key elements of my bill are that five named acts are removed from the power of that exemption. So, two Aboriginal heritage acts, the Development Act, the Environment Protection Act and the Natural Resources Management Act will apply to the Roxby Downs mine.
In addition to section 7, the bill also provides that the secrecy provisions contained in section 35 of the indenture do not apply in relation to freedom of information applications. I think that is important because the Freedom of Information Act is the standard the law of this state applies to disclosure of information, and it is unfair for secrecy provisions to override that public law. That is not to say that, by making section 35 of the indenture subject to the Freedom of Information Act, it will be open slather; it will not be. The protections in the Freedom of Information Act in relation to commercially confidential material, for example, would continue to apply. However, the message it sends is that the documents BHP Billiton provides to government are equally able to be disclosed under freedom of information as those of any other mining company.
The second main operative provision of the bill is clause 5, which repeals section 9 of the act, which modifies the Aboriginal heritage legislation as it applies to this project. So, again, it levels the playing field and it says that this mine is subject to the Aboriginal heritage legislation in the same way as any other miner would be. In summary, I think most members of the South Australian community would be very surprised to discover that a 25 year old piece of legislation that allows the biggest development in South Australia to follow the least amount of rules is still in place.
It seems very clear to me that there is no financial argument at all for a need for these exemptions. There is no need for BHP Billiton to be given special treatment. This is one of the world’s richest companies. It announced, as I recall, a half year profit of some $8 billion. I do not believe that we do need to tread on eggshells when we are negotiating with large manufacturing corporations such as BHP Billiton. There is no question at all that, in its view, it is here for the long haul, and there is no risk of its taking its bat and ball and going somewhere else because it is being made to comply with the general laws of South Australia. With those comments, I commend the bill to the council.