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Clean Futures Collective Better active today than radioactive tomorrow! |
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Above the law? Roxby Downs and BHP Billiton’s Legal Privileges Peter Burdon, Friends of the Earth Adelaide, May 2006 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. 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. |
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Last updated 23 May 2006 |