Above the law: the Olympic Dam mega-mine

Premier Mike Rann has done us a favour by insisting on concluding negotiations with BHP Billiton over the SA Roxby Downs Indenture Act before leaving office. It is by no means clear that the outcome will be improved with Mr Rann's involvement, but he has at least drawn attention to this remarkable legislation.

The Indenture Act governs the operations of the Olympic Dam copper/uranium mine. The legislation was controversial when it was enacted in 1982 and it is all the more inappropriate as the basis for the planned expansion of the mine.

The Act provides BHP Billiton with the legal authority to override important state legislation including the Aboriginal Heritage Act 1988, the Environmental Protection Act 1993, the Freedom of Information Act 1991, the Natural Resources Act 2004 (including water management issues), the Development Act 1993 and the Mining Act 1971.

An indication of the sweeping nature of the legal privileges is the statement in the Indenture Act that: "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." In other words, the Indenture Act trumps all other SA legislation.

The Aboriginal Heritage Act 1988 is the key law aimed at protecting Indigenous heritage in South Australia. However, under the Indenture Act, BHP Billiton is in a legal position to determine what consultation occurs with Traditional Owners, who is consulted, and the nature of any consultation. The company decides the level of protection that Aboriginal heritage sites receive and which sites are recognised.

BHP Billiton claims that it fully complies with Aboriginal heritage legislation even though it is not required to do so. If so, the company ought to willingly relinquish the legal privileges. It is ironic that BHP Billiton supports Reconciliation Australia's good governance program and has provided over $2 million to Reconciliation Australia, yet will not relinquish its exemptions from the Aboriginal Heritage Act. It is a case of 'Do as I say, not as I do'.

Under confidentiality clause 35 of the Indenture Act, BHP Billiton has veto power over public release of information relating to activities undertaken within the 1.5 million hectares covered by the Indenture Act, and related matters such as government/company negotiations.

Under the current Indenture Act, there can be no truly independent, external environmental assessment of the impacts of the mine. An example of the problems arising from inadequate environmental regulation occurred in 2009 when an Olympic Dam mine worker, concerned about the company's failure to adequately address leaks in the tailings dam, supplied photos of the leaks to media outlets. BHP Billiton's dismissive response was to threaten "disciplinary action" against any employee caught taking photos of the mine site. Transparency, be damned. And keep in mind that BHP plans to increase the rate of radioactive tailings production from nine million tonnes annually to 68 million tonnes. Managing this waste will clearly be a huge challenge.

The SA Labor Government has refused to commit to repeal the legal privileges although they are clearly inconsistent with the Government's policy of applying the "strictest environmental standards" to uranium mining.

Nor has there been any indication from BHP Billiton that it will relinquish the privileges although they are inconsistent with the company's policy of meeting "internationally recognised standards". Olympic Dam does not have to comply with South Australian standards let alone international standards.

Olympic Dam ought to be subject to legislative and regulatory controls and standards at least as rigorous as those that apply to smaller projects. To apply considerably weaker standards is indefensible.

Over to you, Mr Rann − repealing the indefensible legal privileges in the current Indenture Act would be a good way to end your tenure as SA Premier.