Olympic Dam expansion: above the law?

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.