Decision-making process and outcomes

Introduction

In order to truly understand the decision-making processes which underpinned the controversy over Jabiluka in the late 1990s, it is important to gain some comprehension of the legal and political framework relevant to the issue, in its historical context. This will reveal how it has been possible for mining companies and the Australian Government to utilise traditional Aboriginal lands within a World Heritage listed National Park for the benefit of an industry as controversial as uranium mining. See image 1

The 1976 Aboriginal Land Rights Act

The crucial piece of legislation, central to gaining any understanding of the Jabiluka debate, is the Aboriginal Land Rights Act (Northern Territory) 1976 (Cth) (hereon in referred to as the Act). Under the provisions of this significant Act, Aboriginal persons could claim ownership of Crown land reserves they had inhabited prior to European arrival in Australia. See image 2

The areas now encompassed by the Ranger and Jabiluka Mineral Leases came under this Act and, as discussed in previous chapters, the Mirarr people are the traditional owners of this land within Kakadu National Park. The Northern Land Council (NLC) was the council established to oversee land management in the area and was hence responsible for approving the applications for the Ranger and Jabiluka Mineral Leases. Although the Act did acknowledge Indigenous communities' rights to control what happened on their land, there were various ways in which this massive piece of legislation could be manipulated and the power of Indigenous peoples and the Land Councils made redundant.

Section 40 (a) of the Act stated that a mining lease could not be granted unless the Land Council consented to it. It had also already been stipulated under s 23(3) of the Act that Land Councils could not take any action with respect to leasing Aboriginal land unless it was satisfied that the traditional Aboriginal owners properly understood and consented to what was being proposed.

Essentially these two sections of the legislation would presumably guarantee that the traditional land owners had the power to veto (refuse) proposals to mine in their areas. A closer inspection of the legislation, however, reveals that this was not the case. Under s 40 (b) of the Act this power of veto became virtually redundant when it was outlined that, if the Governor-General proclaimed it to be 'in the national interest' to mine, a lease could in fact be granted even if the Land Council and/or traditional owners had not consented.

This leaves us with two important questions to think about.

• Firstly, how did the Land Councils define being 'satisfied' that the traditional owners understood 'the nature and purpose' of, and consented to, proposals to use the land for mining?

• Secondly, how would the Governor-General define 'the national interest' when making decisions to allow mining in these areas?

In the 'national interest'

As mentioned earlier, (refer to Chapter 2), through their promotion of a multiple land-use model of management, the mining industry certainly argued that uranium mining at Jabiluka was in the national interest. They believed that it would provide benefits to the entire community, including the traditional land owners, in the areas of employment, infrastructure, housing and tourism. They also argued that it would benefit Australia on a national scale.

Thus far the 'national interest' clause has never had to be used because the NLC has consented to mineral leases in Kakadu. Much doubt and controversy, however, surrounds the question of how the NLC was persuaded to allow this and whether the Mirarr people and other Indigenous communities really had much say in the matter.

1980s - Initial approval to mine at Jabiluka

In 1982 the NLC signed an agreement granting the mining company, Pancontinental, a mineral lease for the Jabiluka area. The circumstances surrounding the signing of this lease were controversial and are now highly contested. Some people argue that the NLC consented to the lease only because it was mislead and heavily pressured by the government-supported mining companies. Others have noted that the Mirarr people were told if they opposed the Jabiluka Mineral Lease, then any future claims to traditional Aboriginal lands in the area would not be approved. The Mirarr people support this argument, maintaining that they were coerced into agreement and were never really given much choice in the matter.

Even before it was signed, the requirements for gaining this lease included receiving federal government approval for the mining proposal. Pancontinental received this from the government in 1979, which at the time was under the leadership of Prime Minister Malcolm Fraser. Without this approval, the lease could not have been granted.

When Prime Minister Bob Hawke was elected to power in 1983, however, the new Labor Government withdrew Pancontinental's permit to export uranium from the Jabiluka Mineral Lease. Taking away their export rights meant that it would have been useless for them to mine there. Thus, even though a mine had been constructed, Jabiluka's uranium reserves remained untouched for over a decade.

1990s - Second approval to mine at Jabiluka

It was not until the Liberal/National Party Coalition, under the leadership of John Howard, came to power in 1996, that talk of re-opening the mine began to surface. By this stage, ERA held the mineral lease, having purchased it from Pancontinental and signing a 'Deed of Transfer' with the NLC in 1991. Under this Deed of Transfer, the NLC was able to negotiate some new terms and conditions of the lease. One way in which they took advantage of this was by ensuring they would have the power to veto any offsite milling of uranium - a provision which proved hugely significant further down the track when ERA did announce plans to process uranium ore at the Ranger mine 20 kilometres away.

Also, as mining had been suspended back in 1983, ERA was required to conduct a new Environmental Impact Assessment and have it approved by the government before any proposals to redevelop the mine could be approved. This approval was given in 1997 and was the final decision that paved the way for construction to begin in 1998. The responses of various groups and individuals to this decision (refer to Chapter 4), reveal that this re-approval was met with firm opposition and ignited controversy which was to last for years. See image 3