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Olympic Dam – A detailed submission to the Roxby Downs Indenture Bill committee

SUBMISSION TO THE SELECT COMMITTEE. NECTARIA CALAN, Friends of the Earth Adelaidc  /- Conservation Council of SA
Level 1, 157 Franklin Street, Adelaide SA 5000 Contact:, 26 October 2011

Re: Roxby Downs (Indenture Ratification) (Amendment of Indenture) Amendment Bill 2011

I ask the Committee to revisit the issue of consultation, in regards to the approval of the Olympic Dam
expansion as set out in Clause 11(3) which ratifies and approves the amendments to the Indenture.

There has not been a genuine process of consultation with either the Kokatha or Arabunna peoples, Native
Title claimants or otherwise, or the wider Australian public, both in regards to the establishment of the
Olympic Dam mine by Western Mining Corporation and the process leading to the recent approval of the
Olympic Dam expansion.

The large number of submissions in themselves lack meaning given that the Supplementary Environmental
Impact Statement did not vary or address in any significant way some of the largest impacts of the project,
such as the tailings dams which are designed to leak, the water intake from the Great Artesian Basin, and the
tailings that will remain at the mines closure.

Consultation has been further limited by the current Indenture Act which over-rides the Aboriginal Heritage
Act, which is carried through to the new Indenture Bill.

I ask the Committee to note that the parts of the current Act and proposed Bill that over-ride the Aboriginal
Heritage Act and give BHP Billiton the discretion to determine the nature of consultation arguably constitute
a conflict of interest, in so far as a corporate body with a commercial interest in the land is also left to make
determinations on competing non-commercial values.

Re: Clause 24 of Schedule. Freehold Grants

The addition of the clause allowing the expanded Special Mining Lease to be granted to BHP Billiton
as freehold land has serious implications for traditional owners of the area, which have already been
marginalised from the consultation process. This clause will further entrench in law the dispossession
of the traditional owners of the region, prioritising short term mining interests over Aboriginal peoples
longstanding claims to the land.
Clauses 24(11)(a) and (b) taken together suggest that if it is found that Native Title does exist, the Minister
need only to be satisfied that the act of granting BHP freehold title will extinguish it. This writes into law an

obligation on the part of the Minister to pursue an act which will legally extinguish any claim to the land by
those with longstanding interests in it, prioritising BHP’s interest above the legitimate interests of Aboriginal
communities in the region. This would apply to some 49, 700ha according to the Draft Environmental
Impact Statements estimate of the area that the proposed expanded Special Mining Lease would cover (Ch
9 Land Use 9.7.1.). This is a huge area to be simply given away by the State Government to one mining
company, over-riding any competing interests in the land. Furthermore, it amounts to a huge subsidy for the

Further clarification is needed regarding Clause 24(11)(a) and (b). It is unclear whether where Native Title
exists, it would be extinguished as a result of granting BHP Billiton the land in fee simple. It is stated that
the obligation to grant freehold title rests on the satisfaction of the Minister that the act of granting BHP the
freehold land title will extinguish Native Title, however there is uncertainty as to whether this would be the

Given the ambiguity of Native Title law and associated court determinations, I recommend that
this matter be clarified so as to inform further debate on the Bill, so that decision-makers and other
stakeholders understand the full implications of the Bill.

The possibility that Native Title may be extinguished increases the urgency of a deeper consideration of the
cultural importance of the area within the proposed new Special Mining Lease. Under Aboriginal culture
and law, digging up and destroying sacred sites is prohibited. Once a 40 000 year old sacred site is gone, it
cannot be replaced.

The clause dealing with the return of the land to the Crown at the expiry of the mining lease is somewhat
facetious, given the longstanding nature of the radioactive contaminants that will leave the land
uninhabitable for generations, and that the nature of mining operations, including digging the largest hole in
the world, will destroy many sacred sites.

If the Committee is unaware of the significance of this area– I would ask why this is so?

In light of the above, I request that the Committee hear the testimony of Arabunna elder Kevin
Buzzacott in person, so as to make a step towards rectifying the aforementioned lack of consultation,
to ensure a balanced investigation into the Indenture Bill that looks further than presentations from
BHP Billiton and industry bodies, and in order to better appreciate the implications of the project for
traditional custodians, in particular the importance of the sacred sites in the region, including sacred
sites that will be disturbed in the area of the proposed Special Mining Lease.

The Arabunna people have an active Native Title Claim lodged with the Native Title Tribunal (Federal Court
File No. SAD6025/98)

I further request that:
1. the Committee consider whether the exemptions to the Aboriginal Heritage Act and Clause
24 are in contravention of the Racial Discrimination Act 1975. At the least the Roxby Downs
(Indenture Ratification) (Amendment of Indenture) Amendment Bill 2011 should be referred to
the Australian Human Rights Commission.
2. the Committee use its powers to thoroughly investigate whether all Aboriginal stakeholders have
been consulted, and the nature of the consultation, both in regards to the current mine and the

I call on the Committee to recognise the international principle of Free Prior Informed Consent, pursuant
to Article 19 of the United Nations Declaration on the Rights of Indigenous Peoples, which the Australian
Government has officially endorsed, and make appropriate recommendations that would seek to redress the
fact this principle has not been applied at any stage of the Olympic Dam expansion approval process.

I understand that hearings are taking place tomorrow and hope to have an opportunity to address the
Committee in person.

October 31, 2011 - Posted by | Olympic Dam, politics, South Australia, uranium | ,

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