Bills Digest No. 77, 2012–13

13 February 2013

Completion of Kakadu National Park (Koongarra Project Area Repeal) Bill 2013

Moira Coombs, Law and Bills Digest Section

Bill McCormick, Science, Technology, Environment and Resources Section

Date introduced: 6 February 2013

House: House of Representatives

Portfolio: Sustainability, Environment, Water, Population and Communities

Commencement: Commences on the day after Royal Assent

Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bill's home page, or through http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation. When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the ComLaw website at http://www.comlaw.gov.au/.

Purpose of the Bill

The purpose of the Completion of Kakadu National Park (Koongarra Project Area Repeal) Bill 2013 (the Bill) is to repeal the Koongarra Project Area Act 1981.This will facilitate the incorporation of the Koongarra area into the Kakadu National Park.

Background

The Koongarra uranium deposit was discovered in 1970 by Canadian-owned Noranda Australia Ltd and contains an estimated 14 540 tonnes of uranium with an average grade of 0.8 per cent uranium oxide.[1] In 1976 Noranda applied for a Special Mining Lease (SML) over the Koongarra uranium deposit, covering 12.5 square kilometres [2].

In July 1975, the Government established the Ranger Uranium Environmental Inquiry under the Environment Protection (Impact of Proposals) Act. The Ranger Inquiry sought a compromise between the problems of conflicting and competing land uses, including Aboriginal people living on the land, establishing a national park, uranium mining, tourism and pastoral activities in the Alligator Rivers Region.

Around the same time as this inquiry was set up, the Aboriginal Land Rights (Northern Territory) Act 1976 was passed by Federal Parliament. This Act allowed the Commission, set up to conduct the Ranger Inquiry, to determine the merits of a claim by the Aboriginal traditional owners to land in the Alligator Rivers Region.[3]

The 1977 Ranger Uranium Environmental Inquiry Report recommended that certain areas of land be declared as Kakadu National Park under the National Parks and Wildlife Conservation Act 1975 (NPWCA).[4] The boundaries of this land included the Koongarra uranium deposit and the Inquiry opposed mining the deposit. It considered that if mining were allowed to proceed it should be restricted to one drainage basin, that is Magela Creek, so environmental damage could be contained.[5] Koongarra is upstream of the Woolwonga Wildlife Sanctuary which was considered to be so ecologically valuable that the Inquiry opposed mining in this catchment unless it could be demonstrated that there would be no environmental damage. They were not satisfied by Noranda’s proposed plan for storage of the acid tailings.[6]

In announcing its August 1977 decision to permit on uranium mining at Ranger, the Fraser Government decided that the Koongarra Special Mining Lease (SML) application area would be excluded from Kakadu National Park. In November 1977 Noranda was directed to submit an environmental impact statement (EIS) under the Environment Protection (Impact of Proposals) Act 1974 for the proposed Koongarra mining project.[7] The EIS proposed that the tailings pond be located outside the lease application area.[8] The final EIS was approved by the Government in 1981[9].

In August 1978 lands identified by the Ranger Inquiry, including the Koongarra area, were granted to the Kakadu Aboriginal Land Trust (KALT) under the Aboriginal Land Rights (Northern Territory) Act 1976 (ALRNT). In November 1978 the KALT leased this land to the Director of National Parks and Wildlife so the area could be declared as national park. In April 1979 this land was proclaimed as Stage 1 of Kakadu National Park with six areas covering 15.7 square kilometres, including the Koongarra SML application area covering 12.28 square kilometres, excised from the Park.

The Canadian mining company, Denison Mines Ltd., purchased Koongarra from Noranda in October 1980 and then subjected the deposit to a detailed re-evaluation in which Denison raised the cut-off grade for mining.[10] This resulted in a smaller open pit with a shorter mining period, as well as a smaller tailing pond, being required. Denison applied for a new special mining lease in 1981 which was smaller, at 10.5 square kilometres, than the previous lease application area, but was of a different shape. As a result, the new SML application area overlapped parts of Kakadu National Park.

In January 1981 Denison started formal negotiations with the traditional owners over an agreement to develop the Koongarra deposit.[11]

In May 1981, the Government introduced the Koongarra Project Area Bill 1981 to permit a future change to the boundaries of Kakadu National Park to accommodate the different size and shape of the new lease application area once the traditional owners consented to mining at Koongarra.[12]  One of the reasons that this was done rather than follow the procedures for changing the National Park boundaries under the NPWCA was that the Government would lose its majority[13] in the Senate and such a boundary change could be disallowed. The Minister for Home Affairs and the Environment, Ian Wilson said that the revised project area would increase park values because the area excluded from the park would be smaller and the environmentally important area adjacent to the Nourlangie Rock- Mt Brockman Massif would be included in the park.[14]

Koongarra Project Area Act 1981

In his second reading speech to the Koongarra Project Area Bill 1981, the then Minister for Home Affairs and Environment, Mr Wilson, noted that the purpose of the Bill was to amend a proclamation by the Governor-General dated 5 April 1979 pursuant to subsection 7(2) of the NPWCA. The proclamation excluded an area of 15.7 square kilometres. The Government had noted in 1977 that the areas associated with Ranger, Jabiluka and Koongarra would be excluded from the park to accommodate mining activities.[15]  The Minister noted:

To accommodate the situation the Government has decided, consistent with the recommendations of the Ranger inquiry and its announcements in 1977, to adjust the boundaries of the Kakadu National Park so as to exclude the revised project area. The effect of this is to increase park values in that the revised project area is smaller than the area now excluded from the park and the area to be added to the park will include an environmentally important area adjacent to the Nourlangie Rock-Mt Brockman massif. I am sure all those familiar with this part of Australia would welcome this addition to the park of the Nourlangie Escarpment…

In outlining the requirement to alter the boundaries of the Koongarra project area I wish to assure the House that the status of the land as Aboriginal land is not affected. All the land involved is held by the Kakadu Aboriginal Land Trust in fee simple. The interests of the Aboriginal owners are fully protected by the commencement provision contained in sub-clause 2(2) of the Bill which recognises the rights of the Aboriginal people to determine whether mining should proceed. The provision specifies that the proposed changes will not take place unless Aboriginal consent to the project is forthcoming. This provision is quite unequivocal.[16]

The traditional owners had not been consulted on the proposed changes to park boundaries, so in May 1981 a meeting of traditional owners declared their opposition to the granting of a new lease until they were consulted. They also decided to temporarily suspend their negotiations with Denison.[17]

The Koongarra Project Area Bill was passed by the Senate on 12 June 1981 with the ALP and the Australian Democrats opposing the Bill.

Stage 1 of Kakadu National Park was listed as World Heritage in December 1981 but the Koongarra project area was excluded from this listing.[18]

Development of the Koongarra deposit did not proceed under the former Commonwealth (ALP) Government because of its three mines policy[19] … Under Commonwealth legislation a final Environmental Impact Statement (EIS) was approved in 1982 and the application for project development submitted to the Northern Territory Government in 1983. An agreement with traditional owners was approved by the Minister for Aboriginal Affairs in 1987. A revised agreement was submitted to the Minister in 1990 but has not been acted upon.[20]

The Australian Democrats introduced the Koongarra Project Area Repeal Bill in 1986, 1988 and 1996 but none of these Bills were put to a vote.

In 1995 the French Company, Areva, acquired the Koongarra project through its subsidiary Koongarra Pty Ltd.[21] In 2000 a five year moratorium was placed on the Koongarra lease application, after which Koongarra Pty Ltd resumed discussions with traditional Aboriginal owners and the Northern Land Council.[22]

However in 2007, Jeffrey Lee, senior custodian of the Koongarra uranium deposit, publicly stated that he would never allow Koongarra to be mined.

… he wants to see the land incorporated into the World Heritage-listed national park, where, he said, "it will be protected and safe forever"…. "Being part of the park will ensure that the traditional laws, customs, sites, bush tucker, trees, plants and water stay the same as when they were passed on to me by my father and great-grandfather," he said…. The Howard Government has always maintained that no new mine would be approved in the territory without the approval of the traditional owners. The Government has told the United Nations Educational, Scientific and Cultural Organisation, the body under which Kakadu is listed as a heritage site, that it would agree "in principle" for Koongarra to be incorporated into the park if the traditional owners requested it.[23]

In 2010 the Northern Land Council wrote to the then Minister for the Environment,  Heritage and the Arts, Peter Garrett, on behalf of Jeffrey Lee, offering the Koongarra land for inclusion in Kakadu National Park.[24]

On 10 August 2010, Peter Garrett announced that a re-elected Gillard Government would incorporate the Koongarra area and lands into Kakadu National Park. He noted that a 1998 World Heritage Committee delegation that visited Australia made a recommendation that Koongarra should be incorporated into Kakadu National Park, which is World Heritage listed.[25]

On 11 August 2010 Greg Hunt, Opposition Spokesperson on the Environment, said the Coalition would take up the offer by Mr Lee to include Koongarra into Kakadu National Park.

"Our view has been that Koongarra would not be mined.

"We would not have allowed it to be mined.

"It's effectively treated as if it were part of the park in almost all respects, but to have it formally incorporated would be a valuable step forward."[26]

Areva still wanted to mine the Koongarra uranium deposit and:

accused Mr Garrett of "rushing through" a decision that he does not have the authority to make.

The firm was seeking legal advice "to protect its property interests" at the Koongarra site, Areva Australia managing director Philippe PorteIla said yesterday.[27]

The June 2011 meeting of the World Heritage Committee approved the inclusion of the Koongarra project area into the Kakadu National Park World Heritage Area.[28] Before the meeting it was reported that the Australian Government had rejected a request from AREVA to withdraw its nomination of the Koongarra project area for World Heritage listing.[29] 

After the Completion of Kakadu National Park (Koongarra Project Area Repeal) Bill 2013 was introduced into the House of Representatives, Jeffrey Lee said:

‘‘This is a great day for me, my country and my culture,’’ Mr Lee said.

‘‘My mind is at peace now that I know there will be no mining at Koongarra.’’[30]

Committee consideration

Senate Selection of Bills Committee

The Senate Selection of Bills Committee resolved at its meeting on 6 February 2013 not to refer the Completion of Kakadu National Park (Koongarra Project Area Repeal) Bill 2013 to a Committee.[31]

Policy position of non-government parties/independents

The Coalition committed to the inclusion of the Koongarra project area into Kakadu National Park in August 2010.[32]

Senator Scott Ludlam said that the Greens welcomed the introduction of the ‘long-overdue legislation to reincorporate the Koongarra mineral lease into Kakadu National Park.’ He noted that this Bill is supported by all parties.[33]

Position of Major interest groups

The Australian Conservation Foundation welcomed the August 2010 commitment to include Koongarra into Kakadu.[34]

Financial implications

The Explanatory Memorandum states that a financial impact statement is not applicable in this case.[35]

Statement of Compatibility with Human Rights

The Statement of Compatibility with Human Rights can be found at page 3 of the Explanatory Memorandum to the Bill. As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Government considers that the Bill is compatible. The Parliamentary Joint Committee on Human Rights has not reported on this particular Bill as yet.

Key issues and provisions

Schedule 1—Repeal

Item 1 of Schedule 1 repeals the Koongarra Project Area Act 1981.

Concluding comments

When Koongarra received World Heritage Listing on 27 June 2011, the Minister for Sustainability, Environment, Water, Population and Communities, Tony Burke, noted:

The world is acknowledging what Traditional Owner Jeffrey Lee has always known—that Koongarra is one of the most precious places on earth…

The inclusion of Koongarra area recognises its proximity to the culturally important Nourlangie Rock, one of Kakadu National park’s most outstanding Indigenous areas.[36]

The Minister noted in February 2013 that Koongarra has now been added to the park lease and will soon be formally part of the Kakadu National Park:

Koongarra will then have the full protection of the Environment Protection and Biodiversity and Conservation Act 1999 and as part of Kakadu, mining will be prohibited forever.[37]

Members, Senators and Parliamentary staff can obtain further information from the Parliamentary Library on (02) 6277 2500.

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ISSN 1328-8091

[1].              Department of Sustainability, Environment, Water, Population and Communities (SEWPaC), ‘Koongarra uranium mine’, SEWPaC website, viewed 10 February 2013, http://www.environment.gov.au/ssd/supervision/arr-mines/koongarra.html

[2].              RW Fox, GG Kelleher and CB Kerr, Ranger Uranium Environmental Inquiry: second report, Australian Government Publishing Service, Canberra, 1977, p. 307.

[3].              Commonwealth Department of Environment and Heritage, Australia’s Kakadu: Protecting World Heritage, Response by the Government of Australia to the UNESCO World Heritage Committee regarding Kakadu National Park, April 1999, viewed 12 February 2013, p. 18, http://www.environment.gov.au/ssd/supervision/arr-mines/jabiluka/pubs/chap02.pdf

[4].              Fox Report, op. cit., p. 307.

[5].              Ibid., p. 289

[6].              Ibid., p. 289

[7].              I Wilson, ‘Second reading speech: Koongarra Project Area Bill 1981’, House of Representatives, Debates, 28 May 1981, p. 2771 , viewed 11 February 2013, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22chamber%2Fhansardr%2F1981-05-28%2F0093%22

[8].              Explanatory Memorandum, Koongarra Project Area Bill 1981, p. 1., viewed 11 February 2013, http://www.austlii.edu.au/cgi-bin/download.cgi/cgi-bin/download.cgi/download/au/legis/cth/bill_em/kpab1981223.pdf

[9].              Department of Sustainability, Environment, Water, Population and Communities (SEWPaC), ‘Koongarra uranium mine’, op. cit.

[10].              Department of Home Affairs and Environment, personal communication, April 1981.

[11].              ‘Negotiations to begin on Koongarra uranium’, Canberra Times, 28 January 1981.

[12].              The Koongarra Project Area Bill 1981 is accessible at http://www.austlii.edu.au/au/legis/cth/bill/kpab1981223/

[13].              The Australian Democrats gained the balance of power from 1 July 1981 as a result of the 1980 election.

[14].              I Wilson, ‘Second reading speech: Koongarra Project Area Bill 1981’, op. cit.

[15].              Ibid.

[16].              Ibid.

[17].              S West, ‘Second reading speech: Koongarra Project Area Bill 1981’, House of Representatives, Debates, 3 June 1981, p. 3054, viewed 11 February 2013, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22chamber%2Fhansardr%2F1981-06-03%2F0162%22

[18].              Department of Sustainability, Environment, Water, Population and Communities (SEWPaC), ‘Kakadu National Park, Northern Territory’, SEWPaC website, viewed 10 February 2013, http://www.environment.gov.au/heritage/places/world/kakadu/index.html

[19].              Between March 1983 and March 1996 the Australian Government had a three mines policy with respect to uranium mining. This policy limited the number of operational uranium mines in Australia to three, named mines (Ranger and Narbalek in the Northern Territory and Olympic Dam in South Australia) and therefore effectively excluded the possibility of uranium ore extraction at either the Jabiluka or the Koongarra Mineral Leases. In March 1996, a change in Government policy meant that this limitation on the construction of new uranium mines in Australia ended.

[20].              Northern Territory Statehood Working Group, Final Report, Northern Territory edition, May 1996, p. 62, viewed 11 February 2013, http://www.google.com.au/url?sa=t&rct=j&q=northern%20territory%20statehood%20working%20group&source=web&cd=1&cad=rja&sqi=2&ved=0CC8QFjAA&url=http%3A%2F%2Fwww.nt.gov.au%2Flant%2Fparliamentary-business%2Fcommittees%2Fcondev%2Fntconstitution%2Ffinalreportworkingroup.PDF&ei=8mYYUZHkFOeEmQX7rYHYDQ&usg=AFQjCNEqKArCwKWkuJ3APwMGTVHgLS8taQ

[21].              Department of Sustainability, Environment, Water, Population and Communities (SEWPaC), ‘Koongarra uranium mine’, op. cit.

[22].              Ibid.

[23].              L Murdoch, ‘Sole survivor sitting on a $5b fortune’, SMH.com.au, 14 July 2007, viewed 11 February 2013, http://www.smh.com.au/articles/2007/07/13/1183833772710.html

[24].              L Murdoch, ‘Owner wants uranium rich land to be added to Kakadu’, The Sydney Morning Herald, 29 May 2010, p. 14, viewed 11 February 2013, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22media%2Fpressclp%2FKQUW6%22

[25].              P Garrett, ‘Transcript: Doorstop interview in Bicentennial Park in Darwin’, Australian Labor website, news, 10 August 2010, viewed 12 February 2013, http://www.alp.org.au/federal-government/news/transcript--peter-garrett,-doorstop-interview-at-b/

[26].              J Bardon, ‘Federal Coalition at odds with CLP over Kakadu’, 105.7 ABC Darwin, 11 August 2010, viewed 12 February 2013, http://www.abc.net.au/news/stories/2010/08/11/2979876.htm?site=darwin

[27].              A Macdonald-Smith, ‘Areva’s uranium meltdown’, The Australian Financial Review, 12 August 2010, p. 8, viewed 12 February 2013, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22media%2Fpressclp%2FSVLX6%22

[28].              World Heritage Committee, Decisions adopted by the World Heritage Committee at its 35th session (UNESCO 2011), World Heritage Committee thirty fifth session, Paris, 19-29 June 2011, pp. 244-245,viewed 11 February 2013, http://whc.unesco.org/document/107150

[29].              L Murdoch, ‘French uranium challenge to Kakadu heritage listing’, theage.com.au, 20 June 2011, viewed 12 February, 2011, http://www.theage.com.au/national/french-uranium-challenge-to-kakadu-heritage-listing-20110619-1ga6o.html

[30].              N Adlam, ‘New bill to end mining at Kakadu’, Northern Territory News, 7 February 2013, p. 4, viewed 12 February 2013, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22media%2Fpressclp%2F2212934%22

[31].              Senate Selection of Bills Committee, Report no. 1 of 2013, accessed 11 February 2013, http://www.aph.gov.au/Parliamentary_Business/Committees/Senate_Committees?url=selectionbills_ctte/reports/2013.htm

[32].              J Bardon, ‘Federal Coalition at odds with CLP over Kakadu’, op. cit.

[33].              S Ludlam, Koongarra to finally join Kakadu National Park, media release, 6 February 2013, viewed 12 February 2013, http://greens.org.au/content/koongarra-finally-join-kakadu-national-park-0

[34].              A Macdonald-Smith, ‘Areva’s uranium meltdown’, op. cit.

[35].              Explanatory Memorandum, Completion of Kakadu National Park (Koongarra Project Area Repeal) Bill 2013, p. 2, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22legislation%2Fems%2Fr4952_ems_1f6f0db5-00a8-49f0-a84f-5f4ecda285be%22;rec=0

[36].              T Burke (Minister for Sustainability, Environment, Water, Population and Communities), World Heritage listing for Koongarra in Northern Territory, media release, 27 June 2011, accessed 12 February 2013, http://www.environment.gov.au/minister/burke/2011/mr20110627.html

[37].              T Burke (Minister for Sustainability, Environment, Water, Population and communities), Koongarra: fulfilling a promise to traditional owners, media release, 6 February 2013,  accessed 12 February 2013, http://www.environment.gov.au/minister/burke/2013/mr20130206.html