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Fagan, Mathew --- "Broken Promises: Land Rights, Mining and the Mirrar People" [2002] IndigLawB 42; (2002) 5(18) Indigenous Law Bulletin 12

Broken Promises: Land Rights, Mining and the Mirrar People

by Mathew Fagan

Over the past 30 years, well intentioned land rights legislation in the Northern Territory has often been manipulated to the detriment of traditional owners. A striking example of this can be found in the recent history of the Mirrar people from the Kakadu/West Arnhem region.

The History of Mining on Mirrar Land

Although one of the first Aboriginal nations to ‘regain’ part of their land under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (‘the ALRA’), the Mirrar have never enjoyed peaceful occupation of their traditional estate. Instead, various Commonwealth and Northern Territory governments, in conjunction with multinational mining companies, have legislated, regulated, badgered and bullied to extract uranium from Mirrar land despite the opposition of the traditional owners and the so-called ‘mining veto’ provisions of the ALRA.[1]

In April 1974, when Justice Woodward delivered his Second Report to the Whitlam Government recommending the creation of statutory land rights for traditional owners, he argued that traditional owners should possess a right of veto over mining. Woodward stated that ‘to deny to Aborigines the right to prevent mining on their land is to deny the reality of their land rights’.[2]

Yet in October 1974, before Woodward’s recommendations were enacted in the ALRA, the Whitlam Government signed the so-called Lodge Agreement with mining companies Peko and EZ for the Ranger uranium mine to provide Japan with uranium ore.[3] From this point on, the Ranger mine was a fait accompli, regardless of local Aboriginal opposition. The Fraser Government cemented the deal by removing the Mirrar right of veto over the Ranger Project when enacting the ALRA in 1976. Subsection 40(6) stated ‘If the land... being known as the Ranger Project Area, becomes Aboriginal land, subsection (1) [the mining veto provision] does not apply in relation to that land.’[4]

Despite being defeated on Ranger by the most powerful forces in the country, the Mirrar maintained their opposition to the development of a second uranium mine at the Jabiluka mineral lease. This time the ALRA was cleverly administered, rather than specifically altered, to allow mining interests to prevail. During compulsory ALRA consultations the Mirrar were told that land claims over remaining areas of Mirrar traditional country were likely to fail unless an agreement was reached on Jabiluka.[5] In the midst of confusion and unconscionable pressure, an ALRA agreement for mining at Jabiluka was signed by the Northern Land Council in 1982.

Upon coming to office in 1983, Bob Hawke buried the Jabiluka project by declaring that export permits for Jabiluka uranium would not be granted. For 13 years the Mirrar believed their country at Jabiluka was protected from uranium mining. However when the Howard Government was elected in 1996, the Mirrar were subjected to yet another exercise of mining company power under the ALRA. This time mining company North Limited dusted off the old 1982 Agreement,[6] despite being repudiated by the Mirrar and rendered nearly unworkable after 14 years of mothballing, and started development of a ‘new’ Jabiluka uranium mine. Legal proceedings instigated by the Mirrar failed to prevent the commencement of construction.[7]

Notwithstanding constant public denials from North Limited, it was generally believed in 1996 that the ‘new’ Jabiluka project was only economically viable if uranium from Jabiluka was processed at the existing milling facilities at the Ranger mine, some 20 kilometres away. The Mirrar formally advised the company and the Commonwealth that, in accordance with the provisions of the ALRA and associated agreements,[8] they would not give permission for a road to be built between the two projects. Not only were the Mirrar determined to do everything in their power to prevent Jabiluka proceeding, they also had serious concerns about radioactive waste management at Ranger and did not want processing to continue at Ranger beyond the life of the existing Ranger mine.

In an act of astounding environmental irresponsibility, North Limited, with the approval of the Commonwealth and Northern Territory governments, began construction at Jabiluka in 1998 despite the Mirrar exercising their right to prevent milling at Ranger. The Mirrar were then subjected to a campaign of corporate and government intimidation to force a reversal of the veto,[9] culminating in the World Heritage Committee of UNESCO declaring in July 1999 that it was ‘gravely concerned about the serious impacts on the living cultural values of Kakadu National Park posed by the [Jabiluka] proposal’.[10]

In August 1999, having desecrated the Boyweg-Almudj Sacred Site Complex and extracted 47,000 tonnes of radioactive waste rock,[11] North Limited walked away from the Jabiluka construction site. In August 2000, North Limited was absorbed by mining giant Rio Tinto, which has now admitted that Jabiluka cannot proceed without support from traditional owners.[12] Most analysts now agree that the Jabiluka project will never go ahead.

Implications for Aboriginal Rights

So is this a rare victory for Aboriginal rights under the Howard Government? While it may appear so at first glance, the fact is the Mirrar have only compromised and secondary property rights. While the Mirrar have the effective power to prevent Jabiluka proceeding, they can seemingly do nothing at law to force Rio Tinto and the Northern Territory government to rehabilitate a six hectare radioactive mine site on their country.

The fact that the Jabiluka mineral lease lies within the boundaries of the Kakadu National Park World Heritage Area should assist the Mirrar in their campaign to have the Jabiluka site rehabilitated. However, in another cruel irony for the Mirrar, it appears that as long as Rio Tinto can demonstrate that the World Heritage Area boundary has not been breached by radioactive contaminants, the country of the Mirrar within the Jabiluka mineral lease can be desecrated indefinitely.

For example, in October 2001 the Northern Territory government granted approval for contaminated water from the abandoned Jabiluka construction site, which could not be contained within an interim water management pond, to be sprayed over the Jabiluka mineral lease up to a rate of 40 kilograms of uranium per month.[13] Any such action in the adjacent (and environmentally identical) World Heritage Area would be illegal. Of course for the Mirrar the imaginary administrative line of contamination control is meaningless–their cultural sites are contiguous throughout and beyond their traditional country.

Of even greater concern was the revelation this year that Rio Tinto delayed reporting elevated uranium levels at Jabiluka in breach of regulatory requirements.[14] Unfortunately, this situation does not appear to have triggered any concern within the Northern Territory Department of Business, Industry and Resource Development, which has been granted the power to regulate uranium mining by the Commonwealth.[15]

The Northern Territory government and Rio Tinto base their radioactive containment regime at Jabiluka on the ‘sound environmental record’[16] of Ranger. However it was recently claimed by whistleblowing scientists who worked for Ranger that the mine discharged uranium at levels 450 times the Australian drinking water standard and that uranium was detected within the World Heritage Area at levels 70 times higher than background radiation.[17] In March of this year it was also reported that the mining company incorrectly placed some 84,500 tonnes (or 1,000 truckloads) of uranium ore at Ranger, leading to the contamination of waterways feeding the Magela Creek, which flows through Aboriginal communities in Kakadu.[18]

After 25 years of struggle, the Mirrar continue the fight in other arenas to have Jabiluka rehabilitated. The latest incidents at Ranger and Jabiluka (in conjunction with concerns at the Beverley and Honeymoon uranium mines in South Australia) led to the establishment of a Senate Inquiry into uranium mining on 20 June 2002 with the power to report on the ‘regulatory, monitoring and reporting regimes that govern environmental performance at the Ranger and Jabiluka uranium operations’.[19] The Mirrar lobbied extensively for the establishment of the Senate investigation and will make detailed oral and written submissions to the inquiry, which is due to report to Parliament in early December.

The Mirrar have also made submissions to the United Nations High Commissioner for Human Rights and this year’s round of meetings at the World Heritage Committee, which continues to keep a watchful eye on uranium mining in Kakadu.[20]

In addition, the Mirrar will proceed with discussions relating to their registered claim under the Native Title Act 1993 (Cth) over the township of Jabiru.[21] They will also take part in re-negotiation of the Kakadu National Park leases on their lands. It is hoped that these processes lead to regional agreements that satisfactorily resolve the mining dilemmas and provide a basis for meaningful Aboriginal governance within Kakadu. However, given their experience with the flawed operation of the ALRA, the Mirrar are approaching these negotiations with a great deal of caution.

Throughout all of these struggles, the Mirrar resolve remains indomitable. As senior traditional owner Yvonne Margarula recently stated:

...[we] have fought against Jabiluka across Australia and overseas. We have won many friends and our supporters are strong and stand with us. We have travelled a long road...We will continue to resist more mining on Mirrar country. We have no choice - this is our land and our life, we can never leave, we must protect it.[22]

Mathew Fagan is a researcher with the Gundjehmi Aboriginal Corporation, an organisation governed by the Mirrar People.


[1] Section 23(3) and Part IV.

[2] AE Woodward Aboriginal Land Rights Commission: Second Report (1974) 108.

[3] The process leading up to the signing of the Lodge Agreement is described in detail in T Grey, Jabiluka: The Battle to Mine Australia’s Uranium (1994) 110-130.

[4] The ALRA has been substantially amended since 1976, however the removal of the Mirrar right to veto mining at Ranger has been ‘grandfathered’ into the current ALRA by s 8 Aboriginal Land Rights (Northern Territory) Amendment Act (No 3) 1987 (Cth).

[5] Northern Land Council, Transcript of Djarr Djarr Meeting (27 January 1981).

[6] The Northern Land Council and PanContinental Mining Ltd entered into the original Jabiluka Agreement (under the ALRA) in 1982. Energy Resources of Australia Ltd (‘ERA’) then bought the Jabiluka mineral lease (and the agreement) in 1991. ERA was a subsidiary of North Limited and became a subsidiary of Rio Tinto in 2000.

[7] See for example Yvonne Margarula v Hon Eric Poole, Minister For Resource Development and Energy Resources Australia Ltd [1998] NTSC 87 (Unreported, 16 October 1998).

[8] The ‘veto’ over the milling of Jabiluka uranium at Ranger is ultimately empowered by the ALRA, in conjunction with a 1991 Deed of Agreement between the Northern Land Council and ERA.

[9] For example see Australia’s Kakadu, the Australian government’s 1999 submission to the Third Extraordinary Session of the World Heritage Committee.

[10] Declaration of the Third Extraordinary Session of the UNESCO World Heritage Committee (July 1999) clause (e).

[11] GM Mudd, Review of water management at Jabiluka: Environmental issues and recommendations: research report for Gundjehmi Aboriginal Corporation (2001).

[12] ‘Rio Tinto concedes defeat on Jabiluka’, Australian Financial Review, 19 April 2002.

[13] Mudd, above n 11.

[14] Gundjehmi Aboriginal Corporation, Information for the Twenty-Sixth Session of the World Heritage Committee (2002) 5.

[15] Yvonne Margarula v Minister for Resources & Energy [1998] 1029 FCA (Unreported, 14 August 1998) provides a detailed analysis of Commonwealth/Territory power sharing over uranium.

[16] Rio Tinto Ltd Annual General Meeting, Chairman’s Address (April 2002).

[17] ABC 7.30 Report, Transcript (18 April 2002).

[18] Supervising Scientist Division, Environment Australia, Report 170: Investigation of the stockpiling and reporting incidents at Ranger and Jabiluka (2002).

[19] For the full terms of reference see http://www.aph.gov.au/senate/committee/ecita_ctte/uranium/.

[20] See for example Gundjehmi Aboriginal Corporation, Mirrar Submission to the United Nations Office of the High Commissioner for Human Rights Workshop on ‘Indigenous peoples, private sector natural resource, energy and mining companies and human rights’ (2001) and Gundjehmi Aboriginal Corporation, above n 14.

[21] The area comprising the township of Jabiru and its surrounds was excised from the area of land granted to the Mirrar under the ALRA in 1979. The lands are currently owned by the Director of Commonwealth National Parks and leased to the Jabiru Town Development Authority. For details of the Mirrar native title claim see Application DC97/7 - Jabiru Township at www.nntt.gov.au.

[22] Gundjehmi Aboriginal Corporation, Media Release (11 April 2002).

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