The state of legislation and policy regarding nuclear issues in Australia and South Australia

Environmental and Planning Law Journal

Volumn 16, Issue 6, 1999, Pages 497-513

  Williams, Amy ^a  

^a UNIVERSITY OF SOUTH AUSTRALIA   (Australia)

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EID: 84884269781     PISSN: 0813300X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (82)

1. The roles of international treaties as well other types of international law (with respect to the environment) are discussed in PW Bimie and A Boyle, International Law and the Environment, (Clarendon Press, Oxford, 1992), particularly Ch 1.
2. There is an International Atomic Energy Agency Code of Practice on the International Transboundary Movement of Radioactive Waste.
3. According to Gray (in D Sweeney, "Australia at the Nuclear Crossroads", Special Supplement to Habitat 27 (I) 1999(Iift-out)
4. According to Gray (in D Sweeney, "Australia at the Nuclear Crossroads", Special Supplement to Habitat 27 (I) 1999(Iift-out)
5. J Porritt and D Winner, The Coming of the Greens, (Fontana/Collins, UK, 1988).
6. D Yenken and D Wilkinson, The Environmental Role of the Commonwealth (University of Melbourne/Australian Conservation Foundation, Melbourne, 1996).
7. D Yenken and D Wilkinson, The Environmental Role of the Commonwealth (University of Melbourne/Australian Conservation Foundation, Melbourne, 1996).
8. D Yenken and D Wilkinson, The Environmental Role of the Commonwealth (University of Melbourne/Australian Conservation Foundation, Melbourne, 1996).
9. P Toyne, The Reluctant Nation: Environment, Law and Politics in Australia, (ABC Books, Sydney, 1994). Also discusses the role of the Commonwealth government with respect to environmental issues (particularly Ch 1).
10. 1 As cited in C Wood, Environment Impact Assessment: a Comparative Review, (Longman, Essex, England, 1995), p 65.
11. 1 As cited in C Wood, Environment Impact Assessment: a Comparative Review, (Longman, Essex, England, 1995), p 65.
12. Commonwealth of Australia, Parliament. Commercial Utilisation of Australian Native Wildlife, Report of the Senate Rural and Regional Affairs and Transport References Committee, (June 1998).
13. The Nuclear Safety Bureau was criticised for its lack of independence from ANSTO, with its members being sourced from ANSTO and returning to ANSTO afterwards.
14. There was also a Code of Practice on Radiation Protection in the Mining and Milling of Radioactive Ores published in 1980 (Australian Department of Science and the Environment). Codes of Practice for the Safe Transport of Radioactive Substances and the Management of Radioactive Wastes from the Mining and Milling of Radioactive Ores had also been published previously in 1982 (by the Department of Home Affairs and Environment). But supported by the Labor party.
15. In Pt 3. Subdiv E. ss 21 and 22 of the Bill. Section 21. subs 4 lists provisions allowing for exemption of actions.
16. In an article on the ACF website.
17. The Heads of Agreement on Commonwealth/State Roles and Responsibilities for the Environment (November 1997) also refers to "national interest", saying that "certain matters will be exempt from compliance with State environment and planning laws on national interest grounds", p 19.
18. One other mechanism which is available to the Commonwealth is the ability to make National Environment Protection Measures (NEPMs) under the National Environment Protection Council Act 1994. NEPMs can be made in relation to: ambient air quality; ambient marine, estuarine and freshwater quality; the protection of an amenity in relation to noise; general guidelines for the assessment of site contamination; environmental impacts associated with hazardous wastes; the reuse and recycling of used materials; and some motor vehicle noise and emission criteria By these criteria, it seems to me that it would be possible to make NEPMs relating to nuclear activities, however in the current political climate this is probably very unlikely.
19. And also specifies special provisions in relation to local government.
20. Projects were divided into two categories: minor and major. The EIA provisions and EIS process under this Act are described in much more detail in N Harvey, Environment Impact Statements for Major Projects in South Australia 1982 to 1994, South Australian Geographical Papers, No 4, Royal Geographical Society of Australasia (SA Branch) Inc, printed by the University of Adelaide, 1995.
21. Other references relating to EIA include N Gasgoigne, "Commonwealth Perspective of EIA in Australia" and K Ferguson, "Recent Changes to EIA in South Australia" in N Harvey and M McCarthy (Eds) Environmental Impact Assessment for the 21st Century Conference Proceedings, The University of Adelaide 1997.
22. Which could possibly be withheld to prevent a project from proceeding.
23. Wwith up to ten tonnes of uranium leaving the mine every day.
24. Western Mining must comply with the Commonwealth Customs (Prohibited Exports) Regulations as well as other relevant State and Commonwealth legislation and codes of practice.
25. That is, the South Australian Planning Act 1982.
26. The guidelines were agreed between the State and Federal governments, in consultation with Roxby Management Services, according to the Draft EIS.
27. Public submissions could then be made on the Draft EIS.
28. In accordance with s 8.1 of the Administrative Procedures under the Environment Protection (Impact of Proposals) Act 1974.
29. Such as the Olympic Dam Operations Environmental Management Program 1990 and the Justification for Changes to the Olympic Dam Operations Environmental Management Program (July) 1993. I was interested to see that these documents do not mention anywhere liquid wastes or tailings.
30. Releasing the document "Olympic Dam Project: Assessment of the Environmental Impact" in November 1983.
31. These approvals were confirmed by both governments in an "Environmental Review" of the original EIS which was completed in January 1996.
32. NB: Prior to these approvals. South Australian Department of Mines and Energy approvals had been given for the sinking of a shaft and construction of a road on the basis of "Declarations of Environmental Factors".
33. Sandra Kanck, Second Reading Speech-Roxby Downs (Indenture Ratification) (Amendment of Indenture) Amendment Bill, Wednesday, 27 November 1996.
34. This EIS was criticised by the Roxby Action Collective, Friends of the Earth Australia, Friends of the Earth Sydney, the Mineral Policy Institute and even the Commonwealth. It was considered to be inadequate, lacking in detail and clarity and breadth of isslies considered. v' Which included responses to public comments.
35. These guidelines are released publicly and subject to public submissions.
36. On the Sustainable Energy and Anti Uranium Service website.
37. T Doyle, Environmental Decision-making Under Conservative Governments: the Emergency of Wise Use and the Gang Bank Theory of Nature. Paper presented to the Public Policy Network Conference 1999, "Public Policy for the New Millenium", University of Adelaide, 1999. [Also found as a chapter in Environmental Policy Two, KJ Walker and K Crowley (Eds), (University of New South Wales Press, Sydney, 1999] Doyle discusses the inadequacy of "roundtable" discussions conducted by Western Mining Corporation regarding Olympic Dam.
38. Kevin Buzzacott (member of the Arabunna people of the Lake Eyre region affected by the Olympic Dam operations) applied for an interlocutory injunction to stop mining operations at Olympic Dam on the grounds that they were causing serious mental harm to the Arabunna people, and that their activities amounted to genocide of the Arabunna. Supreme Court of South Australia: Buzzacott v Morgan No SCGRG-99-356 Judgement No SI49 [1999] SASC 149 (14 April 1999) and Judgement No SI72 [1999] SASC 172 (28 April 1999) He then appealed the ruling in the Federal Court of Australia. Federal Court of Australia: Buzzacott v Hill [1999] FCA 639 (10 May 1999).
39. Following the circulation of a Draft Code on Radiation Protection in the Mining and Milling of Radioactive Ores 1974. This document expresses "uncertainty as to whether Ranger Uranium Mines Pty Ltd will operate under a Special Mineral Lease or whether some other form of land tenure will apply". This is another legal issue associated with the mining of radioactive ores which has only been briefly alluded to in this document (for example, in relation to Aboriginal heritage in the Olympic Dam case study).
40. According to the EIS, Federal government policy and draft legislation required a statement of the environmental impact of proposed operations.
41. This was the first report under this Act.
42. Consequently the Ranger Uranium Project obtained Authority under section 41 of the Atomic Energy Act 1953 and the proponents made a Government Agreement and Management Agreement with the Commonwealth of Australia. These were amended when ERA (Energy Resources of Australia Ltd) entered the agreements.
43. The Northern Territory also has a Uranium Mining (Environmental Control) Act 1993 (An Act to Control the Mining of Uranium in the Alligator Rivers Region with a View to Lessening any Damage which may be caused to the Environment of the Region).
44. Over the duration of its operation, there have been over ninety environmental releases of tailings and other materials of concern at Ranger.
45. For the mill alternative.
46. This Committee also recommended that the EIS should be reconducted, that powers of day-to-day regulation of the mining should be restored to the Office of the Supervising Scientist from the Northern Territory Department of Mining and Energy, that the Office of the Supervising Scientist should be reconstituted as an independent regulatory authority, and that the 1982 Jabiluka Agreement with local indigenous people was unfair, as well as that the mine should not proceed because it is irreconcilable with the outstanding natural and cultural values of Kakadu National Park.
47. Surely that would come under "national interest".
48. In April 1999 Yvonne Margarula (Senior Traditional Owner of the Jabiluka area; representative of the Mirrar people) and Jacqui Katona (of the Gundjehmi Aboriginal Corporation, the organisation of the Mirrar people) were awarded the international environmental Goldman Prize for their efforts against the Jabiluka mine. Margarula has mounted a number of legal challenges opposing the Jabiluka mine (including a challenge in the Federal Court under the Administrative Decisions (Judicial Review) Act of the Commonwealth); as well as appealing (in the Northern Territory Supreme Court) her arrest, conviction and $500 fine for a peaceful protest (on the land of which she is recognised as Senior Traditional Owner under Aboriginal customary law and beneficial owner in fee simple under the Aboriginal Land Rights (Northern Territory) Act).
49. Commonwealth: High Court: Margarula v Minister for Resources and Energy and ORS SI32/1998 (20 November 1998)
50. Commonwealth: Federal Court of Australia: Margarula v Minister for Environment [1999] FCA 730 (1 June 1999)
51. FCA (11 February 1998); Northern Territory: Supreme Court: Mick Alderson, Yvonne Margarula and Douglas Hunter v Geoffrey Robert Finch as administrator of Gagudju Enterprises Pty Ltd, Jessie Alderson and Annette Muir No 254 of 1997 Corporations [1997] NTSC 147 (23 December 1997); Yvonne Margarula v Hon. Eric Poole, Minister for Resource Development and Energy Resources Australia Ltd [1998] NTSC 87 (16 Octover 1998); Margarula v Rose [1999] NTSC 22 (12 March 1999).
52. Prior to the recent approval of the Beverley mine, projects at Beverley and Honeymoon were refused mining leases in March of 1983 by the South Australian government, on the grounds that many of the economic, social, biological, genetic, safety and environmental problems associated with the nuclear industry were unresolved, opposition by community groups and the Democrats, dissatisfaction at the in situ leaching process, and that the Olympic Dam had already been approved. The guidelines for the EIS (by the South Australian Department of Environment and Planning) and the Draft EIS (by the South Australian Uranium Corporation) for this first round were both released in 1982.
53. To US-owned main proponent. General Atomics or "Heathgate Resources Pty Ltd.
54. Pursuant to para 3.4 of the Administrative Procedures.
55. The Commonwealth Minister for the Environment was satisfied with the level of environmental impact assessment by an EIS undertaken jointly between the State and Federal governments, with the South Australian government taking the leading role.
56. According to guidelines specified by the South Australian Department for Transport, Urban Planning and the Arts and the Commonwealth Department of the Environment, ie approved by the Minister for the Environment-these guidelines were released publicly and subject to public submissions.
57. By the Commonwealth Minister for the Environment-following assessment by Environment Australia (assessment was actually conducted for them by the Bureau of Rural Sciences: Land and Water Sciences Division, previously the Australian Geological Survey Organisation) and review by the "Environment Protection Group" of Australia) As part of the assessment of the EIS, Planning SA suggested that conditions be imposed by the Minister for Primary Industries, Natural Resources and Regional Development as part of any approval under s 35 of the Mining Act whereas the proponents must comply with: the South Australian Radiation Protection and Control Act 1982; the Code of Practice on the Management of Radioactive Wastes from the Mining and Milling of Ores (1982); the Code of Practice for the Safe Transport of Radioactive Substances (1990); the Code of Practice on Radiation Protection in the Mining and Milling of Radioactive Ores (1987); and the dose limits specified in the Recommendations for Limiting Exposure to Ionising Radiation (1995) and the National Standard for Limiting Occupational Exposure to Ionising Radiation (published by the National Health and Medical Research Council and the National Occupational Health and Safety Commission): as well as implementing best practice.
58. American Geosciences Inc-engaged by the South Australian government and Environment Australia.
59. While one of the recommendations of the review of the EIS was that "before Commonwealth approvals are granted, the proponent must, to the satisfaction of the Commonwealth Minister for the Environment and Heritage (the Environment Minister); 1. confirm that an hydraulic connection does not exist between the Beverley aquifer and other surrounding groundwater; or 2. modify the project so that the waste stream is not injected into the Beverley aquifer and an environmentally acceptable alternative for managing and disposing of the waste stream is adopted". It would seem that either Senator Hill is very easily satisfied, or he did not read the EIS review. The review also suggests that conditions should be imposed making the proponents responsible for rehabilitation.
60. And more than 1400 spent fuel rods are currently stored at Lucas Heights.
61. The Report of the Research Reactor Review ("Future Reaction") (1993) also contains "the case for a new research reactor".
62. It has been claimed that this purpose of the reactor has been overstated in order to gain public support for the project. ω The issues of "national interest" and nuclear waste and spent fuel are discussed in more detail in the submissions to the Parliamentary Standing Committee on Public Works regarding the Proposed Replacement Nuclear Research Reactor at Lucas Heights by Campaign for a Nuclear Free Future (1999).
63. According to guidelines set out by the Environment Protection Group of Environment Australia (Commonwealth Department of the Environment). Both the guidelines and EIS were subject to public review, however the People Against a Nuclear Reactor (PANR) campaign group decided to boycott the "sham EIS process". PANR also cited the fact that ANSTO had just failed four out of seven criteria in their most recent international risk assessment, the worst failure being the lack of adequate procedures for a meltdown.
64. New South Wales has a Uranium Mining and Nuclear Facilities (Prohibitions) Act 1986. Nuclear fuel enrichment or fabrication facilities and nuclear reactors are prohibited, but: "Nothing in this section prevents: (a) the construction or operation, under an Act of the Commonwealth, of a nuclear facility by the Australian Atomic Energy Commission or by any authority of the Commonwealth that replaces that Commission; (b) the construction or operation of a facility for the storage or disposal of any radioactive waste material resulting from the use of nuclear materials for research or medical purposes or for any other purpose authorised under the Radioactive Substances Act 1957; or (c) the operation of a nuclear powered vessel". Media release, 30 March 1999. Senator Hill had also commissioned independent reviews by the firms "CH2M HILL" and "Parkman Safety Management", and the International Atomic Energy Agency, as part of the environmental assessment process. In September 1997, the Commonwealth Government had already "agreed, in principle, to the construction and operation of a nuclear research reactor at the Lucas Heights Science and Technology Centre, to replace the existing HIFAR".
65. Please note that sometimes there is an element of confusion regarding the classification of waste. For example, some of the waste referred to as "long-lived intermediate level" would be classified as high level waste elsewhere.
66. According to Senator Minchin (Minister for Industry, Science and Resources) the waste is currently stored at over 50 temporary sites, at universities, hospitals and government laboratories throughout Australia, and these are not suitable for long term storage. However, the Department of Primary Industries and Energy has reassured us that these storage sites are perfectly safe. Conservation groups would generally like to see radioactive waste dealt with at the site of creation or use, where infrastructure and expertise already exists, thus encouraging minimisation and prevention of waste production, reducing risks associated with transport of radioactive waste, and avoiding the "out of sight, out of mind" solution of dumping it in a remote area.
67. Provision of a destination for waste produced is likely to increase the likelihood of permission for a new nuclear reactor being granted.
68. This was announced in January 1999.
69. And proponent of an international radioactive waste dump in outback Australia.
70. Senate Select Committee into the Dangers of Radioactive Waste 1995.
71. An example being the decision to approve the Jabiluka uranium mine while the majority of Australians oppose its operation.
72. See J Armstrong, Sizewell Report: A New Approach for Major Public Inquiries, (Town and country Planning Association, London 1988).
73. "Agreements with international organisations or groups of other countries are highlighted.
74. The Agreement entered into force on signature pursuant to Article 15 ATS 1965 No 0017; ONTS 543, p 183-terminated 1 January 1975 pursuant to Article IV.1(b) of the Agreement of 30 December 1974.
75. The Agreement entered into force on signature pursuant to s 34 ATS 1972 No 0010; UNTS 874, p 65-Australia and Japan gave notice of termination on 20 August 1982. In accordance with the provisions of the notes the Agreement terminated with retrospective effect on 17 August 1982, the date of termination of the Australia/Japan Agreement of 21 February 1972.
76. "Recalling that pursuant to para I of Art IV of the Treaty nothing in the Treaty shall be interpreted as affecting the inalienable right of all the Parties to the Treaty to develop research, production and the use of nuclear energy for peaceful purposes without discrimination and in conformity with Arts I and 11 of the Treaty; Recalling that according to para 2 of Art IV of the Treaty, all the Parties to the Treaty undertake to facilitate, and have the right to participate in. the fullest possible exchange of equipment, materials and scientific and technological information for the peaceful uses of nuclear energy".
77. "Whereas it is a function of the International Atomic Energy Agency... to encourage and assist research on. and the development and practical application of. atomic energy for peaceful uses, which function can be fulfilled by furthering cooperation between its Member States and by assisting their atomic energy programs... The governments agree, in cooperation with each other and the Agency, to promote and coordinate co-operative research, development and training projects in nuclear science and technology through their appropriate national institutions". And Exchange of Notes constituting an Agreement to amend Pt A of Annex C of the aforementioned Agreement.
78. "Affirming further that parties to the Treaty in a position to do so shall also cooperate in contributing alone or together with other States or international organizations to the futher development of the applications of nuclear energy for peaceful purposes, especially in the territories of non-nuclear weapon States Party to the Treaty, with due consideration for the needs of the developing areas of the world; confirming further the desire of both countries to cooperate in the peaceful uses of nuclear energy, as exemplified by their participation in the Regional Cooperation Agreement with other regional members of the International Atomic Energy Agency; desiring to establish conditions consistent with their commitment to nonproliferation under which nuclear material can be transferred between their two countries for peaceful purposes".
79. "Convinced of the need for an international framework which will facilitate the prompt provision of assistance in the event of a nuclear accident or radiological emergency to mitigate its consequences".
80. "Recognising the right of all States to develop and apply nuclear energy for peaceful purposes and their legitimate interests in the potential benefits to be derived from the peaceful application of nuclear energy... Convinced of the need for facilitating international co-operation in the peaceful application of nuclear energy... Desiring to avert the potential dangers posed by the unlawful taking and use of nuclear material" but "recognising the importance of effective physical protection of nuclear material used for military purposes, and understanding that such material is and will continue to be accorded stringent physical protection" (that is. it is okay for us to use nuclear material for military purposes, but not for "them"?).
81. "Aware that nuclear activities are being carried out in a number of States... Convinced of the need for States to provide relevant information about nuclear accidents as early as possible in order that transboundary radiolofical consequences can be minimized... Noting the usefulness of bilateral and multilateral arrangements on information exchange in this area".
82. "Recognising the necessity for the most efficient exploration, production, conversion, storage, transport, distribution and use of energy... Recognizing the increasingly urgent need for measures to protect the environment, including the decommissioning of energy installations and waste disposal, and for internationally-agreed objectives and criteria for these purposes". Signed for Australia, subject to ratification, 17 December 1994. with declaration pursuant to Art 45(2)(a) not accepting provisional application of Treaty, and declaration concerning trade-related investment measures. The Treaty is not yet in force definitively.