Australian Indigenous Law Reporter
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Act No 145 of 2005
Assented to 14 December 2005
Under international conventions Australia is responsible for low and intermediate level radioactive waste deriving from the Lucas Heights nuclear reactor in Sydney, which produces isotopes for medical and industrial purposes.
Since 1983 the Commonwealth Government has sought agreement for a national repository to replace the current storage of waste in over 100 locations including hospitals with much temporarily stored at Lucas Heights.
The total volume of waste in Australia is small, consisting of about 4,700 square metres mostly generated since the 1960s. In 2011 a small volume of intermediate level waste, being spent fuel which has been reprocessed in France, will be returned for storage.
The responsible regulatory authority, the Australian Radiation Protection and Nuclear Safety Agency, has made clear that the continued operation of the Lucas Heights reactor is contingent upon appropriate arrangements to store waste over the long term.
Current State and Territory governments oppose the siting of a national repository in their jurisdictions, although the WA Government has operated its own low level facility at Mt Walton (near Kalgoorlie) since 1992, as has the Queensland Government at Esk since 1994. The SA Government has recently announced that it will establish its own facility at Roxby Downs.
In 2004 the Federal Court upheld appeals by the SA Government and traditional owners, and overruled the Commonwealth Government’s attempt to compulsorily acquire land in South Australia at Woomera for a national repository.
On 14 October 2005 the Commonwealth Government introduced legislation to override NT legislation (and to remove procedural rights under some Commonwealth and NT laws), so that a repository could be established on one of three freehold defence sites in the Territory: Fishers Ridge (Katherine), Mt Everard or Harts Range (both near Alice Springs).
The traditional owners of Fishers Ridge have stated that they are prepared to consider a repository. The traditional owners of Mt Everard and Harts Range are opposed to a repository.
On 2 November 2005 the legislation was amended so that either a Land Council regarding Aboriginal land, or the NT Chief Minister regarding non-Aboriginal land, may nominate one or more alternative sites for a repository. After submissions by the Northern Land Council to a Senate inquiry, further amendments were made to ensure that statutory negotiating rights possessed by traditional owners under the Aboriginal Land Rights (Northern Territory) Act 1976 and Native Title Act 1993 are preserved.
The Northern Land Council supported the legislation (as amended). The Central Land Council opposed the legislation. The Commonwealth Radioactive Waste Management Act 2005 (and a related Act) was passed, and was assented to on 14 December 2005.
Ron Levy
Principal Legal Officer
Northern Land Council
(1) The Chief Minister of the Northern Territory may nominate land in the Northern Territory (other than Aboriginal land) as a potential site.
(1A) The Chief Minister of the Northern Territory must not nominate land under subsection (1) unless the Chief Minister has, at least 3 months before making the nomination, given written notice to the Land Council for the area in which the land is situated of the Chief Minister’s intention to nominate the land.
(2) A Land Council may nominate Aboriginal land in the area of the Land Council as a potential site.
(1) A nomination must:
(a) be in writing; and
(b) be made to the Minister; and
(c) specify the land nominated by reference to portion number (if any), survey points (if available) and geographical coordinates; and
(d) contain evidence of all interests in the land; and
(e) if there is a sacred site within the meaning of the Aboriginal Land Rights (Northern Territory) Act 1976 on or near the land—contain evidence that the persons for whom the site is sacred or is otherwise of significance are satisfied that there is no substantial risk of damage to or interference with the sacred site as a result of the nomination or subsequent action under this Act; and
(f) if the land is nominated by the Chief Minister of the Northern Territory—contain evidence of consent to the nomination by all persons holding interests in the land; and
(fa) if the land is nominated by the Chief Minister of the Northern Territory and there is a registered native title claimant (within the meaning of the Native Title Act 1993) in relation to the land or any part of it—contain evidence of the consent to the nomination by the claimant; and
(fb) if:
(i) the land is nominated by the Chief Minister of the Northern Territory; and
(ii) the land or any part of it is the subject of an application of the kind mentioned in paragraph 50(1)(a) of the Aboriginal Land Rights (Northern Territory) Act 1976 that was made before 5 June 1997; and
(iii) the traditional land claim the subject of that application has not been finally disposed of;
contain evidence of the matters mentioned in subsection (1B); and
(g) if the land is nominated by a Land Council—contain evidence that:
(i) the Land Council has consulted with the traditional Aboriginal owners of the land; and
(ii) the traditional Aboriginal owners understand the nature and effect of the proposed nomination and the things that might be done on or in relation to the land under this Act if the Minister approves the nomination; and
(iii) the traditional Aboriginal owners as a group have consented to the proposed nomination being made (that consent as a group being determined in accordance with section 77A of the Aboriginal Land Rights (Northern Territory) Act 1976); and
(iv) any Aboriginal community or group that may be affected by the proposed nomination has been consulted and has had adequate opportunity to express its view to the Land Council.
(1A) The reference in paragraph (1)(f) to persons holding interests in land includes any registered native title body corporate (within the meaning of the Native Title Act 1993) in relation to the land or any part of it.
(1B) For the purposes of paragraph (1)(fb), the nomination must contain evidence that:
(a) the Land Council for the area in which the land is situated has consulted with the traditional Aboriginal owners of the land; and
(b) the traditional Aboriginal owners understand the nature and effect of the proposed nomination and the things that might be done on or in relation to the land under this Act if the Minister approves the nomination; and
(c) the traditional Aboriginal owners as a group have consented to the nomination being made (that consent as a group being determined in accordance with section 77A of the Aboriginal Land Rights (Northern Territory) Act 1976); and (d) the Land Council has consulted with any Aboriginal community or group that may be affected by the proposed nomination and the community or group has had adequate opportunity to express its view to the Land Council, and that the Chief Minister of the Northern Territory has considered any such view.
(2) The Minister may request further information from a nominator.
(3) A nomination is not a legislative instrument.
(1) The Minister may, in his or her absolute discretion, approve in writing nominated land or a specified part of nominated land as a site.
(2) The Minister does not have a duty to consider a nomination.
(3) An approval has effect at the time specified in the approval (which must not be earlier than the time the approval is made).
(4) A copy of an approval must be published in the Gazette within 7 days of the approval being made.
(5) Failure to comply with subsection (4) does not invalidate an approval.
(6) Failure to comply with subsection 3B(1) does not affect the validity of an approval.
(7) An approval is not a legislative instrument.
No person is entitled to procedural fairness in relation to a Minister’s approval.
Part 2—Selecting the Site for a Facility
(1) This section applies to:
(a) the Commonwealth; and
(b) a Commonwealth entity; and
(c) a Commonwealth contractor; and
(d) an employee or agent of a person mentioned in paragraph (a), (b) or (c).
(2) A person to whom this section applies may, in the Northern Territory, do anything necessary for or incidental to the purposes of selecting a site on which to construct and operate a facility.
(3) Without limiting subsection (2), the person may do any or all of the following under that subsection (whether or not on a site):
(a) gain access to and enter land and drive vehicles or fly aircraft to and from it;
(b) in order to drive vehicles to and from land—use existing roads or construct roads on, or grade, land;
(c) construct or rehabilitate bores;
(d) operate drilling equipment;
(e) extract water;
(f) collect samples of flora and fauna;
(g) place monitoring equipment (including meteorological and hydrological measuring equipment);
(h) build structures to protect bores, monitoring equipment or other things;
(i) move or extract sand, gravel, soil, mineral and rock samples;
(j) conduct seismic or geological investigations;
(k) conduct archaeological or heritage investigations;
(l) clear vegetation.
(4) A person doing a thing under this Part on land that is not a site within the meaning of paragraph (a) of the definition of site in section 3 must:
(a) take all reasonable steps to ensure that the doing of the thing causes as little detriment and inconvenience, and does as little damage, as is practicable to the land and to anything on, or growing or living on, the land; and
(b) remain on the land only for such period as is reasonably necessary; and
(c) leave the land, as nearly as practicable, in the condition in which it was immediately before the thing was done.
(1) A law, or a provision of a law, of a State or Territory (whether written or unwritten), so far as it relates to:
(a) the use or proposed use of land or premises; or
(b) the environmental consequences of the use of land or premises; or
(c) the archaeological or heritage values of land, premises or objects (including the significance of land, premises or objects in the traditions of Indigenous people); or
(d) controlled material, radioactive material or dangerous goods; or
(e) licensing (however described) in relation to:
(i) employment; or
(ii) carrying on a particular kind of business or undertaking; or
(iii) conducting a particular kind of operation or activity;
has no effect to the extent that it would, apart from this section, regulate, hinder or prevent the doing of a thing authorised by section 4.
(2) The regulations may prescribe a law, or a provision of a law, of a State or Territory for the purposes of this subsection. The prescribed law or provision has no effect to the extent that it would, apart from this subsection, regulate, hinder or prevent the doing of a thing authorised by section 4.
(3) Regulations made for the purposes of subsection (2) may prescribe a law, or a provision of a law, whether or not it is a law or a provision of a kind described in subsection (1).
(4) The regulations may prescribe a law, or a provision of a law, of a State or Territory for the purposes of this subsection. The prescribed law or provision has effect despite anything else in this section.
(1) The following laws have no effect to the extent that they would, apart from this section, regulate, hinder or prevent the doing of a thing authorised by section 4:
(a) the Aboriginal and Torres Strait Islander Heritage Protection Act 1984;
(b) the Environment Protection and Biodiversity Conservation Act 1999.
(2) The regulations may prescribe another law, or a provision of another law, of the Commonwealth for the purposes of this subsection. The prescribed law or provision has no effect to the extent that it would, apart from this subsection, regulate, hinder or prevent the doing of a thing authorised by section 4.
(1) The Minister may, in his or her absolute discretion, declare in writing that one, or a specified part of one, of the sites is selected as the site for a facility. If the declaration relates to a site within the meaning of paragraph (b) of the definition of site in section 3, the declaration may specify all or some of the rights or interests in the site (or part of the site).
(2) The Minister may, in his or her absolute discretion, declare in writing that all or specified rights or interests in land in the Northern Territory specified in the declaration are required for providing all-weather road access to the selected site (or selected part of a site).
(3) A declaration has effect at the time specified in the declaration (which must not be earlier than the time the declaration is made).
(4) A copy of a declaration must be published in the Gazette within 7 days of the declaration being made.
(5) Failure to comply with subsection (4) does not invalidate a declaration.
(6) The Minister must not:
(a) make more than one declaration under subsection (1); or
(b) make more than one declaration under subsection (2).
(7) A declaration is not a legislative instrument.
No person is entitled to procedural fairness in relation to the Minister’s making of a declaration.
(1) If the declaration under subsection 7(1) relates to a site within the meaning of paragraph (a) of the definition of site in section 3, then at the time the declaration has effect, any rights or interests in the selected site (or selected part of a site) that have not already been acquired by the Commonwealth, or extinguished, are by force of this section:
(a) acquired by the Commonwealth or extinguished; and
(b) freed and discharged from all other rights and interests and from all trusts, restrictions, dedications, reservations, obligations, mortgages, encumbrances, contracts, licences, charges and rates.
(1A) If the declaration under subsection 7(1) relates to a site within the meaning of paragraph (b) of the definition of site in section 3, then at the time the declaration has effect, the rights or interests in the selected site (or selected part of a site) that are specified in the declaration are, by force of this section:
(a) acquired by the Commonwealth or extinguished; and
(b) freed and discharged from all other rights and interests and from all trusts, restrictions, dedications, reservations, obligations, mortgages, encumbrances, contracts, licences, charges and rates.
(2) To avoid doubt, the rights and interests acquired under or extinguished by subsection (1) include:
(a) rights to minerals (if any); and
(b) native title rights and interests (if any).
(3) At the time the declaration under subsection 7(2) has effect, the rights or interests in the specified land that are specified in the declaration are, by force of this section:
(a) acquired by the Commonwealth or extinguished; and
(b) freed and discharged from all other rights and interests and from all trusts, restrictions, dedications, reservations, obligations, mortgages, encumbrances, contracts, licences, charges and rates.
(4) To avoid doubt, rights and interests specified in a declaration under subsection 7(1) that relates to a site within the meaning of paragraph (b) of the definition of site in section 3 or the declaration under subsection 7(2) may include any of the following:
(a) rights to minerals;
(b) native title rights and interests;
(c) an interest that did not previously exist in relation to the land;
(d) an easement in gross.
(1) Section 9 has effect despite any other law of the Commonwealth or the Northern Territory (whether written or unwritten).
(2) Without limiting subsection (1), section 9 has effect despite the following laws of the Commonwealth:
(a) the Lands Acquisition Act 1989;
(b) the Native Title Act 1993.
(1) The Secretary of the Department may lodge with the Registrar-General for the Northern Territory (or other appropriate officer) a copy of a Minister’s declaration under section 7, certified by writing signed by the Secretary.
(2) The officer with whom the copy is lodged may deal with and give effect to it as if it were a grant, conveyance, memorandum or instrument of transfer of relevant rights and interests done under the laws of the Northern Territory.
(1) This section applies to:
(a) the Commonwealth; and
(b) a Commonwealth entity; and
(c) a Commonwealth contractor; and
(d) an employee or agent of a person mentioned in paragraph (a),(b) or (c).
(2) A person to whom this section applies may, in relation to the selected site (or selected part of a site), do anything necessary for or incidental to any or all of the following:
(a) gathering or preparing information for a Commonwealth regulatory scheme that relates to:
(i) the construction or operation of a facility; or
(ii) anything done in preparation for the construction or operation of a facility;
(b) conducting activities that relate to gathering or preparing information for such a regulatory scheme;
(c) preparing the selected site (or selected part of a site) for a facility;
(d) preparing to construct and operate a facility;
(e) constructing a facility;
(f) constructing roads on, or grading, land in the Northern Territory;
(g) erecting fences and other access controls on land specified in the declaration under subsection 7(2);
(h) operating a facility;
(i) maintaining a facility;
(j) keeping a facility safe;
(k) decommissioning a facility.
(3) Without limiting subsection (2), the person may, under that subsection, do a thing mentioned in subsection 4(3) in relation to the selected site (or selected part of a site).
(4) Subsection (2) extends to doing things outside the selected site (or selected part of a site).
(5) A person to whom this section applies may, in relation to the selected site (or selected part of a site):
(a) transport (including through a State or Territory) people and materials (including controlled material) to or from a facility; and
(b) use transport infrastructure for that transport.
(1) A law, or a provision of a law, of a State or Territory (whether written or unwritten), so far as it relates to:
(a) the use or proposed use of land or premises; or
(b) the environmental consequences of the use of land or premises; or
(c) the archaeological or heritage values of land, premises or objects (including the significance of land, premises or objects in the traditions of Indigenous people); or
(d) controlled material, radioactive material or dangerous goods; or
(e) licensing (however described) in relation to:
(i) employment; or
(ii) carrying on a particular kind of business or undertaking; or
(iii) conducting a particular kind of operation or activity; has no effect to the extent that it would, apart from this section, regulate, hinder or prevent the doing of a thing authorised by section 12.
(2) A law, or a provision of a law, of a State or Territory (whether written or unwritten), so far as it relates to the transport of controlled material, radioactive material or dangerous goods, has no effect to the extent that it would, apart from this section, regulate, hinder or prevent transport authorised by section 12.
(3) The regulations may prescribe a law, or a provision of a law, of a State or Territory for the purposes of this subsection. The prescribed law or provision has no effect to the extent that it would, apart from this subsection, regulate, hinder or prevent the doing of a thing authorised by section 12.
(4) Regulations made for the purposes of subsection (3) may prescribe a law, or a provision of a law, whether or not it is a law or a provision of a kind described in subsection (1) or (2).
(5) The regulations may prescribe a law, or a provision of a law, of a State or Territory for the purposes of this subsection. The prescribed law or provision has effect despite anything else in this section.
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