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Fagan, Matt; Katona, Jacqui; Mortimer, Debbie --- "Jabiluka Court Cases" [1998] IndigLawB 62; (1998) 4(14) Indigenous Law Bulletin 14

Jabiluka Court Cases

by Jacqui Katona, Debbie Mortimer and Matt Fagan

The Mirrar people are recognised under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) ('the ALRA') as traditional owners of the land now covered by Energy Resources Australia's ('ERA') Jabiluka mineral lease. Since the election of the Howard Government, a small group of Mirrar people have been attempting to prevent construction of a new uranium mine on their country, waging a political and legal battle against the formidable forces of industry and government.

For more than eighteen years, the Mirrar have lived with the Ranger uranium mine, which they claim has had a devastating effect on local Aboriginal people. Their desire to stop Jabiluka is currently impeded by an agreement between the Northern Land Council and then mineral lease-holder Pan Continental which was created in 1982 under s43 of the ALRA. The Mirrar claim that the consent of traditional owners to the 1982 agreement was obtained under circumstances of deceit and duress.

Labor's `three mine' policy effectively placed Jabiluka on ice for eight years. In 1991, the owner of the Ranger uranium mine, ERA, purchased the disputed lease. Notwithstanding Labor's policy on uranium mining, ERA attempted to exploit the uranium rich Jabiluka deposit by various means, including changing Jabiluka's name to `North Ranger'. All attempts were foiled until the Coalition Government removed Labor's restrictions on uranium mining. Since the election of the Coalition Government in 1996, ERA has vigorously pursued the development of Jabiluka against the express wishes of the traditional owners.

To date, the Mirrar have been involved in three sets of proceedings in relating to Jabiluka.

1. Challenge to the validity of the lease and its authorisation: should the lease have been issued by the Commonwealth or the Northern Territory?

In the Federal Court case of Yvonne Margarula v Minister for Resources and Energy & Ors (1998) 48 FCA, senior traditional owner, Yvonne Margarula, is challenging the validity of ERAS mining lease for the Jabiluka project.

Ms Margarula contends that the Northern Territory Government's authorisation of uranium mining on the Jabiluka mining lease is invalid. She argues that the invalidity flows from the fact that ERA's Jabiluka mining lease was issued by the Northern Territory Government, whereas the Commonwealth Government owns all uranium in the Northern Territory and the Atomic Energy Act 1953 (Cth) ('the Atomic Energy Act') establishes a regime by which the mining of uranium is authorised by the Commonwealth Government.

On 11 February 1998, Justice Sackville rejected Ms Margarula's arguments. He ruled that, while the Jabiluka lease was not granted according to the procedures laid down under the Atomic Energy Act, the Act did authorise the Commonwealth Government to permit a disposal of Commonwealth property by the Northern Territory Government.

Justice Sackville surveyed the history of the law regulating uranium mining in the Territory prior to the Northern Territory (Self-Government) Act 1978 (Cth). He found that the structure of laws existing at that time continued after the Northern Territory became self-governing. Notwithstanding the fact that the Act contains no explicit legislative authority in regards to the granting of mineral leases, His Honour found a sufficient legal basis upon which the Northern Territory Government could do so.

His Honour said that although the Northern Territory (Self-Government) Act 1978 (Cth) withheld title to uranium from the Northern Territory Government, it did provide a sufficient source of power for the Northern Territory Government to pass the Mining Act (No.4) 1978 (NT) and the Mining Act 1980 (NT). These Acts contain provisions authorising the grant of interests in uranium mining by the Northern Territory Government.

His Honour also found that, under the authority of the Northern Territory Self-Government Regulations, the Northern Territory Minister for Mines could issue a uranium mining lease. The regulations set out the limited circumstances in which this executive authority can be exercised.

Ms Margarula has appealed the decision of His Honour Justice Sackville to the Full Court of the Federal Court and is now waiting for its decision. The argument on appeal concentrated on the validity of the application of the Northern Territory (Self-Government) Regulations to the Jabiluka mining lease. However, the appeal case also examined the impact of Commonwealth laws such as the Lands Acquisition Act, which were not explored in the original action.

2. Challenge to the approval process for construction of the mine: the access to the mine

Margarula v Eric Poole, Minister for Mines & Energy (NT) and Energy Resources of Australia 108/1998 is a complaint in the Northern Territory Supreme Court which relates to the mining construction approval process under the Uranium Mining (Environmental Control) Act 1979 (NT) (the 'UMEC Act'). The UMEC Act establishes a regime under which mining companies in the Northern Territory may apply for and obtain approval to commence the construction of a uranium mine. This legislation is in some ways a Northern Territory equivalent to s41 of the Atomic Energy Act 1953 (Cth), in that it establishes a regime for the authorisation of mining for substances prescribed under the Act.

ERA first sought authorisation under the UMEC Act in relation to the construction of a portal and decline on the Jabiluka lease area. The portal and decline are the initial stages of an underground uranium mine. The portal is the entrance to the mine. The decline is essentially a tunnel, in this case about two kilometres long and six metres wide, which provides access to the area from which the ore is to be extracted.

When ERA lodged its application for authorisation for the construction of a portal, decline and associated infrastructure with the Northern Territory Department of Mines, the Northern Land Council was invited by the Department of Mines to comment upon the authorisation. It was through the Northern Land Council that the Mirrar learned of ERA's application for authorisation.

Towards the end of May 1998, the Mirrar further learned that the granting of the authorisation was imminent. On 22 May 1998, Yvonne Margarula, in her capacity as senior traditional owner, sought and obtained an ex parte interim injunction from the Federal Court of Australia. His Honour Justice Marshall of the Melbourne registry made orders restraining the Northern Territory Minister for Mines from granting authorisation to ERA for the construction of the portal, decline and associated infrastructure under s13 of the UMEC Act. The Minister and ERA subsequently applied to have the injunction discharged and for the proceedings to be transferred from the Melbourne Registry of the Federal Court to the Northern Territory Supreme Court. On 28 May 1998, Justice Marshall transferred the proceedings to the Northern Territory Supreme Court and extended the injunction until 5.00 pm on 1 June 1998.

On this day, the parties consented to the orders of the Supreme Court dissolving the injunction on the condition that if the authorisation were granted, ERA would undertake to give the plaintiffs seven business days' notice of its intention to commence work.

On 2 June 1998, the Minister granted an authorisation to ERA to undertake the works for the portal, decline and associated infrastructure, and ERA gave Ms Margarula the notice it was bound to give according to the terms of its undertaking.

On 10 June 1998, Ms Margarula applied to the Northern Territory Supreme Court for an interlocutory injunction restraining ERA from commencing work pursuant to the authorisation. For some time it appeared that the Court would be unable to find a judge with time to hear the injunction. Ms Margarula and her legal advisers had great difficulty even securing a date from the Court. Counsel used to the practice of Victorian Courts found this extraordinary. In the end, the matter was brought on very quickly.

The application was heard by Justice Bailey on 12 June 1998. His Honour dismissed the application and ordered Ms Margarula to pay ERA's costs. The Minister made no application for costs. His Honour dealt with the entire application within two to three hours despite the complexity of the arguments submitted and the amount of evidence presented. Nevertheless, it was time enough for His Honour to reach the opinion that there was no serious question to be tried.

In spite of the setback in relation to the interlocutory injunction, Ms Margarula determined that she and the Mirrar wished to press on with the hearing of the injunction. The case was fixed for hearing on 21, 22 and 23 July 1998.

Ms Margarula's argument in support of the application for an injunction was essentially one of statutory interpretation. There were four arguments, three of which related to the construction of the UMEC Act.

The first argument related to the Minister's power under s13 of the UMEC Act to grant or refuse an application for authorisation. By the terms of s13(2), the Minister has the power to either grant or refuse to grant an authorisation. However, s13(4) of the UMEC Act makes it mandatory for the Minister to grant an authorisation where refusal would prevent mining in the Territory which is `otherwise authorised by a law in force in the Territory.

The Minister argued that where a mining lease for the mining of a prescribed substance had been issued to a person, that person was thereby `authorised by a law in force in the Territory'. Thus, it was submitted by the Minister that on its proper construction, ss4 operated to remove the Minister's discretion to refuse the grant of an authorisation.

It was Ms Margarula's contention that, if ERA and the Minister were correct in their construction of the operation of ss4, then there could be no practical or realistic circumstances in which the power to refuse to grant could be exercised. It was argued that the Minister's interpretation of his powers under ss4 imposed such a significant limitation on the exercise of his discretion, as to constitute a jurisdictional error. The finding of such an error by the court would render his decision void.

The next of Ms Margarula's arguments was that the discretionary power to grant authorisations under s13 of the UMEC Act was a power that had to be exercised on a `whole project' basis. Both at Ranger and Jabiluka, ERA had proceeded on the assumption (which appears to have been endorsed by the Minister) that it could begin construction before having the whole project authorised. ERA would apply for and be granted authorisation for a 'stage and begin construction on that stage notwithstanding that other key aspects of the proposed mine remained unauthorised. Ms Margarula challenged this assumption, on the basis both of the wording of the section and other sections in the Act, and on the basis of the purpose for which the legislation was enacted.

The clear and, as between the parties, undisputed, purpose of the UMEC Act was to assist in preventing the harmful effects of uranium mining. It was argued that this purpose was likely to be less able to be fulfilled in circumstances where the Minister was unable, in considering whether to grant an authorisation, to examine the whole of the project. This was particularly significant in regards to the Jabiluka lease because there no decision had been made, and no approval sought, as to where the uranium ore will be milled and processed. On the basis that the Minister was blind to the next steps in the proposed mine at Jabiluka and therefore could not evaluate the project as a whole, Ms Margarula argued that he was blind also to the consequences of his immediate decision to authorise the consruction of the portal and decline.

The third argument related to the Minister's construction of the word 'environment' as that word is used in the UMEC Act It was argued that the Minister had restricted his consideration of environmental factors to the physical environment. Ms Margarula contended that properly construed, the word 'environment' would include the cultural and spiritual environment as understood and experienced by the Mirrar people. The cultural and spiritual environment referred to the existence of sacred sites on the lease area. The sacred sites referred to in argument were those which were already publicly known, such as the Boiwek-Almudj complex of sites, and sites whose existence and location must remain within the knowledge of members of the Mirrar. However, the only references to cultural and spiritual matters in the conditions on the authorisation or in the material which went to the Minister before he granted the authorisation, dealt with archaeological and 'cultural heritage' studies.

It was argued by Ms Margarula that the Minister ought to have considered whether allowing construction of the portal and decline was likely to assist in protecting the cultural and spiritual environment of the Mirrar people from the harmful effects of mining. Her argument was that the Minister did not consider ERAS proposal in this way at all. If he had done so, he would have required significant consultations with the Mirrar about the nature and extent of sacred sites on that land, and would have required ERA to take more account of how it might avoid not only physical damage to any sacred sites, but ensure that it did not trample unduly the traditional beliefs of the Mirrar about the importance of the area.

The final argument, based on administrative law, was whether the Minister had taken into account all relevant considerations. The argument was that, even if the Minister had correctly construed the word 'environment' to include cultural environment, he had nevertheless failed to take into account a number of relevant considerations about the cultural environment. These included the existence of the Boiwek site and the importance of that site to the Mirrar people, the absence of complete anthropological studies about the extent of other sacred sites in the area and the absence of any considerations dealing with the beliefs of the Mirrar about that land.

These matters were argued before justice Sally Thomas over three days in the Northern Territory Supreme Court. Her Honour has reserved her decision. It is not known when the decision will be handed down.

The best outcome Ms Margarula can hope for is an for order certiorari which would quash the Minister's decision of 2 June 1998 and require him to decide ERA's application for an authorisation again. The Mirrar and their counsel have been aware from the start that this litigation could never overturn the mineral lease but could only ever delay the start of the mine. However, such delay can be an advantage in itself.

More importantly, the Mirrar have exercised their right to demand that our public officials act according to the law. The public scrutiny resulting from proceedings like this should not be underestimated. The exercise of discretions by members of the executive is an area in which the public rightly has great interest. Where discretionary powers are exercised in favor of powerful and wealthy corporations at the expense of individuals who are at the other end of the spectrum in terms of power and wealth, such public scrutiny is particularly important.

3 Criminal prosecution for trespass

There is also an outstanding criminal prosecution against Ms Margarula and three other Aboriginal people for trespassing on the Jabiluka Mineral Lease in the Jabiru Magistrate's Court. In spite of the fact that they are traditional owners of the land in question, the prosecution has argued that Ms Margarula enjoys only restricted access to the lease area pursuant to the 1982 agreement. At the time of writing, written submissions in this case are still to be lodged (18 August 1998) so the arguments of the prosecution and defence will not be discussed here. Judgment is expected for early September.

The Mirrar are currently preparing at least two more cases, including legal action in international law against the Australian Government. Like so many Aboriginal communities, the Mirrar maintain the hope that the courts will listen to a story which has so far fallen on deaf ears in government and industry.

Jacqui Katona is Executive Officer of the Gundjehmi Aboriginal Corporation.

Debbie Mortimer is a Melbourne-based barrister.

Matt Fagan is the Legal and Polity Project Officer at the Gundjehmi Aboriginal Corporation.

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