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Legislative Council - Fifty-First Parliament, Third Session (51-3)
2009-11-17 Daily Xml
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MARALINGA TJARUTJA LAND RIGHTS (MISCELLANEOUS) AMENDMENT

Introduction and First Reading

Received from the House of Assembly and read a first time.

Second Reading

The Hon. G.E. GAGO (Minister for State/Local Government Relations, Minister for the Status of Women, Minister for Consumer Affairs, Minister for Government Enterprises, Minister Assisting the Minister for Transport, Infrastructure and Energy) (19:50): I move:

That this bill be now read a second time.

I seek leave to have the second reading explanation inserted in Hansard without my reading it.

Leave granted.

The Maralinga Tjarutja Land Rights (Miscellaneous) Amendment Bill 2009 transfers Section 400 Out of Hundreds (Maurice) to the Maralinga Tjarutja people. It also includes measures to improve the governance of the Maralinga Tjarutja Corporation and authorises it to make by-laws, subject to Ministerial approval, to better control substance misuse on the lands.

Between 1953 and 1963 the Maralinga lands were used by the British Government for the testing and development of nuclear weapons. This resulted in significant contamination of the land by radioactive substances and other hazardous materials. It also resulted in loss of access to the test site land by the Maralinga Tjarutja traditional owners for a significant number of years to date. Access to Section 400 remains restricted to those permitted entry by the Commonwealth Government.

In 1984 the South Australian Government granted a significant portion of the Maralinga lands to the Maralinga Tjarutja people. However, sections of the land at Emu (Section 1486) and Maralinga (Section 1487) and Section 400 were not handed back at that time as the results of a joint State/Federal Government radiation survey in May 1984 had found that there remained significant radioactive contamination of those areas.

In 1991, after a program of minor works, the South Australian Government transferred the ownership of Section 1486 (Emu) and Section 1487 to Maralinga Tjarutja.

Section 400 has been the subject of more extensive rehabilitation work as part of the 1995-2000 Maralinga Rehabilitation Project, described in the Maralinga Rehabilitation Technical Advisory Committee (MARTAC) Report 'Rehabilitation of Former Nuclear Test Sites at Emu and Maralinga (Australia, March 2003)'.

This work has reduced the radiation levels to the MARTAC clearance criteria that were agreed to by the Commonwealth, the State and Maralinga Tjarutja and Section 400 is now in a condition such that it can be returned to Maralinga Tjarutja.

Section 400 is the only remaining parcel of land yet to be handed back to Maralinga Tjarutja. It is presently vested in the Commonwealth Government and dedicated in trust as a Reserve for Defence Purposes under the SA Crown Lands Act 1929. If this Bill is passed, the Commonwealth will return the land to South Australia for transfer of the freehold title to Maralinga Tjarutja.

Critical in the negotiations with the Commonwealth has been our position that the State would not accept the transfer of the land unless it, and Maralinga Tjarutja, were provided with an indemnity for all claims where the loss is directly or indirectly related to the contamination of the land as a result of the British Nuclear Test Program. We considered that as the Commonwealth was responsible for the contamination of Section 400, it should accept liability for damage arising from that contamination. I am pleased to report that after several years of negotiation, the Commonwealth has provided the required indemnity within the Handback Deed. The indemnity covers not only Section 400 but also the contamination at Section 1486 (Emu) and Section 1487.

Out of an abundance of caution, the Bill also amends the Maralinga Tjarutja Land Rights Act 1984 to provide that no liability attaches to the State in relation to any injury, damage or loss caused by or in any way related to the British Nuclear Test Program conducted at the Maralinga nuclear test site.

Although the 1995-2000 Maralinga Rehabilitation Project left the Maralinga site in a safe state, there will need to be periodic monitoring of the radiological status of the site to ensure the continuing effectiveness of the rehabilitation works and, if necessary, remedial action undertaken.

The Maralinga Land and Environment Management Plan sets out the ongoing responsibilities of the stakeholders to maintain the security of the buried radioactive materials for the ongoing protection of people and the environment. In addition to Section 400, the Plan covers Section 1486 at Emu, Section 1487 at Maralinga and other adjacent land affected by the British atomic tests.

Land Management issues in relation to the British Nuclear Tests will be dealt with by the Maralinga Land and Environmental Management Committee comprising a State Government representative, a Maralinga Tjarutja representative, and an Australian Government representative. The Committee will oversee the implementation of the Maralinga Land and Environment Management Plan.

Section 400 contains a licensable amount of radioactive material and the South Australian Environmental Protection Authority will register and regulate the land under the Radiation Protection and Control Act 1982 following its transfer. However, pursuant to the Plan, the Commonwealth must at its expense maintain the physical structures built at Maralinga during the 1995-2000 Rehabilitation Project, monitor radiation levels and review radiation protection principles and standards.

In response to concerns about the potential risks associated with significant ground disturbance, mining activities will be prohibited on Sections 400, 1486 and 1487. There are currently several Petroleum and Mineral Tenements that cover those Sections. The Bill will vary these Tenements to excise from them any lands within those Sections. A review of the prohibition must be carried out within five years of the land transfer and the report will be tabled in Parliament. Whilst the prohibition may bring some criticism from the mining industry, the areas affected are only approximately 3% of the total area of the Maralinga Tjarutja lands. Furthermore, permitting mining would place the State and Maralinga at financial risk because the indemnity provided by the Commonwealth does not cover losses that arise from ground disturbance due to mining or exploration.

Section 400 contains what remains of the Maralinga Village constructed by the British Government in 1955. The Village has a number of large buildings as well as power generation and water reticulation systems and an airstrip. Maralinga Tjarutja proposes to develop a small Land Management and Heritage Resource Centre at Maralinga Village. This would enable Maralinga Tjarutja to conduct all land management operations for the Maralinga lands from Maralinga Village. Maralinga Tjarutja are also planning to establish and operate a caravan park style tourist facility at Maralinga Village that would include a kiosk and a small interpretive centre. The Commonwealth Government has provided funds to Maralinga Tjarutja to assist with this initiative and for the ongoing maintenance of Maralinga Village.

At the request of Maralinga Tjarutja, the Bill includes several amendments not directly related to the handback of Section 400. The amendments deal with measures to improve governance by including the power for Maralinga Tjarutja to make a constitution and by providing a more precise statement of the capacity of the Maralinga Tjarutja Council to delegate powers and functions. Out of Maralinga Tjarutja’s concern about alcohol misuse and petrol sniffing, they also include the power for Maralinga Tjarutja to make by-laws (subject to the approval of the Minister) to control alcohol, petrol and other regulated substances on the lands. The proposed changes will bring the powers of the Maralinga Tjarutja Corporation broadly into line with those of the equivalent peak body on the Anangu Pitjantjatjara Yankunytjatjara Lands as set out in the Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981.

The transfer of Section 400 represents the final chapter of a process that began in 1984 to return the Maralinga lands to the traditional owners. It will be an occasion of considerable significance to the traditional owners who have been essentially forbidden from these lands for more than 50 years. I would like to acknowledge the patience and cooperation of the Maralinga Tjarutja people for negotiating in good faith over so many years for the return of their land.

I commend the Bill to the House.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

3—Amendment provisions

These clauses are formal.

Part 2—Amendment of Maralinga Tjarutja Land Rights Act 1984

4—Amendment of section 3—Interpretation

This clause inserts definitions of key terms used in the measure into section 3 of the principal Act.

5—Amendment of section 5—Powers and functions of Maralinga Tjarutja

This clause inserts new paragraphs (j) and (k) into section 5(2) of the principal Act, conferring on Maralinga Tjarutja the power to make a constitution in respect of specified matters, and the power to take such steps as may be necessary or expedient for, or incidental to, the performance of Maralinga Tjarutja's functions.

6—Substitution of section 9

This clause substitutes a new power of delegation, replacing the existing power (which limited the persons to whom a power or function could be delegated to members, officers or employees of Maralinga Tjarutja) with one more consistent with current practices that gives Maralinga Tjarutja more flexibility.

7—Amendment of heading to Part 3 Division 1A

This clause amends the heading to Part 3 Division 1A to reflect the change of the name of the Unnamed Conservation Park to the Mamungari Conservation Park.

8—Amendment of section 15B—Establishment of co-management board

This clause makes a consequential amendment to reflect the change of the name of the Unnamed Conservation Park to the Mamungari Conservation Park.

9—Amendment of section 15D—Dissolution or suspension of co-management board

This clause makes a consequential amendment to reflect the change of the name of the Unnamed Conservation Park to the Mamungari Conservation Park.

10—Amendment of section 15E—Staff

This clause makes a consequential amendment to reflect the change of the name of the Unnamed Conservation Park to the Mamungari Conservation Park.

11—Insertion of Part 3 Division 1B

This clause inserts new Part 3 Division 1B, setting out provisions related to the Maralinga nuclear test site as follows:

Division 1B—Special provisions related to Maralinga nuclear test site

15H—Interpretation

This proposed section defines the management plan for the Maralinga nuclear test site to be the management plan annexed to the Maralinga nuclear test site handback deed, as varied from time to time.

15I—Guidelines related to Maralinga nuclear test site

This proposed section requires Maralinga Tjarutja, within 6 months after the commencement of the section, to prepare and submit to the Minister for approval guidelines to be followed in relation to the Maralinga nuclear test site. Subsection (4) sets out the required contents of the guidelines.

The proposed section also sets out procedural matters in relation to the guidelines.

15J—Immunity from liability

This proposed section confers immunity on the State and Maralinga Tjarutja for any injury, damage or loss caused by, or related to, the British Nuclear Test Program, or minor trials, conducted at the Maralinga nuclear test site. However, this immunity only operates in the event that the Maralinga nuclear test site handback deed either ceases to be in force, or for some other reason fails to provide indemnity for the State or Maralinga Tjarutja in relation to a particular claim for damages.

15K—Mining etc prohibited on Maralinga nuclear test site

This proposed section disapplies the Mining Act 1971, the Petroleum and Geothermal Energy Act 2000 and the Opal Mining Act 1995 in respect of the Maralinga nuclear test site.

This proposed section also prohibits the specified mining-related activities from being undertaken on, or in relation to, the Maralinga nuclear test site. The maximum penalty for a contravention is a fine of $120 000.

15L—Review of operation of Division by Minister

This proposed section requires the Minister to cause a review of the operation of this proposed Division to be conducted and a report on the results of the review to be prepared and submitted to him or her. The clause sets out consultation and other requirements in relation to the review.

15M—Evidence

This proposed section allows evidence of the Maralinga nuclear test site handback deed to be given by certificate in legal proceedings.

12—Amendment of section 17—Rights of traditional owners with respect to lands

This clause makes a consequential amendment to section 17 of the principal Act.

13—Amendment of section 18—Unauthorised entry upon the lands

This clause extends the operation of section 18(11) of the principal Act (which provides that that section does not apply to certain people) to include a person entering the land in accordance with, or to exercise a function under, the Maralinga nuclear test site handback deed, or a person assisting a person otherwise specified in the subsection.

14—Insertion of section 18A

This clause provides that certain specified people who may enter and remain on the lands under section 18(11) of the Act may reside on the lands where that is necessary or desirable for the purpose of carrying out their duties or functions. This is consistent with a similar provision in the Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981.

15—Amendment of section 20—Use of roads to traverse the lands

This clause amends section 20 of the principal Act to exclude from the roads that may be used on the lands a road that is in Section 400, Out of Hundreds within the Maralinga nuclear test site (whether or not the road is a continuation of a road that the person is entitled to use).

16—Substitution of section 20A

This clause disapplies Part 3 Division 4 of the principal Act (dealing with mining operations on the lands) in respect of the Maralinga nuclear test site.

17—Amendment of section 30—Road reserves

This clause makes a consequential amendment to reflect the change of the name of the Unnamed Conservation Park to the Mamungari Conservation Park.

18—Insertion of section 43

This clause inserts new section 43 into the principal Act, allowing Maralinga Tjarutja to make by-laws in respect of the following:

(a) regulating, restricting or prohibiting the consumption, inhalation, possession, sale or supply of regulated substances on the lands;

(b) providing for the confiscation, in circumstances in which a contravention of a by-law under paragraph (a) is reasonably suspected, of any regulated substance to which the suspected contravention relates;

(c) providing for the treatment or rehabilitation (or both) of any person affected by the misuse of any regulated substance;

(d) prohibiting specified forms of gambling on the lands;

(e) providing for any other matter that is prescribed by the regulations as a matter in relation to which by-laws may be made.

The clause sets out procedural and other matters in relation to making such by-laws.

19—Amendment of section 44—Regulations

This clause amends section 44 of the principal Act to allow regulations to be made regulating, restricting or prohibiting entry on, or any activity on, the Maralinga nuclear test site.

The clause also inserts new subsection (1a), allowing regulations made under section 44 to be of general application or vary in their application according to prescribed factors, and allowing such regulations to confer a discretion on the Minister or a specified body of persons.

20—Amendment of Schedule 1

This clause amends Schedule 1 of the principal Act, adding Section 44, Out of Hundreds to the Lands.

21—Substitution of Schedule 2

This clause amends Schedule 2 to make amendments to the prescribed roads consequential on this measure.

22—Insertion of Schedule 5

This clause inserts new Schedule 5 into the principal Act, and provides a map (for ease of reference only) of the Maralinga nuclear test site.

Schedule 1—Transitional provision

1—Maralinga nuclear test site excluded from mining tenements etc

This clause also makes a transitional provision—

(a) extinguishing any rights that existed in respect of the Maralinga nuclear test site under a mining tenement or permit under the Mining Act 1971, a precious stones tenement or permit under the Opal Mining Act 1995 or a tenement under the Petroleum and Geothermal Energy Act 2000;

(b) modifying any application for a prescribed tenement that seeks the conferral of any rights in relation to any part of the Maralinga nuclear test site so that it does not seek such conferral.

No compensation is payable in respect of the operation of the clause.

Debate adjourned on motion of Hon. D.W. Ridgway.

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