Key points

• The Ranger Uranium Mine was established in an area known as the Ranger Protected Area (RPA) in 1979, on the Country of the Mirarr Traditional Owners, without their consent.
• The mine has been owned and operated by Energy Resources of Australia Limited (ERA) (a subsidiary of Rio Tinto Group) since 1980.
• Operations at the Ranger Uranium Mine ceased on 8 January 2021 and ERA has commenced rehabilitation activities.
• The existing Section 41 Authority, granted under the Commonwealth Atomic Energy Act 1953 (AE Act), requires ERA to rehabilitate the RPA in accordance with specified Environmental Requirements by 8 January 2026. The RPA would then be returned to the Mirarr Traditional Owners, with a view to incorporation of the area into the surrounding Kakadu National Park.
• ERA has advised that rehabilitation activities will not be completed by that date, due to emergent technical risks and the need for additional works.
• Key stakeholders agree that the deadline should be extended to allow rehabilitation activities to be completed.
• The Bill amends the AE Act to provide two regulatory options for ensuring that ERA continues to be required to complete all proposed rehabilitation and monitoring activities in accordance with the Environmental Requirements. These are (i) the establishment of a new Rehabilitation Authority, and (ii) the variation of the existing Section 41 Authority. The Bill also provides for the progressive close-out and return of parts of the RPA.
• The Bill allows an unlimited number of Rehabilitation Authorities to be granted. While this allows flexibility in light of the unique circumstances of the rehabilitation and monitoring activities, it also leaves uncertainty as to a final deadline for the completion of rehabilitation activities.
• The Bill is solely focused on rehabilitation and closure; it does not permit a resumption of mining activity and does not change the existing Environmental Requirements or required standard of rehabilitation.

Introductory Info

Date introduced:  8 September 2022
House: House of Representatives
Portfolio: Industry, Science and Resources
Commencement:: The day after Royal Assent.

Purpose and Structure of the Bill

The Atomic Energy Amendment (Mine Rehabilitation and Closure) Bill 2022 (the Bill) amends the Atomic Energy Act 1953 (the AE Act) to preserve the existing regulatory framework that applies to the Ranger Uranium Mine (Ranger) in the Northern Territory to ensure that the Mine Operator completes the rehabilitation activities in accordance with the established Environmental Requirements.

The Bill is comprised of one Schedule, which is divided into two Parts:

• Part 1 amends the AE Act by adding new definitions and amending existing provisions and adding new provisions to Part III of the Act. These are summarised as follows:
  • Division 1: existing section 41 is amended to allow for a s.41 Authority to authorise the carrying out of rehabilitation, remediation and monitoring operations and to extend the period in which the authority may be in force
  • Division 2 adds new sections 41CA to 41CG to provide for a new rehabilitation authority to be issued
  • Division 3 adds new sections 41CH to 41CI to provide for the progressive close-out of an area covered by a Part III authority
  • Division 4 adds new sections 41CJ to 41CS to provide for the variation and revocation of a Part III authority
  • Division 5 adds new sections 41CT to 41CY to clarify certain matters, including that matters covered by a Part III authority are exempt from the provisions of Part 3 of the Environment Protection and Biodiversity Conservation Act 1999  (EPBC Act)
  • Division 6 amends existing offence provisions and clarifies matters relating to compensation for acquisition of property.
• Part 2 contains application provisions.

Background

The Ranger Uranium Mine was established in 1979 in the Ranger Project Area (RPA), an area of 78 square kilometres located approximately 260 kilometres south east of Darwin. The uranium deposits were discovered a decade earlier, in October 1969, with further drilling confirming the feasibility of mining the ore bodies known as ‘Ranger 1’ and ‘Ranger 3’.[1]

A Commission of Inquiry (the Fox Inquiry) was established in July 1975 under the Environment Protection (Impact of Proposals) Act 1974 (subsequently repealed and replaced by the EPBC Act) to examine the environmental, social and nuclear non-proliferation implications of mining at Ranger.[2] The Inquiry issued two reports in 1976 and 1977, concluding:

The hazards of mining and milling uranium, if those activities are properly regulated and controlled, are not such as to justify a decision not to develop Australian uranium mines.[3]

The Inquiry also recommended:

Any development of Australian uranium mines should be strictly regulated and controlled.[4]

The Fox Inquiry was also empowered to determine the merits of a claim by Traditional Owners to land in the Alligator Rivers Region (ARR), including the RPA, under the then newly enacted Aboriginal Land Rights (Northern Territory) Act 1976 (ARLA).[5] The Inquiry recommended recognition of certain land in the ARR as Aboriginal land.[6] An area including the southern half of the RPA was granted to the Kakadu Aboriginal Land Trust in September 1978, while an area including the northern half of the RPA was granted to the Jabiluka Aboriginal Land Trust in November 1986.[7]

The RPA is situated on the Country of the Mirarr Gundjeihmi Traditional Owners, for whom the area is of immense cultural heritage significance.[8] The mine was developed without their consent.[9] In October 2015, the Mirarr Traditional Owners refused consent for mining activities to continue beyond the existing project.[10] The Mirarr Traditional Owners are represented by the Gundjeihmi Aboriginal Corporation (GAC). According to the GAC, there have been ‘over 200 spills, leaks and breaches of licence conditions ... in the four decades of the mine’s existence’, with a major incident in 2013 resulting in the spilling of 1,400 m³ of slurry containing ground uranium ore, water and sulphuric acid into the processing area.[11]

First Nations organisations, including the Northern Land Council (NLC) and the GAC, have received royalties and other payments associated with the operation of the mine.[12]

The Fox Inquiry also recommended that a major national park be established in the ARR, subject to the exclusion of the Ranger Protected Area and other areas where mining could proceed.[13] Stage one of Kakadu National Park was proclaimed on 5 April 1979, and in October 1981 was inscribed on the World Heritage List for its outstanding universal natural and cultural values.[14] The National Park and corresponding Listing have subsequently been expanded. The Listing notes ‘the future potential effects on the park of current uranium mining will require ongoing scrutiny’.[15] In 1999, the World Heritage Committee considered, but declined to add, Kakadu to the List of World Heritage in Danger due to concerns about uranium mining and milling and its cultural and environmental impacts on the values of the site.[16]

Energy Resources of Australia Limited (ERA), a public company listed on the Australian Stock Exchange, became the owner and operator of the Ranger Uranium Mine in 1980. ERA was acquired by the Rio Tinto Group in 2000.[17] Mining activities commenced in 1981 and continued until 2012, whereafter processing of stockpiled ore continued until 8 January 2021. Under its current authority, ERA is required to rehabilitate the RPA in accordance with Environmental Requirements by 8 January 2026.

A summary of other uranium mines and prospects, and progress towards rehabilitation, in the Alligator Rivers Region is provided in Appendix 1.

Legislative framework[18]

Uranium mining in the Northern Territory (NT) is regulated jointly by the Commonwealth and Northern Territory Governments. Day-to-day management is delegated to the NT Government and given effect under the NT Mining Management Act 2001; the responsible NT Minister must act in accordance with the advice of the responsible Commonwealth Minister.[19] For the purposes of this Digest, we focus on Commonwealth legislation.

Atomic Energy Act 1953

The primary focus of the Atomic Energy Act 1953 (AE Act) in its initial form was to consolidate Commonwealth control over nuclear materials, such as uranium, and technology.[20] The Act vests ownership of uranium in the territories in the Commonwealth and requires a person discovering uranium to notify the Commonwealth.[21]

The AE Act was amended in 1978 to authorise uranium mining in the Ranger Project Area, giving effect to the Ranger Project Agreement (see below).[22] Specifically, an authority under section 41 (referred to as a s.41 Authority) may allow mining, recovery, treatment and processing of uranium. Section 41A gives the Minister power to revoke an authority if satisfied that the rehabilitation requirements have been met. Similarly, section 41C requires the Minister to be satisfied with the conditions for ensuring the rehabilitation of the site prior to granting an extension to the authority.

Aboriginal Land Rights (Northern Territory) Act 1976

The Aboriginal Land Rights (Northern Territory) Act 1976 (ALRA) creates a framework for First Nations people in the NT to make land claims based on their traditional connections to Country. Aboriginal land granted under the Act is handed back by the creation of Land Trusts. The ALRA also creates Land Councils—for example, the Northern Land Council (NLC)—and provides ‘the legal framework for progressing social, commercial and economic development activities on Aboriginal land on behalf of’ Traditional Owners.[23]

Part IV of the ALRA provides for the grant of mining exploration licences on Aboriginal land.[24] Exploration licences cannot be granted on Aboriginal land unless the Land Council has consented or the Governor-General has declared that the national interest requires the licence to be granted, and the prospective licence holder has entered into an agreement under Part IV.[25] The Land Council must consult with the Traditional Owners of the subject land and any Aboriginal community or group that may be affected by the grant of the licence.[26] The Land Council may decide to consent to the grant of the licence if satisfied that the traditional Aboriginal owners understand and agree to the terms and conditions of the grant, and it has agreed the terms and conditions with the applicant.[27] An alternate process is provided where the terms and conditions of an agreement are determined by arbitration (referred to as a s.44 Agreement).[28]

The ALRA specifically overrides the right of the Traditional Owners of the Ranger Project Area to withdraw consent to mining activity while a s.44 Agreement under the ARLA or a s.41 Authority under the AE Act is in force.[29]

Environment Protection (Alligator Rivers Region) Act 1978

The Environment Protection (Alligator Rivers Region) Act 1978 (EP(ARR) Act) established the statutory position of the Supervising Scientist for the Alligator Rivers Region (ARR). The role of the Supervising Scientist is held by the Assistant Secretary of the Supervising Scientist Branch, within the Department of Climate Change, Energy, the Environment and Water (DCCEEW). The Supervising Scientist, who is subject to Ministerial direction, has four functions relating to the environmental impacts of uranium mining in the ARR: research, supervision, monitoring, and public assurance and advice.[30] Environment is defined broadly, to include people and communities.[31] The Supervising Scientist has limited compliance and enforcement powers[32] and rather provides advice to the responsible Commonwealth and NT Ministers. The Act also establishes the Alligator Rivers Region Advisory Committee, which provides a forum for consultation.[33]

Environment Protection and Biodiversity Conservation Act 1999

The EPBC Act provides the regulatory framework for the assessment and approval of actions that may have a significant impact on matters of national environmental significance. These include actions that may have a significant impact on world heritage area, and nuclear actions, including decommissioning and rehabilitation of any facility or area in which mining or milling uranium ore has been undertaken.[34]

As noted above, the Ranger Uranium Project was authorised by the Commonwealth Government following a commission of inquiry (the ‘Fox Inquiry’) under the Environment Protection (Impact of Proposals) Act 1974. That Act was repealed and replaced by the EPBC Act in 2000. Projects authorised under the former Act may fall within the continuing use provisions of the EPBC Act, subject to the activities covered by the specific environmental authorisation and its renewal or extension.[35] See ‘Key issues and provisions’ for further discussion of how the Bill seeks to address the need for further assessment of rehabilitation of the RPA under the EPBC Act. 

Relevant agreements and authorities[36]

The Ranger Uranium Mine was established following the signing of the Ranger Project Agreement on 9 January 1979 by the Commonwealth Government, the Australian Atomic Energy Commission (AAEC), and the mining companies Peko-Wallsend Operations Ltd and Electrolytic Zinc Company of Australasia Ltd.

The following Agreements and Authorities are annexed to the Ranger Project Agreement:

• a s.44 Agreement under the ARLA reached between the Commonwealth and the Northern Land Council (NLC) on 3 November 1978
• a s.41 Authority issued under the AE Act by the Minister for Trade and Resources on 9 January 1979. Compliance with Environmental Requirements is a condition of the Authority.[37]

On 12 September 1980, the 1979 Agreement was replaced by the Government Agreement as Amended. ERA accordingly acquired the interests of the parties to the earlier agreement and became the owner and operator of the Ranger Uranium Mine.[38]

The Government Agreement as Amended, s.44 Agreement, and s.41 Authority were valid for 21 years, plus 5 years rehabilitation. Thus, in 2000, an extension was needed to allow ERA to continuing mining operations.

In 1999, following several years of negotiations, the Commonwealth Government and the NLC entered into a Deed (Extension Agreement) extending the s.44 Agreement and requiring the parties to agree on a new s.44 Agreement.[39] ERA also entered into a Mining Agreement with the NLC.[40] In January 2013, the Mirarr Traditional Owners and ERA agreed to the terms and conditions for a new (renegotiated) s.44 Agreement. The Gundjeihmi Aboriginal Corporation describes the agreements as:

... provid[ing] the Mirarr and others with firmer and fairer footing upon which to tackle the social disadvantage of Aboriginal people across the region.[41]

The s.41 Authority under the AE Act was renewed on 14 November 1999[42] and, together with the s.44 Agreement, runs for 26 years: 21 years mining with activity to cease on 8 January 2021, and 5 years for rehabilitation activities to be completed by 8 January 2026.

Scale of the rehabilitation task

Rehabilitating the Ranger Uranium Mine has been described as the most complex—and most expensive—mine rehabilitation project in Australia’s history.[43] The scope of works involves managing contaminated material, reinstating the landform, and generating a functioning ecosystem. Based on a feasibility study completed in 2019, ERA estimates:

• over 90 million tonnes of material will be moved to create the final landform
• haulage trucks will work for 160,000 hours and travel 2.7 million kilometres over 36 months
• 47 plant species and 1.1 million plants will be planted in initial and infill plantings
• on-going monitoring and maintenance of the site will occur for 25 years once the rehabilitation works are completed.[44]

Rehabilitation requirements

Compliance with the Environmental Requirements of the Commonwealth of Australia for the Operation of the Ranger Uranium Mine (the Environmental Requirements) is a condition of the s.41 Authority under the AE Act.[45] The Environmental Requirements are also incorporated into authorisations granted under the NT Mining Management Act 2001.[46] The Environmental Requirements cover matters including environmental protection, rehabilitation, water quality, air quality, radiological protection, and the storage, use and disposal of hazardous substances and wastes.

Relevantly, the rehabilitation objective requires that ERA:

... rehabilitate the Ranger Project Area to establish an environment similar to the adjacent areas of Kakadu National Park such that, in the opinion of the Minister with the advice of the Supervising Scientist, the rehabilitated area could be incorporated into the Kakadu National Park.[47]

ERA is also required to ensure that:

(i) the tailings are physically isolated from the environment for at least 10,000 years;

(ii) any contaminants arising from the tailings will not result in any detrimental environmental impacts for at least 10,000 years ...[48]

The Environmental Requirements require ERA to prepare a rehabilitation plan which must be approved by the Supervising Authority[49] and the Minister, on the advice of the Supervising Scientist.[50] The NLC must agree that rehabilitation activities meet the aim and objectives for rehabilitation set out in the Environmental Requirements.[51] ERA’s rehabilitation obligations come to an end over any part of the RPA when a close-out certificate is issued by the Supervising Scientist, provided that the Supervising Scientist and the NLC agree that the requirements have been met.[52]

ERA released its first Ranger Mine Closure Plan (RMCP) in June 2018; it had been updated annually, with the most recent updated Mine Closure Plan released in October 2020.[53]

The Supervising Scientist released an assessment of ERA’s 2020 Ranger Mine Closure Plan in December 2020, noting some improvement over previous versions but concluding:

... the 2020 RMCP does not yet provide sufficient evidence to demonstrate that the rehabilitation works proposed will satisfy the Environmental Requirements.[54]

The assessment report notes that ERA is making some progress on outstanding issues, while also noting that the Supervising Scientist and ERA are yet to agree on some of the closure criteria.

ERA has not released a 2021 RMCP. In May 2022 ERA commenced a feasibility study ‘in connection with a lower technical risk rehabilitation methodology ... and to further refine the Ranger Project Area rehabilitation execution scope, risks, costs and schedule’.[55] The feasibility study is expected to take 12 months.

ERA is reported to have said that rehabilitation activities ‘could drag on past the end of the decade’.[56]

It is important to recognise that the five-year rehabilitation period from January 2021 to January 2026 contemplates physical works; ‘full restoration of the natural ecosystems will take far longer’.[57] ERA’s closure manager has indicated that development of a good ecosystem could take about 25 years after planting, with natural regeneration taking longer. Notably, the Supervising Scientist states:

In the years after 2026 an ongoing effort will be required to ensure that the rehabilitation is successful. This will include: monitoring to ensure the rehabilitated site is on a suitable trajectory towards closure and completion criteria and to detect environmental impacts; the control of weeds and management of erosion; and, the exclusion of fire during the early stages of vegetation establishment. Over time, the requirement for post-rehabilitation management activities will reduce until, eventually, the site no longer needs active management, at which point it may be suitable for permanent closure.[58]

The Explanatory Memorandum to the Bill states that the post-closure ‘monitoring period is estimated to be another 20 years’.[59]

Financial provision for rehabilitation

A Ranger Rehabilitation Trust Fund has been established in accordance with the Government Agreement as Amended.[60] ERA is required to prepare an Annual Plan of Rehabilitation, the purpose of which is ‘to determine the securities amount to be held by the Commonwealth Government for Ranger rehabilitation obligations’.[61] ERA is required to deposit monies into this Fund—or provide other assurances—equivalent to the estimated costs of rehabilitation. As at 30 June 2022, $537 million was held in the Trust Fund and the Australian Government held an additional $125 million in bank guarantees.[62]

On 2 February 2022, ERA informed the Australian Stock Exchange that the estimated total cost of completing rehabilitation activities had increased to between $1.6 billion and $2.2 billion (estimated at $526 million in 2017).[63] Given the significant difference between estimated total cost of rehabilitation activities and the amount currently provisioned, ERA states ‘an urgent interim funding solution is required’.[64]

ERA’s most recent Annual Report states:

ERA has insufficient funds to fully fund its rehabilitation obligation.

ERA is continuing to review all funding options. An inability to obtain sufficient funding would have a material impact on ERA being able to continue as a going concern. Rio Tinto has reiterated its commitment to ensuring the rehabilitation of the Ranger Project Area is successfully achieved to the appropriate standards. ERA is in ongoing discussions with major shareholders about a funding solution.[65]

The Independent Auditor’s Report accompanying ERA’s Annual Report notes ‘a material uncertainty exists that may cast significant doubt on the Company’s ability to continue as a going concern’.[66] In July 2022 Rio Tinto and ERA’s other major shareholders rejected an interim entitlement offer which sought to raise $300 million.[67] Rio Tinto’s Annual Report 2021 states that Rio has a closure provision of $14.5 billion as at 31 December 2021, including an additional US$510 million included due to the reforecast of the decommissioning cost for Ranger.[68]

Recent inquiries and developments

In March 2019, the Senate Environment and Communications References Committee completed a lengthy Inquiry into Rehabilitation of Mining and Resources Projects as it Relates to Commonwealth Responsibilities. The inquiry report notes that ‘regulation of mining and resources projects in Australia is primarily undertaken at the state and territory level’, with the Commonwealth’s direct role limited to projects subject to assessment and approvals under the EPBC Act and certain uranium mines due to the Commonwealth’s historic involvement in these projects.[69] The Commonwealth may also have a role through intergovernmental agreements under which the Commonwealth and states undertake to adopt a joint approach to an area of environmental regulation.[70]

Submissions to the inquiry drew attention to variation in state and territory frameworks, consideration of best practice rehabilitation and the need for enforceable rehabilitation standards, episodes of rehabilitation avoidance (instances where actions have been taken to avoid or delay compliance with rehabilitation responsibilities), the adequacy of financial assurance mechanisms and corporate reporting, and changing community attitudes and expectations. The Committee was not able to reach agreement on a unanimous set of recommendations.[71]

In 2021, the Commonwealth Offshore Petroleum and Greenhouse Storage Act 2006 was amended to improve mechanisms for dealing with decommissioning liabilities in the sector (estimated at $60 billion over the next 30 years).[72] These measures—coupled with more proactive regulatory oversight—include enhanced scrutiny of late-stage title and asset transfers, and expanded ‘call back’ powers whereby previous titleholders can be required to decommission infrastructure and remediate the marine environment where the current or immediate former titleholder is unable to do so (also known as ‘trailing liability’).

Separately, in 2021 a temporary industry levy was introduced to recover the significant costs associated with the collapse of the Northern Oil and Gas Group of Companies and decommissioning of the Laminaria-Corallina oil fields.[73] The levy was introduced to ensure that taxpayers would not be required to foot the bill for the decommissioning activities.

Committee consideration

Senate Economics Legislation Committee

On 8 September 2022 the Bill was referred to the Senate Economics Legislation Committee for inquiry and report by 23 November 2022. Details of the inquiry are on the inquiry homepage at Atomic Energy Amendment (Mine Rehabilitation and Closure) Bill 2022 [Provisions].

Senate Standing Committee for the Scrutiny of Bills

At the time of writing, the Senate Standing Committee for the Scrutiny of Bills is yet to consider the Bill.

Policy position of non-government parties/independents

At the time of writing, there appears to have been no comment on the Bill itself.

Position of major interest groups

The Explanatory Memorandum states that entities with direct interests in the operations at Ranger—namely ERA, Gundjeihmi Aboriginal Corporation, NLC and the NT Government—

... provided feedback on three exposure drafts of the Bill, and were also consulted throughout the policy development process.[74]

The Explanatory Memorandum notes that additional consultation was undertaken with relevant Australian Government departments, environmental NGOs, and the Minerals Council of Australia.[75]

ERA has described the present rehabilitation deadline of 2026 a ‘key constraint’, and has called for amendments to the Act which would extend ERA’s access to the Ranger Project Area.[76]

The Gundjeihmi Aboriginal Corporation and Environment Centre NT have previously called on the Commonwealth Government to amend the AE Act to extend the timeframe permitted for rehabilitation.[77]

The Gundjeihmi Aboriginal Corporation has indicated that the unrealistic timeframe for rehabilitation was one reason it had refused to support Ministerial approval of the 2020 Mine Closure Plan.[78]

In February 2022, a senior Mirarr Traditional Owner welcomed greater transparency of the true cost of rehabilitation works, saying this ‘reiterated the need for both industry and the Australian Government to remain true to their commitments at Kakadu’.[79]

Environment Centre NT had expected amendments to be tabled in Parliament in 2021; it has raised concerns that poor rehabilitation decisions were being made due to time constraints.[80]

The Australian Conservation Foundation (ACF) has raised concerns about the unrealistic timeframe for rehabilitation.[81] Its joint report assessing ERA’s 2020 Mine Closure Plan raises numerous concerns including:

• a lack of clarity around the post-closure regulatory framework and the oversight and accountability needed to ensure compliance with the [Ranger Mine Closure Plan] and closure criteria
• uncertainty over the adequacy of current and future financing – especially in relation to post-closure site monitoring and mitigation works
• a lack of transparency around the status and process for assessing the separate stand-alone applications for significant aspects of the rehabilitation work.[82]

Financial implications

The Explanatory Memorandum indicates that the Bill ‘has no financial impact and applies to a single project and a single operator’.[83]

Existing provisions in the AE Act provide that the Commonwealth is liable for loss or damage attributable to actions authorised under a s.41 Authorisation.[84]

Statement of Compatibility with Human Rights

As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011, the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act.[85] The Government considers that the Bill is compatible with human rights because ‘to the extent that it engages human rights issues, it does so in a positive way’.[86]

Specially, the Statement of Compatibility acknowledges an adverse ‘impact on Traditional Owners’ access to traditional lands and right to enjoy and benefit from culture’ due to the delayed return of the RPA to the Traditional Owners. However, the Government considers that the Bill—by allowing the Minister to preserve the Mine Operator’s legal requirement to rehabilitate the RPA to the required environmental standard—will ‘ultimately support the Traditional Owners’ right to self-determination and to enjoy and benefit from culture’.[87]

Parliamentary Joint Committee on Human Rights

At the time of writing, the Parliamentary Joint Committee on Human Rights has not considered the Bill.

Key issues and provisions

Part 1 – Amendments to Part III

Part III of the Atomic Energy Act, headed ‘the Ranger Project’, only concerns activities in the Ranger Project Area (as described in Schedule 2 to the ARLA). This means that amendments to Part III will not apply to questions of authorisation and rehabilitation of uranium mining and milling projects elsewhere in Australia.

Definitions

Item 1 adds new definitions, including of Part III authority. A Part III authority includes an authority issued under section 41 or proposed section 41CA (that is, a Rehabilitation Authority).

Variation of an historic Section 41 Authority

Section 41 currently provides for the Minister to authorise a person to undertake activities to mine or recover a prescribed substance (including uranium).[88] The authority may be subject to any conditions or restrictions the Minister considers appropriate.[89] Section 41A currently allows the Minister to revoke an authority, where satisfied that the rehabilitation requirements have been completed, or to vary an authority in limited circumstances.[90] Section 41A would be repealed by Item 17 (see ‘Revoking a Part III authority’ below).

The Bill proposes numerous amendments to section 41, including to:

• omit text in subsection 41(1) which provides a precondition to the Minister authorising operations in accordance with a section 41 Authority[91]
• clarify references to ‘land’ to ensure that an authority applies in relation to ‘the whole, or a specified part, of the land in the Ranger Project Area’,[92] thereby supporting progressive close‑out
• expand the activities or operations that the holder of a section 41 Authority may be authorised to do or carry out in the RPA (or part of the RPA) to include operations relating to the protection, rehabilitation, remediation or monitoring of the land[93]
• make explicit that a section 41 Authority may impose conditions directly on the authority holder, rather than specify conditions or restrictions on activities that the authority holder is authorised to carry on[94]
• clarify when a section 41 Authority may be varied or revoked, or terminates.[95]

In summary, the effect of the amendments would be that the Minister would be empowered to vary or extend an existing section 41 Authority and to add new conditions and restrictions relating specifically to rehabilitation.

A new Rehabilitation Authority

Item 18 inserts a new Division 2 into Part 3 of the AE Act, containing proposed sections 41CA to 41CG.

Proposed section 41CA allows the Minister to confer on a person a new authority—a rehabilitation authority—to carry on:

(a) specified operations relating to the protection, rehabilitation, remediation or monitoring of the whole, or a specified part, of the land in the Ranger Protected Area;

(b) specified operations of another kind in relation to the whole or a specified part, of the land in the Ranger Project Area.[96]

Proposed sections 41CC, 41CD and 41CE provide details of what may be authorised or required by a rehabilitation authority. Rehabilitation requirements must be substantially similar to the existing Environmental Requirements.[97] The Bill references the Environmental Requirements by reference to the historic section 41 Authority and does not, for example, propose including the Environmental Requirements in regulation.

A rehabilitation authority may only be conferred if:

• the Minister consults with the person—and that person agrees—with the proposed terms of the authority, including authorised operations, the period for which the authority is to be in force, any conditions or restrictions, and any requirements that are to be imposed[98]
• a section 44 Agreement under the ALRA is in force[99]
• the Minister consults with the Land Council.[100]

There is no limit on the number of rehabilitation authorities that may be conferred on a person.[101] A rehabilitation authority remains in force for the period specified in the authority, unless it is otherwise varied, extended, terminates or is revoked.[102]

Proposed section 41CB sets out who may apply for a rehabilitation authority, and when. Applications can only be made by the holder of the historic section 41 Authority (that is, ERA), or the hold of a rehabilitation authority. The holder of a rehabilitation authority can however assign their interests to another party.[103]

As the holder of the historic section 41 Authority, ERA would be required to apply for a rehabilitation authority within 18 months of the commencement of the Act, or such later time as determined by the Minister.[104] The Explanatory Memorandum notes that if ERA ‘fails to apply for a Rehabilitation Authority within the specified timeframe, the Minister may vary the historic Section 41 Authority under the provisions in Division 4’.[105]

The holder of a rehabilitation authority may apply for a further rehabilitation authority at any time, but at least 12 months before the authority is due to expire, or such later time as determined by the Minister.[106]

Progressive close-out of the Ranger Protected Area

Item 18 also inserts a new Division 3 into Part III, with proposed sections 41CH and 41CI.

Proposed section 41CH provides that a Part III authority may specify conditions under which a rehabilitation requirement is taken to be satisfied (that is, completed). This may occur by:

(a) specifying a procedure for determining when the requirement is taken to be satisfied and/or

(b) conferring on a person or a body a function of determining, or a power to determine, when the requirement is taken to be satisfied.[107]

The Explanatory Memorandum states:

Conditions may include closure criteria and metrics that the holder of the authority must meet over a period of time; and documents and reports that the authority holder is required to provide relating to Ranger’s performance against those criteria and metrics ...

Section 41CH allows a Part III Authority to set out a more detailed assessment process by which the Minister, and specified others [for example, the Supervising Authority and/or Supervising Scientist] will determine when the rehabilitation requirements can be taken to be satisfied.[108]

The Explanatory Memorandum notes that this would ‘provide stakeholders with greater certainty about the pathway to Ranger’s eventual close-out’.[109]

Proposed section 41CI provides for the Minister to make a declaration that a Part III authority, or specified provisions of a Part III authority, is no longer in force in relation to the whole, or a specified part, of the land in the Ranger Project Area. The Minister may only do so if:

• the rehabilitation requirements for the relevant area have been satisfied
• the holder of the Part III authority agrees to the Minister making the declaration
• the Minister has consulted with the Land Council.[110]

The Minister must provide copies of a declaration to the holder of the authority, the Land Council, the Minister for the Environment, and the NT Mining Minister.[111] A declaration may have the effect of terminating the Part III authority.[112] The Explanatory Memorandum notes that this corresponds to ‘Final Close-out in the ERs [Environmental Requirements]’.[113]

Variation and revocation of Part III authorities

Item 18 also inserts a new Division 4 into Part III, with proposed sections 41CJ to 41CS.

Proposed section 41CS provides that the Minister may only exercise their power to vary or revoke a Part III authority in a manner that is consistent with the Commonwealth’s obligations under a s.44 Agreement under the ARLA, as they apply to the RPA.

Varying a Part III authority

Proposed section 41CJ provides that a Part III authority may only be varied in accordance with proposed section 41CK, or a provision of an authority that provides for the authority to be varied.

Proposed section 41CK provides four circumstances in which the Minister may vary a Part III authority:

• the authority holder has failed to comply with a condition, restriction or requirement of the authority and the Minister considers that the proposed variation is an appropriate response to that failure (this replicates existing subsection 41A(4))
• to extend the period in which the authority is in force
• the Minister considers a variation necessary to ensure the continued effective operation of the authority (for example, to make technical, operative and administrative variations)
• to include new conditions which describe when the requirements imposed by the authority are taken to be satisfied (that is, close-out conditions).

Proposed section 41CL provides that the Minister may only vary a Part III authority if a s.44 Agreement under the ALRA is in force. Proposed sections 41CM and 41CN provide consultation and notice requirements, ensuring that the Minister consults with the holder of a Part III authority (that is, ERA), the Land Council, and the Minister for the Environment before making a variation and gives notice of the variation to these stakeholders—and the NT Mining Minister—after making a variation.

Proposed section 41CO provides limits on the time periods within which the Minister may vary a Part III authority. The Explanatory Memorandum explains:

This is consistent with the broader need to maintain certainty of Ranger’s regulatory framework and allow the Minister to vary an authority only in necessary, specified circumstances.[114]

Notably, proposed subsection 41CO(2) provides that the Minister may vary a section 41 Authority where the holder has applied for the authority to be varied, but fails to agree—or delays agreeing—to the proposed terms of that authority within a reasonable period. Additionally, proposed subsections 41CO(3) and 41CO(4) ‘prevent the Minister from extending the Rehabilitation Authority unless the holder of the authority has failed to apply for a further Rehabilitation Authority within the applicable timeframe or has applied ... but failed to agree the proposed terms of that authority within a reasonable period’.[115] Reasonable period is not defined, with the Explanatory Memorandum noting this is intended to ‘retain flexibility’.[116]

Revoking a Part III authority

Proposed section 41CQ provides that a section 41 Authority may only be revoked in accordance with existing section 41C or proposed section 41CR, or—for a Part III authority—a provision of an authority that provides for the authority to be revoked.

Proposed paragraph 41CR(1)(b) provides that the Minister may revoke a section 41 Authority if satisfied that the authority holder has:

complied with any conditions or restrictions to which the authority is subject, and any requirements imposed by the authority, that relate to the protection, rehabilitation, remediation or monitoring of the land in the Ranger Project Area.[117]

Remaining provisions of proposed section 41CR require the Minister to consult with the Land Council before revoking an authority, and give a copy of the instrument of revocation to the authority holder, Land Council, Minister for the Environment and the NT Mining Minister.

Exemption from Part 3 of the Environment Protection and Biodiversity Conservation Act 1999

Item 18 also inserts a new Division 5 into Part III, covering a range of other matters. Notably, proposed section 41CW clarifies that Part 3 of the EPBC Act—which relates to requirements for environmental approvals under the EPBC Act—does not apply to:

(a) actions authorized by the historic section 41 authority or by a rehabilitation authority; or

(b) actions that a person has the power to perform under section 41 or 41CC of this Act because such an authority is in force.[118]

Division 1 of Part 3 of the EPBC Act sets out the requirements for approval of activities that have, will have or are likely to have a significant impact on matters of national environmental significance. These include nuclear actions—including rehabilitating an area used for uranium mining (Subdivision E)—as well as world heritage, national heritage, wetlands of international importance, and listed threatened species or endangered communities.

Proposed subsection 41CW(2) clarifies that subsection 41CW(1) only applies to actions that are taken in accordance with the relevant Part III authority. This mirrors language that is used for example in the existing exemption for approvals under Part 3 of the EPBC Act for Regional Forest Agreement (RFA) forestry operations, where those operations are undertaken in accordance with the relevant RFA.[119]

The Explanatory Memorandum notes that ‘the section also has the effect that Part 7­–9 of the EPBC Act would not be engaged’.[120] This means that a separate assessment and approval of proposed rehabilitation activities that may have a significant impact on matters of national environmental significance would not be required. The Explanatory Memorandum notes:

Ranger was approved based on the recommendations of the Ranger Uranium Environmental Inquiry, which considered the environmental impacts of proposed activities throughout 1975–1977 pursuant to the now-repealed Environment Protection (Impact of Proposals) Act 1974. The environmental conditions and requirements applying at Ranger are set out in the historic Section 41 Authority which has been in force since 1999.

The regulatory framework applying to Ranger ensures the rehabilitation continues to undergo assessment by the Commonwealth and NT governments, informed by the independent advice of the Supervising Scientist with input from Traditional Owner representative bodies. Rehabilitation is also subject to ongoing monitoring and verification undertaken by the Supervising Scientist.[121]

Replacement of offence provisions

Items 20 and 21 repeal and replace existing offence provisions relating to a refusal or failure to comply with a condition or restriction of a Part III authority or a requirement imposed on the person by a Part III authority (proposed subsections 41D(1) and 41D(2)).

The penalties for these offences—20 penalty units ($4,440) for a person and 100 penalty units ($22,220) for a body corporate —appear to be insubstantial and are significantly less than similar offences under the EPBC Act.[122]

Part 2 – Application provisions

Item 25 clarifies that proposed amendments to the Act would apply in relation to a Part III authority whether the authority came into force before, on or after the commencement of the proposed amendments.

Item 26 similarly clarifies that the offence provisions in amended subsections 41D(1) and (2)—in relation to breach of a condition, restriction or requirement—apply in relation to:

• acts or omissions that occur on or after the commencement of the proposed amendments and
• Part III authorities that came into force before, on or after the commencement of the proposed amendments.

Concluding comments

The Bill seeks to ensure that ERA continues to be bound by an appropriate authority requiring it to rehabilitate the Ranger Project Area in accordance with the Environmental Requirements, while allowing some flexibility with regard to the date at which rehabilitation activities (but not full restoration of the ecosystem) will be completed. The Minister has substantial discretion at key junctures, including in deciding to pursue variation of the historic section 41 Authority in the event that ERA does not apply for a rehabilitation authority under Part III, determining (or making minor modifications to) the Environmental Requirements, and with regard to key timeframes.

There appears to be a significant shortfall in financial provisioning for rehabilitation activities. This poses the consequent risk that required works may not be completed. The Bill does not engage with issues of corporate responsibility in the event that ERA (or its successors) are unable to meet its obligations.

Appendix: Other uranium mines and prospects in the Alligator Rivers Region, and rehabilitation status

Mine	Date closed	Rehabilitation status
Ranger 3 Deeps (exploratory underground drilling, including a $120m exploration decline)[123]	Ceased June 2015	August 2021: backfill works completed; decline and vent shaft backfilled 350 metres with waste rock, and capped with 10 metres of concrete and waste rock
Jabiluka[124]	1999	Mine did not commence commercial operation; remains under long-term care and maintenance 2003: backfill of decline 2013: rehabilitation of interim water management pond 2005–2015: revegetation of site
Rum Jungle[125]	1971	1983–1986: rehabilitation works at a cost of $18.6m 2009: further works commence after earlier works found to have deteriorated 2022: further rehabilitation works commence and are expected to take 15 years at a cost of $300m
Narbarlek[126]	Mining occurred over 4 months in 1979, with stockpiled ore progressively processed until 1988	1998: rehabilitation activities commenced, but regulatory release has not occurred
South Alligator River Mines[127]	1950s–1970s	2006–2009: rehabilitation works funded and completed by Australian Government