In 1997/98 ERA, under the control of North Ltd, commenced digging an underground portal with
Northern Territory government approval. This led to an escalation in the Mirarr Traditional Owners’
opposition to mining operations in the area. Their opposition involved an eight month blockade of
Jabiluka established in March 1998 involving over 5000 people, over 500 of whom were arrested
including Senior Traditional Owner Yvonne Margarula; a Federal Court case; challenges to
the environmental impact assessment; a site visit from a high level UNESCO scientific mission,
resolutions in the European Parliament and US congress; and an Australian Senate inquiry. The
Traditional Owners were supported by the wider public, including environmentalists, supporters
of heritage and aboriginal rights and anti-nuclear groups. The Northern Land Council received
payments under the agreement during this period which the Traditional Owners objected to.
According to the Mirarr a combination of economic, legal and timing factors, combined with public
pressure, contributed to their eventual success in stalling the project. The project was rendered
less attractive as a result of a fall in uranium prices, the absence of a viable option for a uranium
milling facility at Jabiluka due to a ‘remote milling veto’ which eliminated the option of processing
ore mined at Jabiluka at the Ranger site. Blockades of their offices in Melbourne, investor focused
campaigns and shareholder activism against North Ltd, the company which acquired ERA, raised
the profile of the case significantly, until Rio Tinto purchased North Ltd in 2000. By this time the
controversy in relation to Jabiluka had become a prominent issue, drawing significant international
public attention and pressure. This international public pressure, combined with strategic media
and political interventions of the Mirarr, led the then Chair of Rio Tinto, Robert Wilson, to make
public statements in 2001 that although it was a matter for the ERA Board, Rio Tinto as majority
shareholder would not support development of the project without Mirarr consent. This in turn led
to discussion on an agreement with Traditional Owners. The Northern Land Council took no part in
these discussions but was required to execute the agreement reached.
The Traditional Owners advocated for ERA to rehabilitate the mine. In 2003, ERA commenced backfilling of the work done. Discussions with the Traditional Owners in relation to ‘long term care and
maintenance’ of the site remained on-going. In February 2005, following three years of negotiations,
ERA formally recognized the Traditional Owners’ objections and agreed not to proceed with mining
developments at Jabiluka without their approval. The confidential agreement was signed by ERA,
the Mirarr Traditional Owners, Gundjeihmi Aboriginal Corporation and the Northern Land Council.
Under the agreement ERA continue to hold the lease to the area. This commitment to prior and
informed consent has been reaffirmed by the former Rio Tinto CEO Tom Albanese.
The agreement is unusual because it cannot relate to consent to the grant of the mining lease by the
government, that having been already granted. The agreement relates to development of the project
by the company holding the lease.
ERA / Rio Tinto perspective:
From the perspective of Rio Tinto the agreement with the Mirarr in relation to Jabiluka had both
a principled and practical dimension to it. On the principle side it reflects their position that where
possible Rio Tinto seeks the approval of indigenous peoples. From the pragmatic side it reflects the
reality that the project had got bogged down in protest. The lease nevertheless remains a valuable
asset at ERA, should the Mirarr ever decide to support a project, and it effectively stops other
companies gaining access to it. ERA is now in the process of decommissioning the remaining water
pond at Jabiluka, having completed the back filling of the tunnel constructed when under North
ownership. ERA and Rio Tinto regard the Long Term Care and Maintenance Agreement as having
removed the threat of development of Jabiluka without Mirarr consent.
Mirarr perspective:
From the perspective of the Mirarr, both the government and the Northern Land Council failed to
implement the consent provisions of the legislation in 1982 in a manner that ensured true FPIC. The
complaint of the Mirarr in relation to the government is that despite having a strong commitment to
Making Free, Prior and Informed Consent a Reality
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