02 Apr 2020

Parliamentary inquiries open the dialogue on nuclear energy and uranium mining

By Nick Thomas, Stuart MacGregor, Damien Gardiner, Brad Wylynko, Chris Slocombe, Ashley Tsacalos, and Alison Packham

This article reviews the current regulation and policy framework in Australia for uranium mining and exploration, as well as for nuclear facilities.

The recent drive towards decarbonisation of the economy and delivery on State and Territory commitments to achieve net zero emissions by 2050 has reignited the discussion around the feasibility of nuclear energy as an alternative fuel source and, as a result, about uranium mining more generally.

Over the last few months:

  • the Commonwealth Parliament issued a report on its inquiry into the prerequisites for nuclear energy in Australia, entitled Not without your approval: a way forward for nuclear technology in Australia on 13 December 2019;
  • the NSW Legislative Council tabled its report on its inquiry into the Uranium Mining and Nuclear Facilities (Prohibitions) Repeal Bill 2019, introduced by the Hon. Mark Latham, MLC for One Nation, on 4 March 2020, to allow uranium mining and nuclear facilities in NSW; and
  • a similar inquiry into nuclear prohibition has begun in Victoria, with a report expected mid-2020.

This article reviews the current regulation and policy framework in Australia for uranium mining and exploration, as well as for nuclear facilities. It outlines the key recommendations of the Commonwealth and NSW inquiries and highlights some of the key challenges for legislative change.

Current framework nationally

Each Australian State and Territory has its own laws and policies for uranium mining, as it does for other mining and energy projects.

These are overlaid by Commonwealth legislation. The Environmental Protection and Biodiversity Conservation Act 1999 (Cth) imposes a moratorium on nuclear facilities, and requires Environment Minister approval for uranium mining and other “nuclear actions” which are likely to have a significant impact on the environment.

A jurisdictional comparison of key State and Territory laws reveals that some Australian jurisdictions allow for the mining and/or the exploration of uranium and others do not. There is additional Commonwealth, State and Territory legislation that applies to health and safety, waste management, transport and exports.

Uranium mining and exploration

New South Wales

Exploration / prospecting:

Permitted with a licence since 2012

Mining Act 1992 (as amended by Mining Legislation Amendment (Uranium Exploration) Act (NSW) 2012)

Mining:

Prohibited

Uranium Mining and Nuclear Facilities (Prohibition) Act 1986 (NSW)

(Note (section 7) allowed if, in the course of mining for other mineral, reasonable grounds for believing that the Uranium does not exceed 0.02% of total material removed and conditions in regulations are complied with)

Current nuclear / uranium activities:

Lucas Heights research and medical facility

No exploration licences issued

Victoria

Exploration / prospecting / mining:

Prohibited

Nuclear Activities (Prohibitions) Act 1983 (Vic)

(Note (section 5) allowed by mining title holder if, in the course of mining for other mineral, the Uranium does not exceed 0.02% or Thorium does not exceed 0.05% of total material removed, material is treated in prescribed manner and conditions imposed by Governor in Council are complied with – section 6)

Current nuclear / uranium activities:

N/A

Queensland

Exploration / prospecting / mining:

Permitted at law

Policy ban in relation to Mining from 1989 to 2012 and reintroduced in 2015.

Current nuclear / uranium activities:

N/A

Mary Kathleen mine closed in 1982

South Australia

Exploration / prospecting / mining:

Permitted

  • Mining Act 1971 (SA)
  • Roxby Downs (Indenture Ratification) Act 1982 (SA)

Current nuclear / uranium activities:

  • Olympic Dam
  • Beverly Uranium Mine
  • Four Mile Uranium Mine
  • Honeymoon Mine

Western Australia

Exploration / prospecting / mining:

Permitted at law
Policy ban in place since 2017; existing projects proceed

Current nuclear / uranium activities:

  • Yeelirrie Uranium Mine
  • Wiluna Uranium Mine
  • Kintyre Uranium Mine
  • Mulga Rock Uranium Mine

Tasmania

Exploration / prospecting / mining:

No legislative prohibition

Mining titling and licensing regulated under the Mineral Resources Development Act 1995 (Tas)

Current nuclear / uranium activities:

N/A

Northern Territory

Exploration / prospecting / mining:

Permitted under control of Commonwealth under mineral titles issued under the Atomic Energy Act 1953 (Cth), the Mining Act 1980 (NT) and the Memorandum of Understanding between the Commonwealth of Australia and the Northern Territory of Australia in relation to Working Arrangements for the Regulation of Uranium Mining in the Northern Territory (2005).

Current nuclear / uranium activities:

  • Jabiluka Uranium Mine
  • Ranger Uranium Mine (due to close in 2021)

Nuclear power, uranium enrichment and nuclear waste management facilities

The Commonwealth Government currently has a prohibition right on any proposal for nuclear power, uranium enrichment and nuclear waste management facilities in Australia without the approval of the Federal Minister for Mines and Energy under the Nuclear Non-Proliferation (Safeguards) Act 1987 (Cth).

In NSW the Uranium Mining & Nuclear Facilities (Prohibitions) Act 1986 prohibits nuclear power, Uranium Enrichment and Nuclear Waste Management Facilities. Similar legislation is in place in other States, including:

  • Queensland – Nuclear Facilities Prohibition Act 2007;
  • Victoria – Nuclear Activities (Prohibitions) Act 1983; and
  • Western Australia – Nuclear Activities Regulation Act 1978 and Nuclear Waste Storage and Transportation (Prohibition) Act 1978.

Recommendations of the Commonwealth and NSW inquiries

Electricity pricing, decarbonisation and economic merit were cited to rationalise the key recommendations of the NSW inquiry, that:

  • the Uranium Mining and Nuclear Facilities (Prohibitions) Act 1986 (NSW), which prohibits uranium mining, be repealed; and
  • NSW pursue the repeal of the Commonwealth prohibitions on nuclear facilities.

The Commonwealth inquiry recommended a partial lift of the moratorium on nuclear energy for new and emerging technologies, such as the Small Modular Reactors, and a commitment to obtaining community consent as a condition to approving nuclear facilities, with a focus on community education and engagement programs and an evidence-based approach to risk assessment.

Small Modular Reactors (SMRs)

A focus of both the Commonwealth and NSW inquiries was the advancement in what is called Generation III, III+ and IV technology in nuclear reactors. These represent the emerging and innovative design technology projects underway globally. While Generation III and III+ technology is in operation in some countries (including Japan, China, United States and Europe), no Generation IV reactor is currently operational.

There was a lot of attention on SMRs (a type of Generation III / III+ reactor), which are smaller scale reactors with design features that seek to address some of the environmental and health concerns around nuclear power. These include the capacity to independently shut down and cool with air (rather than water) and to operate with a reduced planning buffer zone. Critical to complementing renewable energy production, SMRs can also "load follow", meaning the ability to adjust output to demand.

Critics of large-scale nuclear power facilities point to their very long design and construction program, with lead times of up to 15 years. Proponents of SMRs argue they have shorter construction timeframes, lower initial capital costs, and greater flexibility for application to decentralised energy models.

Key challenges

Australia has 30% of the world’s known deposits of uranium, and demand for uranium seems to be increasing in countries like China, India and Russia.

The conversation about nuclear projects and uranium mining involves balancing the potential economic merit and carbon reduction benefits of exploiting this resource against key issues such as:

  • Waste management solutions – Currently, it seems the key environmental concerns about the operation of nuclear facilities are the complexities and challenges of managing high level nuclear waste. At present, the waste from the Lucas Heights medical facility in western Sydney is transported to France, with the by-product returned and stored in cement canisters at the facility. The most likely option for dealing with nuclear waste within Australia is a deep geological repository, with the main difficulty being selecting a suitable location.

    The South Australian Nuclear Fuel Cycle Royal Commission in 2015/2016 focused on reactor waste, and recommended that the South Australian Government pursue opportunities to establish a deep geological nuclear waste facility.

  • Social licence – Both the Commonwealth and NSW inquiry reports recognised that legislative reform and advancement of uranium mining or nuclear projects will not advance in Australia without general community support.

Australian society has a long-running scepticism of nuclear energy. Any attempt to overcome this would need to address the community's concerns about the public health and safety, which arise not only from the isolated nuclear disaster cases (Chernobyl and Fukushima) and concerns around nuclear proliferation, but also more generally out of the radioactive quality of uranium itself and a range of consequent workplace health and safety and environmental issues.

What’s next?

There seems to be a growing mood for another public debate about uranium mining and nuclear energy. However, the mood can shift rapidly.

Following the tabling of the NSW Parliamentary Inquiry report, the Deputy Premier and leader of the Nationals in NSW, the Hon John Barilaro, MP expressed support for the One Nation Bill, but there was a mixed reception from elected members in his own party and its Coalition partner, the Liberals.

The coming months will tell whether Australia has the appetite for another debate on uranium mining and nuclear energy.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.