Exporting uranium to India

The announcement by the Prime Minister that she intends at the forthcoming ALP National Conference to seek a change in the Party’s Platform to permit the export of uranium to India is of concern on three grounds: the content of the policy change; the apparent failure to extract anything in return for what is by any measure a major policy shift; and the extraordinary decision-making process by which this change is to be brought about.

The change has been presented publicly as little more than an administrative matter designed to correct an anomaly in our current export policy.  The narrative runs that the policy discriminates against India because we are prepared to export uranium to China, a nuclear weapon state, but not to India for peaceful use. This is arrant nonsense.

Australia’s uranium export policy was established in the late 1970s following an extensive public inquiry (the Ranger Uranium Environmental Inquiry 1976-77) chaired by Justice Russell Fox.  The policy was a product both of Australia’s strong commitment to the Nuclear Non-Proliferation Treaty (NPT), which had entered into force in 1970, and to the finely balanced set of recommendations produced by Justice Fox to garner the widest possible consent to the mining and export of uranium within an area of extraordinary environmental value, inhabited by indigenous people living a traditional lifestyle.

Under the framework set forth by Fox, mining would be able to proceed under a strict regulatory regime, with strong environmental monitoring and research, the Kakadu National Park would be established, and Aboriginal title would be granted over a number of areas of land in the region, including the Ranger Project Area.

This was a package deal, and the Fraser Government wisely decided not to tamper with it.

On the question of exports of uranium, the Fox Report recommended:

No sales of Australian uranium should take place to any country not party to the NPT. Export should be subject to the fullest and most effective safeguards agreements, and be supported by fully adequate back-up agreements applying to the entire civil nuclear industry in the country supplied. Australia should work towards the adoption of this policy by other suppliers.

This has remained the basis of Australian policy to the present day.  It is an approach that has had the advantage not only of supporting the NPT (and hence our own non-proliferation objectives) by making access to the world’s largest supply of low cost uranium available only to parties to the NPT, but also of enabling us to use the International Atomic Energy Agency (IAEA)’s safeguards and inspection regime as our primary worldwide infrastructure for verification of the appropriate handling of “Australian Obligated Nuclear Material” (AONM).

In implementing Fox’s recommendations the Fraser Government went beyond simply requiring states wanting to purchase Australian uranium to be parties to the NPT.  They were required to enter into a bilateral safeguards agreement which required, inter alia, that in relation to all AONM the importing party would seek Australia’s prior written consent to transferring the material to any third party, enriching it beyond 20% U-235, and reprocessing it.  This has remained the policy to the present day, and the April 2006 agreement between Australia and China embodies those principles.

India is not a party to the NPT, has never been, has developed a nuclear weapons capability as a non-member of the Treaty, and accordingly, is in an entirely different position from China vis a vis Australian uranium export policy.

As part of a deal to enable India to gain access to US and other nuclear technologies, Prime Minister Manmohan Singh and then President George W. Bush issued a joint statement in July 2005 to the effect that India would separate its civil and military nuclear activities and place all its civil facilities under IAEA safeguards, in return for which the United States would work toward full civil nuclear cooperation with India.  An IAEA Safeguards agreement was signed in 2008, and India was granted an exemption by the Nuclear Suppliers Group, an export control group that had been established mainly in response to India’s first nuclear test in 1974.

The IAEA Safeguards Agreement with India is not without its critics.  Daryl G. Kimball, Executive Director of the Washington based Arms Control Association notes that:

The agreement is based on the IAEA's facility-specific safeguards (INFCIRC 66 Rev. 2 ) but contains a number of "India-specific" modifications that raise serious questions about the meaning and legal requirements established by the agreement, particularly as they affect its entry into force and the conditions under which safeguards may be terminated on facilities and materials subject to the agreement.

He goes on to say that the agreement contains important ambiguities because there does not appear to be common understanding between the Government of India and the IAEA Board regarding three critical areas: whether or not India can withdraw facilities from the agreement in certain circumstances, i.e., whether material and facilities once placed under safeguards must remain there in perpetuity; the absence of a declaration stating the facilities, items and materials that India is intending to place under safeguards, and the status of material subject to safeguards under previous agreements.  The full analysis of the Agreement by Kimball et. al. may be accessed here.

As a consequence of these changes India is now in the privileged position of being the only known country with nuclear weapons which is not a party to the NPT but is permitted to carry on nuclear commerce with the rest of the world.  The discrimination is in India’s favour, not against it.

It may be that this change in India’s circumstances warrants a review of Australian policy, but that is by no means clear.  An equally tenable position for Australia would have been to state that for over 30 years Australia has had a policy that it will not export uranium to countries that are not parties to the NPT and that is not going to change.

Certainly granting India this favoured status has served no discernible non-proliferation objective, and one of the questions which ought to be addressed by Australia is whether any benefits to our non-proliferation objectives can be secured as a quid pro quo for a modification of our longstanding policy.  Perhaps not, but the question ought to be calmly and systematically addressed, and used as part of the bargaining process.

Unfortunately, what we have seen here is yet another example of the Prime Minister’s penchant for making announcements first and entering into the negotiations later.  We saw a classic example of this in relation to the “Malaysia Solution” for the offshore processing of asylum seekers, and one would have hoped that the lesson would have been learned by now.  One of the essential criteria for success in any government to government negotiation (as in most other negotiations) is to have time on your side. It is of fundamental importance to be able to communicate to the other side that you are not in a hurry regarding the matter in question. Once the other side knows you are in a time bind, they have only to wait you out. So once the Government has made an announcement on any matter that it is going to negotiate a with another country a “solution” to what is presented to the Australian public as some kind of a problem for us, the other side knows that the Government looks and feels sillier with every passing day that an agreement is not in place and it is just a matter of time for the prize to fall into their hands on the most favourable possible terms.  The Gillard Government is not unique in this respect. John Howard made it clear that he was so anxious to have a Free Trade Agreement (sic.) with the United States that our great ally knew it would not have to give much away.

As for the process by which this momentous change is to be brought about, it is so extraordinary that you couldn’t make it up. 

Julia Gillard is the Prime Minister of Australia.  As such, she leads the Executive Government, sets the Cabinet agenda and chairs, leads and controls its deliberations.  She has commenced the process of changing Australian uranium export policy by announcing to the Australian public, and then telling the Prime Minister of India face to face, not that Cabinet, after due consideration, has made a decision on this matter, but that she has decided to go to her party’s forthcoming national conference and seek a change in the party’s platform.  

This approach apparently sets aside the requirement to consult colleagues or seek advice from officials beyond her own immediate circle.  It has become a matter of public record that she did not consult the Foreign Minister, the Minister principally responsible for Australian nuclear safeguards policy, indeed all matters relating to non-proliferation, arms control and disarmament.  She is quoted in the 20 November edition of The Sunday Age (see here) as defending her decision not to consult the Foreign Minister on the basis that “It’s a leader’s decision, and I made it”.

Surely the more appropriate sequence would have been to have the Cabinet discussion first, and make a fully informed decision as to whether or not a change in the policy is desirable, and what its ramifications are, then take the matter to the party if needs be, armed with the support of a properly considered Cabinet decision.

When it suits her, the Prime Minister ignores the party platform – vide her steadfast refusal to contemplate abandoning the “Malaysia Solution” and implementing that part of the platform which commits the party to onshore processing of asylum seekers.  And when it suits her, she invokes the Departmental “experts” as the last word in authoritative policy-making (same issue – the “Malaysia Solution).

So why the rush to judgement on this one, why the need to change the platform before the due process of governmental deliberations has taken place, and once she has made an exception for India, what is she going to say to our allies in Pakistan and her dear friends in Israel?

Note: This item was first posted on the ABC’s The Drum website on 21 November 2011. Access it and 136 comments here).

Bio note: As Deputy Secretary in the Department of Trade and Resources in the late 1970s I was directly involved in the Fraser Government’s consideration of the recommendations of the Ranger Uranium Environmental Inquiry, and in the negotiation of several bilateral safeguards agreements.