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by Kirsty Ruddock
In a country booming from mining revenue, governments are keen to support mining in the face of environmental and Indigenous concerns. The recent machinations around the McArthur River Mine illustrate the extent to which the Northern Territory (‘NT’) Government is prepared to facilitate mining in the face of strong opposition from traditional owners, and from environmentalists. In this matter, the NT Government was even willing to overturn a Supreme Court decision that highlighted the illegality of the approval and found problems inherent in the approval process.
The McArthur River Mining Pty Ltd (‘MRM’) project poses significant risks to cultural heritage and to the environment. MRM’s expansion of the lead, zinc and silver mine near Borroloola in the Gulf of Carpentaria involves the diversion of five kilometres of the McArthur River, a tropical river system with particular significance to the Traditional Owners of the area.[1] The purpose of the diversion is to allow an open cut mine in the river bed. This is the first time a tropical river diversion has occurred in Australia.
Since 1993, MRM has extracted and processed zinc, lead and silver through an underground mining operation. The mine is located 45 kilometres from Borroloola in the Gulf Region of the Northern Territory. In 2003, MRM announced their intention to commence open cut mining on the site. The proposed expansion involved digging an open cut pit in the location of the McArthur River. In order to mine, it was necessary to re-route the river over a section of approximately 5.5 kilometres. The extension proposed is to increase the life of the mine by 25-35 years.
Traditional Owners have expressed continued concern about the McArthur River being diverted to allow the mining expansion. The river is important to the cultural beliefs of four Indigenous language groups: the Gurdanji, Mara, Garrawa and Yanyuwa, who live along the river. Harry Lansen, a senior Traditional Owner of the Gurdanji group, said:
I will be sick if they cut the place you know because my spirit’s there, all my songs for crossing the river… I don’t want to see this thing happen there in that McArthur River.[2]
Traditional Owner groups located downstream of the mine are concerned about the impact the diversion will have on water and marine species, and pollution. In 2001, floodwaters breached a tailings dam at the mine site. One Yanyuwa Traditional Owner, Steve Johnston, described the event:
There were dead fish everywhere, as far as the eye could see, around the islands. We have no proof but we are convinced that minerals flushed down from the dam contaminated the gulf and killed the fish.[3]
In 2002, oysters located at Bing Bong Port (near where the mined ore is shipped overseas) contained high levels of cadmium which were consistently above the level acceptable in food.[4] From 2001 to 2004, there were four reported cases of fishermen suffering serious bacterial infections after exposure to the McArthur River system. Medical experts indicated the possibility of a connection between the mine and the illnesses, stemming from exposure to lead and zinc.[5] However the isolation of the neighbouring community at Borroloola means little public health outcry has occurred to date, nor any medical research on the impacts of such pollution on the Indigenous community.
The Traditional Owners have a current native title claim over the mine site, however they do not have any formal veto rights over the proposed project as it was approved prior to the introduction of future act provisions to the Native Title Act 1993 (Cth). They have had to use judicial review proceedings to ensure the protection of their rights.
The McArthur River system is one of the largest in northern Australia. It sustains significant biodiversity, as well as having a recreational and cultural purpose. It has a catchment area of 20,000 square kilometres and flows for 300 kilometres, with a flow of 4,200 million cubic metres. The river contains 36 per cent of the water flow for the NT’s Gulf Rivers, with 90 per cent of the run-off occurring between December and April each year.[6] When the river is not flowing, its surface water is restricted to waterholes and lagoons that form essential refugia during the dry season for aquatic and terrestrial animals. The river houses the Freshwater Sawfish, a vulnerable species, listed under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (‘EPBC Act’), as well as a number of listed migratory species.[7] The McArthur River estuary is an important area for dugong and marine turtles. Many of these species have significance both culturally and as food sources for Traditional Owners. The estuary is a delicate environment that includes rapidly diminishing breeding and feeding grounds for marine species, which are found in few other coastal areas. The adjacent Sir Edward Pellew Islands are the traditional lands of the Yanyuwa. Importantly, the Yanyuwa have been active with the Lianthawirriyarra Sea Ranger project to manage the coastal area lands and work towards protecting their islands and sea through a marine park in the region. Some Traditional Owners have established fishing and ecotourism facilities on the island that are succeeding in bringing tourists to the area, and are concerned about the risks to those areas from the mine expansion.
There is a high risk involved in diverting a tropical river. In particular, large scale flooding has affected the mine site during several wet seasons. This risk applies to both the site of operations and the surrounding downstream environment, which could be affected by any heavy metal pollution and sedimentation.
In August 2005, MRM drafted an Environmental Impact Statement (‘EIS’). In February 2006, the Northern Territory Environmental Protection Agency (‘NT EPA’) issued an Environmental Assessment Report recommending that the proposal not proceed. This advice was adopted by the NT Minister for Natural Resources, Environment and Heritage who rejected the mine expansion. The rejection was based on several key factors, including:[8]
The Northern Territory Government agreed to allow MRM to submit further environmental assessment information in order to address the above concerns. MRM then undertook a further Public Environment Report (‘PER’) in July 2006. The Environment Minister found the PER addressed some earlier concerns, however, broadly, it failed to demonstrate that MRM could conduct the mine without significant, irreversible and unacceptable impacts on the McArthur River environment. In particular, MRM failed to show that the substantial risks posed by the diversion channels were adequately addressed as outlined in the NT EPA’s previous report. Notably, MRM failed to address a number of social issues and concerns of Traditional Owners and environmentalists alike. In particular, MRM proposed to wait and see if impacts including pollution issues occurred before taking remedial action, rather than adopting a precautionary principle approach.[9]
In September 2006, Prime Minister John Howard wrote a letter to the Northern Territory Chief Minister, ‘urging’ her to approve the expansion of the mine.[10] On 20 September 2006, the Federal Environmental Minister announced his approval for the expansion of the mine under the EPBC Act. Subsequently, on 13 October 2006, the NT Minister for Mines and Energy approved the expansion of the mine pursuant to his powers under the Mining Management Act 2001.
In December 2006, representatives of the registered native title claimants from within the four Traditional Owner groups stood united and took proceedings in the Northern Territory Supreme Court, seeking a judicial review of the Minister for Mines and Energy’s decision to grant approval.
The Traditional Owners challenged the decision to approve the change from underground to open cut mining through an amended Mine Management Plan. They argued the decision to allow open cut mining was unlawful because the Minister had accepted this change through an amendment to the Mine Management Plan, rather than varying or revoking the existing mining authorisation.[11] This was inconsistent with the procedures set out in the Mining Management Act 2001. The defendants (the Minister for Mines and Energy, the NT Government and MRM) argued that the variation of the mining method did not involve a different mining activity and therefore was allowable.[12] In particular they argued that no specific method of mining had been specified in the original authorisation.
The Court looked at the provisions of the Mining Management Act 2001, particularly its realisation of environmental objectives through mining authorisations.[13] Mining cannot occur unless it is authorised and complies with such authorisation, otherwise it is subject to penalty provisions. The Authorisation previously issued was subject to the application to mine in 2003 and did not describe the nature of the mining as detailed in the Mining Management Plan.[14] As His Honour Justice Angel indicated:
The Authorisation sought was not “to carry out mining activities” of whatever type, for whatever minerals, and by whatever methods as may from time to time profitably be the subject of a Mining Management Plan acceptable to the Minister for Mines and Energy. The authorisation sought was for a mine, of a particular generic description, namely an “underground lead/zinc/silver mine”. The Authorisation as sought and granted no more comprehends an open cut mine than a gold mine or a coal mine.[15]
The Court found therefore that the Authorisation did not approve open cut mining and the Judge accepted that the Mining Management Plan was of no effect because it was not in respect of activities to which the Authorisation related. He therefore ruled that the decision to approve the mine was invalid.
In May 2007, some two days after the Supreme Court judgment, the McArthur River Project Amendment (Ratification of the Mining Authorities) Bill 2007 (‘the Bill’) was introduced to the Northern Territory Parliament. The Bill removed any limitations that were emphasised by the Court’s decision, and ratified the ability for MRM to open cut mine.
In his second reading speech to the Northern Territory Parliament, Chris Natt, the Minister for Mines and Energy, stated that his ‘decision was made after a thorough and transparent process’.[16] Mr Natt additionally claimed that they had
rigorously followed due process … Our public consultation process has been thorough. The decision of the Court, which found that my approval of the amended Mining Management Act was of no effect, was based on a technicality and in no way has any bearing upon the extensive environmental assessment process, including consultation with the traditional owners….[17]
Despite the fact that the Court found that due process was not followed and that the significant concerns of the Traditional Owners and environmentalists (including the NT EPA) were not addressed during the assessment process, the legislation passed quickly and without much comment. Subsequently, the mine’s operation is now protected from legal scrutiny.
Despite this, the Traditional Owners are resolute in fighting the river diversion and are still continuing with legal proceedings against the Commonwealth Minister for Environment’s approval of the mine under the EPBC Act. A judgment in the Federal Court is expected shortly.
This case shows the need for greater protection of Traditional Owner rights against mining activities, as well as adequately addressing threats to the environment. Few governments wish to reject mining because of the perceived economic benefits. However mining companies should not be allowed to make money at the expense of Traditional Owners and their livelihoods, or the environment. With the extensive mining reserves available in the Northern Territory, including uranium deposits, it is imperative that mining and environmental laws give greater protection to protecting the rights, interests and wishes of the traditional owners of the land.
Kirsty Ruddock is the Principal Solicitor of the Environmental Defender’s Office of NSW.
[1] The Gurdanji people are Traditional Owners of the mine site. The Mara, Garrawa and Yanyuwa people are Traditional Owners downriver from the site.
[2] ABC (reporter: Barbara McCarthy), ‘Mine Plan’, Stateline Northern Territory, 7 March 2003.
[3] Lindsay Murdoch, ‘Dugongs Versus Development No Open-and-Shut Case for Miner’ Sydney Morning Herald (Sydney), 13 March 2006, 5.
[4] Xstrata Zinc (McArthur River Mining), ‘Open Cut Project: Oyster Analysis’, Factsheet 7 (2006).
[5] Anna Ralph and Bart J Currie, ‘Vibrio vulnificus and V parahaemolyticus necrotising fasciitis in fishermen visiting an estuarine tropical northern Australian location’, (2007), 54(3) Journal of Infection e111.
[6] See The Environment Centre Northern Territory, Current Campaigns: McArthur River, <http://www.ecnt.org/html/cur_mining_mcarthur_new.html> at 12 December 2007.
[7] Ibid.
[8] Environmental Protection Agency (NT), ‘McArthur River Mine Open Cut Project’ (Environmental Assessment Report 51, February 2006) 15-16.
[9] Environmental Protection Agency (NT), ‘McArthur River Mine Open Cut Project’, (Environmental Assessment Report 54, August 2006) 17-18.
[10] Letter from Prime Minister John Howard to Northern Territory Chief Minister Clare Martin referred to in ‘Martin Defends Howard’s Letter Over Mine Expansion’, ABC News (online), 4 October 2006, <http://www.abc.net.au/news/stories/2006/10/04/1755641.htm> at 12 December 2007.
[11] Lansen & Ors v Northern Territory Minister for Mines and Energy & Ors [2007] NTSC 28, [12]-[13].
[12] Ibid [14]-[15].
[13] Ibid [22]-[23].
[14] Ibid [33].
[15] Ibid [37].
[16] Northern Territory, Parliamentary Debates, Legislative Assembly, 2 May 2007, [3] (Chris Natt, Minister for Mines and Energy).
[17] Ibid [5].
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