The Supreme Court of the Northern Territory will hear from Traditional Owners who have taken legal action over the Northern Territory Government’s decision to slash the security bond of Glencore’s McArthur River Mine and approve the expansion of the mine without a closure plan.
Jack Green, a Garawa elder and Traditional Owner in Borroloola, said the original bond was already insufficient to protect the McArthur River and the local area from the impact of the mine, and the Minister’s decision to reduce it “doesn’t make any sense”.
“We don’t trust the mine to clean up the mess properly. We need the bond to protect the river and our country if something goes wrong,” said Mr Green.
“The bond wasn’t high enough before – it needed to be doubled at least. It’s not enough to repair the damage they’ve done – that’s why we’re fighting.
“No one came down to speak with us about the decision to cut the security bond. They’ve kept us in the dark – we still don’t know why they made that decision.
“We’re living with this mine every day, and we don’t know what’s going on. The government speaks to the mine, the mine speaks to the government, but no one speaks to us.”
Josephine Davey Green, a Gudanji woman and native title holder of the McArthur River Mine site, said the decision to reduce the environmental bond could impact the McArthur River and affect her people for thousands of years.
“I am hurting so deeply. I worry for my children, and their children. I am fighting for my country,” she said.
“My ancestors spent their lives with that river – it is everything to us, we’re all connected to it. It is part of us. We feel like we can’t fish there now, and I can’t get there to teach my children about culture and country – I have to go elsewhere.
“The government made a decision that could affect our people for thousands of years. If the mine walks away now, that river will be gone, and so will we.”
Dr Kirsty Howey, Director of the Environment Centre NT, also a plaintiff in the case, says: “The McArthur River Mine is one of the most toxic mines in Australia, with a sordid history of poor regulation.
“This legal action is an important step in holding the government to account over the regulation of this mine. Glencore has said the rehabilitation and monitoring of the mine could take a thousand years.
“Territorians don’t deserve to be left to clean up this financial and environmental mess when the mining company decides to pack up and walk away.
“This case is of national significance. Security bonds are routinely underfunded across the country. It is imperative that there is clarity around closure, or its taxpayers who fix the bill.
“We are proud to be standing with Jack, Josie, and community from Borroloola who have been fighting this destructive mine for decades.”
Environmental Defenders Office CEO David Morris said: “Ultimately, it won’t be Glencore or the government that has to live with this mine’s toxic legacy for the next 1000 years – it’ll be the people of Borroloola.
“The site could have severe, long-term impacts on the environment and the local community if the tailings are not carefully managed and sufficient funds are not set aside to stabilise the site.
“This case is about ensuring Glencore doesn’t leave the local community a toxic legacy and the Territory’s taxpayers a massive cleaning-up bill.
“It is also about ensuring the government requires long-term closure plans before it approves projects like these.
“The McArthur River Mine is perhaps the worst case of a local community having to live with the government’s failures, long after the companies and government decision-makers have moved on.
“Our clients want to ensure this cannot happen to another community elsewhere in the Territory.”
The hearings will take place over two days, Thursday the 16th and Friday the 17th of February.
Proceedings will be streamed via the Courts and Tribunals Northern Territory YouTube channel. https://www.youtube.com/@courtsandtribunalsnorthern120
BACKGROUND
Traditional Owners in Borroloola are taking the Northern Territory Government to the Supreme Court over its decision to:
- slash the environmental security bond of Glencore’s controversial McArthur River Mine by almost $120 million, and
- approve an expansion of the mine without a long-term, planned, closure plan.
The legal action is being taken by Gudanji traditional owner Josephine Davey Green, Garawa elder Jack Green (both residents of Borroloola), and the Environment Centre NT (ECNT). They are represented by the Environmental Defenders Office (EDO).
The case is a judicial review of a November 2020 decision by NT Mining Minister Nicole Manison to reduce the security bond required by the government from over $519 million to about $400 million, and to approve an amended mining management plan without a closure plan for the full life of the mine. The security bond has since been increased a couple of times and now sits at $476 million.[1]
EDO will argue on behalf of its clients the decision to reduce the bond was unlawful and invalid. This legal action is intended to ensure the Northern Territory Government has requested enough money from Glencore to properly rehabilitate the site of the McArthur River Mine after mining activities cease, with the environmental impacts of the mine, and in turn, requirements for monitoring and maintenance being likely to occur for 1000 years. [2]
The McArthur River Mine
The McArthur River Mine is an open-cut lead-and-zinc mine in the Gulf of Carpentaria, about 60km from the town of Borroloola, and about 1000km southeast of Darwin in the Gulf of Carpentaria.
Glencore’s mine has been dogged by environmental scandals and criticism over its potential impact on the rich Aboriginal cultural heritage. Between 2013 and 2014, there were several incidents relating to a waste rock dump at the site, including spontaneous combustion of reactive pyrite that sent plumes of toxic sulphur dioxide across the Gulf country for months.
The fire at the waste rock dump continues to burn,[NC1] with Glencore estimating the site will need to be managed for the next 1000 years as it contains material that could continue to leach acid and heavy metals into the region’s waterways.
Local waterways and fish populations have also been found to have elevated levels of lead and other heavy metals. The Northern Territory Government has previously warned residents not to eat fish or drink water from a number of sites due to potential health risks from the contamination.
Potential outcomes
Success on any of EDO’s arguments regarding the security bond would result in the Court finding that the Minister’s calculation of the security bond was unlawful and the decision to set the bond at that amount would be set aside.
Although the Court does not have the power to specify a new bond amount, the Minister would have to remake her decision in accordance with the law, which EDO and its clients hope would result in a higher bond amount that takes into account the full costs of rehabilitating the mine.
If EDO succeeds in establishing that the mine did not have a life of mine closure plan as required under the legislation, then the Court could set aside the Minister’s decision to approve the Mining Management Plan and the variation of authorisation related to it.
In order for the mine to continue operating lawfully, the Minister would need to approve a new Mining Management Plan with a closure plan for the mine at the end of its life, prepared by Glencore, included within it.
[1] Mining Securities, Department of Industry, Tourism and Trade, accessed 15-12-22.
https://industry.nt.gov.au/industries/mining-and-energy/authorised-mining-sites/mining-securities
[2] Northern Territory Environment Protection Authority (NT EPA), Assessment Report 86: McArthur River Mine Overburden Management Project: McArthur River Mining Pty Ltd, July 2018, p. 86.
Grata Fund supports people and communities to hold powerful government and corporate leaders to account and achieve systemic change through the courts. Grata has provided financial backing to remove the barriers of adverse costs against Jack and Josie so they can have their case heard at court.
