Traditional Owners and the Northern Territory’s peak environment group are taking the NT Government to the Supreme Court over its decision to slash the environmental bond of Glencore’s controversial McArthur River Mine by almost $120 million.
Jack Green & Josephine Davey Green– residents of the remote community of Borroloola – have filed judicial review proceedings challenging the November 2020 decision, which reduced the bond of the troubled lead and zinc mine by almost 25% compared to the 2019 bond amount.
They are joined in the litigation by the Environment Centre NT, with both parties represented by the Environmental Defenders Office. The solicitor on record in this case is Stacey Ella, working with Meg Lamb.
Situated on the McArthur River a mere 45km from the predominantly Aboriginal town of Borroloola, Glencore’s mine has been dogged by numerous environmental incidents, as well as criticism over its impact on the rich First Nations cultural heritage found in the area.
The mine will operate until 2038, however Glencore estimates – and both the NT and Commonwealth Government accept that – the site will need to be monitored and maintained for 1000 years after mining activities cease.
The EDO will argue on behalf of its clients that the NT Minister for Mining & Industry’s decision to reduce the mine’s environmental bond from around $520 million to around $400 million was made unlawfully, and the decision is thus invalid.
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 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.”
The McArthur River Mine – a tragic timeline
Underground mining commences at McArthur River Mine in the Northern Territory, 45km upstream from the predominantly Aboriginal town of Borroloola.
McArthur River Mine proposes to convert from an underground to an open cut operation, necessitating the diversion of the McArthur River for approximately 5km.
NT Mines Minister Chris Natt and the Commonwealth Environment Minister approves open cut conversion of MRM.
Traditional Owners commence proceedings challenging Northern Territory and Commonwealth approvals.
Traditional Owners win NT Supreme Court proceedings challenging the NT Mines Minister’s approval.
Clare Martin’s Labor Government passes legislation 3 days later overriding the Court’s decision by amending the McArthur River Project Agreement Ratification Act.
The McArthur River is diverted by 5.5km to make way for the open cut mine.
The mine’s first Independent Monitor report identifies as an “extreme” risk the misclassification of waste rock as “non-acid forming” prior to placement in the mine’s waste rock dump.
It identified that tailings were oxidising rapidly and producing acid, and that the assessment of tailings as non-acid forming was likely to be incorrect. Misclassification of waste rock is identified as a risk in every subsequent Independent Monitor report.
Expansion of MRM (Phase 3) approved. This saw the mine double its capacity from 2.5 million tonnes of ore to 5.5 million tonnes of ore per year, and double the depth of the open pit from 210 metres to 420 metres, significantly increasing the size of the waste rock dump.
The MacArthur River Mine changes its waste rock classification system, revealing the proportion of potentially acid forming rock in the waste rock dump to be 89% rather than less than 25% previously estimated.
The main risk associated with such high rates of such rock is acid mine drainage, which can seep into groundwater and surface water systems over millennia.
The McArthur River Mine’s northern waste rock dump spontaneously combusts, producing sulphur dioxide and smoke which billow across the Gulf country for months. The fire at the waste rock dump continues to burn to this day.
This spontaneous combustion signalled a more serious and slow acting problem associated with the generation of acid mine drainage occurring within the waste rock dump, generated from the potentially acid-forming rock in the waste rock dump.
Elevated levels of heavy metals in fish and invertebrates round in creeks on the mine site, both tributaries of the McArthur River.
Up to 400 potentially contaminated cattle from McArthur River Station, owned by the mine, are shot after wandering onto the mine site after floods knock down fencing.
Chief Minister Adam Giles threatens to shut the mine if it does not improve its environmental practices.
Glencore agrees to significantly increase its security bond following pressure from the Northern Territory Government. The amount of the security bond is not publicly disclosed.
Jack Green – represented by EDO – filed legal proceedings in the Northern Territory Civil and Administrative Tribunal challenging the Northern Territory Government’s decision not to publicly release the security bond for MRM following a Freedom Of Information request.
Glencore reveals in the waste rock dump at the McArthur River Mine will need to be managed for at least 1000 years in an Environmental Impact Statement.
Following sustained activism and legal action by Jack Green, represented by the EDO, NT Resources Minister Ken Vowles publishes security bonds for McArthur River Mine (and other mines in the NT) for the first time.
As at September 2017, the MRM security deposit was $476,094,542.
The Independent Monitor report for 2017 rates the insufficient security bond as a “high risk”.
Resources Minister Paul Kirby announced a variation of McArthur River Mine’s authorisation, by imposing conditions to create a pathway for the implementation of the NT Environmental Protection Authority’s recommendations. The authorisation set the security bond at $519,728,466.
In November NT Mining Minister Nicole Manison announced her decision to approve an amended Mining Management Plan and a varied authorisation.
Part of the Mining Management Plan and the varied authorisation were published on the Department of Industry, Trade and Tourism website.
The varied authorisation reduced the security bond to $400,003,226 – a reduction of approximately $120 million.
EDO launches a Supreme Court challenge over the NT Government’s decision to slash the environmental bond of Glencore’s controversial McArthur River Mine by almost $120 million, on behalf of Traditional Owners Jack Green & Josephine Davey Green and the Environment Centre NT.
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.”
Environment Centre NT co-director Kirsty Howey said the Supreme Court action was about ensuring the Territory has enough money to rehabilitate the region after mining ceases 2038.
“The public has a right to know how Glencore expects to clean up after themselves and manage the 1000-year toxic legacy this mine will leave behind,” said Ms Howey.
“The regulation of this mine is a national scandal. The risks are escalating every year, and the mine and the Northern Territory Government simply can’t keep pace with what’s unfolding.”
“We’re talking about the potential destruction of an entire tropical river system that has sustained Aboriginal people in the region for 65,000 thousand years.”
“The original $520 million bond was already grossly insufficient to rehabilitate the site, with an independent review estimating the clean-up bill would be upwards of $1 billion.”
“If Glencore doesn’t put up enough money to clean up after themselves, the burden will fall squarely on taxpayers. We are trying to ensure that doesn’t happen.”
David Morris, Environmental Defenders Office CEO, said the McArthur River Mine could have severe, long-term impacts on the Territory.
“The McArthur River Mine stands out among a litany of examples where local communities will live with the consequences of the Northern Territory Government’s failures, long after the companies and the decision-makers that approve projects move on,” said Mr Morris.
“Ultimately it’s not going to be Glencore or this government that has to live with this failure for the next 1000 years – it will be the people of Borroloola.
He said the EDO legal team would argue on behalf of its clients that the NT Mining Minister had made an error of law in deciding to reduce the bond.
“This case is about ensuring the Territory has enough money to fix up the mine site if the company does walk away, and protecting the community and the taxpayers from shouldering the costs.”
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