[Note: this statement relies on court documents which are in the public domain but only through viewing the affidavits in the Supreme Court]
The Supreme Court ruling on Monday 30th April was a win for the Traditional Owners and all who had worked to protect the McArthur River. The decision confirms the view long held by the Environment Centre NT that the Government, in seeking to placate the mining company MRM (Xstrata), had acted illegally.
Charles Roche, Rivers Campaigner for the Environment Centre, said “Justice Angel’s decision confirms the illegality of the NT Government’s actions in one respect, but the list of improprieties does not stop there.”
It was revealed in court during the Supreme Court hearing that Chief Minister Clare Martin personally intervened following the rejection of the original proposal by the Minister for Environment and the Minister for Mines.
In a letter to the Chief Minister on the 22nd March, two days after the proposal was rejected, Mr Hearne of MRM suggested that the process that the NT Government wanted to use to reassess the mining proposal was flawed:
“The suggestion of an altered process under clause 14A [Administrative Procedures Act] is artificial as it does not reflect the factual situation and would more likely attract adverse comment and potential legal challenge from a third party.”
Despite this advice, in her letter to Mr Hearne, on the 23rd March, Chief Minister Martin rejected the alternatives and chose the legally dubious process, using clause 14A, by which the mine could be approved in 84 days or less. In her letter the Chief Minister made it clear that the new assessment would only require a Public Environment Review rather than the more stringent Environmental Impact Statement, and that her Minister [Minister for Environment, Marion Scrymgour] “…will use her best endeavours to shorten the timeframes within her control.”
In selecting to use 14A of the administrative procedures and approving the mining expansion via the Mine Management Plan rather than a change in authorisation the NT Government made a critical error.
The Chief Minister’s intervention was the beginning of the end. In an effort to placate MRM/Xstrata, the Chief Minister selected a process that was designed to fast-track approval, and it is that process that has been found unlawful.
Even MRM agree, the NT Government’s process was artificial and would more likely lead to a legal challenge.
This was not a technical breach, it was an deliberate abuse of due process.