Had a request (in comments) for response to the ‘technicality’ which is the term that the NT Government and Xstrata’s spin doctors have been using. Thanks to anon.
On 29 April 2007, Justice Angel delivered his judgment in the Supreme Court proceedings Lansen & Ors v NT Mines Minister and McArthur River Mining Pty Limited. His Honour essentially held that the NT Mines Minister used the wrong legislative power in the Mining Management Act 2001 (NT) to approve the mine.
The Mines Minister used a “back door” process, section 41 of the Act, to “accept” the mine’s Mining Management Plan, which detailed the open cut proposal.
Instead, he should have used sections 35 or 38 of the Act to either vary McArthur River Mine’s existing authorisation to mine to include open cut mining, or grant a new authorisation to carry out open cut mining. It is noted that McArthur River Mine has an existing Authorisation to mine granted under the Mining Management Act 2001, which authorises underground mining only.
It is not a technicial error. The authorisation fails in the following ways
- Additional environmental safeguards
Sections 35 and 38 of the Act impose additional and very stringent environmental requirements, which must be satisfied before an authorisation is either varied or granted. Section 35 provides that before granting an Authorisation, the Mines Minister must be satisfied that the management system on the mining site will promote the protection of the environment on the mining site.
Similarly, section 38 provides that the Minister must not vary an Authorisation unless the variation will have the effect of improving the protection of the environment on the mining site.
There are no such environmental requirements for using section 41 of the Act, which the Mines Minister tried to use to approve the mine.
As stated by Tim Robertson, senior counsel for the traditional owners during oral submissions, had the Mines Minister used the proper powers under the Act (sections 35 and 38): “this very strong provision here prevents him from doing so unless it’s actually to make an improvement in the current situation.”
- Ability to seek merits review
By using section 41 of the Act instead of sections 35 or 38, the traditional owners and other affected persons were stripped of their right of independent review by the Mining Board.
The Mining Board is an independent body established under the Mining Management Act, with functions of advising and reporting on environmental issues and best practice mining activities. Under the Act, affected people can seek review of the Mines Minister’s decisions made under sections 35 and 38, but not of decisions made under section 41 of the Act.
Accordingly, by using section 41 of the Act, the NT Mines Minister effectively stripped the traditional owners of any right of appeal on the merits. These are important procedural rights, which could have affected the outcome of the matter, for example, by improved environmental protection to prevent pollution from the tailings dam into the McArthur River and Gulf of Carpentaria. This matter was of genuine concern to the NT Mines Minister, who obtained legal advice to use section 41 of the Mining Management Act for this very reason.
- Deliberate tactical decision
The Mines Minister made a deliberate decision, on legal advice from the NT Solicitor, to use section 41 instead of sections 35 of 38. There were clear forensic and strategic reasons, including the removal of rights of review and the imposition of additional environmental safeguards, for the Mines Minister to use section 41 instead of the proper powers.
As stated by Tim Robertson SC during the hearing, “the decision was carefully structured … so that it was clear that the endorsement of the open cut project was by way of amending the mining management plan…”
The breach was not merely technical, it was a deliberate tactic used by the Mines Minister, on legal advice from the NT Solicitor, to avoid the onerous requirements of sections 35 and 38. If the Mines Minister was of the view that using sections 35 and 38 instead of section 41 made no real difference or was merely technical, then surely he would have used those proper powers.