While Federal Environment Minister Peter Garrett was able to take the (relatively) easy road with the Gunn’s pulp mill in Tasmania by effectively flick-passing any decision about the future of the mill back to the company, in the NT’s Gulf Country, he faces an issue that requires, one way or the other, that he grab the ball in both hands and actually make a choice between the rights of one of the world’s biggest mining companies and the rights of Aboriginal traditional owners.

The surprise decision by the Full Court of the Federal Court in late December to grant an appeal by the traditional owners of land on which the McArthur River Mine (MRM) operates in the south-east of the Northern Territory will cause real headaches for both the Commonwealth and Northern Territory Governments. Both could face compensation claims from traditional owners and it will fall to Minister Garrett to resolve the future of the McArthur River Mine, one of the world’s biggest lead, zinc and silver deposits.

The McArthur River is one of the largest tropical rivers in Australia and is of immense cultural and spiritual importance to local Aboriginal people of the Gulf Region. Various parts of the McArthur’s catchment are owned by the Gurdanji, Yanyuwa, Garawa and Mara language groups, many of whom live at the largest local township of Borroloola, which retains many of the characteristics of an outback frontier town. The land around the MRM is owned by the people of the Yanyuwa language group.

‘Here’s Your Chance’ is the name of a huge lead, zinc and silver deposit found by Mount Isa Mines (MIM) in the early 1950s under and adjacent to the McArthur River. Technical issues meant that the deposit wasn’t mined until the early 1990s following the purchase by MIM of three large cattle stations over and near the deposit.

MIM commenced underground mining at the site in 1995 and in early 2003 made application to begin open-cut mining, which would require the diversion of nearly six kilometres of the McArthur River in order to access the deposit under the river-bed. Later in June 2003, MIM was bought by the giant Swiss mining company Xstrata.

Xstrata’s choices following the decision of the Full Court of the Federal Court are that it can either seek leave to appeal to the High Court, make a fresh application for a mining approval from Minister Garrett, ‘mothball’ the mine until conditions, including the current commodity price-slump, improve, or abandon the mine altogether.

Garrett’s options appear to include inviting submissions from the interested parties as to how he might proceed or announce, in a similar manner as he has done in the Gunns matters, that he will make a decision some time in the near future — and thus force Xstrata’s hand to make some decisions itself. The other option — which isn’t really an option at all — is to do nothing and let the various parties sort it out themselves.

It is the political costs, particularly to the Labor Governments of former Chief Minister Clare Martin and current CM Paul Henderson, that have weighed heaviest in the NT.

In late April 2007, the decision by NT Supreme Court Justice David Angel held that the NT Mines Minister’s 2006 approval of the conversion of underground mine to open cut was invalid. Four days later, the NT Government rushed through retrospective legislation to override the Supreme Court’s decision.

Three Labor members (Barbara McCarthy, Alison Anderson and Karl Hampton) crossed the floor to vote against the legislation. The two independent members also voted against the legislation. The Environment Minister, Marion Scrymgour, was not present in Parliament and abstained.

Henderson sits on the narrowest and most fragile of majorities and Barbara McCarthy (now Malandirri McCarthy) has responsibility for a long list of Ministries and is a Yanyuwa traditional owner.

This issue was particularly tough on Malandirri McCarthy. At the time the legislation came before the NT Parliament she, and her extended family, were in ‘sorry business’ for her brother, a man who had fought tirelessly for the rights of his people.

Speaking to the legislation on 3 May 2007, before she crossed the floor, McCarthy told the NT Parliament:

I have stood in this House on two occasions, Madam Speaker, to express the deep sincerity of the people of the Gulf region regarding the importance of the river. This legislation is being rushed through on urgency without having first buried a very important man, my brother, who has stood in the Supreme Court to argue for the rights of indigenous people in this country.

In regards to this legislation, I must speak against it. I certainly feel that, on behalf of the people of the Gulf region, and in particular indigenous people right across the Northern Territory and, indeed, Australia, that to pass this legislation on urgency, in the middle of Sorry Business is the lowest sign of respect for those people and families. I still encourage my colleagues in government to negotiate with the traditional owners on a level of equality and equity.

And the traditional owners don’t want much. As they told the ABC on the steps of the Court after their appeal was granted:

Traditional owner Harry Lansen said he would ask the mining company for compensation.”I want the river back in the same place,” he said. Fellow traditional owner Archie Harvey says he wants the river back to normal for their children to enjoy. “We just need the river back. We don’t know how. They put it there, they can put it back,” he said.

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Peter Fray
Peter Fray
Editor-in-chief of Crikey
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