I wasn’t the only one in the NT who spluttered Weetbix all over my computer keyboard yesterday morning when I read this media release by NT Primary Industries Minister Ken Vowles that sometime today his department would release previously confidential figures on just how much the NT government is holding by way of mine security bonds (it has now done so).
This is big news, and as Vowles made clear in his statement, it is clearly related to a freedom of information application bought by David Morris, principal (and only) solicitor at the Environmental Defender’s Office (NT) and Jack Warngkurli Green, a senior traditional Aboriginal owner of land around the giant McArthur River mine. That FOI application concerned the quantum of the rehabilitation security bond paid by the mine, operated by Glencore in the NT Gulf country.
The FOI application commenced in October 2015 following the announcement by then-NT chief minister Adam Giles that, following years of scandal over poor environmental management at the mine, the security bond had substantially increased after some difficult negotiations between the government and the mine operator. But the figure remained a secret.
The NT EDO — a tiny operation with one employed solicitor, one support staff member, a bunch of volunteers and a shoestring budget — applied to the then Department of Mines and Energy for disclosure of the amount of the mine’s security bond.
Following early partial success — the department reckoned that correspondence between the NT government and Glencore could be released, but that the bond amount figures be redacted — David Morris and Jack Green went the long way round, seeking an internal departmental review and then an appeal to the NT Information Commissioner, who then referred the matter to the NT Civil and Administrative Tribunal for determination.
Earlier this year NTCAT found in favour of David Morris and Jack Green, ordering that the full, unredacted version of the correspondence between Glencore and the government — including the dollar figures of the security bond — be released, subject to a 60-day stay to allow for any appeal of that decision to the NT Supreme Court. Significantly, the NT government — named as a respondent in the NTCAT action — decided to make no submissions in that matter, agreeing only to abide by any decision made.
Predictably, Glencore appealed the NTCAT decision to the NT Supreme Court, and the first directions hearing of that appeal was listed for this morning. And, while many here were surprised by the NT government’s decision yesterday to release not only the dollar amounts of Glencore’s security bond but those of the other eight mines currently operating in the NT (the McArthur deposit was $476,094,542), that decision is, as cautiously foreshadowed by Vowles in October 2016, entirely consistent with the new Labor administration’s mantra of “open and transparent” government:
“We came to Government with a promise to Territorians that we would be and open and transparent,” Minister Vowles said. We will not make this policy on the run and look forward to a sensible conversation about how we can provide the transparency that will help ensure continuing public support for this industry that is so crucial to our economic future and jobs. There is currently a matter before the Northern Territory Civil and Administrative Tribunal that has highlighted a government policy issue and the NT Government will consult with industry and the broader community on any future policy on mine security release.”
As well as David Morris and Jack Green, Glencore named Vowles’ department as a respondent to the Supreme Court appeal. As any responsible government would do, it sought legal advice about Glencore’s prospects for success and any likely fallout for the government. Crikey understands that advice indicated that Glencore would fail in its appeal.
Notwithstanding the Glencore appeal — which concerns a challenge to the NTCAT decision and not the policy surrounding mining security bonds — the NT government decided to get on the front foot and take what some — particularly in the mining industry — regard as a “crazy-brave” decision to release not only the amount of Glencore’s security bond but the security bond values for all nine mines currently operating in the NT.
In the statement released yesterday morning, minister Vowles made his government’s policy position clear:
“In the Territory these amounts have previously been confidential, but we know it is important for Territorians to know the mining industry is being held accountable. With that in mind, we are moving in line with other jurisdictions to make security amounts available to the public … The NT Government seeks to strike a balance between supporting an industry that contributes a significant amount to the economy and the interest of Territorians in ensuring appropriate environmental management … [I]ncreasingly, industries such as mining are being required to develop their own social licence, and this new policy will help them do so.”
The issue of mining security bonds is also the subject of ongoing, and as yet unresolved, litigation in the NT Supreme Court. In 2016, small iron ore miner Territory Iron challenged a decision by the NT Mining Board review panel to increase the size of the then-mothballed operation’s security bond.
As local ABC News reported at the time, the mining minister’s lawyer, Stephen Donaghue QC (now Commonwealth Solicitor-General) told then Acting Chief Justice Stephen Southwood that the security bond of $5.4 million could never meet the estimated $20 to $30 million in rehabilitation costs for the mine and that:
“There is no reason why the Territory should carry the financial risk if an operator chooses to carry out authorised mining activities in a way that causes increases in the cost of environmental rectification or rehabilitation works. The existing security is patently inadequate.”
The mining security bond figures are expected to be listed at the department’s website later today. David Morris, Jack Green and Vowles’ department will appear in the NT Supreme Court at 10am in response to Glencore’s appeal.
This morning the EDO (NT) released a statement that says, in part, that the NT’s new policy is welcome and that it:
“… promotes transparency and allows a more open and honest discussion about the Territory’s mining industry. The policy also reflects the fact we say the public is entitled to this information under NT law, and that is what we will argue in the current appeal in the Supreme Court where Glencore is seeking to overturn the NTCAT decision.”