NT Labor denies division over McArthur River Q1

There were several questions in NT Parliament yesterday concerning Minister Scrymgour’s mysterious absence from Parliament the night of the vote for the McArthur River Amendment. See if you can decipher what really happened from the answers. 

Member: Mr MILLS
To: CHIEF MINISTER
On 5 May 2007, you told the NT News in relation to the minister for the Environment, absent from the McArthur River Mine vote, that ‘Marion was fully committed as part of the Cabinet decision to take the legislative amendment’. On 23 May 2007, minister Scrymgour admitted the only reason she did not cross the floor and vote against the bill was because she would have to resign as a minister. Most importantly, minister Scrymgour said on the ABC: ‘I had discussions with the Chief Minister and my other colleagues and I made a decision that I would not vote’. Which is correct? Is it your statement on 5 May or the member for Arafura’s statement on 23 May?

Ms MARTIN: That was certainly what I said at the time.

There is no doubt that everybody went through a lot of internal searching about it and realised that we did not have an option other than to bring that legislation in at that time, and to pass it in urgency. That does not take away from the real fact that faced members in here of the difficulties. For the Environment minister, it was no different. The Environment minister is a very responsible Cabinet minister, and she made that decision. However, it does not set aside the personal issues that go with that.

There is no doubt about it; it was a tough time. However, I have the fullest confidence in the member for Arafura and …

Ms MARTIN: … It was a difficult time. Cabinet ministers know very well that a Cabinet decision is a Cabinet decision, and that is the end of the matter.

Barbara McCarthy: speech on the McArthur River amendment

This is Barbara McCarthy’s  speech from the third reading of the McArthur River Amendment (sec 4AB Ratification of certain instruments)  when three MLA’s crossed the floor to vote against the bill in the Northern Territory Parliament on 3rd May 2007.

Interruptions from other members have been edited out.

Ms McCARTHY (Arnhem): Madam Speaker, I speak against this bill and put my voice on the record as to the reasons why I must speak against the bill. I have listened intently to the debate that has continued throughout the day and I commend the Attorney-General on his comments in this House about the Northern Territory Labor government and the fact that we are a broad church, the fact that we …

As I was getting to the legislation I put on the record that this is legislation to which I am opposed for personal reasons and what I see as legislation being pushed through on urgency, when for the Aboriginal people in the Borroloola region, the Yanyuwa, the Garrwa, the Mara and the Gudanji, there is Sorry Business going on right now. It is unfortunate that any kind of legislation has to be forced through at a time when families are grieving over a very important person who has fought for the rights of the Gulf region in this case against the diversion of the river.

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. I have explained and expressed this quite well with my colleagues, who I know have fought difficult situations regarding this particular project in the Gulf region …

Thank you, Madam Speaker. 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. I sincerely put to the House that I vote against this bill. I thank members for allowing me this opportunity.

Breaking the law is not a technicality

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.
 

McArthur River Federal Court Challenge

The Federal Court (Darwin) challenge is listed for 30 July - 1 August.

The proceedings in the Federal Court  challenge the validity of the Commonwealth Minister for the Environment’s approval for the mine expansion and river diversion.

The main grounds are

• that the assesment of impacts was not carried out properly under the EPBA Act, nor the bilateral agreement between the Commonwealth and the NT under the Environmental Assesment Administrative Procedures NT, (sect. 3a 10a 11a) and  especially in relation to the consideration of public comments.
• Problems with the Commonwealths approval and attached conditions.
• The absense of adequate data on threatened species (sawfish) which to make a decision.

The Traditional Owners are seeking to have the decision set aside and to be remitted back to the Environment Minister (now Malcom Turnbull).

If the challenge is succesful, the mine will become a federal issue again.

I wonder whether Mr Turnbull would be swayed by Howards personal endorsement of the mine or whether the ALP would offer a better level of protection to the McArthur River than they have in the past?

Miller: Opposition speech on the McArthur River amendment

This is an edited version of Fay Miller’s, (CLP-Country Liberal Party) speech regarding the amendment. Three of the CLP members  voted for the amendment  (Fay Miller was absent), but the speech identifies some real issues of concern to the opposition.

The minister has come in to this House with a bill that will change the law of the Northern Territory. Putting it bluntly, it will change what the Supreme Court of the Northern Territory has deemed to be unlawful, and make it lawful. To that end, the minister has asked this parliament to set aside its normal procedure and rush through a bill that is designed to change what the Supreme Court said was unlawful. I ask members to ponder on the gravity of this. We are about to change the law to suit the outcomes of one party over another, and we are asked to do that in a rush.

The minister has asked these special favours of this House because he didn’t bother to read his paperwork.

Let us turn our attention to what he has asked us to do. He has introduced a bill. That bill asks us to pass a law that ratifies the decision that he made and that the Supreme Court ruled was beyond his power to make. He has asked more than that of us.

The bill will have the desired effect of ratifying what he tried to do, but it will also have a second effect. That second effect was not referred to at all in the second reading speech by the minister. The second effect is that, not only are we striking down the successful grounds for complaint that Mr Larsen had, but we are striking down all grounds for complaint that Mr Larsen had.

Madam Speaker, the arguments for appeal that were put in front of Justice Angel were staged. A good analogy is that there are hurdles placed before the minister, and before the minister tries to jump over the second hurdle, he needs to clear the first hurdle. Justice Angel’s decision said that the minister did not even clear the first hurdle, and that being the case, Justice Angel did not even have to bother to ask if he had got over any other hurdles. The minister had already come crashing to the ground.

The language of this amendment creates a legal super minister, because not only will he now clear the first hurdle with this House’s assent, he will clear them all in a single bound. To do that, we will not only say to Mr Larsen, ‘You were a winner, now you are a loser’, we are now going to take away his rights to legally question the minister on any of the points that he raised before Justice Angel. Minister, why did you not talk about this in your second reading speech yesterday? Why did you not tell this House that you were intending to crush Mr Larsen’s grounds for complaint forever completely. The minister’s wilful stupidity and subsequent appeal to this House has now saddled each and every member of this House with a dreadful burden, for he has now asked us to join in his drive to deprive Mr Larsen of his rights of challenge completely in relation to this issue. And the minister has not even had the decency to be transparent about that intention yesterday when he walked into this place and asked us to extricate him from this mire.

 This is now about the burden that has been thrust on our shoulders as legislators, and that is the burden of taking Mr Larsen’s vindication and treading on it, as well as taking Mr Larsen’s other rights of complaint and crushing them. I know that in legislation we do this from time to time, but on this occasion we are doing it retrospectively, with the effect of taking an established right to complain away from a person who is identifiable. We will also remove that plaintiff’s choice to pursue his and his family’s remaining issues.
Madam Speaker, this is why the haste of this bill frustrates me. I understand why it has to be pushed through in a hurry. The mine must go ahead. There are too many jobs and too much investment rides on its proceeding, but I was last night, and again this morning, Madam Speaker, still attracted to the idea of amending this bill, but today is the last sitting day for seven weeks.

The member for Arnhem, and all members who have professed their commitment to their Aboriginality, have reached a moral threshold here today. It is not unlike some of the other moral thresholds they have reached in this place and have been found wanting. They know it because of the discord that has been reported amongst their numbers about some of these issues. Sooner or later, they will have to make a stand to defend their passion for their people, or risk falling into a credibility chasm. Today, they are hanging over that abyss by a thread.

We are taking the rights of complaint of these Aboriginal people - complaints that the Supreme Court held up as being legitimate - and we are extinguishing them forever. All of this from a government which promoted itself as the champions of the concept of negotiations rather than litigation. Now, they do not negotiate, they litigate. In the case of Blue Mud Bay, they buy full-page ads in the newspaper to say they are not litigious. What is worse, when they lose their litigation, they legislate. To top it off, when they legislate, they do it with retrospective effect.

When the enormity of what we are doing here today began to dawn on me yesterday afternoon, I started to feel very uncomfortable. That disquiet has not abated, and I begin to realise the multitude of sins that I am being asked to support. To summarise: the minister cannot tell the difference between on open cut and an underground mine; the minister now has to fix his error by changing the law; the minister wants this House to set aside its normal operating procedure; the minister wants to push this bill through in 24 hours. That change in law will take away the otherwise lawful grounds of argument that Mr Larsen has. The minister has the audacity to put into his bill, not only the effect he is looking for, but also a secondary effect of taking away other actionable grounds by Mr Larsen. Also, to cap off the abuse of process, the minister does not tell this House that he wants to close off all of Mr Larsen’s grounds of complaints to the court when he gave his second reading speech.

I have gone from having a sense of disquiet to having a sense of feeling very grubby.