If you are thinking of challenging a mining development in the courts, be prepared to go through the financial wringer. You might think you have an open-and-shut case, that the federal government has shirked its responsibilities under environmental legislation. But if the finding goes against you, the government and the mining industry will see you bankrupt.
This is one of the lessons to emerge following the dismissal by an Adelaide judge on April 20 of the challenge brought by traditional owner and environment campaigner Uncle Kevin Buzzacott against the Olympic Dam uranium mine expansion.
Buzzacott’s supporters have revealed that mining company BHP Billiton and the federal government are now seeking legal costs against him.
BHP Billiton is the world’s largest resource corporation. It plans to spend about $30 billion to turn Olympic Dam into the world’s biggest mine of any description.
Uncle Kevin, a pensioner in his sixties doesn’t even own a car these days. So the company is not going after him because it needs his money.
The reason BHP Billiton and the government are demanding costs is to deter anyone else from using the courts to defend the environment against perverse ministerial decisions aimed at clearing the way for vast corporate profit-taking.
Buzzacott brought the court challenge, heard by a Federal Court in Adelaide on April 3 and 4, with assistance from the Environmental Defenders Office, an Adelaide public interest group. BHP Billiton and South Australia’s state Labor government applied successfully to be parties to the case.
Supporters of the challenge argued federal environment minister Tony Burke acted wrongfully when he approved the Olympic Dam expansion in October last year.
The technical basis for Burke’s approval was said to be so sketchy that it did not meet the requirements set out in the federal Environment Protection and Biodiversity Act. Much of the environmental assessment and decision-making for the mine was left up to plans and studies that still have not been prepared or considered.
Aside from the familiar dangers of the nuclear industry, environmental campaigners are alarmed by the planned above-ground storage of radioactive ore tailings at Olympic Dam, and also at the prospect of pumping huge amounts of water from the vulnerable Great Artesian Basin.
The ore tailings, ground to the fineness of talcum powder, are to be stored beneath caps of rock and earth. Environmentalists point out that, unless reliably maintained, these caps will erode over millennia, allowing huge quantities of cancer-causing dust to blow for thousands of kilometres.
In its present underground phase, the Olympic Dam mine uses water piped from bores in the Great Artesian Basin, under permits issued by the state government. The expanded mine will rely mainly on water from a desalination plant to be built near Whyalla on the shores of Spencer Gulf. Potential damage to the marine environment by wastewater from this plant is a hotly debated issue in itself.
But the pumping of water from the Great Artesian Basin is also to be increased, from the present 33-37 million litres per day to the licence limit of 42 million litres. It could finish up even greater, since a new state Indenture Act covering Olympic Dam includes a provision for further water licences. Pumping is to continue for about 40 years.
At the court hearing, lawyers for Buzzacott argued that Burke had breached federal laws by failing to take into account provisions in South Australian law that govern this increased extraction.
After the April 20 finding, Friends of the Earth campaigner Nectaria Calan said that the actual merits of the Olympic Dam project had never really been at issue in the case. Instead, the decision rested on the judge’s interpretation of two pieces of legislation defining the minister’s responsibilities.
Calan said: “If such an approval with so many future plans yet to be approved constitutes a proper approval under the Environment Protection and Biodiversity Act, how can such an open-ended project be judicially reviewed?”
The question defenders of the environment were left with, she continued, was whether the present act protected the environment at all.
“This is a very sad day,” Buzzacott said after the judgment. “We offered the judge the issue on a platter, and he wasted an opportunity to make changes that will reverberate in this nation for thousands of years.
“But we’re not going away. This isn’t over yet.”
Opponents of the Olympic Dam expansion now plan to take their fight to the South Australian government. An application has been made to the Supreme Court to challenge the state minister’s approval for the project, also granted last October.