PARTIES:	NORTHERN LAND COUNCIL & OTHERS

	v

						ENERGY RESOURCES OF AUSTRALIA
	LIMITED & ANOR

TITLE OF COURT:	SUPREME COURT (NT)

JURISDICTION:	DARWIN

FILE NO:	38 OF 1995

DELIVERED:	24 MARCH 1995

HEARING DATES:	16 MARCH 1995

JUDGMENT OF:	MARTIN CJ.

CATCHWORDS:

	Injunction - Interim - Mandatory - Considerations upon
		which court exercises discretion - Serious question to be tried - Balance of convenience -

	Statutes - Interpretation - Plain and unambiguous
		language - Legislature's intention clear from context - Construction -

	Uranium Mining (Environment Control) Act 1979 (NT),
		ss4, 8(1), 10, 11, 12, 13, 16, 17, 19. Schedule 1 clause 7(h) and (j) and clause 19 and 44
	Atomic Energy Act 1953 (Cth)

	Statutes - Interpretation - Enforcement of Statutory
		rights - Party to agreement - Minister - No evidence of breach by 1st defendant

	Uranium Mining (Environment Control) Act 1979 (NT)

	Statutes - Operation - Commencement of Action -

	Aboriginal Land Rights (Northern Territory) Act (Cth),
		ss23(a) & 23A - E.
	Environment Protection (Northern Territory) Supreme 
		Court Act 1978 (Cth)

REPRESENTATION:

	Counsel: 

	Applic/Plaintiff: Mr Tippett
	1st Respondent: Mr Muhktar
	2nd Respondent: Mr Wild

	Solicitors:

	Applic/Plaintiff: Ms Creedon
	1st Respondent: Mr Henwood
	2nd Respondent: Solicitor for NT

Judgment category classification:
Judgment ID number: mar95008
Number of pages:11

DISTRIBUTION:  LOCAL   

mar95008

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA

No. 38 of 1995 

						BETWEEN:

						NORTHERN LAND COUNCIL
								First Plaintiff
						BIG BILL NEIDJIE
								Second Plaintiff
						JOSEPH NEIDJIE
								Third Plaintiff
						JONATHON NADJI
								Fourth Plaintiff
						CHRISTINE (INJARDMARRD)
						MAGUBALA) CHRISTOPHERSEN
								Fifth Plaintiff
						JOHN (BUGGI BUGGI)
						CHRISTOPHERSEN
								Sixth Plaintiff

						AND:

					ENERGY RESOURCES OF 
					AUSTRALIA LIMITED
								First Defendant
						THE MINISTER FOR MINES AND
						ENERGY
								Second Defendant				

CORAM:   MARTIN CJ.

	REASONS FOR JUDGMENT

	(Delivered 24 March 1995)

		These are reasons for the order dismissing the plaintiff's application for an interim injunction that the first defendant be restrained from releasing water into the Magela Creek system or its environs from Ranger Uranium Mine Retention Pond No 2 or from the Restricted Release Zone pending the final determination of these proceedings.  

		It is not desirable that I should attempt to decide, or even canvass, all of the issues both as to law and fact which arose on the evidence and in the course of argument.  Many of them may fall to be decided upon the hearing of the action when it might be expected that there will be more material available, the opportunity to test it will be present and there will then be adequate time for consideration.  Unpredictable circumstances to do with the weather required that the applications be dealt with and decided urgently.

		The first plaintiff claims to bring the action as an organisation having statutory responsibility under the Aboriginal Land Rights (Northern Territory) Act s23(a) and (b).  Although not specifically mentioned, I note also the provisions of the Environment Protection (Northern Territory) Supreme Court Act 1978 (Commonwealth) and the related provisions in the Land Rights Act at ss23A - 23E.  The individual plaintiffs claim to have traditional aboriginal interests in the Magela Creek and areas adjacent thereto, and to have responsibility for management and care of the land in accordance with the aboriginal tradition.  The second plaintiff, in particular, deposes that he is frightened by the proposed release of water in that he fears that it will kill the trees, waterlilies and other water plants.  "I fear that the water will kill the fish, the magpie geese, the long necked turtles, pigs, mussels and crabs".  Concerns were also expressed that people who may drink the water or eat produce from the area after the discharge may be affected.  That fear arises from a belief that the water is contaminated - "poisoned" - by uranium and other toxic substances.  There is no evidence to show that the proposed discharge would have any such affect.  On the other hand, the evidence on behalf of the first defendant is that the contaminants in the water to be released, if released in accordance with an approval given by the second defendant, will cause no harm to people or the wider environment.  That evidence comes from people employed by the first defendant and by the Commonwealth and Northern Territory Governments who have a special responsibility to conduct research and give advice regarding the possible environmental effects of discharges of water from within the mine area, and to monitor the results.  Although this is the first time it is proposed that water be released from Retention Pond No 2, water from Retention Pond No 1 is allowed to be released fully every year, and since the mid 1980's, water from Retention Pond No 4 has been released in most years.  The dilution requirements in respect of the release of water from Retention Pond No 2 means that the impact on the environment of the water released from it will be identical to that released from the other two ponds in respect of which there has been no noticeable affect.  In so far as the toxic substances are concerned, the evidence is that they are well within international standards.  None of that was put in issue on the application.  

		The thrust of the plaintiff's legal attack upon the first defendant is that it has not complied with certain contentious provisions of what have been termed the "Environmental Requirements" in relation to mining to be found in the first schedule to the Uranium Mining (Environment Control) Act 1979 (NT) ("UMEC").  It is accepted by the first defendant that the provisions of that Act and the Schedule apply to its mining at Ranger.  The schedule replicates an environmental protection scheme first established by the Commonwealth in respect of the original miners at the site in early 1979.  It was in turn derived from an agreement between the Commonwealth and the first plaintiff under the provisions of the Atomic Energy Act 1953 (Commonwealth) in 1978.  The first plaintiff has thus been aware of the environmental requirements in respect of mining in the Ranger area since that time.  UMEC provides that no person shall mine land for uranium within the Alligator Rivers Region of the Territory, except in accordance with any requirement imposed by or under the Act and other prescribed law, (s4).  There are many requirements imposed by the Act on the miner, for example, to employ dust control measures so that dust levels are kept below the level specified by the Minister (s10); as to rehabilitation in accordance with a requirement of the Minister (s11); in relation to Ranger not to mine unless contour maps satisfactory to the Minister have been submitted (s12); to comply with directions of an inspector (s19).  As to mining, it may only be carried on with, and in accordance with, the conditions of an authorisation (s8(1)).  An authorisation may only be granted by the Minister and if he is satisfied that it will assist in protecting the environment from harmful effects of mining (s13).  Such an authority was given to the first defendant by the responsible Territory Minister on 3 June 1982.  It requires that any release of waters from the Restricted Release Zone be made only with the approval or direction of, and in accordance with conditions set by, the Minister.  In exercising any power or performing any duty under the Act, the Minister is to have regard to the desirability of protecting the environment from any harmful effects of mining (s16) and is to have primary regard to the provisions in the first Schedule, in respect of the Ranger mine (s17).  He is also to have regard to matters referred to in s18 of the Act.  

		The Schedule contains provisions especially touching upon the control of water and release of it from the retention ponds, especially that which is in question here.  Those provisions are at clause 7(h) and (j) of the Schedule.

	"(h)	The Joint Venturers shall not release to the environment outside a Restricted Release Zone water that is within such a zone except -

(i)	by way of the outlet structures of Retention
		Pond No. 1 and Retention Pond No. 2, and

(ii)	in accordance with release standards for 
the operations determined by the Supervising Authority.  (In developing these standards the Supervising Authority shall have regard to, amongst other things, the broad principles set out in Attachment "A" to this Appendix.)

				(i)....

				(j)	The Joint Venturers shall not release any water from Retention Pond No. 2 except with the written approval of the Supervising Authority, which approval shall not be given unless -

(i)	the flow rate in Magela Creek at the 
discharge point exceeds 20 cubic metres per second, and 

(ii)	there is a continuous flow of water
between Jabiru and the northern end of the Magela flood plain and there is a high probability that this will last long enough for discharges to reach the estuary.

		The approval of the Supervising Authority shall specify the following -

(A)	the approved rate of discharge,

(B)	the concentration of contaminants in water to be discharged,

(C)	the total quantity of contaminants to be released in any one discharge and in any one year (being a year commencing on 1 September and ending on 31 August), and

(D)	the length of the approved period of continuous discharge."
		For "Joint Venturers" read the first defendant, and for the "Supervising Authority" read the responsible Territory Minister, the second defendant.  As to the release standards referred to in 7(h)(ii), the following is provided at Attachment "A" to the Schedule:

		"Broad Principles are recommended by the Ranger Uranium Environment Inquiry (Second Report, page 326) to be taken into account by the Supervising Authority in developing water release standards:

(a)	The total amount of contaminants to be released from the operations should be minimised.  This requires the introduction of all practicable modifications to the water management program which would result in diminished releases of contaminants, whether by runoff or by deliberate releases, both during and after mining.

(b)	Deliberate releases should only be permitted under conditions of high flow in Magela Creek (flow at Jabiru exceeding 20 cubic metres per second) and when there is a continuous flow between Jabiru and the northern end of the Magela plains.

(c)	Deliberate releases should not be permitted late in the wet season since there would be a greater risk then of contaminants being trapped in billabongs and swamps within the Magela system.  The precise timing in any year would have to be determined by reference to the hydrological-meteorological water quality model proposed in Chapter 17.

(d)	Initial release standards for toxic materials should be based on acute toxicity bioassay tests and application factors.

(e)	Release standards for other contaminants should be based on achieving the minimum practicable disturbance to the environment.

(f)	Standards for deliberate releases should take account of the total amounts of each contaminant discharged, the concentrations in the retention ponds, the dilution actually achieved in Magela Creek and the length of time of each release.  If discharges are to be permitted directly into the flooded creek, a mixing zone, where initial rapid dilution to the effluent would take place, will need to be defined and the required dilution stated. Maximum contaminant levels in this zone should be restricted to below derived "fish avoidance levels".
		The approval of the Minister to the proposed release, required pursuant to the authority to mine, was given on 8 March 1995, and it is not suggested that in so doing the Minister has not paid regard to the relevant terms of Schedule 1 relating to the release of water, or Attachment "A", referred to in Clause 7(h)(ii).

		What is contended is that there has been a breach by the first defendant of Clause 19 of the Schedule which reads as follows:

		"Taken as a whole, and in their component parts, the plant and the mine shall be designed, and the mining, milling and related operations within the Ranger Project Area shall be carried on, in accordance with best practicable technology."
		The term "best practicable technology" is defined in Clause 44 as follows:

		"Best practicable technology" is that technology from time to time relevant to the Ranger Project which produces the minimum environmental pollution and degradation that can reasonably be achieved having regard to -

(a)	the level of affluent control achieved, and the extent to which environmental pollution and degradation are prevented, in mining and milling operations in the uranium industry anywhere in the world,

(b)	the total cost of the application or adoption of that technology relative to the environmental protection to be achieved by its application or adoption,

(c)	evidence of detriment, or of lack of detriment, to the environment after the commencement of the Ranger Project,

(d)	the physical location of the Ranger Project,

(e)	the age of equipment and facilities in use on the Ranger Project and their relative effectiveness in reducing environmental pollution and degradation, and

(f)	social factors including possible adverse social effects of introducing new technology."

		It is arguable that these features of technology apply to the discharge of water from the Restricted Release Zone (see definition of "mining"), but it is not necessary to decide the point.  

		There is evidence on behalf of the plaintiffs directed to showing that there are social factors which impinge upon them and others to which neither of the defendants has paid any regard (Clause 44(f)).  Thus, the argument runs, the proposed release is not in accordance with law and should be prohibited until those factors have been properly taken into account.  However, if there has been any failure to comply with the provisions of UMEC, then it is that of the Minister not the first defendant.  They are factors, amongst many others, to which the Minister is obliged to have regard in the issuing of the authority to mine and any approval pursuant to it (s17).  It is the Minister who is the instrument through whom the Environmental Requirements may be imposed by means of necessary authority to mine and approvals thereunder.  This is not an application for relief in the nature of certiorari where remedies might be obtained against both the decision maker and the proponent of the decision makers alleged illegal act.  The first defendant has an authority to mine and an approval to release water from the Minister under UMEC.  There is no evidence that it proposes to breach any term of the authority or condition of the approval.  

		Since the alleged failure to pay regard to social factors cannot be made a basis of an application for an injunction against the first defendant, there is no serious question to be tried as between the plaintiffs and it.  If that were not so, the balance of convenience would nevertheless favour the first defendant.  The release of water pursuant to the authority and approval was totally constrained by a requirement as to a minimum flow of water through the Magela Creek and for a need for there to be a continuous flow between Jabiru and the northern end of the Magela flood plan.  That combination of circumstances only arises at times of high rainfall and if advantage could not be taken of those conditions as soon as they arose, within the limited period of the approval, then the evidence of the first defendant was that it would suffer significant loss in relation to the conduct of its mining operations.  Though the individual plaintiffs may genuinely have been frightened as to the possible consequences to arise from a release of the water, there is no foundation for that belief.  The evidence is all the other way.  It may have also been appropriate to consider the question of delay on the part of the plaintiffs in bringing the proceedings and the alternative remedies available, especially to the first plaintiff, but given the conclusion reached it is not necessary to go into those issues. 

		A further application that a mandatory injunction be directed to the first defendant that it comply with the environmental requirements of a certain agreement as they pertain to the release of water from Retention Pond 2, although not particularly pressed, was also dismissed.  There was no agreement in evidence to which the first defendant was a party which could attract consideration of the grant of such unusual relief.