The challenge of transboundary environmental disasters

9th Dec 2015

Last week, the Brazilian government filed proceedings against mining company Samarco Minerao, and its Australian co-owners Vale and BHP Billiton for at least $7 billion in damages after the Samarco mine disaster, the worst environmental disaster in Brazil’s history. 

ABC News reported that Deutsche Bank has estimated that the total clean-up cost could be more than $US1 billion and the mine may not reopen until 2019, if at all.

As images of the toxic mudslide have been shared around the world, there is another environmental disaster closer to home that still hasn’t reached resolution, despite vast environmental damage and economic loss. 

While a $7 billion lawsuit was filed within a month of the Samarco mine disaster for cleaning up the damage and for compensation, not one cent has ever been paid for communities in Indonesia affected by one of Australia’s worst ever oil spills, the 2009 PTTEP Australasia Montara oil spill, either in remediation or compensation. 

Since 2009, communities in Nusa Tenggara Timur have laboured to make ends meet after the multi-million dollar seaweed industry across the province curled up and died after oil was seen on the coast and in Indonesian waters. 

In Brazil, the concoction of toxic mud that has ‘killed the river’ and which is now flooding into the ocean, has attracted media attention all over the world.

However, it is questionable whether the Brazilian government would have taken such swift action had the incident occurred near the more remote northern borders with French Guiyana and nearby Suriname. In this scenario, neighbouring nations may also have become locked in a stalemate of negotiations over transboundary damage. Certainly, the lack of justice or remediation after the Montara oil spill is indicative of the way things may have gone. 

The chief prosecutor of the state of Esprito Santo, Rodrigo Vieira, recently said:  
"The big oil spill in the Gulf of Mexico is a good precedent of how to agree on funds for environmental and socioeconomic recovery." 

However, for one of Australia’s worst environmental disasters, there is no 'good precedent'. Australia's response to Montara could have been a leading example of how to mitigate risk in transboundary environmental disasters, and how best to agree on funds for environmental and socioeconomic recovery. Instead, there is a glaring omission.

One of our biggest oil spills earned a simple fine of $510,000. This is about the same amount that the polluting company, PTTEP Australasia, would have made in today’s production at the now operational Montara wellhead.

The connection of people to the environment becomes searingly evident in the cases of major environmental disasters. However, the damage caused by such disasters can take decades, or even longer, to remediate. The environment is still reported to be affected after the 1989 Exxon Valdez spill in Alaska.

It is also clear that environmental damage that occurs in one state can spread across the globe. After the Japanese tsunami, a young boy’s soccer ball was found washed up on the coast of Canada; a boat that sank off the coast of Western Australia turned up in Madagascar. 

Catastrophic damage to oceans, and the associated marine industries and economy, does not confine itself to state-marked exclusive economic zones.

Three months after the Montara spill began, Indonesian communities more than 400 kilometres away from the wellhead reported damage believed to have been linked to the spill.

It yet remains to be seen how far the damage from the Samarco disaster may extend around South America. It has not even been a month since the disaster began on November 5, and already the toxic waste is reputed to have travelled along the Doce River for more than 500 kilometres. 

While the BP Deepwater Horizon spill is now held up as the precedent for funds for recovery and compensation, Australia’s response to Montara is never mentioned as an effective precedent, either for state-based or for transboundary cases. There were no negotiations for transboundary scientific investigation, remediation or compensation.

A review of the adequacy of Australia's response is well overdue. Such a review may be of assistance to other nations as future transboundary damage cases emerge.  

Emily Mitchell was the Senior Policy Officer at the Australian Lawyers Alliance until January 2016, and authored the report After the Spill: Investigating Australia’s Montara oil disaster in Indonesia. 

The views and opinions expressed in these articles are the authors' and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).

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Tags: Human rights Montara oil spill Emily Mitchell Environment