The Northern Territory government has refused mining giant Glencore's request to allow it to destroy an ancient stone tools quarry and threaten an important sacred site without the permission of traditional owners of its McArthur River mine.
The request was part of the company's plan to double the size of one of the world's largest zinc and lead mines, which is near Borroloola, 900 kilometres south east of Darwin.
The company was also seeking approval to dump half a billion tonnes of flammable toxic rock on the McArthur River bank over the next 15 years.
Traditional owner Josie Davey welcomed the decision by NT Heritage Minister Chansey Paech.
"I am really pleased and happy about it," she said.
"The mining company need to come back now and listen to the traditional owners, including my family."
Glencore had told the government it had an agreement from six Aboriginal custodians to pile waste rock at the mine to a height of 140 metres beside the adjacent Barramundi Dreaming sacred site, and to build part of the dump on the stone artefact site.
Under the agreement, the six signatories were promised $250,000 for their houses, an $85,000 car each and monthly food and fuel vouchers.
The company had appealed a decision by the NT's sacred sites watchdog, the Aboriginal Areas Protection Authority (AAPA), which ruled the agreement invalid because all of the mine's 180 Aboriginal custodians had not signed it.
The government's decision to uphold AAPA's assessment came after more than three years of deliberation.
"The minister's decision... sends a very clear message to Glencore and other miners that these sorts of murky deals that seek to disempower Aboriginal people in the protection of their sacred sites will not wash," AAPA's chief executive Ben Scambary said.
"It shows that the processes for protecting sacred sites and for agreement-making are well established in the Northern Territory and any attempt to subvert those processes wont result in a favourable outcome."
Company needs sacred site certificates for expansion
The Heritage Minister's decision leaves the company's plans for the expansion of the McArthur River mine in question.
Legally, the company needs to gain certificates from the sacred sites authority to carry out any works that could potentially affect more than 24 sacred sites on and around the mining lease.
To get them, Dr Scambary said the company would need to convince the AAPA that it has gained the permission of all of the custodians for those sites.
At three by two kilometres, the proposed size of the waste rock dump is larger than the Darwin CBD peninsula and taller than any of the city's sky scrapers.
Glencore has said it does not intend to damage the Barramundi Dreaming and other sacred sites and it views "the protection of sacred and cultural heritage sites as of critical importance".
But Dr Scambary said it appears important sites including the Djirrinmini waterhole could be damaged if Glencore is to find enough space to store all of the waste rock it plans to mine out until 2037.
He said the company's Environmental Impact Statement indicates that the expansion of the pit would impact water levels at the Djirrinmini sacred site, which is a permanent water hole.
"We are concerned that the displacement of groundwater, by the sheer scale of the waste rock dump, could have negative impacts on water-based sacred sites and other sacred sites where the key features are sacred trees," he said.
He said the authority was concerned the waste rock dump appeared already to be under construction as if it was to reach 140 metres.
"Our concern is that it is built to such an extent that to wind back or to amend the design at this stage may be difficult," he said.
Concern dump slopes could slip onto sacred site
Following years of warnings from the government-appointed independent monitor for the mine, AAPA and the mine site's custodians are also worried that reactive rock could slide off the steep sides of the waste dump, which the company plans to leave on the river bank forever.
Dr Scambary said: "Originally, when the authority first considered the waste rock dump, it was only to be raised to a height of 80 metres — the proposed design is almost double that.
"At its closest point, it is just 35 metres from the boundary of the Barramundi Dreaming site.
"Our concerns are that in the 1,000-year life of the waste rock dump there could be a high potential for it to collapse onto the sacred site."
Traditional owner Josephine Davey said the idea the dump could one day cave in made her very worried, and she was also concerned for the Barramundi Dreaming and stone artefacts site.
"They are very important to me," she said.
"That is my great, great grandfather's country and I want to take my kids back there to show them and tell them the stories, and for fishing."
Glencore denies there is any danger of slippage and has told the independent monitor that the layered design of the waste rock dump would ensure it remains a "stable landform".
Both AAPA and the NT government's Heritage Branch have warned the NT government in correspondence and during a federal parliamentary inquiry that allowing sacred sites and the stone quarry to be destroyed would be comparable to the Juukan Gorge disaster in Western Australia.
Dr Scambary said many of the sacred site certificates AAPA has issued Glencore in the past to carry out its operations will no longer be valid once the expansion continues, because the planned facility's footprints exceed the sizes originally approved.
"In order to be compliant with the mine authorisation, McArthur River Mine will need to update its sacred sites authority certificates to accommodate for the future expansion of the mine," Dr Scambary said.
Glencore hopeful of securing new agreement
The company was allowed by NT Mining Minister Nicole Manison to keep expanding its operation while it waited to find out whether it could obtain the sacred sites permits needed to continue.
The company is now hoping to resolve the impasse by negotiating a new agreement with all of the mine site's traditional owners and custodians, which will allow it to continue to mine until 2037.
A Glencore statement said the company was "committed to meaningful engagement with traditional owners that respects cultural heritage" and "would enter good faith negotiations for an Indigenous land use agreement (ILUA) once we had certainty on continued operations".
Dr Scambary said AAPA would require a high level of consultation with the whole group of the mine site's traditional owners before it would approve any more sacred sites certificates.
"Any agreement cannot authorise the damage or destruction of any sacred sites," he said.
"As long as the agreement seeks to protect and has tangible measures to protect sacred sites then that would likely meet the high bar of the Sacred Sites Act."
If an agreement is struck, it would be the first time the mine site's whole custodian group has been able to significantly influence what happens to their land and surrounding ecosystems.
Many of them opposed the mine's establishment in 1995 and fought the NT and federal government's 2006 decision to allow the diversion of the McArthur River, which destroyed an important rainbow serpent dreaming site.
They have also been angered by contamination of McArthur River tributaries leading to health warnings to limit the amount of fish they eat, and the plumes of sulphur dioxide sent over the Gulf of Carpentaria when the pyretic waste rock dump spectacularly caught fire in 2014.
Josie Davey said ultimately she and other traditional owners want the mine site to be restored to its original state, rather than the waste rock being left on the McArthur River bank.
"I really want them to clean up that area and the damage they have done, and I want the sacred sites to be cared for," she said.
