Newmont case verdict - blow for communities and environment

Down to Earth No. 73, May 2007

The decision of a North Sulawesi court to find the US-based mining company, Newmont, not guilty of polluting the environment is a huge disappointment for NGOs and communities who have been struggling for years to hold this multinational gold mining company to account.

The Manado Court in North Sulawesi - the province where the now-closed Ratatotok gold mine was located - came up with its verdict on April 24th. According to the company, "the court held that Buyat Bay was not polluted and that Newmont had been in compliance with all regulations and permits during its eight years of operation". However, three leading Indonesian environmental organisations questioned the legal basis for the court's decision.

The criminal case was launched against Newmont in August 2005. It was remarkable because it was the first of its kind brought by Indonesia's pro-investment government against an international mining company. A US$134 million civil case, also brought by the government (the environment ministry), ended in November 2005 when Newmont agreed to pay US$30 million. A US$550 million lawsuit, brought against the company by a local NGO on behalf of Buyat Bay villagers, was settled out of court in 2005 (see DTE 67 for more on all three cases).

The prosecution's case was based on evidence published in 2004 by a joint government investigation team that high levels of arsenic and mercury from the mine's tailings were entering the food-chain. For eight years from production start-up in 1996, 2,000 tonnes of mining waste per day was dumped in the sea at Buyat Bay using the much-criticised submarine tailings disposal method, which is effectively outlawed in the US, Australia and Canada (see DTE 63 for more background on the findings).

Local people have long believed that the mine's waste dumping has affected local fish stocks, which form the basis for their livelihoods, and was responsible for several occasions when large amounts of fish were found floating dead on the water's surface. Villagers have also linked pollution from the mine to their own health problems. These health impacts include tumours, severe breathing difficulties and skin diseases, and have been sufficiently severe to prompt around 70 families to move out of the bay (see DTE 70).

Newmont's approach has been to deny any link between its operations and the health impacts - pointing the finger at the use of mercury by unlicensed mining operations in an adjacent, but separate catchment area to Buyat Bay. The company also denies that substantial airborne emissions of mercury over several years had any negative impact on the bay or on local people's health. The emissions remained unreported until a New York Times journalist got hold of internal documents detailing them (see DTE 67 for further background). Head of PT Newmont Minahasa Raya, Richard Ness, has now filed a civil legal action against the New York Times in the Central Jakarta District Court for blackening his name.

NGOs criticise judgement, government to appeal

In a statement issued after the Manado court's verdict, WALHI, JATAM (Indonesia's Mining Advocacy Network) and ICEL (the Indonesian Centre for Environmental Law) criticised the verdict and the court proceedings leading up to it.

They said the judges ignored fundamental facts presented in the evidence. These included the high levels of heavy metals in the tailings dumped in Buyat Bay, plus breaches of legally enforceable environmental quality standards revealed in the company's own reports. They also ignored investigation results from the Central Forensic Laboratory of the Indonesian National Police. The three NGOs urged the public prosecutor and the Indonesian government to submit an appeal to the Supreme Court. The government formally submitted appeal documents with the Manado court on 22 May. After Newmont submits its reply, the documents will be forwarded to Indonesia's supreme court in Jakarta.

Friends of the Earth International said the verdict was a major setback for environmental justice, and that the judgment had "shamefully ignored compelling evidence" presented by the government-convened Joint Investigative Team in 2004. Meena Raman, chair of FoE International, said the Indonesian justice system had missed an opportunity to hold Newmont to account. "Newmont is notorious for environmental malpractice at many of its operations around the world," she said. "Why should local communities bear the brunt of environmental pollution and loss of livelihoods while a multinational mining company walks away with the proceeds of the public's natural resources?"

Newmont's other operation in Indonesia, a copper and gold mine on Sumbawa Island, is much bigger than the Sulawesi mine, and also disposes its waste into the sea.

WALHI (Friends of the Earth Indonesia) launched its own lawsuit in March this year against Newmont and the Indonesian government at the South Jakarta District Court (further details from WALHI's website www.eng.walhi.or.id/kampanye/cemar/industri/070328_walhi_suitagainst_nmr_ip/)

New book points to drinking water contamination

At the time when attention was focused on marine pollution, the Buyat Bay community was not aware of high levels of heavy metals in their drinking water, according to a new book, published by WALHI in September last year.

An English-language excerpt from the book, Exposing Buyat - Findings, Neglect and Collusion, states that Newmont provided drinking water to Buyat Beach village which contained arsenic levels in excess of national as well as World Health Organisation water quality standards. The information, which was not passed on to the villagers using the wells, was contained in mine closure planning documents held by local government institutions and a handful of other people. It was revealed in 2004 by the joint investigation team whose findings prompted the criminal court case. The cause of the high arsenic levels in the wells has not been determined for certain, but there is speculation that it may be due to percolation through the arsenic-rich exposed mine workings, although test wells would need to be drilled to determine this. At the same time, local people suffering health problems have not been assisted as they deserve, according to a National Human Rights Commission monitoring team in 2005.

The book also describes how academics involved in some of the research had a history of paid work connected to the mine. It questions their neutrality and that of the research results. The book points to the media's role too, highlighting how Newmont's regular placement of advertisements and pro-company news in local mass media meant that local people no longer had access to thorough and balanced information.

(Source: Joint media release by WALHI, JATAM and ICEL 24/Apr/07; FoE International media advisory 24/Apr/07; Newmont news release at www.newmont.com/en/pdf/04-23-07_Buyat_Bay_Update.pdf; www.eng.walhi.or.id/kampanye/cemar/industri/070412_buyat_summary_li/
The Indonesian language book, by Raja Siregar, is available for download at www.walhi.or.id/kampanye/cemar/industri/070411_singkap_buyat_li/; AP 21/May/07 )

See DTE 63 for a selected chronology of Newmont-related events. The Top Ten Key Findings, based on the Joint Investigation Technical Team report, 9 November 2004, are at www.walhi.or.id/eng/buyat_team_summary.

A 35-minute film, Bye Bye Buyat, which tells the tale of the affected community is available from WALHI or JATAM. Contact: info@walhi.or.id or jatam@jatam.org.