Australia dragged before UN over historic oil spill

THE biggest oil spill in Australian history remains a headache for the federal government more than a decade after the event.
Australia dragged before UN over historic oil spill Australia dragged before UN over historic oil spill Australia dragged before UN over historic oil spill Australia dragged before UN over historic oil spill Australia dragged before UN over historic oil spill

The Australian Commonwealth Government has been forced to counter claims brought by Indonesian communities alleging human rights violations resulting from the Montara oil spill in the Timor Sea back in 2009. Photo by Ilyass SEDDOUG on Unsplash

Paul Hunt

Senior Journalist: Energy & Commodities

Paul Hunt

Australia has been forced to appear in front of the United Nations Human Rights Council after 13 Indonesian regencies lodged serious allegations of human rights violations against the Commonwealth government. 

The UN proceedings are a separate case to a A$300 million civil lawsuit (class action) won last year against field operator PTTEP in Australia's Federal Court. 

These complaints were lodged to the UN's special rapporteurs on human rights. These officials then make a claim against a country before the UN Human Rights Council. 

In August 2009 a well at the Montara oil field then operated by Thailand's PTTEP blew out causing crude, condensate, gas, and mud to spew into the Timor Sea, offshore northern Western Australia. 

This continued for three months as four attempts to plug the well were unsuccessful, with 1500 barrels of oil equivalent per day pumped into the surrounding waters. A fire caused by the blowout also damaged the platform, eventually causing collapse. 

The complaints to the UN allege that Australia violated "the human rights of the affected communities and indigenous peoples in East Nusa Tenggara" by firstly allowing the oil spill to occur and then failing to mitigate the environmental and economic damage caused. 

Prominent international barrister Monica Feria-Tinta from Twenty Essex Chambers is representing the Indoensian communities in their complaint to the UN. 

In documents obtained by Energy News, the communities said their right to a healthy environment, life, health, bodily integrity, water, and food were infringed upon by Australia's lack of preparedness and subsequent action following the spill. 

"The handling of the spill allegedly disregarded and continues to disregard the human rights of those affected," the United Nations special rapporteurs, led by officer-in-charge Special Procedures Branch Office of the High Commissioner for Human Rights, Karim Ghezraoui, told the UN Human Rights Council. 

"We also remain concerned about the lack of public information available regarding follow up into the oil spill's impact on the health and economic well-being of [those affected in Indonesia]." 

The communities which lodged the allegations are seeking compensation from the Australian government. It is not yet known what damages the plaintiffs seek - but it could be hundreds of millions of dollars based on prior claims against PTTEP. 

The UN officials said they held "serious concern" that the Australian government was "failing to meet its international and extraterritorial human rights obligations," and failed to acknowledge these obligations or provide compensation. 

Other allegations include that the government provided "no public information" on what dispersants it would use to clean up the spill. 

When the spill became public knowledge the Australian government activated its disaster response unit, which placed booms around the massive spill and sprayed acid-like chemicals to limit the spill and eat away at the hydrocarbons. 

There are several dispersants used to mitigate the environmental impact of an oil spill. Six different dispersants were chosen by the government of which at least one was a particularly toxic formulation, only to be used in extreme cases. 

The disperants included: Slickgone NS, Slickgone LTSW, Ardrox 6120, Tergo R40, Corexit 9500 and Corexit 9527. In total, 184,135 litres of chemical dispersants were sprayed from aircraft or vessels between August 23 and November 1, 2009.

Corexit has been banned by the UK government to clean up oil spills in the North Sea. It has been shown to exert a "synergistic effect" when mixed with oil, increasing its toxicity and has been found to cause premature death to humans exposed to it. 

The combined dispersants act as an acid to eat the oil at a molecular level, but also cause oil to become heavier, stopping it from floating.  

According to the Indonesian communities lodging the complaint with the UN, at least eight people died after consuming fish contaminated with the dispersant. 

A further 30 were allegedly poisoned, but survived. 

The complaint to the UN came not long after a class action of Indonesian seaweed farmers lodged a separate civil lawsuit worth A$300 million against the operator of the Montara field, at the time, PTTEP. This lawsuit was won by the class action. 

This Federal Court judgment found oil and chemical dispersants, did indeed reach Indonesian shorelines and decimated communities.

PTTEP was not responsible for the choice of dispersants used as that is decided by the Australian Maritime Safety Authority - a government agency.

The Australian government has denied any wrongdoing to do with dispersants or otherwise. 

The federal government claimed in its response to allegations that information was "factually incorrect".  

It refuted claims that it provided "no public information" on the use of the acid-like dispersants. 

The government said the dispersants used were only applied in Australian waters and reduced the environmental impact of the oil spill. 

It said that it was not responsible for environmental monitoring following the spill, and that it should have been the Indonesian government's responsibility when oil and the potential dispersants travelled into Indonesian waters. 

The Australian government also refuted claims it did not do enough to support the Indonesian government to mitigate the oil spill. 

It said it did enough by providing around $6.5 million in co-financing via the Global Environment Facility fund, which was not directly allocated for the Montara event. 

Shortly after the spill began, in accordance with relevant legislation, the government did establish a Commission of Inquiry into the event. 

It found that PTTEP workers failed to identify that the cement used in the well which blew out was still wet. 

The Commission made 100 findings and 105 recommendations to prevent an incident like this again. The federal government accepted 92 recommendations. The remaining seven recommendations were either "noted" in principle, or not accepted.

Recommendations 3, 10 and 62 were "noted" while recommendations 8, 20 and 38 were "not accepted." 

The rejected recommendations related to disputes between operators and their contractors, when to inspect bubbling wells, and that oil and gas producers should "avoid drilling horizontal wells wherever practicable." 

"The Australian government has taken a wide range of actions related to businesses and respect for human rights issues," the government said in response to the allegations. 

"The government implemented a significant package of regulatory reforms to strengthen Australia's offshore petroleum legislative framework." 

These regulatory reforms included establishing the National Offshore Petroleum Safety and Environmental Management Authority to become the single oil and gas regulator offshore, replacing state and federal government departments responsible for oversight.

It also saw the creation of the National Offshore Petroleum Titles Administrator. 

Furthermore, it established a "polluter-pays" obligation in the event of an oil spill or similar catastrophe, and  ensured oil and gas explorers and producers would need to have insurance. 

However, according to prominent international barrister Monica Feria-Tinta from Twenty Essex Chambers, who is representing the claim from the Indonesian communities to the UN, said the reforms did not go far enough, or help the affected communities in Indonesia.

"For 12 years they (the Indonesian communities) wrote to the government of Australia seeking Australia's response for what happened with the Montara Oil Spill," Feria-Tinta told Energy News. 

"Their claims were not addressed but simply dismissed. It is the first time that Australia replies to such a claim now that the UN has taken up the matter. It is a historic moment for the victims, for their dignity, to have Australia giving account. The time of impunity for what happened is over. " 

PTTEP assessing options after class action

Thailand national oil company PTTEP lost a massive class action brought by 15,000 Indonesian seaweed farmers earlier this year. It is still considering whether to appeal the decision. 

The class action, represented by Maurice Blackburn, filed a suit against PTTEP several years ago. The case took five years to conclude. 

A judgment in the Federal Court was handed down in March which found oil from the Montara H1 production well reached seaweed crops in Indonesia. 

PTTEP had argued that oil from the spill did not reach Indoensian shores. Federal Court justice Yates ruled otherwise.

"I am satisfied that oil spilled from the H1 well blowout reached certain areas of Indonesia," Yates said in his judgment. 

PTTEP then argued that even had oil travelled from the Montara field to Insoenai, by the time it floated there, it would have disintegrated and not caused damage. This claim too, was dismissed by the Court. 

"I am satisfied that this oil caused or materially contributed to the death and loss of [the plaintiff's] crop," Yates ruled. 

Justice Yates found PTTEP to have been negligent in its operations, a fact the company did not disputem, and awarded damages of Rp252 million (A$22,500) to the lead plaintiff of the class action. 

Given there were 15,000 plaintiffs in the class actions, damages could reach well over $300 million. 

Damages were calculated as "the difference between the net income earned and the net income but for the respondents negligence." 

PTTEP was represented by internationally leading law firm Allens. 

A spokesperson from PTTEP said the company was continuing to "assess its right to appeal the judgment." 

Jadestone Energy is now the opperator of the Montara oil field. 

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