Montara

This morning a class action on behalf of up to 15,000 Indonesian sea farmers was filed in the Federal Court in Sydney. That you’ve never heard of the Montara disaster–Australia’s largest offshore oil-spill–in the seven years since it happened is no surprise.

Successive Australian governments have tried to sweep it under the carpet. That we are only now seeing real action on this matter is down to a dogged Darwin lawyer, a local Indonesian NGO and the thousands of Indonesian and West Timorese seaweed farmers and fishermen who have been driven into abject poverty by the wilful neglect of the oil rig operator and the powers that be.

At dawn on 21 August 2009 the massive West Atlas oil rig, 600 kilometres offshore from Darwin, started leaking gas and light crude oil condensate. Thai company PTTEP Australasia had paid $170 million for the rig just a few months earlier and production–from a series of well-heads 120 metres below on the sea-bed–was gearing up full production. By nightfall, only a skeleton crew of seven remained on the rig, the rest having been evacuated to Darwin.

Two months later the Jakarta Post reported that:

… the Australian Maritime Safety Authority (AMSA) submitted an official report to the Indonesian government mentioning that volumes of crude oil had entered the Indonesian Exclusive Economic Zone, some 51 nautical miles from Rote Island. Traditional fishermen operating off Pasir Island found an oil slick resembling a pool around 20 miles from Tablolong beach in Kupand, or around 30 nautical miles from Kolbano, South Central Timor regency. Last week, fishermen on the coast of Rote Ndao regency started complaining of illnesses as a result of the oil spill that had reached land and damaged thousands of hectares of ready-to-harvest seaweed. “Seaweed, which is one of the province’s prime commodities, has been polluted. If the farmers fail to harvest their seaweed, they would incur losses of up to billions of rupiah,” said the West Timor Care Foundation NGO director Ferdi Tanoni.

As I reported at The Northern Myth in late October 2009 the West Atlas rig had, in what was soon to be known as the Montara oil spill:

… leaked over 400,000 litres of oil, gas and condensate into the Timor Sea at a rate reported variously as being from 300 to 1,200 barrels a day … Three attempts to plug the hole–by means of intercepting the pipe more than 2.5 kilometres below the sea bed–have been unsuccessful. A fourth attempt had earlier been abandoned but was apparently to take place sometime yesterday, Sunday October 25.

How much oil went into the Timor Sea is unknown–daily estimates range from 400 to 1,500 or 2,000 barrels of oil and the estimated total spill was somewhere between 4,750 tonnes and 23,630 tonnes. The clean-up was apparently no less dangerous, with the Australian Maritime Safety Authority (AMSA) applying more than 184,000 litres of dispersants on the sea surface. AMSA used at least seven different dispersants, some of which are now known to be toxic. Two–Corexit 9500 and Corexit 9527A–have since been found by scientists to amplify the toxicity of oil 52 times. Only one of those dispersants is approved for use in Australian waters.

The first biological assessment of the Montara spill site was conducted by an expedition to the area led by the World Wildlife Fund in October 2009. As I reported then, the WWF report noted that:

PTTEP, the company responsible for the oil slick, reported high levels of mortality among oil- affected seabirds. “Clearly, wildlife is dying and hundreds if not thousands of dolphins, seabirds and sea-snakes are being exposed to toxic oil. The critical issue is the long term impact of this slick on a rich marine ecosystem, taking into consideration the magnitude, extent and duration of the event,” said expedition leader and WWF-Australia’s Director of Conservation Dr Gilly Llewellyn. “We know that oil can be a slow and silent killer…we can expect this environmental disaster will continue to unfold for years to come.”

In November 2010 then Federal Minister for Resources and Energy Martin Ferguson tabled the Report of the Montara Commission of Inquiry (the Borthwick report) into the Montara oil spill. As I noted at the time, Commissioner David Borthwick sheeted responsibility in large part to the well operator PTTEP Australasia:

The way PTTEP AA operated the Montara oil field did not come within a ‘bulls roar’ of sensible oil field practice. The Blowout was not a reflection of one unfortunate incident, or of bad luck.What happened … was an accident waiting to happen; the company’s systems and processes were so deficient and its key personnel so lacking in basic competence, that the blowout can properly be said to have been an event waiting to occur.

Borthwick’s report was scathing of the Northern Territory government’s regulatory regime, administered by the then Department of Resources, and regarded essentially as a “tick-and-flick” regime lacking the “appropriate expertise or sufficient understanding of its regulatory responsibility to have ever uncovered PTTEP’s poor practices”–a classic example of “regulatory capture“:

It also appears unlikely that the NT DoR would have become aware of most of these deficiencies if this Inquiry had not uncovered them. The NT DoR regarded PTTEP as a good operator, although it is impossible to support that conclusion on any objective basis judging by the multiple oversights and failings in the development of the Montara Oilfield. The fact of the matter is that the NT DoR never placed itself in a position so that it could properly inform itself. The relationship between the NT DoR and PTTEP had become far too comfortable.

Greg Phelps is a partner at Darwin-based law firm Ward Keller and was until recently the President of the Australian Lawyers Alliance. Phelps came late to the the law after a varied career in executive management of various agri-businesses, including large-scale irrigation farming in NSW, international commodity trading, light aviation and marine aquaculture. Phelps joined Ward Keller in 2010, specialising in high-profile litigation. Like all good litigation lawyers, Phelps tries to avoid court where possible.

Phelps first stumbled onto the effects of the spill when he was in Kupang for the first time in March 2011, while representing Sahring, a local fisherman in an Australian legal aid matter. The fishermen in Sahring’s village kept asking Phelps “What are you doing about the oil?” “What oil?” asked Phelps.

The locals didn’t know where the oil had come from but Phelps was able to assist and was later introduced to Ferdi Tanoni of the West Timor Care Foundation. By 2015 Phelps, with assistance from Tanoni and the Australian Lawyers Alliance, had produced a comprehensive report on the effects of the Montara spill of the lives and livelihoods of the thousands of subsistence sea farmers scattered along hundreds of kilometres of shoreline of our nearest northern neighbours in Indonesia, West Timor and Timor Leste.

That report, After The Spill, Investigating Australia’s Montara oil disaster in Indonesianoted that:

The evidence we have collated points to a larger environmental and social disaster than has been of officially acknowledged by the Australian government or the polluting company PTTEP Australasia. To date, there has not been a full, comprehensive, independent study examining the scale of the damage of the Montara oil spill in Indonesian waters and upon Indonesian communities that has been accepted by the Australian government or PTTEP Australasia. Thousands of people have struggled to make a living and educate their children following devastation of their livelihoods. Their plight has been ignored.

Importantly, After The Spill records that the full extent and effects of the Montara spill had yet to be assessed and called for “an independent investigation of the affected areas, to be funded by PTTEP Australasia, and to be conducted with the mutual agreement of all parties involved, including the affected communities and their agents.” The Australian government was regarded as playing a key role in the conduct of that investigation.

Over the years Greg Phelps estimates that he has travelled to Kupang in West Timor–which he describes as “ground zero” of the area affected by the Montara spill–at least 15 times, often for weeks at a stretch. It has been a relentless, and at times dispiriting slog, particularly when faced with the wilful denial of regulatory responsibility by Australian governments and the manifest failure to pursue the oil rig owner PTTEP Australasia for redress for those that have suffered because of the company’s apparent negligence. But Phelps, a doughty and persistent man whom you’d rather at your back than against you, ploughed on, with the assistance of the ALA and Ferdi Tanoni, the president of the West Timor Care Foundation.

In 2014, while presenting on his work at an NT Bar Association conference in Dili in Timor Leste, Phelps ran into Professor Peter Cashman of Sydney University. Professor Cashman, widely regarded as Australia’s leading barrister in class action litigation (he wrote the book) was fascinated by the research undertaken by Phelps and his colleagues and, appreciating that progress in their claims was almost stalled by the lack of funds to press their case further, told Phelps he would lend his support to the search for litigation funding. Not long after, Harbour Litigation Funding Limited, one of the world’s largest litigation funders, was on board and by late 2015 specialist class action lawyers Maurice Blackburn had been engaged to run the class action.

As Jewel Topsfield, Fairfax’s Indonesia correspondent, reported in the Sydney Morning Herald yesterday:

Maurice Blackburn Lawyers is seeking hundreds of millions of dollars in compensation for the loss of income it says the farmers suffered when their seaweed plots died after the 2009 Montara oil spill in the Timor Sea.

Maurice Blackburn managing principal Ben Slade is optimistic of success, telling Topsfield that ” … investigations show that the operator of the oil rig has a serious case to answer for cutting corners that endangered lives, the environment and the livelihoods of thousands of seaweed farmers”. Topsfield reported that PTTEP Australasia denies that any oil from the Montara spill reached the shores of Indonesia or Australia and that no long-term damage was done to the Timor Sea environment.

Greg Phelps will return to Kupang in a few weeks to continue his work. Early this morning he told me that:

The eyewitness accounts of pollution flowing into seaweed plots and fishing grounds in late 2009 are widespread and consistent across hundreds of island village communities; seaweed crops and fish died within days of a sheen and smell in the water. Montara has seen thousands of hardworking seaweed farmers rendered into abject poverty without being advised of or understanding the cause.  For too long now, the polluter has tried to hide behind the poverty and remoteness of its victims.  The people who bore the brunt of Montara’s lethal discharge will now, finally, have their voices heard in an Australian court.

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Further reading

The Northern Myth, October 2009: Australia’s shame – the Timor Sea oil spill disaster in pictures

The Northern Myth, November 2010: NT, the Montara oil spill and the regulatory ‘dog that didn’t bark’

Australian Lawyers Alliance: AFTER THE SPILL: Investigating Australia’s Montara oil disaster in Indonesia

Australian Lawyers Alliance: Montara (video)

Australian Lawyers Alliance, August 2015: Montara oil spill: Australia’s six years of failure

ABC, Background Briefing, July 2010: The Spilling Fields

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