A Northern Territory judge has stood aside from a long-running legal battle related to a massive lead and zinc mine, after a court heard she previously advised the Northern Territory government on the project in a different role.
Traditional owners and the Environment Centre NT are currently in court fighting the government's decision to slash the McArthur River Mine's security bond by $120 million.
Security bonds are government-held levies paid by operators to cover the cost of any mining-related environmental harm.
The McArthur River Mine, which sits about 1000km south-east of Darwin near the community of Borroloola, is at the centre of a string of environmental scandals, and the groups allege Mining and Industry Minister Nicole Manison's decision to set the bond at $400 million late in 2020 was unlawful.
The Northern Territory Supreme Court on Wednesday heard that Judge Sonia Brownhill was the NT Solicitor-General when the mine's approval was varied and a $520 million security bond set in 2019.
Justice Brownhill was appointed to the bench in November 2020.
However, barrister Oliver Jones argued a layperson would reasonably conclude her 2019 advice related to the mine's security bond and its closure plan — two issues at the heart of the legal challenge.
He told the court the advice included material his legal team had not accessed.
"We have definitively not been provided with the instructions your honour was given or the advice your honour was given," he said.
"That simply underscores the fact that there is privileged material that your honour is privy to, and which we unfortunately don't have."
Government barrister, Stephen Lloyd, did not directly consent to the recusal application, but argued the judge was advising on a different albeit related issue at the time.
Justice Brownhill agreed to recuse herself on three grounds, mainly related to her role setting the $520 million bond.
"The decision of the minister that is the subject of the proceedings is in relation to imposing or reducing a security bond to a different amount, but the reduction commences and is justified by reference to the security bond about which I gave advice," she said.
"In that sense, there is a clear connection between the decision I was advising on and the decision that is the subject of the proceedings," she said.
The matter is set down for a two-day hearing before Justice Judith Kelly in February.
