This page is still under construction. Most of the links
are here but the story hasn't been fleshed out yet. Please be patient -
there's been a lot going on! - and do feel free to explore the fragments
that are here. It's all one big story.
This page will form the launching pad for an exploration of the scientific uncertainty that plagues the Costerfield Operations. Time and time again, the regulators have approved infrastructure and developmental additions to the site, in apparent willful ignorance of their obligations.
This page will form the launching pad for an exploration of the scientific uncertainty that plagues the Costerfield Operations. Time and time again, the regulators have approved infrastructure and developmental additions to the site, in apparent willful ignorance of their obligations.
It will examine, too, Bendigo Council's emphasis
on assessing particular applications "on their own merits", divorced
from their true developmental context; in isolation. Against its Charter.
Despite having had its attention drawn to its
obligations under Australian law, Council has repeatedly failed to give due, or
in fact any consideration
to the threat of irreversible environmental damage posed by the incremental and cumulative effects of this mining operation, and has instead persisted
in viewing each application and supplementation in isolation.
We note here that some Bendigo Councillors have
been vocal in expressing their concerns - the same concerns we hold -
regarding the unexamined incremental expansion of this mine. Councillor Peter
Cox has been especially strident in this regard and
most recently raised the issue of the lack of best practice at
the Brunswick and Bombay Dams.
And he has borne the brunt of freely expressing opinions that may not be welcomed by the operators of mines in the Bendigo region. Fortunately, democracy prevailed. This time.
And he has borne the brunt of freely expressing opinions that may not be welcomed by the operators of mines in the Bendigo region. Fortunately, democracy prevailed. This time.
(We also note the disturbing priorities attributed to Councillor Helen Leach in this article: "while there were health concerns, without the expansion, the mine would cease to exist".
Seriously… thanks so much for prioritising mine expansion over our
health, Helen!
Councillor Leach currently sits as Chair of the ERC at Costerfield. That's her on the far right.
And that's Cr Elise Chapman on the left. It is Cr Chapman who asked why we didn't just sell our land to the mine and move elsewhere.She appreciated the emails and posts regarding the mine and its activities but thinks they are too long because Councillors have a lot to read...
Mandalay was keen to announce its purchase of an automated mine in Sweden at the last ERC Meeting. That should have given people much to think about regarding just where social responsibility via regional employment sits on the mine's list of priorities. It should have anyway. It is a disarmingly honest announcement.)
Councillor Leach currently sits as Chair of the ERC at Costerfield. That's her on the far right.
And that's Cr Elise Chapman on the left. It is Cr Chapman who asked why we didn't just sell our land to the mine and move elsewhere.She appreciated the emails and posts regarding the mine and its activities but thinks they are too long because Councillors have a lot to read...
Mandalay was keen to announce its purchase of an automated mine in Sweden at the last ERC Meeting. That should have given people much to think about regarding just where social responsibility via regional employment sits on the mine's list of priorities. It should have anyway. It is a disarmingly honest announcement.)
The decision-making has become just
too hard for Council, so it has left it to others to deal with.
***
The Precautionary Principle
The
precautionary principle attempts to apply the recognition of scientific
reasoning and uncertainty as a tool in the service of public policy.
Australia and its State and Local Government Authorities are bound (under the Intergovernmental Agreement on the Environment 1992) to abide by particular obligations when assessing the environmental impact of development, with the aim being to produce a system of ecologically sustainable development (ESD). One such obligation is, given the appropriate circumstances, the application of the precautionary principle which underlies the Rio Declaration on Environment and Development 1992 to which Australia is a signatory and which states that,
Australia and its State and Local Government Authorities are bound (under the Intergovernmental Agreement on the Environment 1992) to abide by particular obligations when assessing the environmental impact of development, with the aim being to produce a system of ecologically sustainable development (ESD). One such obligation is, given the appropriate circumstances, the application of the precautionary principle which underlies the Rio Declaration on Environment and Development 1992 to which Australia is a signatory and which states that,
In order to protect the environment, the precautionary
principle shall be widely applied by [signatory] States according to their
capabilities. Where there are threats of serious or irreversible damage, lack
of scientific certainty shall not be used as reason for postponing
cost-effective measures to prevent environmental degradation.
The
precautionary principle has been further defined in Australian law by amendment
to the Protection of the Environment Administration Act 1991
(NSW) as follows:
If there are threats of serious or irreversible environmental
damage, lack of full scientific certainty should not be used as a reason for
postponing measures to prevent environmental degradation.
In the application of the precautionary principle,
public and private decisions should be guided by:
(i) careful evaluation to
avoid, wherever practicable, serious or irreversible damage to the
environment; and
(ii) an assessment of the
risk-weighted consequence of various options.
The principle was added to the Victorian Environment
Protection Act 1970 in 2001 as Clause 1C using almost exactly the same
wording as that noted above. The Department of Environment and Primary
Industries also operates
under its auspices.
The same formulation is to be found in the Ministerial guidelines for assessment of
environmental effects under the Environment Effects Act 1978, that
would serve to trigger and Environmental Effects Statement; an EES.
The most recent and thorough examination of the
"operationalising", as it is there termed, of the precautionary
principle in Australian planning and development law has been provided by the Hon.
Justice Stephen Estcourt of the Supreme Court of Tasmania in an address to the Australian Conference of Planning and Environment Courts and Tribunals.
According to Estcourt J's 2014 address:
The precautionary principle was canvassed in considerable
detail by Preston CJ in his decision in Telstra Corporation Ltd v Hornsby Shire Council. That decision is widely regarded as
containing the most extensive judicial analysis of the principle of ESD and the
precautionary principle in Australia…. Osborn J respectfully adopted the
analysis of Preston CJ and accepted his Honour's fundamental conclusion, which
was as follows:
"The application of the precautionary principle and the concomitant need to take precautionary measures is triggered by the satisfaction of two conditions precedent or thresholds: a threat of serious or irreversible environmental damage and scientific uncertainty as to the environmental damage. These conditions or thresholds are cumulative. Once both of these conditions or thresholds are satisfied, a precautionary measure may be taken to avert the anticipated threat of environmental damage, but it should be proportionate.
"The application of the precautionary principle and the concomitant need to take precautionary measures is triggered by the satisfaction of two conditions precedent or thresholds: a threat of serious or irreversible environmental damage and scientific uncertainty as to the environmental damage. These conditions or thresholds are cumulative. Once both of these conditions or thresholds are satisfied, a precautionary measure may be taken to avert the anticipated threat of environmental damage, but it should be proportionate.
"The precautionary principle is now of course ubiquitous, permeating a myriad of Commonwealth and State and Territory statutes, planning schemes and ordinances and government policies. Such policies, as they affect the Australian coast, involving as they do, a consideration of the science of climate change, provide a convenient focus for examining the progress since 1992 in the "operationalisation" of the precautionary principle."
***
The consideration of cumulative effects by Preston CJ in Telstra vs Hornsby City Council 1996 in
relation to the ‘threat of serious or irreversible damage’ and referred to in
the above is as follows:
Threats to the environment include direct and
indirect threats, secondary and long-term threats and the incremental or
cumulative impacts of multiple or repeated actions or decisions. Some of these
threats are capable of interacting and so should never be considered in
isolation; they should be looked at in terms of their cumulative impact.
These would seem to be quite important pieces of knowledge for those responsible for the approval of potentially damaging development applications to get their heads around.
Yet it seems that many regulatory authorities are still to make the precautionary principle's acquaintance.
Prior to our 2013 submission of objection to the City of Greater Bendigo Council regarding the Splitters Creek Evaporative Facility, we - the objectors - were actually asked by the then-Mayor, Councillor Lisa Ruffell, to provide a summary of this vital piece of legislation for her own benefit and for those Council members who had not heard of it before. [!!!]
This we did, but should we have had to?
These would seem to be quite important pieces of knowledge for those responsible for the approval of potentially damaging development applications to get their heads around.
Yet it seems that many regulatory authorities are still to make the precautionary principle's acquaintance.
Prior to our 2013 submission of objection to the City of Greater Bendigo Council regarding the Splitters Creek Evaporative Facility, we - the objectors - were actually asked by the then-Mayor, Councillor Lisa Ruffell, to provide a summary of this vital piece of legislation for her own benefit and for those Council members who had not heard of it before. [!!!]
This we did, but should we have had to?
How
is it possible that the members of the regulatory authority charged with the
responsibility of final sign-off on potentially environmentally damaging
planning applications, can be so ignorant of the underlying principles
governing planning in Australia that they must be educated by the objectors?
***
In its decision to approve the Splitters Creek Evaporation Facility (7MB pdf here - Splitters Creek begins on page 30), Council made reference [and even then they couldn't get the correct wording]
to the objectors' raising of the issue of the precautionary principle's
application to the cumulative development taking place at Costerfield, in this
way:
Other
- Accumulative [sic: read 'cumulative'] impact of evaporation ponds - more planned
The applicant has indicated that further
groundwater capacity may be required depending on future inflows of groundwater
and whether other disposal methods such as treatment through reverse osmosis
and then disposal can be implemented.
However the current application must be assessed
on its merits.
That's it. No discussion, no nothing. And it's
just an "Other" thing.
What about these "cumulative impacts"?
What about these "cumulative impacts"?
Here is a copy of our 30-page submission of objection.
Direct reference to the Rio Declaration 1992 in the objectors' submissions is similarly dismissed, this time as someone else's job:
Direct reference to the Rio Declaration 1992 in the objectors' submissions is similarly dismissed, this time as someone else's job:
Principle 15 [of the Declaration] states that:
"In order to protect the environment, the precautionary approach shall be
widely applied by States according to their capabilities. Where there are
threats of serious or irreversible damage, lack of full scientific certainty
shall not be used as a reason for postponing cost-effective measure to prevent
environmental degradation".
Principle 15 has been incorporated into the
Environment Protection Act 1970 (Clause 1C) which is administered by EPA
Victoria. It requires that decision making be guided by
- A careful evaluation to avoid serious and irreversible damage to the environment where practicable an
- An assessment of the risk-weighted consequences of various options.
EPA Victoria, whose decision-making is bound by
this Act has offered no objection to the proposal and provide advice to the
city to assist the assessment and drafting of the conditions.
That's it there, too. It's the EPA's job.
Council don't even say if they've asked the EPA about
this specific application!
[And the Environment Protection Authority has already fallen prey to regulatory capture in Costerfield. They have subsequently approved the spraying of toxic water along the road reserve adjoining Crown Land that killed native vegetation. They have approved the trucking of vast quantities of toxic mine waste along a public road to be dumped, ahem. discharged into a disused open cut pit adjacent to residential areas in a country town whose geology they were ignorant of in order to assist a mining company in its waste disposal measures. And they did these things and more without due examination of the conditions or the risks.
The EPA appointed - as a supposedly INDEPENDENT auditor - Mr Joseph Duran, who works for URS, the mining company's preferred consultancy firm and who was one of Mandalay Resources' expert witnesses at the VCAT hearing. This despite specific comments in the Tribunal's Decision referencing the precautionary principle and requiring the "appointment of an independent auditor" to verify the design of the facility and provide "independent oversight" of its construction, rather than relying on those who provided evidence "on behalf of the developers".
Mr Joseph Duran presented evidence to VCAT "on behalf of the developers".
The question: How did this happen?
The answer: Regulatory capture.]
[And the Environment Protection Authority has already fallen prey to regulatory capture in Costerfield. They have subsequently approved the spraying of toxic water along the road reserve adjoining Crown Land that killed native vegetation. They have approved the trucking of vast quantities of toxic mine waste along a public road to be dumped, ahem. discharged into a disused open cut pit adjacent to residential areas in a country town whose geology they were ignorant of in order to assist a mining company in its waste disposal measures. And they did these things and more without due examination of the conditions or the risks.
The EPA appointed - as a supposedly INDEPENDENT auditor - Mr Joseph Duran, who works for URS, the mining company's preferred consultancy firm and who was one of Mandalay Resources' expert witnesses at the VCAT hearing. This despite specific comments in the Tribunal's Decision referencing the precautionary principle and requiring the "appointment of an independent auditor" to verify the design of the facility and provide "independent oversight" of its construction, rather than relying on those who provided evidence "on behalf of the developers".
Mr Joseph Duran presented evidence to VCAT "on behalf of the developers".
The question: How did this happen?
The answer: Regulatory capture.]
The precautionary principle an internationally formulated and confirmed prescription guiding ecologically sustainable development, sourced from a treaty to which Australia is a signatory, a principle that underlies the planning and development approval process of which this Council forms the final phase… and yet this body of elected representatives flatly refused to even consider any of its provisions and instead handballed the responsibility to someone else.
It's just not good enough Councillors. You need to educate yourselves
on these issues.
This laxity on the part of Council
produces the sort of thinking that entrenches the decision making of the following, inadequate variety,
also from the CoGB Splitters Creek Approval:
The Woodvale Evaporative Facility was approved
and constructed in the late 1980s following Ministerial assessment of an
Environmental Effects Statement (EES) in 1989. A condition of the approval was
that it be built to departmental standards applying at the time. The required
permeability rate was 1 x 10-8
m/sec the current DSDBI standard.
It's a bit difficult to understand that last
sentence, but it looks like they are trying to tell us that everything's okay at Costerfield because it's being built to the DSDBI standards that produced Woodvale.
Standards from 1989... surely they aren't suggesting we should be satisfied with standards that are 25 years old...
Standards from 1989... surely they aren't suggesting we should be satisfied with standards that are 25 years old...
Woodvale is not exactly something mining regulators
can brag about.
Perhaps we are mistaken in our reading of that last sentence. In any case, the DSDBI standards cited are still a decade old, for
goodness' sake!
That is, even though the objectors had raised the
not-exactly-ideal-evaporative-facility at Woodvale to inform their objection,
they are, it would seem, supposed to be reassured by Council that such a
situation will be averted in Costerfield because Council is going to do exactly the same thing
it did back in the "late 1980s": assess applications on their
individual merits rather than applying the precautionary principle.
And so Council leaves it in EPA's hands, who pass the buck to DSDBI to apply environmental considerations to the site.
And we've seen where that has led us.
It is as if the Precautionary Principle only
exists for Victorian regulators in theory; when it exists for them at all.
This decision by Council regarding Splitters
Creek was obviously not satisfactory to the residents who had objected. They
appealed the decision at the Victorian Civil and Administrative Tribunal
(VCAT).
Unlike Council,
the Tribunal Members took the objectors' raising of the precautionary principle very seriously
indeed. Here is their summation of the applicability of the principle to
Splitters Creek (from page 12 of their Decision):
Precautionary principle
- The applicants, in their submissions remind us of the precautionary principle and urged caution upon us, particularly in relation to the possibility of detriment to what is already poor quality ground water. They refer to a statement of the principle from the Intergovernmental Agreement on the Environment, clause 3.5.1, referred to in clause 12 of the Greater Bendigo Planning Scheme in the following terms:
Where there are threats of serious or
irreversible environmental damage, lack of full scientific certainty should not
be used as a reason for postponing measures to prevent environmental
degradation. In the application of the precautionary principle, public and
private decisions should be guided by:
- careful evaluation to avoid, wherever practicable, serious or irreversible damage to the environment; and
- an assessment of the risk height and weighted consequences of various options.
- They referred us to the decision of Obsorn J in Western Water v Rozen where he observed:
The fundamental thrust of this principle is
well understood. In Leatch v National Parks and
Wildlife Service [(1993) 81 LGERA 270], Stein J said of it:
“The precautionary principle is a statement of common sense
and has already been applied by decision-makers in appropriate circumstances
prior to the principle being spelt out. It is directed towards the prevention
of serious and irreversible harm to the environment in situations of scientific
uncertainty. Its premise is that where uncertainty or ignorance exist
concerning the nature or scope of environmental harm (whether this follows from
policies, decisions or activities), decision-makers should be cautious.”
- In their final sentence on this topic, the applicants urged caution in the following terms:
It [the Tribunal] should be cautious in
making its decision, but proportionately with the risks involved.
In so saying they refer to Rozen’s
case and Telstra Corporation Ltd v
Thornsby SC, which they had previously cited in association with Leatch’s case.
- Of course, the precautionary principle does not mean that nothing can ever be done for fear of some unforeseen consequence. The applicants are correct in urging appropriate caution having regard to the circumstances. After paying true regard to the precautionary principle, we judge that appropriate precautions that can and should be imposed in relation to this proposal, and in particular, in relation to the possibility of escape of concentrated ground water. Suitably cautious and conservative arrangements are feasible and should be imposed. The specifications for clay liners and for the synthetic liners in relation to the storage dam clearly answer this description. [Emphasis added.]
***
The full decision handed down by the Tribunal Members
ordered that a further
29 Conditions, comprising dozens of sub-conditions, be imposed above and beyond the original Application
requirements.
How was it possible that the regulatory authorities overlooked this many avenues of improvement of the originally submitted Application?
The VCAT Members referred specifically to the permeability requirements they imposed for the storage dam as being a reflection of their "paying true regard to the precautionary principle" with respect to proportionate caution and practicability/feasibility.
How did this slip past the notice of those regulators who had previously assessed the Application for the Splitters Creek Evaporative Facility?
How was it possible that the regulatory authorities overlooked this many avenues of improvement of the originally submitted Application?
The VCAT Members referred specifically to the permeability requirements they imposed for the storage dam as being a reflection of their "paying true regard to the precautionary principle" with respect to proportionate caution and practicability/feasibility.
How did this slip past the notice of those regulators who had previously assessed the Application for the Splitters Creek Evaporative Facility?
The Mayor of Bendigo actually asked objectors for details of
the principle which were then placed before Council prior to its
considerations. A full explanation of Council's obligations under international
treaties was given in the objections of the residents. Details of the
"triggers" with respect to the "threat of irreversible
environmental damage" and "cumulative impacts" were provided. They ignored it.
How does Council justify its
position regarding Splitters Creek in light of the precautionary principle's
subsequent application by VCAT and Council's own eschewing of its
responsibilities under the Intergovernmental Agreement on the
Environment 1992?
EPA…
DPI/DSE/DEPI/DNRE…
G-MW…
City of Greater Bendigo…
We have shown that this principle underlies the
legislation governing all of these regulatory authorities' actions.
Why did none of these regulators see fit to even consider, let alone, apply the precautionary conditions that the VCAT Members decided to impose to mitigate the possibility of "irreversible environmental damage" in Costerfield?
Why did none of these regulators see fit to even consider, let alone, apply the precautionary conditions that the VCAT Members decided to impose to mitigate the possibility of "irreversible environmental damage" in Costerfield?
What makes the matter even more ludicrous is the fact that because of the undermining of the conditions governing permeability of evaporative facilities in 2008, all that VCAT was really able to accomplish was…
The reinstatement of permeability requirements that had been a condition of the Mining Permit eight years before!
In fact, as we have shown elsewhere, the requirements imposed by VCAT as "suitably cautious" were, in fact, the very conditions that had been mandated in the Permits for mining - both open-pit and underground - when operations commenced in Costerfield over a decade previous…
In fact, as we have shown elsewhere, the requirements imposed by VCAT as "suitably cautious" were, in fact, the very conditions that had been mandated in the Permits for mining - both open-pit and underground - when operations commenced in Costerfield over a decade previous…
… but that were inexplicably and without
comment or justification, undermined by regulators to the point where permeability requirements in
Costerfield fell below those requirements for similar evaporative facilities in
other states.
***
The vulnerability of Council's decisions due to their ignorance of matters of fundamental import regarding planning applications, seems to have been exposed by its decision in the Splitters Creek Evaporative Facility application.
When a subsequent (we would say consequent, as these
developments cannot be viewed in isolation) application was received
regarding increased infrastructure at the ever-expanding mine, Council appears
to have been at a loss as to what to do. Residents emailed each Councillor a
copy of the VCAT decision regarding Splitters Creek to assist their education
in matters of evaporative facilities.
But when it couldn't make a decision on what to do, ignorance prevailed and Council did not make any decision at all.
And by so doing, Council subverted a democratically-assured right to objection during the Planning process (are you listening Cr Cox?) and effectively stripped the citizens of Bendigo of their right to have their arguments heard, against a Planning proposal that they believed posed potential health impacts for their community, in their community.
Only by accessing the VCAT process - a process that is very expensive, time-consuming and charged with formalities that make it intimidating to the public, but a place of relative familiarity to the lawyers who represent large companies, such as mines - could ratepayers and voters in Bendigo voice their reservations about the raising of the walls of the Bombay Dam.
But when it couldn't make a decision on what to do, ignorance prevailed and Council did not make any decision at all.
And by so doing, Council subverted a democratically-assured right to objection during the Planning process (are you listening Cr Cox?) and effectively stripped the citizens of Bendigo of their right to have their arguments heard, against a Planning proposal that they believed posed potential health impacts for their community, in their community.
Only by accessing the VCAT process - a process that is very expensive, time-consuming and charged with formalities that make it intimidating to the public, but a place of relative familiarity to the lawyers who represent large companies, such as mines - could ratepayers and voters in Bendigo voice their reservations about the raising of the walls of the Bombay Dam.
The previous VCAT decision for Splitters Creek should have informed
subsequent Planning not just in Costerfield, but throughout Bendigo.
Why did it
not?
Because Council relinquished responsibility for the decision - a responsibility that forms part of the duties which Councillors were elected to fulfill - and allowed others to impose the conditions in its stead...
Some of those conditions concerned potential health impacts... DSDBI? EPA? Health?
Some of those conditions concerned potential health impacts... DSDBI? EPA? Health?
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