Request for Judicial Review

Dear Mayor Lindsay Brown,

Last week (10/08/2016), the Planning Assessment Commission approved Modification 3, upon which the Dargues gold mine depends. The PAC imposed a couple of token conditions, and otherwise simply agreed with Department of Planning, who in turn have complied with the proponent’s every wish since the original mining application in 2010.

The last three modifications to this mine leave the Land and Environment Court order of 2012 in tatters. The proponent (currently PYBAR) now has license to proceed with operations excess of its original limitations on extraction, waste production, and operational timeframe. The material modifications just approved include the ‘minor’ increase in ore extraction by 33%, the production of an additional 400,000 tonnes of tailings, the tacking of seven years onto the mining license to June 2025 (including a six month bonus from the Department of Planning), the passage of tailings trucks directly over Spring Creek, and the storage of 600,000 tonnes of waste rock on the surface. More significantly, the proponent now has licence to operate with a waste storage methodology explicitly banned by the court, with fewer environmental commitments than at any time since the original exhibition of plans in 2010, and with fewer administrative controls to its own expansion.

With Modification 1, the proponent introduced the use of underground tailings storage (‘paste fill’), as prohibited by the court order. Modification 2 further meddled with its Conditions of Approval to reduce its accountability – for example, with the insertion of the word ‘generally’ before compliance with the Environmental Assessment and Statement of Commitments. Now, with Modification 3, the proponent has withdrawn most of its specific pollution control measures from its Statement of Commitments (which are not addressed by the ‘conditions of approval’ as claimed). They have inserted clauses into their own administrative conditions to make future modifications easier and quieter: ‘With the agreement of the Secretary [any delegate in the Department of Planning], the Proponent may prepare any revised strategy, plan or program without undertaking consultation with all the parties referred to under the relevant condition of this approval,’ (Mod 3 Approval, Schedule 2, Condition 10). The mine as now approved exceeds or circumvents the 2012 Land and Environment Court Order in almost every particular.

The PAC has once again ignored almost unanimous objection from the community members who spoke at the meeting in Braidwood on July 26, and the hundreds more who submitted written objections to Mod 3. Call it ‘standard practice’. The result is that public trust has been betrayed by the state government, and the purity of the Eurobodalla Shire’s primary drinking water source, the Deua River, is now to be compromised for generations. Along with the health of the myriad species from Majors Creek through the Deua National Park, to the Batemans Marine Park.

This mine will produce millions of tonnes of heavy metal slurry (currently 1.6 mt, with foreseeable increase through further modifications). These metals will include carcinogens, neuro toxins, and reproductive toxins, some at hundreds of thousands of times of times Australian Drinking Water Standards. Tailings will be mixed with xanthates – which can be toxic to aquatic life at concentrations as low as 1 milligram per litre. All of which will be stored in a leaking earthern dam or stuffed underground to leach into groundwater, forever.

The Dargues tailings storage facility was designed by Knight Piesold, the same engineering contractor who designed the Mt Polley tailings facility in Canada, which failed catastrophically in August 2014. The fallout was the pollution of vital freshwater systems for hundreds of kilometres through the province of British Columbia. Knight Piesold’s disclaimers are contradicted by both the Mt Polley Independent Expert Review Panel, and the British Columbian Ministry of Energy and Mines – both of which identify foundational failure as the root cause.

Dr Beck of GHD (2015) observes that foundational analyses at Dargues are also inadequate, based on ‘assumed rather than measured soil properties,’ (Mod 3: Submissions on RTS). Other design problems remain in the Dargues TSF as approved, including: (a) obsolescence by current Victorian guidelines (which require a failsafe dam to be constructed below the primary embankment); (b) obsolescence by current NSW guidelines (DSC3F: tailings Dams), which was published more than two years after Knight Piesold submitted its designs; (d) British Columbian (Canadian) guidelines being introduced to completely move away from wet tailings as a result of the Mt Polley spill.

This is all tedium when we come to the simple realisation that no tailings storage facility of any design belongs at the headwaters of a municipal drinking water catchment, national park, organic agricultural projects, and hair-trigger aquatic, avian and mammalian ecosystem.

I call on the Mayor and Councillors of Eurobodalla Shire to initiate a judicial review of the recent PAC approval in the Land and Environment Court. We should settle for nothing less than the mining licence being revoked, and the land accorded a level of protection that prevents any future mining application. Simply imposing or re-inserting conditions is futile, as the proponent will undo them via the (now repealed) Section 75W of the EP&A Act, through which they have expanded thus far. Having seen how the proponent and Department of Planning have meddled with the 2012 Order over the last 3 modifications, the Court should have every reason to assert itself.

This is the last chance to stand in defence of the Eurobodalla shire, and before mining commences, further modifications follow, and mining proliferates with ever-lowered environmental standards. The costs of not appealing could be far greater than neglecting to do so. Human health and environment aside, the entire economy of the Shire – from agriculture in the Araluen Valley, to the ‘unspoilt’ South Coast tourism drive, to property value in the region – depends on clean freshwater and the reputation of its purity.

Thank you,

Tom Wells

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