'Single parties expert witness' in world heritage sandmine case alleged deception? Part 2
We have been in correspondence with the NSW Dept of Environment, Climate Change and Water since a court decision in mid August 2009.
The Land & Environment Court registry advises that their CD tape of the hearing is still unavailable despite a ordering same over a month ago. Something about a backlog.
Here is the second part to troubling material which is a little complex but important because this guy will be giving evidence on mining cases in NSW in the future. All this and more will be shunted off to the NSW Attorney General later today, as suggested should happen by the senior solicitor for Hawkesbury City Council, one of the parties in the litigation. Our role was as pro bono legal agent for two objectors Diamond and Sneddon, backed morally by several peak and local environment groups. If we had the bucks we could have cross examined the 'single parties expert'.
That is, in this jurisdiction the single expert is paramount with no other expert being allowed, though expert evidence can be presented for their comment:
Sent: Wednesday, September 09, 2009 6:00 PM
Subject: Tinda Ck Blue Mtns WHA - evidence of complex deep burial breach
Dear DECC......, ......
Tinda Creek proximate to Blue Mtns WHA, fallout of Birdon v HCC 11133 of 2009 decision of C'er Brown
I refer to correspondence yesterday at point no. 2 re complex facts of failure of miner Birdon to effect deep burial of dangerous dredge fines (14-20m) to date, and maybe forever.
Today we have clarified for ourselves the relevant diagrams in the 1996 consent/approved plans verifying where the obligation for deep burial (14-20metres) of dredge fines specifically arises. Given Birdon as below specifically claim they did 'complete stage 1' by 2002, and admit they have never buried at depth, they effectively admit their own breach.
It appears this illegality regarding deep burial may continue despite the recent approval modification all the way to 2021 by C'er Brown in the LEC recently. The evidence follows:
Picture A above: Approved rehab plan April 1996 with stages 1 to 6 shown, especially stage 1 top left obscured (and see enlarged further below)
Picture B above: Point "F" of the rehab plan schedule at left to "shape ponds". What does this mean for stage 1? Refer next.
Picture C above: Stage 1 in the 1996 approved plans: The ponds are to be shaped as above, and notice especially "CLEAN WATER POND (CWP)". This plan is for ground level, while depth of a CWP follows:
Picture D above: Plan 3 of 3 shows the profile of a 'Clean Water Pond' at 14 to 20 metres depth (crown land from 15.26m).
Note too by former condition 3 and Part B of the 1996 consent (now repealed by the LEC decision) other stages can only follow completion of stage 1. Refer next:
Picture E above - staggered approval in Part B condition of consent in 1996, effectively repealed from August 2009.
Here is the Birdon/Bruce letter with the wrong claim to HCC dated 1st May 2002 that they have 'duly complied with stage 1' despite no burial of dredge fines at depth:
Picture F above: Bruce for Birdon wrongly claims compliance with stage 1 of the development without any burial of dredge fines as required.
We think our analysis above and Birdon's admission to the LEC they have never buried the dredge fines at depth 1996-2009, not only proves a non compliance with 1996 DA conditions all the way to 2009, but also risk of present or likely future breach of [Protection of the Environment Operations] Act: This is because of the likelihood of relatively shallow dredge fines leading to future collapsed dam walls and water pollution incident as per the 1989 $10K court penalty - the original motive for the deep burial given concerns of EPA and HNCMT etc in the mid 90ies.
Regrettably we suspect the effect of the decision by the LEC's C'er Brown (still to see final conditions signed by LEC, available at counter at HCC, and not on web: pers comm 9 Sept 09) is to compress all 6 stages of the original approval into one continuous stage to 2021.
Now we fear the promised safe burial of dredge fines at depth in a final water body now only requires compliance some time approaching the year 2021, and probably never: This timeline follows from a HCC legal document (we obtained off their planning file) re proposed draft consent conditions - deletion of conditions above namely 3 and part B of the 1996 approval, combined with proposed condition 35 granting 25 year period of approval starting from 1996 to 2021, or if 2m t volume exhausts first. That last tonne will never be mined.
We understand some 350,000 tonnes of tailings remain at relatively shallow levels for what is proposed to be a 10 ha final lake water body.
A regulatory debacle? We think so. But perhaps DECC or Dept of Mines can take a constructive role better than HCC in addressing Birdon's failure to bury at depth for the last 13 years and bring some discipline on Birdon for the future?
Please feel free to respond by return email, or tel. 0410 558838.
Tom McLoughlin legal agent objectors in Birdon v HCC 11133 of 2008 (approval by C'er Brown 18 August 2009 with changes to consent conditions)
Posted by editor
at 1:00 PM NZT
Updated: Friday, 9 October 2009 1:06 PM NZT