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Memo from Senat Coutumier to Commission of Inquiry on Goro Nickel Project

Jamie Kneen Communications and Outreach Coordinator responsible for: strategic research, social media, and public engagement; our Africa program, environmental assessment, and uranium mining.

CUSTOMARY SENATE OF NEW CALEDONIA

PRESENTATION REPORT TO THE ATTENTION OF THE HONORABLE MEMBERS OF THE CUSTOMARY SENATE OF NEW CALEDONIA

SUBJECT: Public enquiry concerning the GORO-NICKEL industrial project

ENCLOSED: THE MEMORANDUM OF THE CUSTOMARY SENATE OF NEW CALEDONIA PRESENTED TO MR. JEAN-FRANÇOIS GOURMAND, COMMISSIONER-INVESTIGATOR,
WEDNESDAY, MARCH 6, 2002.

The industrial project of GORO-NICKEL, involving the construction of a commercial plant, has already been the subject of a pre-inquiry that took place from February 4, 2002 to February 19, 2002, inclusively.

The present MEMORANDUM of the Customary Senate of New Caledonia is part of the actual public enquiry itself which takes place from February 20, 2002 to March 6, 2002 and of the review, by the Office of Classified Installations for the Southern Province, of the application, by GORO-NICKEL, for authorization to operate a mineral processing plant for nickel and cobalt.

This enquiry is taking place by virtue of by-law No. 48-2002-PS of the Presidency of the Southern Province.

Beyond the public debate held at the socio-cultural centre of Mont-Doré, Thursday February 21, 2002, from 6 p.m. till 9 p.m., which was attended by representatives of the Customary Senate, the public can also still consult the public enquiry's investigation file at the Office of Classified Installations of the Department of Natural Resources of the Southern Province, and at the town halls of Mont-Doré and Yaté, from Mondays through Fridays, from 8:30 a.m. to 11:30 a.m., and from noon until 3 p.m.

The public can also formulate written observations to the Commissioner-Investigator appointed by the President of the Southern Province, Mr. Jean-François Gourmand.

In this regard, GORO-NICKEL has published a press release concerning the "launching of a public inquiry and of a pre-inquiry into the GORO-NICKEL case", and a public notice about the inquiry was published by de director of natural resources for the Southern Province.

The MEMORANDUM of the Customary Senate will be presented to the Commissioner-Investigator, Mr. Jean-François Gourmand, before March 6, 2002, the imposed deadline.

It puts forward the concerns of the Customary Institutions, in a brief fashion, given the volume of the public enquiry's investigation file (1,800 pages), the short delays imposed for the formulation of scientific reservations, the numerous scientific fields involved, the scarcity or clear lack of available specialists on the territory of New Caledonia and the shortcomings in terms of the structural means and information available to the Institution of the Customary Senate.

In its MEMORANDUM, the Customary Senate laments the absence of authentic legislation with regards to environmental protection, independent of the legislation governing classified installations specifically. It also raises practical issues related to our environment.

MEMORANDUM OF THE CUSTOMARY SENATE OF NEW CALEDONIA

Presented on March 6, 2002

To: Mr. Jean-François Gourmand
Commissioner-Investigator
GORO-NICKEL Industrial Project

PRELIMINARY REMARKS

1) The imposed deadline

Too short. Public enquiry carried out during school holidays and at the start of the new school year in New Caledonia. Given the magnitude of this industrial project, it is unacceptable that the public enquiry (independently of the pre-inquiry) be of such short duration.

2) The voluminous nature of the file.

It is impossible to examine 1,800 pages with the rigor and serenity required in such a short period of time, and when the whole file presented does not even contain all the scientific and technical studies.

3) A coming together of different experts in a case involving so many scientific
specialties should have been foreseen. Instead, norms of tolerance were not determined. The initial state of the flora and fauna was not established in any scientific or precise way.

4) The lack of resources on the part of institutions and competent services in New Caledonia.

5) The questions of the Customary Senate are presented in the following way:

(r) : Remark to contextualize the question in a particular area;

then,

Q? : Question addressed to Mr. Commissioner-Investigator.

***

1/ LEGISLATION AND REGULATIONS CONCERNING ENVIRONMENTAL PROTECTION IN NEW CALEDONIA, INDEPENDENTLY OF THE SYSTEM OF CLASSIFIED INSTALLATIONS.

In the case of the industrial project involving the construction of a commercial plant of considerable importance at GORO, the Customary Senate of New Caledonia has the honour to question Mr. Jean-François Gourmand, the Commissioner-Investigator, on the following points:

A / ON LEGISLATION AND REGULATIONS

1) The system of classified installations.

(r) : The public inquiry for which you have been designated seems to be based on the principle of classified installations.

Question (Q ?) : Wasn't the public inquiry suppose to be ordered on the basis of the global protection of the New Caledonian environment while the system of classified installations only deals with the perimeter occupied by an industrial site installed on a clearly identified area?

(r) : In matters of classified installations, the protection of the environment must normally be ensured by means of particular prescriptions adapted to the various types of exploitation that oblige an entrepreneur to respect certain technical constraints in the way the enterprise can be run.

(Q ?) : In this specific case, the public inquiry is based essentially on the system of classified installations for environmental protection. However, in metropolitan France, isn't the right to exploit an industry or classified activity subordinated, by legislation, to the essential condition that the establishment will have no inconvenient effects on the environment, on agriculture and on the sites?

Other (Q ?) : Will such measures be rigorously opposable to the promoter, without of course being damning for the industrial promoter?

(r) : The opposing interests present (inhabitants/neighbours and industrial promoter).

(Q ?) : Who will be the independent authority in charge of referring between opposite interests?

(r) : An efficient and thorough system of administrative sanctions is required.

(Q ?) : Is this type of sanction system foreseen?

(r) : Initial and complementary measures.

(Q?) : With regards to measures to fight pollution, would it not be appropriate to encourage the setting up, as of today, of a system based on two types of by-laws : the first type consisting of exhaustive and compulsory measures determined at the start of the operations, and others adopted subsequently, according to circumstances, following regular inspections?

(r) : On the system of classified installations.

(Q ?) : Must we recall, over and over again, that the present public inquiry only deals with environmental protection on the site of the industrial plant, and of the mine, and does not incorporate the protection of the global environment of New Caledonia, as well as recalling that, in metropolitan France, classified installations only fall under the first chapter of Volume V of the Environmental Code, Legislative section, which stipulates in five volumes, among others, the procedures and other measures concerning:

- the general principles
- the information and participation of citizens
- the institutions concerned with environmental protection
- the participation of associations for the protection of the environment
- the general tax on polluting activities
- the protection of water and aquatic environments
- special measures with regards to marine waters and seaways opened to maritime navigation
- protection of the air and the atmosphere
- protection, inventory and heightening of the value of the natural heritage
- protection of coastal areas
- protection of waterside villages
- parks and reserves
- registered and classified sites
- protection of the flora and the fauna
- control of chemical products and biocides
- industrial waste
- the protection of living conditions

1) The Environmental Code

a) The legislative part applicable in light of the Jospin ruling.

(r) : In the absence of an authentic Environmental Law applicable in New Caledonia, the Customary Senate of New Caledonia bases its intervention on the French Environmental Code.

(Q ?) : Why is it that the Legislative section of the French Environmental Code did not constitute the reference document with regards to the framework for environmental protection in New Caledonia when the ruling No.2000-914 of September 18, 2000, pertaining to the Legislative section of the Environmental Code (and which modifies certain texts included in the Code), signed by the President of the Republic and the Prime Minister, was deemed applicable in New Caledonia under article 13 of the ruling, and when the so-called Jospin ruling was published in the Official Journal of the French Republic and ratified by the French Parliament on November 15, 2000?

Other (Q ?) : To the extent to which a metropolitan law (in this instance, a set of codified legislative norms) was expressly deemed applicable to New Caledonia, by a specific mention, why was it not made opposable to third parties (and therefore to promoters) by publishing it in the Official Journal of New Caledonia (JONC) as the decree of the Prime Minister (Chirac) and administrative precedents would indicate in matters of application and opposability of metropolitan texts in New Caledonia?

Other (Q ?) : Why did the State not published in the JONC this normative mechanism in the area of environmental protection given the fact that this Environmental Code, and the Jospin ruling, did not fall within the scope of article 90 of the organic law 99-209 of March 19, 1999?

To the extent that the measures of immediate interest to this case did not exist prior to their application, these two texts neither introduced, modified or suppressed any measures specifically applicable to New Caledonia, except by a written statement to the contrary on your part or from competent authorities.

Other (Q ?) : Why is it that in October 1999 the State, competent in matters of environmental protection, and in view of the obvious lack of any local environmental rights, chose through the authority of the High Commissioner of New Caledonia not « to ensure the publication in the Official Journal of New Caledonia » and ensure « the execution of laws and decrees » as stipulated under article 1, paragraph 5 of law 99-210 of March 19 1999?

(r) : The legislative section of the Environmental Code opposable to third parties and other promoters.

(Q ?) : Given that equality is recognized as a principle of constitutional value and as the general principle of law, should we not, as of now, plan for the equal treatment of industrial promoters to the extent that, if the measures contained in the Environmental Code must be rendered opposable, they should apply to all immediately so as not to infringe on other industrial projects promised to New Caledonians?

Other (Q ?) : Are we to expect the implementation of environmental protection norms only after the realization of the GORO-NICKEL project, rendering them opposable uniquely to future industrial promoters and thus creating an effect equivalent to a will to slow down or avoid other industrial projects in New Caledonia?

b) The regulatory section at the discretion, or not, of local communities.

(r) : Since the regulatory section of the Environmental Code applicable in metropolitan France is not applicable in New Caledonia (which is logical within the mechanisms put in place in the Nouméa Accords and in the organic law), the regulatory mechanism is the responsibility of local public authorities, in particular that of New Caledonia and each affected province.

(Q ?) : To the extent that a province, on the basis of common law, has jurisdiction when there exists a "legal void", de facto or fabricated, as we have seen in other places, should we not endeavour to publish the legislative norm usually applicable in order to facilitate the work of the province in the implementation of precise, exhaustive and rigorous regulations bent on ensuring that, administratively, environmental protection is based on the Legislative section of the Environmental Code?

Other (Q ?) : Thus, would it not be easier for the concerned province to regulate on the basis of a solid legislative foundation forged through concrete experiences?

(r) : As outlined by Professor Orfila, of the University of New Caledonia, the entanglement in the attribution of juridical competence and measures, most of them incomplete, fails to bring protection to the New Caledonian environment.

(Q ?) : For all that, must this dereliction serve to justify a general application of the competence of common law in favour of the province in matters of environmental protection, an area of concern for all of New Caledonia and not just a given province?

B / ON THE REGULATION APPLIED TO THE GORO-NICKEL PROJECT

1) About normally competent services.

(r) : Concerning consultation with genuine specialists.

(Q ?) : Through the various state institutions located in Nouméa (IRD, IFREMER, etc.), does New Caledonia possess the specialists (among others oceanographers, hydrologists, etc.) required to inform immediately in a scientific and independent manner?

(r) : The State in New Caledonia

(Q ?) : To the extent that the State is responsible for the investigation of cases that fall within the implementation of the Washington and Oslo Conventions, was the position of official responsible for « environment and international conventions », eliminated in September 1997, re-instituted within the Division of Agriculture, Forests and the Environment (D.A.F.E.) in order to carry out, under the authority of the High-Commissioner, the missions pertaining to the Ministry of the Environment, which would have enabled the State to make its opinion known in the matter?

2) On local regulation.

a) In the absence of a metropolitan legislative framework opposable to third parties (and therefore to promoters).

(r) : The province cannot, by itself, regulate the environment given the fact that New Caledonia is a small island.

(Q ?) : In the absence of global regulation on the environment in New Caledonia, is it enough to rely on provincial regulation which, in this case, strictly deals with the area of classified installations?

Other (Q ?) : Is there a regulatory system governing and sanctioning the loading and unloading of ships?

(r) : On the study of impacts, the public inquiry and the appointment of the Commissioner-Investigator.

(Q ?) : Concerning the study of impacts, should it not have been exhaustive with regards to the analysis of initial conditions of the site and its environment, the study of the modifications that will be brought about by the project, the study of effects on health, and with regards to the measures envisaged to eliminate, reduce and, if possible, compensate for the prejudicial consequences for the environment and health?

(Q ?) : Given the goal of the public inquiry, which was to inform the public, gather comments, suggestions and above all counter-proposals, would it not have been preferable that it be held over a much longer period of time since an inquiry of that nature involves interviewing all the inhabitants of New Caledonia?

(Q ?) : Concerning your nomination as Commissioner-Investigator, would it not have been preferable if the President of the Administrative Tribunal had been responsible for your appointment? Given the scope of the industrial project, would an investigative commission equipped with the proper means, and headed by you as its president, not have been a more appropriate option?

(Q ?) : Normally, isn't a public inquiry (independently of the pre-inquiry as in the present case) suppose to be held over a one month period, minimally?

b) The province-promoter relationship.

(r) The appointment of the Commissioner-Investigator.

(Q ?) : Is it not embarrassing that the Commissioner-Investigator must table his conclusions to the Executive of the provincial collectivity that appointed him?

II / ON QUESTIONS LINKED TO OUR ENVIRONMENT

A / POINTS CONCERNING THE ENVIRONMENTAL PROTECTION ON THE INDUSTRIAL SITE.

Remark related to our Civilization : New Caledonia, Customary Land.

Need to proceed immediately with an ethnological study in all parts of the site.

(Q ?) : Why has GORO-NICKEL, without any authorization to begin extraction, so gravely profaned and violated the sacred sites and taboos of the Kanak Civilization within the perimeter of exploitation?

1) Protection of nature

(r) : Adoption of local decree

(Q ?) : Was the local decree adopted on the basis of the commercial plant or of the pilot plant?

(r) : Mining effluents and industrial waste

(Q ?) : Can the promoter certify that the settling ponds will always remain leakproof, that there will be no spills polluting watercourses and the soft groundwater, and that the tailings facilities and the disposal of effluents will have no impact on nature?

Other (Q ?) : In the case where 3 categories of industrial waste would be involved, has a Special Industrial Dumping Site been planned, and if such is the case, should its location not be indicated on a map?

Other (Q ?) : Have the consequences of sulphuric acid lixiviation been measured?

(r) : Disruptions, or not, in the food chain

(Q ?) : Has there been a specific scientific study of the impacts on plankton which, if contaminated, will pollute the entire food chain, from the fauna to Man?

(r) : Protection of soft groundwater.

(Q ?): With regards to retention in settling ponds or any other risk associated with infrastructure defect (particularly concerning sulphuric acid), has a geodesic study aimed at protecting groundwater been carried out to avoid an ecological disaster?

(r) : Protection of endemic species.

(Q ?) : Has there been a specific scientific study of the impacts on the biodiversity of New Caledonia whose heritage in endemic species (flora) is unique in the world?

Other (Q ?) : What are the norms tolerable for the fauna and flora of New Caledonia?

Other (Q ?) : Why is it that the norm ISO 14000 was not applied in New Caledonia?

Other (Q ?) : Concerning the waste discharged at Base-Vie, how many people will there be on the industrial and exploitation sites?

2) The protection of workers within the industrial and exploitation areas.

(r) : The protection of all employees on the site.

(Q ?) : Is the promoter, GORO-NICKEL, in a position to publish a certified study on the state of health of its employees, particularly those in contact with noxious products?

Other (Q ?): What is the composition of the solvents used and what are the consequences for employees working in contact with or in the vicinity of these products?

(r) : Dams, ports, high tension lines.

(Q ?) : Where are the studies regarding these infrastructure projects?

B / POINTS CONCERNING ENVIRONMENTAL PROTECTION FOR ALL OF NEW CALEDONIA.

REMARK: The pilot plant should have been used to reach scientific conclusions on the global consequences of exploiting a commercial plant of great magnitude, not only on the environment but also on people's health, particularly the workers and inhabitants of the region affected.

1) The protection of the inhabitants of New Caledonia.

(r) : Study of the sociological impacts in the area of health.

(Q ?) : Has there been a genuine scientific study of the sociological and health impacts for the inhabitants, in particular those directly affected in Yaté, but also those from Grand Nouméa? (A priori, of course)

(r) : "Baseline" condition of the population of Yaté-Mont-Doré.

(Q ?) : Is there a beginning of any serious study to identify, by zones or by communes (Yaté in particular, Mont-Doré, Ile-des-Pins, Nouméa) of New Caledonia, the present health condition (baseline condition) of the inhabitants in order to monitor on an ongoing basis whether or not their health is being altered?

(r) : Dioxin discharge at the coal power station.

(Q ?) : Has the quantity and the composition of discharges in the atmosphere been determined by independent specialists?

2) The protection of nature in all of New Caledonia and Oceania.

(r) : Scientific references concerning temperate zones.

(Q ?) : Is it not necessary to publish, as of now, scientific studies of the impacts of this type of project in tropical countries (using the same processes) instead of studies based on data related to temperate countries that, apparently, do not have a diversity of flora and fauna comparable to ours nor the same exceptional endemic wealth?

Other (Q ?) : Have we counted the different species in the existing reserves?

Other (Q ?) : Have the impacts of the industrial project, particularly those related to waste disposal in the ocean, been studied in the light of "La niña" and the "El niño" phenomena?

Other (Q ?) : As of this day, March 5, 2002, have answers been provided concerning the 3 expert evaluations which, according to the promoter, were requested from INERIS / IFREMER / IRD?

Other (Q ?) : Truly, have all the scientific and geo-technical studies been carried out and are there additional information concerning tailing facilities and settling ponds?

Other (Q ?) : Has a system of monitoring (planning monitoring visits, independent personnel, qualified independent experts, sanctions) and protection of the site and of the environment been set up?

Other (Q ?) : Among other means of monitoring, has the setting up of bio-indicators been planned?

Other (Q ?) : Will every citizen, every scientific, and also every association for the protection of the environment, have access to the results of the bio-indicators?

Other (Q ?) : What will happen with liquid effluents?

(r) : Marine pollution

Given that the production capacity of sulphuric acid at the plant will reach 3,500 tons per day, would it not be appropriate to ensure immediately that the surplus produced in Prony will not be sold outside New Caledonia, which would imply its shipping by boats that would be loaded at the port of Prony, that would cross the canal, cruise on our lagoon, pass through our southern channels to reach the high sea, and should a maritime disaster occur, would pour tons of sulphuric acid in our lagoon, thus inevitably polluting the South of New Caledonia?

Other (Q ?) : While it would appear that the POLMAR plan is not entirely efficient in Nouméa, will this plan be applied rigorously, with a firm financial commitment from the promoter, with regards to sea pollution in the whole region of Yaté - Goro - Woodin Channels and of La Havannah - Ouen Island due to the disposal of floating industrial substances in the sea, or in the eventuality of an ecological disaster related, among others, to the eventual maritime shipping of sulphuric acid outside of New Caledonia (even if, at the present moment, this might appear as a mere hypothesis)?

Other (Q ?) : What is the exact concentration of metals in the form of salt contained in the effluents disposed at sea?

Other (Q ?) : What is the exact quality of the disposed substances?

(r) : Local production of sulphuric acid. Acid rains. Port of Prony. Lagoon.

(Q ?) : Are the substances discharged in the atmosphere resulting, notably, from the production of 3,500 tons of sulphuric acid per day, totally safe for all of the inhabitants of New Caledonia, particularly the population of Yaté?

Other (Q ?) : Why is the promoter hoping to produce, at his plant, 3,500 tons of sulphuric acid per day when the exploitation of the commercial plant would only require 1,000 tons of sulphuric acid per day?

Other (Q ?) : Can the promoter give us today the assurance that New Caledonia will never suffer from acid rains?

Other (Q ?) : Is there and will there be some permanent control exercised over the producer of sulphuric acid by a totally independent body?

(r) : Mine effluent disposal at sea (pipe)

Concerning the disposal of mine effluents at sea, through a pipe, would it not be appropriate, independently of the monitoring at the exit of the plant, to especially monitor the situation at the entrance of the pipe?

(r) : Shortcoming of information pertaining to the accumulation of stabilized metals during disposal at sea.

(Q ?) : It would appear that, concerning the toxicity of effluents disposed at sea (through the pipe), the study of impact will be carried out in situ, that is to say in the course of operations of the commercial plant?

Other (Q ?) : Regarding this process of disposal of mining effluents at sea, would it be possible to obtain the results of the impacts on the environment of the island of Cuba where, apparently, an equivalent, or similar, process of disposal at sea has been used?

(N.B. : IRD NC would not have the means, at the moment, to invalidate or validate the chemical nature of the effluents disposed at sea!)

Other (Q ?) : Has an emergency fund been set up to preserve, among others, the environment?

CONCLUSION OF THE CUSTOMARY SENATE OF NEW CALEDONIA

In the case of pollution, in the case of known or serious problems affecting the health of GORO-NICKEL employees but also of the populations of Yaté and of all of New Caledonia, or in the case of an eventual ecological disaster, who will be recognized as RESPONSIBLE and/or GUILTY, without passing the buck or "diluting" that responsibility?

Aware of the economic opportunity that an industrial project such as the one presented by GORO-NICKEL represents for New Caledonia, the Customary Senate of New Caledonia, as an autonomous Institution, CANNOT ACCEPT AND APPROVE THE GORO-NICKEL INDUSTRIAL PROJECT as it has been presented, particularly with regards to the protection of the environment and of the health of the inhabitants of New Caledonia.

Indeed, the multi-disciplinary dossier presented by GORO-NICKEL should be exhaustive and should include comments and opinions from all recognized specialists in the world who have not been able to, or have not yet, tabled their conclusions in each of the scientific and technical areas involved.

The promoter must then support everything he states by producing all the documentation and serious studies and, therefore, accept that the deadline for the public inquiry be longer than planned.

***

For the Customary Senate of New Caledonia,
The President of the Customary Senate of New Caledonia,
Georges MANDAOUE
NOUMEA, March 5, 2002