Phosphate Resources Ltd ACN 009 396 543 Supplementary Submission (EPBC 2001/487) Christmas Island 31 March 2009 Contents Supplementary Submission Appendices 1. Notes on Applicable Law for the Minister 2. Key Technical Issues 2A. Critique of Mattiske Report 2B. Critique of Environment Assessment Report 2C. Species Survey 2009 3. Review of the Environmental Impact Assessment of the Bat Fauna on Proposed Mining Leases on Eastern Christmas Island 4. Overview of the Eight Leases 5. Assessment of Minesite Revegetation Activities by Christmas Island Phosphates 6. Topsoil Estimates Available for Rehabilitation 7. Potential Conservation and Ecologically Sustainable Development Opportunities 8. PRL Audited Half-year Accounts to 31 December 2008 9. Resource Estimate Eight Leases 10. The Economic Impact of Christmas Island Phosphates i Supplementary Submission A Proposal by Phosphate Resources Ltd East Christmas Island Phosphate Mines (Amended to Eight Sites) Christmas Island (EPBC 2001/487) ii Supplementary Submission A Proposal by Phosphate Resources Ltd East Christmas Island Phosphate Mines (Amended to Eight Sites) Christmas Island (EPBC 2001/487) 31 March 2009 This page intentionally left blank. Supplementary Submission A Proposal by Phosphate Resources Ltd East Christmas Island Phosphate Mines (Amended to Eight Sites) Christmas Island (EPBC 2001/487) Preface The submissions in this supplementary document and accompanying appendices modify, amend, update and supplement the submissions contained in the original Environmental Impact Study and ancillary submissions fi nalised and lodged on 29 December 2006. Unless otherwise specifi cally provided, in the event of any inconsistency being identifi ed between the two sets of submissions, the material contained in the supplementary document and accompanying appendices shall be deemed to prevail. Background and law His Honour Justice Buchanan by his decision of 13 October 2008 set aside in its entirety the decision of the Honourable Malcolm Turnbull on 27 April 2007 to refuse the application by Phosphate Resources Ltd ( PRL) to conduct the action of phosphate mining operations on eight areas of Christmas Island comprising some 256 hectares. The decision by the then Minister refused the application on grounds of a likely signifi cant impact on listed threatened species (ss 18 and 18A of the Environment Preservation and Biodiversity Conservation Act 1999 (EPBC Act), listed migratory species (ss 20 and 20A) and the environment where the action is on Commonwealth land (ss 26 and 27A), wetlands of international importance (ss 16 and 17B), and Commonwealth marine areas (ss 23 and 24A), but it was conceded by the Commonwealth before His Honour Justice Buchanan that “to the extent that the decision was stated to have eff ect for ss 16/17B and 23/24A it could not be sustained.” (See Para 27)1. Phosphate Resources Limited (PRL) has proceeded in this supplementary submission on the basis that the Commonwealth and its offi cers do not intend to resile from this position. The current Minister is required to consider the matter in its entirety again in accordance with the legislation (EPBC Act) as it stood before amendments eff ected by the Environment and Heritage Legislation Amendment Act (No 1) 2006 excepting that the amendments made to s134 of the EPBC Act (conditions of approval) apply to this application. The Minister must consider whether the proposed actions will have a signifi cant impact on listed threatened species (ss 18 and 18A of the EPBC Act); listed migratory species (ss 20 and 20A), and the environment, where the action is on Commonwealth land (ss 26 and 27A) in respect of each of the eight areas the subject of the application. The Minister must consider relevant impacts (which may include improvements to the environment for listed threatened species, listed migratory species and the environment resulting from action funded by revenue from the action) and the Minister must consider social and economic matters. The Minister may also attach conditions to an approval requiring specifi c activities to be undertaken for the protection of or for repairing or mitigating damage to a protected matter (whether or not the damage may be caused by the action): s.134(1), (3)(aa), (Appendix 1). Inherent in this application is a direct negation of the conclusions of the Government’s original Environmental Assessment Report (EAR). 1. Phosphate Resources Ltd v Minister for the Environment, Heritage and the Arts ( No.2) [2008] FCA1521 1 Supplementary Submission A Proposal by Phosphate Resources Ltd East Christmas Island Phosphate Mines (Amended to Eight Sites) Christmas Island (EPBC 2001/487) The EAR found that the isolated and unique nature of the Christmas Island environment, the impacts on biodiversity through previous mining, and the evidence that various species and ecosystems are already under signifi cant stress meant that it would be in the interests of the island’s biological diversity and ecological integrity that the proposal does not proceed. The proponent acknowledges that Christmas Island is unique and its ecosystem is currently under signifi cant stress. However, the proponent contends that there is no evidence that current mining operations are responsible for what appears to be a signifi cant decline in the general island ecosystem from the mid-1990s - several years after the cessation in the mid-1980s of any clearing of primary forest. There is no evidence that the proposal will contribute to current processes which are aff ecting the island’s ecosystems or have a signifi cant impact on any species. To the contrary, the proponent maintains that the commitments outlined below will make a major contribution to ameliorating, if not stabilising, the current decline of the island’s ecosystems. The broad scope of the application, especially in relation to the principles of inter-generational equity and environmental sustainability inherent in the proposal to create a trust fund for environmental and ecologically sustainable development projects, suggests that the Minister should consult widely among his ministerial colleagues in the context of his obligations under ss 131 (1) (a) and 136(2)(f) of the EPBC Act. Indeed, given the relevance of the application to the fundamental economic and social future of the island, we consider that it would be prudent to seek the views of the Ministers for Resources and Tourism, Home Aff airs, Regional Development, Defence, Employment and Workplace Relations, Immigration and Citizenship and Finance. The Statement of Reasons purported2 to have been the basis of the then Minister’s April 2007 decision was, in our submission, based essentially on unfounded assertions contained in the assessment report provided by his department (EAR). This report in large part was based on an “independent review” of the Environmental Impact Statement (EIS) prepared for it by Mattiske Consulting Pty Ltd (Mattiske) which in turn was largely based on unsupported assertions ignoring the material published in the EIS. Phosphate Resources Ltd advises that the technical advice that consequently purported to inform the Minister’s decision was inaccurate, misrepresented the proposal and its environmental impacts, and discounted environmental mitigations and off sets that would contribute to the longer-term protection of the island’s unique fl ora and fauna. Listed species A full review and response to the key technical issues in the assessment of the original EIS is set out in Appendix 2 - Response to Key Technical Issues and the accompanying Critiques of the Mattiske Report - Appendix 2A, and the EAR - Appendix 2B. They substantiate the actual position and document why it is unsafe to rely on the mix of personal opinion and unsubstantiated fi ndings in Mattiske and the EAR. Appendix 2C contains a 2009 species survey on the eight areas. Some of the key issues which are of concern to the proponent and detailed in Appendices 2, 2A, 2B and 2C are set out briefl y hereunder. 2. “... the Minister’s adoption of the explanation six weeks or so after the decision was made, does not establish that they were his reasons at that time.” : BUCHANAN J in Phosphate Resources Ltd v Minister for the Environment, Heritage and the Arts (No.2) [2008] FCA1521 at Paragraph 131. 2 Supplementary Submission A Proposal by Phosphate Resources Ltd East Christmas Island Phosphate Mines (Amended to Eight Sites) Christmas Island (EPBC 2001/487) 1. Listed threatened fl ora Christmas Island has three plant species that are listed under the EPBC Act. Two of these species occur on, or close to, individual leases proposed for mining. (a) These comprise a single individual of Asplenium listerii found on exposed limestone adjacent to MCI 70/12. The overall impact of the proposed mining activities on the one individual Asplenium listeri adjacent to MCI 70/12 was assessed as unlikely, as the fern is located on an elevated, exposed limestone cliff upwind of the proposed activities. In addition, because the species is a lithophyte, the EIS proposed to protect the microclimate of the area by a 50 metre buff er of native vegetation. The isolated location of the species and the proposed protective buff er were not taken into account nor assessed by the EAR and Mattiske. and (b) A single individual of Tectaria devexa var. minor was found by the proponent on MCI 70/8 in 2002 and it has been asserted by Parks Australia without any documented substantiation of their location, (despite repeated requests by the proponent for same), that a small population of Tectaria devexa var. minor exists in MCI 70/8. During a reconnaissance survey in February 2009 the proponent was unable to fi nd the single plant recorded in 2002. There are approximately 400 individual T. devaxa on the island of which 97% are protected in the national park. The 2002 Island Survey recommends the species’ conservation status be changed from “endangered” to “rare”. An island-wide assessment of the species was not undertaken in the EAR nor by Mattiske.