Rosebery Mine – Heavy Metal Effects on Residents due to Heavy Metal Toxicity

‘Due Diligence’ Seems Lacking

I believe there is not only an obligation of ‘due diligence’ by the Tasmanian Government Regulatory Authorities (Environment Protection Authority, Health etc) but also on the subject mining company(s) to implement proven measures to clean and detoxify the polluted airstream arising from the process of mining/transporting toxic heavy metals. Such measures would be consistent with the Precautionary Principles.

The apparent failure to date is for a Court of Law to determine proof of alleged collusion in bureaucratic/corporate failure to exercise such duty-of-care, skill and foresight that would be expected of the respective Regulatory Authorities and a responsible mining company.

Proof of such alleged failure by these bureaucratic/mining stakeholders implies a deliberate intention to discharge untreated toxic waste, knowing it has the potential to harm or be likely to harm the environment, including not one or two persons but those most at risk in a community who are described in bureaucratic terms as the “most affected receptors” i.e., not human beings but ‘receptors’. A person or organization may be liable for breach of a statute or a breach of a Common Law duty of care.

Generally the pollution statutes create obligations such as:

• Not to pollute unless a licence is held;
• Comply with conditions of the licence;
• Not to alter pollution control equipment without approval.

Surely when the relevant Government Minister gave approval of the subject mining company’s activities all of these aspects were embodied in the ‘Conditions’ and in the ‘Contract’ signed by the subject Mining Company and the respective Tas. Regulatory Authority(s).

Now is for a Court to determine whether the stakeholders, to date, have not exercised ‘due diligence’ by knowingly and negligently allowing the discharge of toxic heavy-metal
waste in a manner likely to cause harm with potential for litigation. I understand that a defence of ‘due diligence’ is established if the stakeholders commission the offence due to causes over which they had no control; and that they took reasonable precautions and exercised due diligence to prevent the offence. To date, it seems, no such defence is evident.

Nor was there any evidence that these senior representative stakeholders were at all interested in the proven practical cost-effective measures which may be taken to prevent, control, abate or mitigate harm caused by the discharge of toxic heavy-metal pollutants into the local inhabited precincts.

Surely these allegations of the potential by the bureaucratic/corporate stakeholders to breach the Act and who have already foreseen the potential for harm as well as provoke litigation should be tested in a Court of Law.

Ray Kearney OAM, PhD

19. 11.13
Dr Ray Kearney OAM