MAC: Mines and Communities

Justice at last?

Published by MAC on 2006-06-08

Justice at last?

Tribunal Administratif[1], Noumea, New Caledonia.

8th June 2006

The Commissaire du Governement[2] Jean-Paul Briseul at the Noumea Administrative Tribunal called upon his colleague magistrates to pronounce the illegality of the deliberation made by the government of the Southern province granting Goro-Nickel SA licence to operate in Goro, Southern province of New Caledonia, its nickel-cobalt production plant using the hydrometallurgical and solvent extraction process technology.

In a long and severe attack on the Southern province October 9, 2004 act, the Government Commissioner pointed out all the reasons for the court to cancel the deliberation. Amongst these are :

- The people's right to be informed has been violated. The deficiency in providing the proper information to people plus the fact that the information provided was not accessible to people indicate a certain ignorance of the right to participation which is a fundamental right;

- The environmental impact assessment was insufficient is many ways (e.g. manganese impact and the atmospheric emissions (coal burning power plant);

- The principle of precaution has been astray when used to grant derogations to norms or standards that should imposed on the project (e.g; the quantity of manganese allowed to be disposed in the lagoon is 100 times above the international standards on the basis that there is no scientific statement on the dangerousness of such quantity. When the operation will show that such quantity is hazardous to people's health, then the principle of precaution will apply);

- On the contrary, the principle of precaution should have led the Southern province government to refer to international Conventions and as well to European Union norms;

- The Southern province authorities have been hiding behind the lack of environmental legislation to apply in New Caledonia when they should have taken into account French metropolitan environmental laws;

- From the moment no environment law exists in New Caledonia, jurisprudence should have taken the leading role.

- The project impact assessment should have included a social and cultural component as it is developed in a country where an Indigenous people live, and negotiations for a consensus with the indigenous populations should have taken place.

The magistrate presiding the court said that the decision will be made within few weeks as the case is very important and complex. Observers say that the court will take the time to ensure that its decision will give no room to any challenge in the case the Southern province government and/or Goro-Nickel SA would make an appeal to the court's decision.

Few days ago in Paris, the French government refused a demand introduced by Rheebu Nuu's lawyer Jerome Bouquet-Elkaim that the Permanent Court of Arbitration in The Hague mediate the Goro-Nickel case, under the pretext that the case is strictly considered as French internal affairs. But in its answer, Paris also called upon Rheebu Nuu's lawyer to look at the Administrative Tribunal's decision to come.

Commentators say Paris is probably taking distances from the Southern province leadership.

Goro-Nickel SA made no comment, but a member of the management team said all what is happening is consequent to French mining company ERAMET-SLN strategy to re-conquer its control over New Caledonia nickel ore reserve.

Next June 14th will take place the round-table between all parties concerned by the Goro project. Now the questions are: what could Philippe Gomez do to help the mining company to develop its project if once the processing plant being built it has no authorisation to operate ? And what can the mining company say when its executive officers always pretended they would go by the rules?

[1] Tribunal Administratif : is the court which deals with internal French civil service matters.

[2] Commissaire du Gouvernement is one of the magistrates of a Administrative Court. His role is to monitor that the proper laws apply as he is "the guardian of jurisprudence". He works closely with his colleagues but does not seat with them when the Court deliberates.

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