By Fleur Ramsay, Senior Solicitor, and Cecilia Fonseca, Paralegal, EDO NSW International Program
In a ground-breaking decision, its first, the Solomon Islands Environment Advisory Committee (EAC) has refused development consent for a bauxite mine on Wagina Island.
The mine would have had grave consequences for both the people and the environment of Wagina, taking up 60% of the island, creating unacceptable and irreversible environmental impacts and threatening around 2000 residents who rely on the sea and land for their livelihood.
Over a 10-year period, the International Program of EDO has partnered with the Landowners Advocacy and Legal Support Unit (LALSU) within the Solomon Islands Public Solicitor’s Office (PSO) as part of our capacity building program. The International Program supported LALSU’s historic case before the EAC, representing Mr Tebukewa Mereki on behalf of the people of Wagina.
The island, the people and the mine
In 2013, the people of Wagina were informed that a bauxite mine was planned on their island home. Despite three public consultations on Wagina in early 2013 by the proponent of the mine, it wasn’t until LALSU visited Wagina in September 2013 that the people began to understand the scale of the proposal and the implications for their island, their community and their livelihoods.
Wagina is a small Island at the southeastern end of Choiseul Island with a total land area of 78km2. The mine would have taken up 48km2 (ie. 60%) of the island and involved clearing approximately 2000 hectares of virgin forest. The clearing would have had significant impacts on the local fish, fauna, genetic material and habitat.
The bauxite mining operations would have involved the development of an airport, roads, excavation and trucking of approximately 150 truckloads (of 30-50 tonnes per load) per day, for 20 years. Overall, the mine was expected to produce between 24 billion to 40 billion kilograms of ore body from Wagina over 20 years, with 16 hours per day operation.
For the more than 2000 people who call Wagina home, the mine would have had dramatic and probably irreversible impacts on their livelihoods, including on the ability to access adequate food, shelter and other natural resources. In addition, the people of Wagina would have lost land for gardens and timber and material for crafts and arts.
“Wagina is our life… if they destroy Wagina, we have nowhere else to go”Tebukewa Mereki
Given that Wagina is already under pressure to manage the effects of anthropogenic climate change, including increases in extreme heat waves, extreme rainfall events and higher intensity tropical cyclones, the mine had the potential to exacerbate climate-change related issues such as increased stress on essential environmental resources (ie. water and food).
Significantly, the people of Wagina are originally from Kiribati and were relocated to Wagina by colonial powers in the 1950s – apparently due to ‘overpopulation’ but there have been suggestions that the relocation was related to nuclear testing in the Pacific. Prior to that, in the 1930s, they had been moved from the Southern Gilbert Islands to the Phoenix Islands. The mine risked compounding this historical injustice and dislocation. In the words of the appellant Tebukewa Mereki, “Wagina is our life… if they destroy Wagina, we have nowhere else to go”.
A flawed environmental process
The Solomon Islands Environment Act requires that a specific process be followed in relation to public consultation, an Environmental Impact Statement (EIS) and consistency with international treaties, conventions or regional arrangements to which the Solomon Islands is a party.
One essential aspect of good and proper environmental assessment is public consultation and including affected communities in the decision-making process, particularly in a context where livelihoods are so closely aligned with the environment. The EAC found that the legislative procedures for public consultation were not followed. The public consultation meetings were not advertised in a newspaper printed daily in Solomon Islands. Further, consultations were only undertaken in three communities in Wagina and one community in the larger island of Choiseul and no public consultation was undertaken in the closest community to the mine. Moreover, there was no consultation on the EIS, which was published after the ‘consultation’ was already completed.
The EAC also found that where there was a consultation process, that process was inadequate because a decision had already been made to consent to the mine and the ‘consultation’ was to inform the communities about the impending development. While the EAC did not specifically refer to the principle of free, prior and informed consent enshrined in the UN Declaration on the Rights of Indigenous Peoples (UNDRIP), it found that the issuance of the consent was inconsistent with the rights of indigenous peoples in the context of discussing the consultation process for the mine.
The EAC also found that the EIS did not meet legislative requirements and that “the substance of the EIS fell well below the standards of a respectable EIS”. It noted that a major part of it was a “desktop study” and while field visits were undertaken, “no proper scientific study to inform the EIS was undertaken”. Moreover, the EIS was inconsistent with Solomon Island’s commitments under the Convention on Biological Diversity (CBD), noting that if properly done and all social and environmental safeguards and mitigations are considered, commitments to the CBD in terms of environmental protection and protection of species biodiversity will be fulfilled.
The EAC rejected the argument put by the Director of Environment and Conservation Division that the mine was only small and that the scientific rigour emphasised by the expert witnesses were at Australian or UK standards and do not need to apply in Solomon Islands – that the EIS was thus sufficient, even though limited, to make a decision to approve the mine. The EAC said in response: “The people of Solomon Islands deserve to have the highest standards of scientific rigour applied to any EIS undertaken”.
Access to justice – developing and using accountability and redress mechanisms in public institutions by Pacific peoples
EDO NSW’s International Program works towards developing access to justice in the Pacific with our partners such as LALSU to help Pacific peoples’ voices to be heard on environmental issues. This case is the culmination of over 20 years of hard work, partnership building and collaboration between public interest environmental lawyers, scientists and communities in the region.
While the Environment Act provided for a merits appeal of a decision of the Director of Environment to the EAC, the EAC had never been convened since the Act came into operation in 1998. As an independent merits body composed of experts, with the power to decide again whether to grant or refuse the consent, it offered a process for the people of Wagina to be heard with respect to both the flawed process and the environmental and social impacts of the mine.
LALSU adopted a strategy of seeking a review in the EAC as if it existed (as its establishment was provided for under the Environment Act) and it also filed a judicial review application in the High Court of Solomon Islands, putting pressure on the Department of Environment and Conservation to set up the EAC. Thus, this decision is the first decision of the EAC.
This case perfectly illustrates the importance of merits review for the protection of the environment and the rights of communities and indigenous peoples.
Keeping up the fight
This decision is not only a great outcome for the Wagina community but also for other communities who will have access to the EAC appeal process in Solomon Islands. It confirms the opportunity to have their concerns heard by a panel of experts, ensuring good environmental decision-making and governance.
We expect that private proponents and the Director of the Environment and Conservation Division will use this decision as a guideline for future proposals and decisions and avoid damaging environmental approvals, like this mine.
This decision will help improve the quality of projects proposed for development consent in Solomon Islands, improve the quality of decision making within the Ministry of Environment and in this way improve outcomes for the environment and people of Solomon Islands.
Also, despite a long process to get to this victory, the message for Solomon Island communities is to never give up and continue to assert their rights.
EDO NSW congratulates our partner the LALSU and the Wagina community for this historic victory.
A link to the EAC decision can be found here.
Huge thanks must be extended to all who have worked on this matter within LALSU and EDO NSW since this case started in 2013, LALSU’s pro-bono counsel over the years, Ms Fleur Ramsay, Ms Christine Melis and Mr Trevor Wallwork, and pro-bono experts Dr David Boseto, Dr Sara Beavis, Dr David Hadley and Dr Barry Noller. Also special thanks to Lewis Gordon of Environmental Defender Law Center, Mr David Levin QC of the Victorian Bar, Ms Linda McSpedden, Ms Elaine Johnson, Ms Dianne Mackey, Ms Anna Glasby and Mr Jason Wu for their generous financial support for this case and our work with the PSO.