Tuesday, 19 March 2013

Sibelco on trial

On 1 March, 2013 a Brisbane Magistrate ordered that Stradbroke miner Sibelco Australia Limited pay the State’s Environment Department an unprecedented $254,687.00 in legal costs. What’s it all about?

Sibelco is being prosecuted for two criminal offences for unlawfully removing Stradbroke island sand from the island and selling it for landscaping and other purposes without Redland Council approval.

The legal costs were incurred by the government department in successfully opposing several failed attempts by Unimin/Sibelco to stop the trial. Sibelco claimed that the criminal charges were an ‘abuse of process’. The Magistrate rejected the claim.

On 1 March, the magistrate also dismissed the company’s application that it had no case to answer on the two criminal charges being heard by the court. The trial is to continue later this year.

What has become a legal saga commenced on 16 December, 2008, when investigators from the former Environmental Protection Authority (EPA) executed a search warrant on the mining company’s offices on North Stradbroke island. The company was then called Unimin Australia Limited. It changed its name to Sibelco Australia Limited in 2010.

The investigators seized computer and other records relating to Unimin’s sale of island silica sand to the landscaping and building construction industries on the mainland.

The company’s mining leases permit the taking of minerals and nothing else. Non-mineral sand is supposed to be used in the ‘rehabilitation’ of the mined areas. In 2010 the Environment Department told the ABC’s 7.30 Report that since 1993, 50,000 to 100,000 tonnes per year of non-mineral sand had been removed unlawfully and sold. The retail value of this sand has been estimated at $80 million.

Sibelco was initially charged with three offences. The first alleges that it carried out assessable development (taking the sand) without the required local government approval. The second alleges that it carried out the same activity without being registered under the Environmental Protection Act. A third charge was dismissed last year because, curiously, the prosecution was not commenced until one day after the limitation period for bringing the charge had expired.

The trial finally commenced on 18 February, 2013, more than four years after the EPA seized evidence from the company’s Stradbroke offices. The prosecution called over 30 witnesses over the following week and a half. The witnesses included EPA investigators, truck drivers who transported the sand, expert witnesses and the former head of Stradbroke Ferries, which transported the trucks carrying the non-mineral sand to the mainland. It is not yet known whether Sibelco will call witnesses when the trial resumes later this year.

Meanwhile, indigenous owners have renewed calls for the charges against Sibelco to be upgraded to stealing and fraud charges, in line with legal opinions from senior lawyers that there is a prima facie case against the company for those offences. Indigenous owners have also called for a federal government inquiry into unlawful sand mining practices on the island and the State government’s handling of these issues.