Israeli Supreme Court hears arguments against the construction of the Sde Barir phosphate mine in the Naqab
Today, the Supreme Court heard arguments challenging the Sde Barir phosphate mine plan. The mine would pose serious health risk to residents in the area, including Palestinian Bedouin communities living in four villages in the Naqab (Negev). The plan would also lead to the forced evacuation and displacement of thousands of Palestinian Bedouins, including those from the recognized village of Al-Fura’a.
The hearing took place after the Israeli Supreme Court reviewed similar issues related to a plan for a large neighborhood in Herzliya. In that case, the Court ultimately cancelled the plan because its impact on public health had not been properly examined and assessed before its approval.
Today, the Israeli Supreme Court heard arguments from petitioners requesting the cancellation of the national master plan for mining and quarrying (National Master Plan 14B, or NMP 14B). The approved plan includes, among other things, the construction of a phosphate mine in Sde Barir in the Naqab. Three different petitions have been filed to the court against the plan, focusing on the expected serious health risks posed by operation of the mines and quarries. These health risks were not examined and assessed prior to the plan’s approval by the National Planning and Building Committee.
The planned mining area of Sde Barir would seize and expropriate land from and otherwise endanger the homes and livelihoods of Palestinian Bedouins, citizens of Israel, living in the recognized village of Al-Fura’a and the unrecognized villages of Al-Zarura, Ghaza, and Katamat. The construction of the mine is expected to result in the immediate evacuation of 500 homes and the forced displacement and transfer of thousands of Bedouin residents, while creating serious health and environmental hazards for the remaining residents of the four villages.
On 21 January 2019, Adalah – The Legal Center for Arab Minority Rights in Israel filed a petition before the Supreme Court against the plan, on behalf of 168 Al-Fura'a residents, the Regional Council of Unrecognized Villages of Negev, the Association for Civil Rights in Israel (ACRI), Bimkom - Planners for Planning Rights in Israel, and Physicians for Human Rights-Israel (PHR-I).
The petition, filed by Adalah Attorney Myssana Morany, argues that the Israeli authorities failed to properly consider the impact of the mine and completely ignored the presence of the recognized village of Al-Fura’a and its inhabitants. The partial data collected by the state for the purposes of conducting an environmental impact assessment survey only accounts for residents from Arad and Kuseife, excluding the 15,000 Bedouin citizens of Israel living in and near the planned site. The plan itself recommends the forced evacuation of the Bedouins in the area.
The petition included an opinion from public health experts, which addressed the flaws and shortcomings in the environmental impact survey for the purpose of examining health implications. The petitioners demand that a health impact assessment be conducted preliminarily, while considering alternative plans and measures for such activities, and not during the actual planning and detailing stage.
HCJ 512/19 Younes Dhabsha v. The National Council for Planning and Building
CLICK HERE to read the petition (Hebrew)
CLICK HERE to read the expert opinion of Prof. Nadav Davidovitch and Dr. Maya Negev (Hebrew)
CLICK HERE For more information about the petition
Following the hearing held on 27 February 2019, the Supreme Court issued an order nisi demanding that the respondents explain why the master plan should not be returned to the National Council for further discussion, given the lack of any assessment of the potential health impacts of the plan and the failure to present such an assessment to the Council for review.
CLICK HERE to read the Court’s order (Hebrew)
In its written response, the State argues that the appropriate stage for examining the health impact is within the framework of the planning itself and not when determining and considering alternatives in the national mater plan. The State also claims that a government outline for examining health impacts in detailing mining and quarrying plans, formulated at an inter-ministerial meeting in November 2020, provides an appropriate response to examining the possible risks as a result of operating mines.
CLICK HERE to read the State’s response
The hearing on the order nisi comes after a series of delays and requests for an extension of time on behalf of the State. The latest delay follows the Supreme Court's decision to postpone the hearing until it decides on a similar issue that arose in the context of a plan to build the Apollonia residential project in Herzliya. As part of an administrative hearing and in an expanded panel of seven justices, the Supreme Court ruled that the decision to approve the residential project lacked a factual assessment and in-depth consideration of its potential health impact (Case number: 4753/19 Herzliya Municipality v. National Committee for Planning and Building of Preferred Residential Complexes).
In its submission prior to the hearing today, Adalah argued that the State’s response did not address any of the issues that arose from the order nisi. Moreover, the response does not change the existing circumstances upon which the petition was originally filed. Adalah further contends that the State ignores the status of Al-Fura’a village—which was recognized by the government and included in the district outline plane—and therefore the health risks cannot be mitigated by evacuating the residents living in the vicinity of the mine and its surrounding areas. In support of these arguments, Adalah attached correspondence with the director general of Israel’s Bedouin Authority, stating that the Southern District rejected the possibility of planning the village of Al-Fura’a in an area outside the planned site of the mine due to public health concerns, thus effectively determining that the village and the mine cannot exist together. Adalah notes that this impossibility was not considered when the national master plan was approved.
CLICK HERE to read the main points of the argument (Hebrew)
CLICK HERE To read the letter from the Director General of the Bedouin Authority (Hebrew)
