‘Economic benefits’ hold sway in changes to NSW mining policy

NARI SAHUKAR*

The economic benefits of a mining project will now be the ‘principal consideration’ for decision-makers such as the NSW Planning Assessment Commission (PAC) when they consider new mining developments and expansions, following changes introduced this month by the NSW Government.

The amendments to the State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007 (Mining SEPP) apply to coal and other minerals, but not coal seam gas.

The Mining SEPP now prioritises the significance of the mineral resource over other environmental, social and economic considerations in the SEPP, such as:

  • dust and noise pollution affecting local residents
  • limiting truck traffic on local roads near houses and schools
  • compatibility with  other land uses such as farming, villages, vineyards or horse studs
  • protection of water resources, threatened species and biodiversity,  minimising greenhouse emissions and waste, and rehabilitating the land.

Consideration of these matters is to be ‘proportionate’ to the significance of the mineral resource, based on advice from the State mining department.

The amendments limit the conditions that can be placed on mining projects in relation to five environmental and social impacts – cumulative noise levels, air quality levels, air blast overpressure, ground vibration and aquifer interference. If ‘non-discretionary development standards’ for these impacts are met, the project cannot be refused on those grounds, and the decision-maker cannot require ‘more onerous standards’. However, if impacts exceed these standards, decision-makers may still approve the project.

EDO NSW gave detailed comments on the draft amendments, along with many other submitters, although few changes were made and no EDO NSW recommendations were taken up. For example, we suggested that decision-makers should not be required to prioritise the economic benefits of mining as the ‘principal consideration’ ahead of any negative impacts or more appropriate land uses; and that the Mining SEPP should promote the ecologically sustainable development of significant mineral resources (consistent with the existing  Mining SEPP and planning laws).

EDO NSW also proposed that the environmental standards should be improved to meet World Health Organisation recommendations and National Environment Protection Measures; should allow for continuous improvement rather than a ceiling on conditions; and should protect a wider range of residents and sensitive natural areas.

The Planning Department’s website stated that the policy changes ‘aim to increase confidence for investors and the community about how decisions are made on mining proposals.’ The amendments are also intended to require that ‘economic and environmental issues… are properly balanced’.

The policy changes follow a rare successful challenge by the residents of Bulga village, in the Hunter Valley, to the expansion of the Warkworth coal mine beyond 2021. The Land and Environment Court refused the development application, due to significant and adverse noise, dust and social impacts on Bulga residents, and on biodiversity – including endangered plant and animal species. The case also provided scrutiny of the economics behind the mine expansion. Rio Tinto and the Planning Department are now appealing the Court’s decision.

Even the Planning and Assessment Commission’s (PAC’s) original approval of the Warkworth coal mine expansion, under the old rules, observed that the system of approvals for mining was already weighted against local communities. The PAC described the approval of mining developments in NSW as ‘almost inevitable’ when ‘the overall economic benefits of the mines are balanced against the local community impacts.’ It said that ‘in almost all cases’ mines had been approved and local communities ‘have either been radically altered in character or become non-viable.’

The PAC’s comments underline the importance of more robust and balanced environmental, social and economic criteria in development decision-making processes. It also highlights the need for better data and close scrutiny of what NSW gains and loses when major projects are approved. It is important that the worth of our communities – and their social, cultural and environmental fabric – is truly valued.

However, the new weighting of factors under the Mining SEPP will now make the refusal of a mine approval on environmental and social grounds, similar to Bulga, even more difficult.

The new policy is unlikely to achieve the stated aim of requiring that economic and environmental issues are ‘properly balanced’.

By focusing primarily on the economic benefits of developing significant resources, the new policy allows competing and complementary land uses to be downgraded. It prioritises short-term gains, by requiring decision-makers to give ‘principal’ weight to mining a significant resource, even if this may be an unsustainable land use in the circumstances.

It also likely to decrease, rather than increase, the NSW community’s confidence about how decisions are made on mining proposals, and reinforce public perceptions that mining industry regulation, more than any other industry, is ‘too lax’.

*Nari Sahukar is a Senior Policy & Law Reform Solicitor at EDO NSW.

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Usual suspects line up for new attacks on EDO NSW

JEFF SMITH*

Friends, supporters and observers of EDO NSW may have noticed a new round of attacks on our public interest environmental law office in recent days and weeks, via the usual suspects of the NSW Minerals Council and The Australian newspaper.

While these reports are short on ‘news’ and run long on rehashing earlier attacks on EDO NSW, they are clearly aimed at trying to politicise our role as an independent community legal centre that specialises in public interest environmental law.

Our EDO NSW team takes the sometimes hysterical tone of The Australian’s reporting about our office with a large grain of salt, however, we do find headlines like ‘Public-funded EDO circus must end’ quite offensive. We think many of our supporters will feel the same way.

Last Friday The Australia’s legal correspondent sought to seize on written comments by our outgoing Chair Murray Wilcox AO QC, the distinguished retired Federal Court judge, who reflected on over 6 years at the helm of our Board in his final contribution to EDO NSW, published last month in the 2012/13 annual report.

Readers of this post can assess the content of the most recent stories for themselves here:

As Mr Wilcox noted, the EDO NSW is a law office not a campaign one. Our team is made up of lawyers, scientists and other professionals and support staff, who provide professional, expert and independent legal advice to individuals and community groups. We have clear and robust standards in place to determine when we will take on a case, and indeed when we will provide written advice – namely, that the matter needs to satisfy our public interest guidelines.

We receive funds from a range of sources, including a sizeable proportion which is not taxpayer funds, and we are always scrupulous in ensuring that we meet the obligations set out in funding and grant agreements.

It is also worth noting that when EDO NSW is acting for any client in a litigation matter, such cases are public hearings, and our clients are disclosed on our website and via our annual reports.

Where legal cases we work on end up before a court, which is only a small fraction of the work we do, we act on behalf of community-based clients who have satisfied us – and a senior barrister – that they have rights to be heard under law. Which of course is why our system has courts in the first place, and why due legal process is a core component of our healthy democracy.

*Jeff Smith is the Executive Director of EDO NSW.

FOOTNOTE: Also for the record, the following was sent to The Australian last Friday as a Letter to the Editor.

LETTER TO THE EDITOR, THE AUSTRALIAN
In rehashing mining industry-led criticisms of EDO NSW, your legal correspondent Chris Merritt (Taxpayers still fund anti-coal disputes, 1/11/2013) continues to muddy the waters about the source of grant monies from the Public Purpose Fund of the Law Society of NSW, or PPF. While the NSW Government of the day has always had a consent control over grants made by the PPF Trustees, the actual monies are not taxpayer funds, but rather the accumulated interest earnings on client funds held in solicitors’ trust accounts in NSW. It is a longstanding tradition that the PPF makes regular grants to community legal centres providing public interest services, including EDO NSW, among other recipients. The PPF is fully informed about the work undertaken by EDO NSW as an independent, not-for-profit, specialist public interest environmental law office that has served the community of NSW since 1985.

Jeff Smith
Executive Director