‘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.

Land and Environment Court makes special orders protecting cultural knowledge

ELAINE JOHNSON*

Last week, EDO NSW successfully gained special orders in the Land and Environment Court to protect culturally sensitive information.

EDO NSW is currently acting for a Hunter Valley environment group in a case challenging the decision of the NSW Planning Assessment Commission to approve Ashton Coal’s proposed South East Open Cut coal mine.

One of the issues in the case is whether the open cut mine should be allowed to go ahead over an area that Ashton Coal’s own consultant says is of high cultural significance.

As part of the case, the Court will hear evidence from a cultural heritage expert about the cultural values connected with the site.

Ashton Coal sought access to the expert’s research materials, which included documents containing sensitive information from traditional knowledge holders about their connection with country and stories passed on by Aboriginal elders. The documents also included personal information of Aboriginal people obtained from Births, Deaths and Marriages.

The documents were produced by the cultural heritage expert to the Court. The question of whether access to the documents should be granted was heard by Registrar Walton on 26 June 2013. The Registrar found that documents did contain personal and culturally sensitive material .  The Registrar made special orders limiting access to the documents to certain individuals and, importantly, ordered that no copies are to be made of any of the material.

This is an important outcome; the Land and Environment Court has recognised that traditional Aboriginal knowledge is of a sensitive nature and must be protected.

The orders provide a useful precedent for other cases where cultural information is used as evidence in the Land and Environment Court, and confirm that the wishes of the holders of Aboriginal customary knowledge must be respected.

EDO NSW is grateful for the assistance of barrister Corrina Novak who acted as counsel for the cultural heritage expert in response to the subpoena.

*Elaine Johnson is a Solicitor at EDO NSW

Can community members afford access to justice?

KIRSTY RUDDOCK*

Being exposed to cost orders in the courts is one of the major impediments to community members starting or continuing litigation to protect the environment in the public interest. Recently, there was a decision in the Land and Environment Court of NSW that will have significant consequences for community groups seeking to enforce breaches of planning or environmental laws in the future.

The case

In Illawarra Residents for Responsible Mining v Gujarat NRE Coking Coal Ltd [2012] NSWLEC 259, Justice Sheahan has taken a narrow view of whether a residents group concerned about the impacts of mining on their community represents the public interest. He has ordered Illawarra Residents for Responsible Mining (represented by EDO NSW) to pay $40,000 as security for Gujarat’s legal costs to the Court before the case was allowed to proceed. Unsurprisingly the group could not pay this amount and the case has been discontinued.

The consequences

As a result, the issue of whether Gujurat’s current mining activities were unlawful because longwall mining had proceeded without an assessment and approval under the Environmental Planning and Assessment Act 1979 (NSW) will not be determined. This means that the community will not have the opportunity to comment on the plan for underground mining under the drinking water catchment of the Sydney and Illawarra region.

The precedent

This judgment could now be used by other mines and property developers to stifle future public interest litigation. In particular, Justice Sheahan did not accept the evidence from the public officer of the group that the order would mean the proceedings could not continue, and indicated that only evidence from all of the members of the group that they personally could not raise the money necessary to post security would have been enough to satisfy the Court’s concerns.

EDO NSW perspective

In this case, the residents were “mums and dads” who lived near the mine and were concerned not only about the public health issues associated with coal dust from the mine’s operation next to their homes, but the environmental impact of the mine on the escarpment’s biodiversity and drinking water catchment. It appears the Court considered these concerns to be merely about “amenity”.

Our conclusion

  • Fundamental to our current planning system is the need to ensure that rigorous environmental assessments occur and strict conditions are placed on approval of projects that could have a significant impact on the environment.
  • Without enabling the community to have a say through a proper environmental assessment, what checks and balances are there to ensure that mining is done to the best environmental standards?
  • Security for costs orders in such circumstances result not only in the denial of access to justice, but mean that our planning laws will continue to be undermined.

It is therefore vital that planning system reforms ensure that community groups are not impeded in accessing justice and good planning and environmental standards in the future.

*Kirsty Ruddock is the Principal Solicitor at EDO NSW

EDO NSW funding update

JEFF SMITH*

EDO NSW has received formal confirmation that we will continue to receive Public Purpose Fund funding for a further three months, April to June 2013.

The funds will be provided at the reduced rate we received for the January to March period. This means we’re facing a further cut of $110,000 before the end of the financial year compared to last financial year. Despite this cut, we’ll be working hard to make sure we are able to maintain our high standard of advice for all your environmental legal questions and keep you up to date with developments in environmental and planning law.

Beyond 30 June 2012 the future of our PPF funding, which accounts for over two-thirds of our annual budget, remains very uncertain. For the 2013-14 financial year, we expect that the PPF will be bound by the new guidelines for funding of community legal centres announced by the NSW Attorney-General before Christmas, which affect the PPF and also Legal Aid. You can read the Attorney-General’s media announcement of 20 December 2012 here.

The full implications of these new guidelines for the work of EDO NSW and our clients remain unclear but we’ll keep you up to date on this as we find out more.

Thank you to everyone who has written a letter of support, made a phone call or donated to EDO NSW. Your support has been vital in ensuring that the NSW Government recognises the role of EDO NSW in assisting the community to engage in public interest environmental matters.

If you haven’t seen them, these recent media stories from December 2012 will help to update you on how the EDO’s funding crisis is being reported in various media outlets:

*Jeff Smith is the Executive Director of EDO NSW

Launch of ‘Mining Law in NSW: A Guide for the Community’

JEFF SMITH*

This week’s launch of EDO NSW’s Mining Law in NSW guide has turned out to be an incredibly timely reminder of a critical but often little understood role that the Environmental Defender’s Office has played for decades.

We provide a relief valve for communities and individual landholders who feel beset by powerful forces like government agencies and big mining companies, and who contemplate more extreme action if they can’t get help under the law.

For the launch of the mining law guide we invited representatives from three different communities who are grappling with coal and coal seam gas (CSG) development projects to join us in Sydney and tell their stories.

Unlike us lawyers, who can be more guarded in our public commentary, these are people who say exactly what they think. It reveals the depth of emotion that exists when people are confronted with a danger to their community and their natural environment.

Space doesn’t allow me to do justice to all of what was said when our panel guests, Julie, Peter and Scott, described their communities, their challenges and their frustrations. But let me share a taste:

  • Scott Franks, one of the Registered Native Title Claimants for the Plains Clans of the Wonnarua people in the Hunter region. Scott talked about how the planning and heritage laws seek to protect cultural artefacts like spear heads and bones, but can fail to take into account the land itself: ‘The bigger picture is being missed. It’s the environment that sustains our people … we are still in the embryonic stage of understanding this land. How can we destroy something that we don’t totally understand? We all have an onus to protect the environment of this country … One thing the EDO did for me personally was to take the emotion out of it and focus on the law.’
  • Julie Lyford, one of the organisers of the recent CSG conference in Gloucester. Julie described her Gloucester community as having the second lowest socio-economic standing in NSW, while facing major coal and CSG projects and grappling with the implications locally and globally. ‘Rural communities are doing it extremely tough … the EDO is the only thing that communities such as ours can rely on. The rise of community activism across NSW is huge and it’s going to get bigger.’
  • Peter Martin, a semi-retired Sydney businessman with a farm in the Southern Highlands. Peter critiqued the role of politicians and successive governments across the political spectrum, and he condemned the mining laws as a ‘complete travesty’ for communities, highlighted a community role for ‘non-violent civil action’, and also questioned the independence of the legal profession itself. ‘All the big law firms are conflicted … and will only act for mining companies. Even if we can pay for them we can’t get them. Without the EDO, we’d never be able to take these people on. Communities don’t have enough money to do all of this on their own.’

As professional lawyers, the EDO NSW team deals every day with community representatives like Julie, Scott and Peter who are looking to protect the environment, their communities and their assets. Our telephone advice line takes 1,500 calls a year from across NSW.

Emotions can run high, but our job is to help our clients and their communities to navigate within the law, when a clear public interest environmental law issue arises. Our Mining Law in NSW guide is for everyone who looks to the law to give them and the environment a fair go.

NOTE: The guide was funded by the NSW Government through the Environmental Trust, and includes input from the Department of Planning and Infrastructure. This has allowed EDO NSW to address a notoriously complex area of the law and we are extremely grateful for this support.

*Jeff Smith is the Executive Director of EDO NSW.

Mining Law in New South Wales: A guide for the community