Court’s heat on coal

Northern Inland Council for the Environment (NICE) challenged Mr Burke’s approvals for Maules Creek and Boggabri open cut coal mines in the Federal Court, which were granted in February.

NICE alleged that a confidential letter from Mr Burke, stating he intended to approve the Maules Creek project, was leaked to the Sydney Morning Herald which improperly influenced the approvals process.

The NSW Environmental Defenders Office, representing NICE, argued Mr Burke breached the Environment Protection and Biodiversity Conservation Act by allowing his decision to be influenced by the release of “commercially sensitive” correspondence.

NICE will also argue that the Minister made a legal error by not requiring independent verification of environmental offsets of both mines, which are designed to compensate for impacts on endangered and threatened wildlife, before the approval was granted.

Vice president of NICE Phil Spark, an environmental consultant from Tamworth, said the mines would have “devastating” effects on the environment.

“They will destroy large areas of koala habitat and endangered ecosystems, degrade groundwater supplies and rip apart the farming community of Maules Creek,” he said.

Rick Laird, a farmer from Maules Creek whose family has been in the Narrabri area for about 130 years, said “we’d like to see the incoming federal government get out on the front foot and represent farmers who voted for them.”

The case concluded on Wednesday, and the judge’s ruling is expected in four weeks time.

NSW has recently seen some significant judgements handed down on community groups’ legal action against resources expansion.

In August, Justice Brian Preston found in favour of Bulga Milbrodale Progress Association’s (BMPA) appeal against Rio Tinto’s Warkworth mine expansion in the Land and Environment Court, it was the first time an open cut coal mine extension had been rejected in NSW.

BMPA estimates its legal costs at $100,000.

The decision is currently under appeal by miner Coal and Allied, a Rio Tinto subsidiary, and the Minister for Planning.

Last week, the NSW Government was knocked back in its pursuit of legal costs from the Fullerton Cove Residents Action Group (FCRAG), which had previously been denied in the Land and Environment Court in its case against exploration drilling for coal seam gas (CSG) in the cove.

The government’s decision to pursue costs was unusual and alarming to community groups.

Government departments are obliged to adhere to the Model Litigant Policy, which says the State should not pursue appeals unless it is in the public interest.

The NSW Department of Trade and Investment released a statement saying it pursued FCRAG for costs “to ensure taxpayers’ money was not wasted” and becasue it is “important for resources sector investment certainty” that costs are recovered from unsuccessful appeals.

A common assumption is community groups who bring legal action against development is that they are acting in the public interest.

The court found FCRAG did act in the public interest, despite its case being overturned.

BMPA vice president and Bulga resident John Krey was an interested observer in the case.

He said Justice Rachel Pepper’s ruling gave the government “a kick in the bum” and should remind it that “they are acting in the public interest”.

“These people are trying to do the job the government should be doing and that is exactly what we have been doing in Bulga for the last couple of years,” Mr Krey said.

“The government has virtually unlimited financial power to beat us. When they try to sue for financial costs we think it is most unreasonable.”

Caroona Coal Action Group CSG chairman Rosemary Nankivell said “we were quite horrified that the government would take a case against its own people – even more so because it is a Liberal coalition government and I have always believed they were more likely to protect property rights”.

Lock the Gate president Drew Hutton said “the courts are beginning to understand the impact of irresponsible CSG and coal mining are having on communities and this is being reflected in their judgements.

We have seen that in the Warkworth decision and in the Fullerton judgement and I am confident we will see it again in the future”.

Maules Creek project is owned by Whitehaven Coal, whose chairman is former National Party leader Mark Vaile.

Japanese resources house Idemitsu Kosan owns Boggabri mine.

The $767 million Maules Creek project would employ 470 full-time staff when operational.

At current pricing, the mine would generate $2.4 billion in State royalties.