Warkworth coal mine expansion legal challenge withrawn

By EDO NSW CEO/Principal Solicitor Sue Higginson

25 May 2016

Our client the Bulga Milbrodale Progress Association has withdrawn its appeal against Rio Tinto’s Warkworth coal mine expansion. The expansion was approved by the NSW Planning Assessment Commission (PAC) in late 2015, and is very similar to the project that was refused by the Land and Environment Court in 2013. That refusal was upheld by the NSW Court of Appeal in 2014.

The community group lodged its challenge to the approval in February 2016, arguing that in granting the approval this time around, the PAC breached the law by failing to consider what would happen if the Warkworth Sands Woodland, an endangered ecological community, becomes extinct as a result of the project. The group also argued that both the Office of Environment and Heritage and the PAC failed to apply the NSW Government’s Offsets Policy for Major Projects in accordance with the law. The case was to be heard in the Land and Environment Court in June 2016.

Since the challenge was lodged, we have obtained a number of documents that were not available at the time of filing. These documents make it clear that the case was no longer a viable course of action.

While it is clear that there is significant doubt that the critically endangered Warkworth Sands Woodland will escape extinction from this project, there was nothing further the community could do under the current laws to protect it from such peril. This is primarily because the Major Projects Offsets Policy has allowed such projects to take priority over biodiversity – no matter how close to extinction it is. The community has worked tirelessly for over six years to protect the rare and unique Woodland and the community of Bulga from the significant and trying impacts of one of the largest open cut coal mines in the country.     

Biodiversity Offsetting in NSW – Warkworth the Future?

The NSW Government is proposing to make changes to all NSW biodiversity law and policy that represent a serious retrograde step and remove many of NSW’s long-held environmental protections. The proposed changes are heavily reliant on ‘offsetting’ biodiversity impacts (by managing other areas for biodiversity while we destroy an area of biodiversity) rather than preventing the impacts, and adopts the standards of the problematic Major Projects Offsets Policy which was relied upon in the approval of the Warkworth expansion in 2015.

Under the new proposed biodiversity laws, direct ‘like-for-like’ offsetting requirements are relaxed and can be circumvented, even going so far as to allow proponents the option of paying money instead of having to actually provide and protect an offset area. This will result in the net loss of certain threatened species and communities and will be the option used where the part of the environment that is being destroyed is so rare and threatened there is none of it left to protect by way of an offset.

In addition to this, offset areas may be further offset later in time rather than actually protected in perpetuity after the first offsetting. The re-offsetting of areas that were supposed to be protected forever was also highlighted by the Warkworth case. The area that will now be an open cut coal mine was previously set aside to offset an earlier area of biodiversity loss from the mine. Through the incremental shifting of the offset to yet another offset site may well result in the extinction of the critically endangered Warkworth Sands Woodland.

This is just one of a number of concerns that we have identified with the proposed reforms. We’re working hard on our response, and to help the community to respond, in hope that together we can ensure that our long-held environmental protections aren’t eroded and that the law adequately addresses significant threats to biodiversity like this one. See our feature page for our resources, including workshops to help you have your say.

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Image: John Krey