Maules Creek Community Council v Whitehaven Coal - EDO NSW

Maules Creek Community Council v Whitehaven Coal

June 2014

EDO NSW, on behalf of the Maules Creek Community Council Inc (MCCC), on 6 June 2014 sought an injunction in the NSW Land and Environment Court to stop Whitehaven Coal from clearing the high conservation value Leard State Forest during winter when animals are hibernating and during spring when threatened bird and bat species are breeding.

The basis of the case was that the Biodiversity Management Plan (BMP), required under the approval for the Maules Creek Open Cut Coal Mine, stated that any clearing of the forest ought to be done outside of the winter and spring months. This was to allow the threatened species in this forest a fighting chance to survive the clearing of their habitat.

Whitehaven Coal sought to amend its BMP to allow clearing the forest through winter for the first year of its mining operations because it was behind in its mining development plans. The Department of Planning allowed Whitehaven’s amendment. MCCC argued that the amendment was invalid based on a failure to consult designated stakeholders and therefore the clearing that was taking place was unlawful.

The BMP is a legal document that provides for the management of biodiversity over the 22 year life of the mine.  The mine will clear 1664 hectares of forest which provides habitat for species threatened with extinction including bats, birds, koalas, reptiles and forest owls. An area of 544 ha of this forest is a critically endangered ecological community. It is listed nationally as critically endangered and therefore it is facing an extremely high risk of extinction in the wild in the immediate future.  

Shortly before a judgment was due on 12 June, following the hearing of the injunction application, Whitehaven gave an undertaking to the Court to halt the clearing until a judgment following a full hearing on the legality of the BMP, which was expected in early September.

Whitehaven subsequently lodged a new Biodiversity Management Plan (BMP). The Department of Planning and the Environment later approved the BMP with conditions which restricted clearing in the Leard forest to between February 15 and April 30 each year. These conditions stop Whitehaven Coal from clearing the forest in winter and spring, when native animals are at their most vulnerable. This was the objective of the MCCC’s legal action which was therefore discontinued.

EDO NSW and its client Maules Creek Community Council Inc and its many supporters from far and wide wish to sincerely thank Mr Howard SC and Mr Johnson for their able assistance in this matter.