Northern Inland Council for the Environment v Minister for Environment (Maules Creek and Boggabri Mine Cases)
EDO NSW acted for the Northern Inland Council for the Environment in challenging the Commonwealth approvals for two coal mines in the Leard State Forest near Boggabri in north-western NSW.
On December 20, 2013, the Federal Court dismissed both challenges, one for the Maules Creek mine, owned by Whitehaven Coal, the other for an expansion of the existing Boggabri Mine, owned by Idemitsu.
The projects will result in the clearing of 626 hectares of the critically endangered Box Gum Woodland and 2315ha of habitat for the endangered Swift Parrot, the endangered Regent Honeyeater, the vulnerable Greater Long-eared Bat, and the endangered climbing plant species Tylophera linearis.
The group argued that the Minister took into account matters that he was not permitted by law to take into account. It argued that the Minister had taken into account the leaking of commercially sensitive information about the projects by the NSW State Government and that information materially impacted on his decision to approve the coal mine projects.
The two approvals relied heavily on offsets to compensate for significant impacts on endangered communities and threatened species. Offsets are parcels of land, outside the project area, which are intended to compensate for the loss habitat for endangered species in the project area.
The group also argued that the Minister made a further legal error by not requiring independent verification of the offsets before the approval was granted, rendering the offset conditions imposed uncertain. It also argued that the Minister was required under the law to take into account approved conservation advices for listed threatened species and ecological communities, and he did not do so.
The Federal Court found that there was no legal error in the decision-making process. The Court found that the Federal Environment Minister’s decision was not materially impacted by the taking into account of the irrelevant material and that he had the power to approve the clearing of the Leard State Forest before biodiversity offsets have been established. The judge noted “this would undoubtedly be undesirable from the perspective of the environmental protection and preservation...” but was nevertheless permitted by the law.
EDO NSW is grateful for the assistance of barristers Sarah Pritchard SC and Craig Lenehan who acted as counsel for the Northern Inland Council for the Environment.