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In September 2018, Adnyamathanha Traditional Lands Association (ATLA) engaged EDO NSW to apply for an urgent injunction in South Australia's Supreme Court to halt plans by Leigh Creek Energy (LCE) to trial underground coal gasification (UCG) at Leigh Creek (approximately 500km North of Adelaide in South Australia).
LCE has conducted a program of exploratory and appraisal drilling at Leigh Creek since July 2016 in order to test the potential for undertaking UCG at the site. UCG involves converting coal into a gas within the coal seam. The gas is then extracted from the underground coal seam via wells.
ATLA has consistently opposed UCG due to the importance of the site and the coal to Yulu, the Kingfisher Man, one of the major creation ancestors of the Adnyamathanha people.
Coal rail tracks near Leigh Creek. Photo credit: Boobook48 Flickr
In February 2018, ATLA made objections to the draft Environmental Impact Report and draft Statement of Environmental Objectives (SEO) for the UCG trial. Despite these objections, the SEO was approved in April 2018.
When the UCG trial received its final Activity Approval in early September 2018, ATLA sought an urgent interim injunction in the Supreme Court, arguing that the approval was invalid. The Court handed down its decision on 21 September 2018. Despite finding that the UCG trial would cause significant, and largely irreparable, prejudice to the cultural interests of the Adnyamathanha people, the Court decided that the "balance of convenience" weighed against the grant of the injunction to prevent the trial from going ahead. In making its decision the Court had regard, amongst other things, to the financial "prejudice" that would be suffered by LCE should its plans be delayed.
LCE began its three-month UCG trial in October 2018. However, it has had to request suspensions of the trial because it has had difficulties establishing full gasification in the coal seam. In late 2018 LCE proposed to undertake additional drilling and seismic testing in the area to inform the design for a potential commercial facility.
We are continuing to advise ATLA on its legal options for protecting the Adnyamathanha people’s ancestral lands.
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Merits appeal rights were introduced over 30 years ago as part of extensive law reform designed to improve the integrity of the planning system. They allow communities to challenge a development approval on a project’s merits, taking into account environmental, social and economic impacts.
Over recent years, community merits appeal rights have been eroded – routinely, in cases involving mining projects. EDO NSW advocates for the reinstatement of community rights to a merits appeal. It’s crucial that the people with most to lose – whose homes, businesses, communities, land, air and water quality are at risk from mines and other developments – are able to have their voices heard in Court.
Here is the Gloucester merits appeal story, as told by Julie Lyford, from the EDO NSW Annual Report 2017-2018.Read more
In August 2017, the Wollar Progress Association (WPA) commenced judicial review proceedings in the Land and Environment Court of New South Wales (LEC) to challenge the decision of the then New South Wales Planning Assessment Commission (PAC) (since replaced by the Independent Planning Commission) to approve the extension of the Wilpinjong open-cut coal mine near Wollar.
The decision [Wollar Progress Association Inc v Wilpinjong Coal Pty Ltd  NSWLEC 92; BC201805282] was the first time the LEC considered whether, and to what extent, cl 14 of the State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007 (NSW) (Mining SEPP) requires a consent authority to consider an assessment of greenhouse gas emissions, including downstream emissions, when determining a development application for a mining project, including by having regard to any applicable state or national policies, programs or guidelines concerning greenhouse gas emissions.
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