Friday, 13 June 2014

Darkinjung Local Aboriginal Land Council did what the O'Farrell and Baird Governments were averse to doing - it stopped the proposed Wallarah 2 longwall coal mine in its tracks

Early in 2014 the Darkinjung Local Aboriginal Land Council took Wyong Coal Pty Ltd (First Respondent), Minister for Planning and Infrastructure (Second Respondent),Planning Assessment Commission NSW (Third Respondent) and  NSW Aboriginal Land Council (Fourth Respondent) to the NSW Land & Environment Court.

The judgment does not appear to have been published yet.

However, The Daily Telegraph reported on 13 June 2014:

THE controversial Wallarah 2 coal mine, which ICAC target Nick Di Girolamo lobbied for on behalf of Korean mining company Kores, has been put on hold and may never go ahead after a Land and Environment Court decision.
The decision was a win for the local Aboriginal Land Council, which had fought the mine on its land.
Planning Minister Pru Goward made clear last night she would not intervene in the matter, releasing a statement saying: “I have considered the judgment and I accept the decision of the court.”….

The proposed Wallarah 2 longwall coal mine put forward by the Korean-owned mining company Kores Australia Pty Ltd and, its joint venture partners Catherine Hill Resources Pty Ltd, Kyungdong Australia Pty Ltd, SK Networks Resources Australia (Wyong) Pty Ltd, SK Networks Resources Pty Ltd and progressed by Wyong Coal Pty Ltd (T/A Wyong Areas Coal Joint Venture), had already failed basic environmental and risk management standards as the 4 June 2014 NSW Planning and Assessment Commission Final Report summary indicates:

In considering the merits of the project as a whole the Commission has found that the benefits claimed for the project by the Proponent (and largely adopted in the Department’s PreliminaryAssessment Report) are not credible. The reasons are set out in detail in the Commission’s report.
The Commission essentially had two options: reject the claims and recommend that a new economic assessment be undertaken (and that it be reviewed independently); or revise the claims to a level consistent with the Commission’s findings and recommend that the revised level be utilised in any further assessment of the project…..

The potential impacts of the project have been examined in detail in this review. They can be divided broadly into those associated with subsidence (i.e. potential impacts on water supply, stream morphology, groundwater, flooding, biodiversity, built infrastructure, etc.), those associated with the proposed surface facilities (i.e. noise impacts, air impacts, water balance, etc.) and a miscellaneous group including rail transport, land development, etc.

The principal findings and recommendations of this review can be summarised as follows:

(i) Whilst there is inevitable uncertainty concerning the subsidence predictions, they
provide a basis for assessment of the potential subsidence-related impacts of the
project. There is ample scope to revise the predictions based on site-specific experience and a rigorous adaptive management regime can be imposed to ensure impacts and consequences remain within the performance criteria in any consent.

The Commission has recommended two formal reviews be undertaken: one after the
first 5 longwalls and another after the next 4. This will cover the major environmental issues likely to be encountered during this project. The Commission has also recommended that each Extraction Plan be based on subsidence predictions that have been revised utilising site-specific experience and that these revised subsidence predictions are consistent with achieving the performance criteria in the consent during mining of the longwall in question.

(ii) As presented, the project predicts risk of reduced availability of water for the Central Coast Water Supply (CCWS) in some years if the subsidence impacts on the catchment coincide with adverse climatic conditions. The maximum predicted impact on catchment yield is 300 ML/y.

The Commission has recommended that there be no net impact on potential catchment yield from the mining operation and that the maximum predicted impact should be offset by return of suitably treated water to the catchment side of the CCWS system for the period during which subsidence may impact on the Project Area catchments.

(iii) The project presents an array of water supply risks to landowners in the Project Area. The Commission has recommended a number of conditions to ensure that potential impacts are properly investigated and that landowners receive prompt compensatory supply in the event of problems.

(iv) The project will have impacts on the morphology of streams within the Project Area. These impacts are predicted to be no greater than ‘minor consequences’, unless a flood event happens to coincide with a period of particular vulnerability for a section of stream undergoing subsidence changes.

The Commission considers that, as the impacts are likely to lie within expectations for normal variation for the Project Area streams, the performance criteria should be set at ‘minor consequences’, with a requirement to return impacted streams to an equivalent or better condition than their pre-subsidence condition.

(v) The project will have some impact on flood levels and behaviour. With one exception these are considered to be manageable with standard approaches. The exception is increased delays for emergency access to some properties in major floods.

The Commission has recommended that individual emergency access and evacuation plans be prepared in consultation with the owners for each of these at-risk properties as well as Wyong Shire Council.

(vi) The project will undermine or potentially cause subsidence impacts to a substantial number of residences (some 245) and an array of other public and private infrastructure. For most of these structures the subsidence impacts are predicted to be small, the strategies for managing the subsidence impacts are well developed and, within the statutory concept of the Mine Subsidence Districts and statutory compensation scheme, are well understood.

The Commission has recommended some improvements to the performance criteria for built infrastructure and that some other types of infrastructure need to be included in the relevant provisions.

(vii) Impacts from the surface facilities on noise and air quality are expected to be both minor and manageable. Where necessary, recommendations have been included to address the residual impacts.

(viii) Potential biodiversity and aquatic ecology impacts have been reduced by removal of the eleven western longwalls under the steeper terrain in the Jilliby SCA that were included in the previous version of this project. The Commission is satisfied that the draft consent conditions attached to the Department’s PAR deal adequately with impacts on biodiversity and aquatic ecology.

Turning to the merits of the project as a whole, the Commission considers that, if the recommendations concerning improved strategies to avoid, mitigate or manage the predicted impacts of the project are adopted, then there is merit in allowing the project to proceed. However,if the recommendations are either not adopted, or adopted only in part, then the Commission’s position would probably change in favour of a precautionary approach. This particularly applies to water-related impacts.

The Commission considers that commissioning a new economic assessment designed to increase the estimated benefits so as to create a new assessment playing field cannot substitute for reducing or managing the impacts as recommended. In this context it is worth noting that the courts have consistently held that the public interest is a much broader concept than the economic value of a mining project, particularly when this value is calculated using methodologies that cannot properly estimate the costs associated with non-market impacts. The Act specifically requires a consent authority to consider the public interest in s.79C(e).


Anonymous said...

You clearly cannot read. Your comment stating the Wallarah Project had already failed basic environmental and risk management standards is in fact a total fabrication. Lets make it clear, the PAC recommended approval.

clarencegirl said...

Excerpt from Darkinjung Local Aboriginal Land Council v Wyong Coal Pty Ltd (No 2) [2014] NSWLEC 71 (12 June 2014 Last Updated: 18 June 2014:

5. Those facts that provide a context to the dispute are not in contest. The Project for which WACJV seeks consent is a major mining proposal, the capital investment value of which is said to be in excess of $805,000,000. So far as is presently relevant, the Project proposes the construction and operation of a railway line, with associated infrastructure, over land owned by Darkinjung. That land, being lot 195 in DP 1032847, was transferred to Darkinjung in 2002 following a land claim made under s 36 of the Aboriginal Land Rights Act 1983 (NSW).
6. The application for development consent made by WACJV was for "State significant development", identified as such in Sch 1 to State Environmental Planning Policy (State and Regional Development) 2011 (NSW) (the State Policy). Section 89D of the EPA Act provides that the Minister is the consent authority for development of that kind. By an instrument of delegation dated 14 September 2011 and made pursuant to s 23 of the EPA Act, the Minister delegated his functions under the EPA Act relating to the determination of applications, including his power under s 89E to determine applications for State significant development, to the Planning Assessment Commission (the PAC), a body constituted under s 23B of the EPA Act.
7. The PAC has not yet determined WACJV's application for consent to the Project. However, the requisite procedures for processing an application for consent to carry out State significant development preparatory to determination have been embarked upon by the Department of Planning & Infrastructure, including a request by the Minister that the PAC review the Project.
8. The PAC has been joined as the Third Respondent in the proceedings. It has filed an appearance submitting to such orders as the Court might make other than an order for costs.
9. At the time of making the application for consent to the Project, the State Land Council had not given its consent to the making of that application. On 11 March 2014, the State Land Council resolved to refuse to give that consent and notified the Minister and all other parties of that fact. That decision of the State land Council has not since changed.
10. Recent correspondence that is in evidence reveals a contest between the two Aboriginal Land Councils on the one part and the Minister and WACJV on the other as to whether the consent of the State Land Council is required in order to render valid the development application and permit its determination. WACJV has stated that it intends to pursue a determination of its development application without having obtained the consent of the State Land Council (Ex B, p 103). There is thus a justiciable lis for determination.