NSW Environmental Defender’s Office
(EDO):
Our client Lock the Gate
is seeking access to information held by the NSW Government about secretive
deals relating to the “buy-back” of the coal exploration licence
for Shenhua Watermark Coal Pty Limited’s (Shenhua) controversial Shenhua
Watermark Coal Mine in the Liverpool Plains in north central NSW, one of the
nation’s most productive agricultural regions.
Lock the Gate argues
that the public has a right to know about deals made behind closed doors in
relation to the exploration and development of the proposed Watermark coal
mine. Lock the Gate argues that accountability and transparency in this case
are essential given the significant predicted impacts of the Watermark mine on
the Liverpool Plains, the nation’s agricultural industry, local communities and
the environment.
On behalf of Lock the
Gate, we are asking the NSW Civil and Administrative Tribunal to decide that
the release of this information is in the public interest.
Farmland on the
Liverpool Plains. Photo: Lock the Gate Alliance.
Background
In July and September
2017, respectively, Lock the Gate made applications to the NSW Department of
Planning and Environment and the NSW Department of Premier and Cabinet for
information about Shenhua’s application to renew its exploration licence for
the Watermark mine. That information encompasses secretive dealings between
Shenhua and the NSW Government that resulted in the buy-back of around 51% of
the exploration licence, which covered the highly fertile “black soils” of the
Liverpool Plains, at the cost of $262 million to the public.
Whilst the NSW
Government claims that the buy-back was necessary to protect the black soils
from mining, and thereby the agricultural industry of the Liverpool Plains,
Lock the Gate contends that the buy-back will do nothing to lessen the expected
impacts of the mine. Furthermore, Lock the Gate argues that the buy-back was
completely unnecessary. The NSW Government could have used its powers under the
Mining Act to reduce the size of the exploration licence by 50% upon its renewal
without the payment of any compensation to Shenhua.The NSW Government could
also have cancelled the exploration licence outright given that Shenhua had
allegedly failed to comply with a condition of the licence that required
substantial development of the Watermark mine to have commenced by October
2016, eight years after the initial grant of the licence in 2008.
The information sought
by Lock the Gate includes Shenhua’s submissions on the licence renewal
application, its request for the abovementioned licence condition to be
suspended, Ministerial briefings and draft deeds of agreement about coal
exploration and mining titles. The NSW Government has withheld this information
on the basis that, amongst other things, it contains Cabinet information, was
provided in confidence, or that its release may be prejudicial to Shenhua’s
business interests – and therefore that there is an overriding public interest
against its disclosure.
On the contrary, Lock
the Gate argues that the overwhelming public interest in the release of the
information is clear.
Access to this
information will increase the accountability and transparency of the NSW
Government in relation to the exploration and development of coal in the
Liverpool Plains. This is particularly important in these circumstances where
the Government has done deals with a private, foreign-owned, coal mining
company behind closed doors and these have resulted in the expenditure of vast
amounts of public funds without clear justification.
Access to this information
is also vital for the public to have confidence in the decision-making
processes of the NSW Government in relation to dealings about coal mining and
exploration projects. This is essential where these dealings involve projects
that are likely to have significant economic, social and environmental impacts
and in which a number of stakeholders have expressed competing views.
The more
transparency around those deliberative processes, the more likely it is that
they will be of high quality and will serve the public interest.
The matter is listed for
hearing on 9 May 2018.
Brendan Dobbie,
solicitor for EDO NSW, has carriage of this matter for Lock the Gate and our
Principal Solicitor, Elaine Johnson, is the solicitor on record.
We are grateful to
barrister Scott Nash for his assistance in this matter.
Help defend the environment
With your support, we can continue to help community groups like Australian
Coal Alliance defend the environment. Please make a
donation today.
