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Coal & Community
<p>Ella Rubeli/The Global Mail</p>

Ella Rubeli/The Global Mail

The Rio Tinto Shuffle

Mining giant Rio Tinto has changed tactics in appealing the Land and Environment Court’s decision to deny its mine expansion on the doorstep of tiny Bulga in the Hunter Valley. Now it wants the decision quashed outright.


In a switch of legal tactics, the global mining giant Rio Tinto is seeking to entirely quash a judge’s landmark decision to stop a large coal mine from expanding and thereby coming closer to the tiny Hunter Valley hamlet of Bulga.

The miner which had already lodged an appeal in the New South Wales Court of Appeal is asking the NSW Supreme Court to toss out the judgment of the Chief Judge of the Land and Environment Court, Brian Preston, which blocked the expansion of Rio Tinto’s Mount Thorley Warkworth mine on environmental, social and economic grounds.

The Global Mail last week published a multimedia story on the town’s battle to halt the mine. Rio Tinto has condemned Justice Preston’s decision, handed down in April, complaining that it introduced great uncertainty into Australia’s mine-approval process.

The NSW government has formally joined Rio’s efforts to overturn the decision in the Supreme Court.

Normally when a mining company or developer wants to appeal a Land and Environment Court decision, the appeal is heard by the Court of Appeal which, if it finds fault with the original decision, returns it to the Land and Environment Court for remaking. Thus, substantial parts of an original Land and Environment decision may still stand even if others are overturned.

However Rio Tinto is now seeking to have the entire decision thrown out by the NSW Supreme Court. Were it to succeed, the original approval for the mine’s expansion – given by the government’s Planning Assessment Commission in late 2012 – would apply and the mine expansion could go ahead.

Rio’s tactic – seeking the quashing of the entire judgment – appears to be designed to bring a speedier end to legal objections to its expansion plans for the mine. Under the proposal, the mine will come to within 2,600 metres of Bulga, this despite undertakings made by the mine in a 2003 deed that the company would never seek such an expansion.

<p>Ella Rubeli/The Global Mail</p>

Ella Rubeli/The Global Mail

The appeal hearing – which will be closely watched by global mining companies, state governments and the environmental lobby because of the implications of the Bulga judgment for mining across Australia – will begin on August 14 in Sydney (it was originally scheduled for July 30). The hearing is expected to take three days. Whether the appeal will be dealt with by the Court of Appeal or by the Supreme Court will be decided at the beginning of the hearing.

In its notice of appeal, Warkworth Mining Ltd, controlled by the London-headquartered Rio Tinto, cites 17 grounds for its appeal against Justice Preston’s judgment.

Rio Tinto argues that Justice Preston:

• Denied Rio Tinto procedural fairness by finding that noise levels the company adopted as acceptable background noise within Bulga would be too high. Rio Tinto claims the judge refused to allow further evidence from an expert witness on acceptable background noise levels.

• Erred in law by finding that the fact that the mine would have to purchase some 20 houses in Bulga because of noise impacts – and another 40 would need noise protection – was ample evidence that the enlarged mine would be too noisy. Rio is arguing that the judge also erred by failing to consider imposing noise conditions on the project which would reduce the noise from the mine to a level the judge considered acceptable.

• Failed to identify positive benefits of the expanded mine, or determine what weight should be given to them. Rio Tinto had claimed it would generate an extra 150 full-time jobs and another $650 million in mining royalties payable to the NSW government.

• Failed to give weight to the NSW government’s Environmental Assessment Report.

• Erred in law by holding that areas marked out by Rio Tinto for conservation would not produce like-for-like environmental offsets. Justice Preston’s judgment was critical of Rio Tinto’s proposals to create new – and mostly far distant – conservation areas to make up for lands the enlarged mine would destroy. The judge said the new, protected ecological areas the miner was offering were not the same as those it was proposing to destroy.

<p>WILLIAM WEST/AFP/Getty Images</p>

WILLIAM WEST/AFP/Getty Images

• Similarly, denied Rio Tinto procedural fairness by finding there was insufficient evidence that the impact of the enlarged mine on the numbers and viability of threatened birds, bats and squirrel gliders could be offset. Rio Tinto had argued in the Land and Environment Court that these species’ numbers would increase in new – but mostly far away – protected areas that the miner would create.

• Failed to consider a properly articulated argument that land endangered by the mine expansion could be replicated elsewhere through assisted regeneration. Justice Preston was sceptical that an area of ancient wind-blown sands– believed the last of its type on earth – which would be partially destroyed by enlargement of the mine, could be replicated through assisted regeneration elsewhere.

• Failed to put the view that the mine expansion posed a “polycentric problem” – one in which the resolution of one issue will have repercussions on the next – to the miner’s experts before he discounted the mine’s own economic modelling, thereby denying the NSW Minister for Planning procedural fairness.

The Sydney-based community legal centre, the Environmental Defender’s Office (EDO), which ran the challenge against Rio Tinto’s Warkworth mine, has also announced it will assist in a legal challenge to the giant Maules Creek coal mine in the Gunnedah Basin in northern New South Wales.

The $800 million mine to be constructed near Narrabri by Whitehaven Coal was hastily approved in February this year by the federal government after Fairfax Media obtained a confidential letter from the former federal Environment Minister, Tony Burke, to the NSW government saying the mine would be approved despite the assessment process being incomplete.

The EDO said the legal challenge to the Maules Creek mine rested on the contention that the the approval had been made too quickly and not all the environmental factors have been given due consideration. Of particular concern is the quality of the “offsets” Whitehaven had promised to set aside in return for being allowed to clear up to 1,500 hectares of forest classed as “critically endangered”.

“What the law provides is a particular process to ensure that the impacts of a project are properly assessed,” EDO’s principal solicitor, Sue Higginson, said. “What we’re saying is that the minister has not followed that legal procedure.”

13 comments on this story
by Gratton Wilson

Australia already has too many coal mines. The world is heading away for coal fired power stations to renewable energy sources. This move is supported by the International Energy Agency and more banks are talking environmental issues into account in risk analysis of projects for which funds are sought. Our own Climate Commission has recommended the phasing out of coal production in Australia. We want fewer mines not more.I support the people of Bulga in their stand against a greedy international bully

July 20, 2013 @ 9:59am
by John Poppins

Rio have abrogated their undertaking in an earlier agreement, and achieved that in an underhand way.

I am a shareholder in Rio, but very unhappy with my recent discoveries of their historical and current social and environmental disasters.
These have left local societies and environments plundered.
The wealth has gone to the foreign shareholders and most especially the top executives and board members.

Such big mining companies can elect to cease operations at any time, when it suits them, or bankrupt the subsidiaries involved, leaving the environmental messes to fester or for taxpayers to clean up.

Any care for our children and future generations dictates that we leave this coal in the ground.

Miners have traditionally had excessive rights, and immediately cry 'sovereign risk' if any attempt is made to rein these in.

If Rio / Mt Thorley Warkworth are negotiating in good faith with honest data we should expect them to undertake to maintain the royalty rate and employment level they are claiming as economic benefits. They should face immediate enforceable penalties if they fall short.
In addition they should stump up a substantial bond to cover environmental restoration and protection measures for rivers downstream.

Double standards are being applied to noise, in favor of powerful legacy industries and to the detriment of future sustainable developments. In Victoria one complaint regarding potential noise from within 2 km can stop a wind power turbine development.

July 20, 2013 @ 10:28pm
by Big D

Ok Gratton let's do away with coal mining in Australia. Now how do you think our balance of payments is going to look once you take the billions of dollars that exporting coal generates per year out of the equation? Hiw do you think the hundreds of millions of dollars in coal royalties that is paid to the state and federal government each year is going to be replaced? Lets see your hospitals, police services , schools etc like it when there is not enough money to fund them any more due to no money coming in from coal. Do you even care about the miners and their families? The contractors and companies that supply goods to mines? What about the towns that rely on income from coal miners spending their money within the towns etc. Our company spent $220 Million in our community last year and had a wages bill of $210 Million and that's just one year. Take that$400 million out and see communities of thousands suffer. Bulga us a blip on the map with sweet bugger all living there. They themselves admit to moaning on about the mine in hope that they will get a financial wind fall buy way of the coal companies buying their properties at an inflated price. Did you also know that once the expansion was knocked back the complaints about noise dropped by 90% BUT once the appeal was announced it went back to pre announcement levels in one day? Also 75% of all complaints are from 4 people? So Gratton do you really know what your talking about. I don't think so. Also that electricity you used to fire up your computer or charge the battery on your phone to write your dribble came from a coal fired power station. Oh and if you say it's solar just remember every component came from mining of some sort and some was from coal mining you hypocrite.

July 21, 2013 @ 1:19am
by Ava

So once again, the big mining companies have more lawyers than anyone else and therefore more loopholes to jump through!! What a farce. One law for them and another for the rest of us, the NSW Government is as weak and corrupt as ever.

July 21, 2013 @ 1:28am
by Big D

Ava, There is not a us and them law. Rio spent over 4 years planning the expansion at a cost of over $85 million. Rio had permission from the State and Federal governments as well as the EPA and the Aboriginal community for this expansion only to have it overturned by a Judge who has links with the EDO ( he helped establish them) and an obvious green agenda on grounds that even a one eyes person could see was flawed from the outset. So Rio abides by the law and an spends millions to comply only to have it overturned on dubious grounds. Wouldn't you appeal if that happened to you. You may think that I too am a biased bigoted one eye coal supporter. I may be but I don't agree with a lot if what they do but I'm looking at the bigger picture for all people in NSW and Austalia and not just the select few that this expansion may or may not affect. Read my post above.

July 21, 2013 @ 8:09pm
by Big D

Ava, there is no law for them and another for us. Rio spent over 4 years planning this expansion and another $85 Million for compliance to have the expansion approved only to then have it quashed by the Land and Eviroment Court on what one can see is dubious grounds. Rio had the State and Federal Governments approvals as well as the EPA and Aboriginal Community approvals yet these meant nothing in court. The Judge hearing the case was himself instrumental in the establishment of the EDO which is in my opinion a conflict of interest. He should never have sat on the case in the first place. If you think I am a biggotted one eyed coal support well I am BUT I look at the bigger picture of what this means to the people who are employed directly and indirectly by Rio plus the people and communities of NSW that this decision will affect. Look at my post above to see who will be affected and I have only mentioned a small cross section of the community that will be impacted by this decision. If you think this doesn't affect you remember when you start paying more taxes to plug the hole that this create in the budgets of both the State and Federal Governments. .

July 21, 2013 @ 9:18pm
by Ian

Big D What if you lived in that town. Why is the price of coal dropping because China etc are looking at alternatives even if Australia can not see that there is no long term future for coal.

July 23, 2013 @ 12:29pm
by Jonas Whale

There are many reasons why Rio Tinto should not be allowed to expand there operations so close to Bulga. Rio Tinto has a great deal of financial and political power, used to get what they want, when they want. I wouldn't weep over this small loss for them. As an Australian, I think we should look after our own, the people of Bulga. Coal is a dirty, polluting, archaic energy source. These hugh corporations, however, need to put more $$$ into renewable energy research and development and start seriously moving toward modern technological answers. Big D, coal is not going to provide us with a bright future, only a quick buck.

July 26, 2013 @ 11:53am
by Lourdes

There may be economic benefits in the short term, Big D, but what happens after the coall runs out, what happens to the town and its inhabitants?

July 29, 2013 @ 9:15am
by Glen S

Big D - before you expose your ignorance any further you may like to do some research into the political, social and environmental mess made by some of Rio Tinto's previous adventures, like the tragic examples in PNG or the Ranger Uranium mine in the NT.

The chairperson of Rio Tinto, Sir Robert Wilson, told an mining industry conference in 1999 that a "pressing concern for the mining and metals industry is the need to overcome its poor public perceptions of our industry's performance in relation to the environment".

This "poor public perception" of Rio Tinto has perhaps been earned by the company's activities at a number of its mines around the world, including Freeport, the Bougainville copper mine (now closed), the Lihir gold mine in Papua New Guinea, and the Jabiluka mineral lease (closed under a 10-year moratorium).

Freeport's gold and copper mine in West Papua is 12.5% owned by Rio Tinto, and is one of the "best"-documented environmental and human rights disasters that corporate culture has created.

The mine drops about 200,000 tonnes of contaminated tailings into the Ajkwa river every day. The sediment levels have killed much of the river's fish and plant life is dead. In 1992, the people living downstream of the mine were directed by the mine staff to stop eating sago palm, the staple of their diet, because it was contaminated.

The mine sits on the traditional lands of the Amungme people and has forced massive relocations. These relocations have caused hundreds to die of malaria as they resettled on the boggy lowlands away from the mountainous region they are used to.

Those who have stayed on their land have suffered under the mine's appalling human rights record. In 1995, the Australian Council for Overseas Aid released a report detailing the dozens of local people killed and tortured by the Indonesian military because they were suspected of protesting against the mine.

Rio Tinto's record does not end in Indonesia. Its Lihir gold mine will dump 89 million tonnes of cyanide-contaminated tailings and 330 million tonnes of waste rock directly into the ocean over the next 36 years, in an area described by ecological studies as one of the richest areas of marine biodiversity on Earth.

In Bougainville, Rio Tinto still technically owns one of the world's largest copper mines. So devastating was its effect on the local environment and culture that, in 1988, the people of Bougainville forced the mine to close.

References
http://www.wsws.org/en/articles/2002/04/png-a09.html
http://www.reputationreport.com.au/2011/06/rio-tinto-controlled-the-government-of-png-bougainville-revisited/

July 29, 2013 @ 5:09pm
Show previous 10 comments
by John Dyer

I am in support of your efforts, but lets get a petition up to assist. There is a net petition called change .org that can assist. Do it. on http://www.change.org/en-AU/start-a-petition?source=footer&utm_medium=email&utm_source=signature_receipt&utm_campaign=new_signature

July 29, 2013 @ 10:38pm
by Barry Tucker

Meetings behind closed doors leading to facilitation of suspect mining deals. Sounds familiar!

August 1, 2013 @ 6:35pm
by Thomas McLoughlin

great article BL

August 3, 2013 @ 8:05am
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