The Rio Tinto Shuffle
By Bernard LaganJuly 19, 2013
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.
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.
• 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.”