MARGO: Here is the Greenpeace statement on the release of the independent review of Whitehaven’s environmental offsets and the Government’s decision to close its criminal investigation into whether then companies proposed offsets were fraudulent. Whitehaven’s ASX statement on its offsets clearance is here. Lock the Gate told me this morning it is reviewing the material and will publish a response and the documents on its website as soon as possible. UPDATE: Today’s Lock the Gate statement is published after the Greenpeace chronology.
Whitehaven Coal emerges from one criminal investigation, but has it been misleading the market all along?
Wednesday, April 16, 2014
Greenpeace has today lodged complaints with the Australian Stock Exchange (ASX) and the Australian Securities and Investments Commission (ASIC) about Whitehaven Coal concerning two matters; the company’s failure to inform the market about the ongoing criminal investigation into its offset strategy – something it was informed of in June 2013 – and the fact that it continued to tell the media and the market that no such investigation was underway, despite being told by the Department of Environment in June 2013 that it was under investigation.
The Greenpeace action comes as news breaks that the Department of the Environment will take no further action in relation to Whitehaven Coal and a year-long criminal investigation. Whitehaven Coal was under investigation by the Department of the Environment relating to a criminal matter under section 489 of the (Environment Protection and Biodiversity Conservation) Act.
If the Departmental investigation into the offsets had found that false or misleading information was provided, it would have allowed Environment Minister Greg Hunt to withdraw his approval. Moreover, the Department of Environment noted in their email to Greenpeace: “the department takes these types of allegations seriously. Under national environment law an offence of this type is punishable on conviction with a fine of up to $102,000 for a corporation and/or 2 years imprisonment.”
Last Friday, the Department of the Environment confirmed to Greenpeace that it was “investigating an allegation that false and misleading information was provided during the assessment and approval process for the Maules Creek Coal Mine”. The information related to the biodiversity offsets that were a condition of approval for the mine to proceed.
This directly contradicts a statement made by Whitehaven Coal to the Northern Daily Leader on 8 March 2014 that claims of an investigation were “totally ridiculous”.
“Whitehaven Coal appears to have misled a newspaper about its knowledge of a criminal investigation into its offsets package for its controversial Maules Creek coal mine. A criminal investigation had been underway since May 2013 and the Department of Environment confirmed to Greenpeace that they had informed the company about the criminal investigation in June 2013″, said Nic Clyde, Senior Climate Campaigner for Greenpeace.
“The company has been caught out misleading the public and the market”, said Clyde.
“Furthermore, the fact that the company has rushed to inform the ASX, ‘that no further action will be taken by the Department in relation to this matter’ simply underscores the point that the company recognised the criminal investigation was price sensitive which suggests the company should have informed the market as soon as it was told in June 2013.”
“Whitehaven Coal may attempt to argue it had no such obligation to tell the market about this criminal investigation, but it cannot possibly argue that it had a right to mislead the media and the market about the criminal investigation,” said Clyde.
Greenpeace is currently seeking legal advice about whether or not this constitutes an offence under either the Corporations Act or the Competition and Consumer Act. The advice relates to whether it was an offence to inform media in March 2014 that claims of a criminal investigation were “totally ridiculous”, when in fact the Department of the Environment has confirmed that the company was informed about an investigation in June 2013.
In addition, the company may have been in breach of their continuous disclosure obligations under ASX rules and the Corporations Act for its failure to inform the market about relevant “criminal matters” then under investigation in relation to the Maules Creek coal mine development.
Greenpeace has written to the Australian Stock Exchange seeking advice about the failure of Whitehaven Coal to notify the market of matters that could have had a material affect on the company and share price. Greenpeace is also seeking advice about a potential prosecution of Whitehaven Coal under the Corporations Act.
Despite the ongoing controversy surrounding the company’s offset package, Whitehaven has continued clearing around the Leard State forest and has now begun blasting entire sections. See video footage taken last Friday.
For further information contact:
Greenpeace campaigner Nic Clyde: 0438 282 409
Greenpeace media officer Julie Macken: 0400 925 217
May 2013: A criminal investigation into an allegation relating to a criminal matter under section 489 of the (Environment Protection and Biodiversity Conservation) Act commenced into whether or not false and misleading information was provided during the assessment and approval process for the Maules Creek Coal Mine
3 June 2013: The Department of the Environment notified Whitehaven of the investigation by telephone
15 Nov 2013: Whitehaven Coal Chairman Mark Vaile’s letter to The Australian is published stating that: “It is inaccurate to suggest that the federal and NSW governments approved Whitehaven Coal’s Maules Creek mining project on the basis of misleading information about biodiversity offsets.”
20 Dec 2013: Justice Cowdroy of the Federal Court provides very clear advice in his judgment about options for Minister Hunt in the event that WHC are not able to meet requirements for biodiversity offsets under their approval conditions. Justice Cowdroy says that failure to meet the conditions “could trigger a number of consequences, including the imposition of penalties as provided for by Division 2 of Part 9 of the EPBC Act. Most relevantly however, the powers of the Minister to vary, add to, or revoke the conditions, or suspend or revoke the entire approval of the project, would also be enlivened: ss 143, 144 and 145 of the EPBC Act.”
8 March 2014: Whitehaven Coal makes a statement to the Northern Daily Leader that a claim it is the subject of a criminal investigation over the offset strategy of its Maules Creek coal mine is “totally ridiculous”
"I'm here defending the people's forest – doing Greg Hunt's job." Local Ros Druce says it's time to risk arrest. pic.twitter.com/OfI8r7yIBU
— 📣Margo Kingston💧🔥 (@margokingston1) March 30, 2014
18 March 2014: The Australian Senate moves a motion (an Order for Production of Documents), that Environment Minister Greg Hunt table a review of offsets for the Maules Creek coal project submitted to the Minister in accordance with Condition 10 of the approval of the project (Ref: EPBC 2010/5566).
20 March 2014: The Minister for Finance – Mathias Cormann – on Greg Hunt’s behalf fails to release a long awaited report, despite a majority request by the Senate to do so. According to a letter to the President of the Senate, the Minister’s reason for withholding the report included concerns: “There are potential legal immunities covering some of the documents sought by the motion, including where disclosure would be potentially prejudiced to commercial interests or potentially prejudicial to law enforcement agencies…”
11 April 2014: The Department of the Environment confirm to Greenpeace that an investigation is underway and that “under national environment law an offence of this type is punishable on conviction with a fine of up to $102,000 for a corporation and/or 2 years imprisonment.”
15 April 2014: The Minister representing Greg Hunt in the Senate tables a review of offsets for the Maules Creek coal project.
16 April 2014: Whitehaven Coal announces to the market that the Department of the Environment will take no further action in relation to Whitehaven Coal.
Lock the Gate Statement, April 17
The independent review of the offset arrangements for Whitehaven Coal’s Maules Creek project has now been tabled in the Senate. The document comprises Part 1 and Part 2 of the documents in this dropbox.
It is clear from the review that the original offset arrangements upon which the approval of Maules Creek coal mine was based were not sufficient, and that one of the offset properties put forward to make amends for the loss of a large portion of Leard State Forest does not support the area of critically endangered Grassy White-box woodland previously claimed by Whitehaven. This is a vindication of the persistence and hard work of the community members and ecologists that invested time and effort into exposing this scandal.
Whitehaven is now proposing additional offset areas to make up for the shortfall, and the Federal Government has completed its criminal investigation into the false and misleading information promulgated by Whitehaven in order to secure approval for Maules Creek. The investigation will not lead to prosecution of Whitehaven because of “insufficient admissable evidence” to show criminality, however the property purchases are proof positive that false and misleading information was provided. The system has failed Leard State Forest.
This sorry scramble is an indictment on the Federal Government’s assessment and approval process for coal mines. The system is broken. The Government has abjectedly failed to protect what is recognised as an irreplaceable forest remnant, and it is now slated to be cleared.
That is why people are travelling from across the country to take part in the Leard blockade.
The Maules Creek coal mine bears all the hallmarks of the ICAC outrage playing out now. The high level lobbying, undisclosed donations and political patronage are no longer tolerated. It is an indictment on the Government that it took 120 arrests to expose this scandal, and that those that are taking action to protect the forest are suffering harassment from police and Narrabri Council, while Whitehaven get the protection of the government, despite it being clear now that they were the ones breaking the law.
Read Lock the Gate’s submission to the Senate inquiry into offsets here: http://tinyurl.com/offset-submission
Pictures of the areas sacrificed in the faulty offsetting agreements highlighted in the report are available here: https://www.flickr.com/photos/lockthegatealliance/sets/72157643346530545/