The moans of senior mining industry identities are increasing as they condemn environmental protestors for “not accepting the umpire’s decision” on mining approvals and conditions. The problem is, it’s them who refuse to accept the umpire’s decision
Stephen Galilee, Mark Vaile and Phillip Christensen have all emerged recently condemning legitimate community protests while big mining fails to honour key planning conditions.
Controversial miner Whitehaven Coal has the ambition to be “one of Australia’s largest, and lowest-cost, producers of high-quality coal” according to the 2014 Annual General Meeting statement of its Chairman Mark Vaile.
This would be largely off the back of its Maules Creek NSW coal mine, which will more than double its annual coal production when construction is finished.
According to Whitehaven Coal’s CEO, and former deputy prime minister and mining minister, Mark Vaile it is “the largest mine of its type being brought to market anywhere in Australia”.
Unsuspecting observers might ask: how can this be the jewel in the crown of a low-cost coal miner when Maules Creek has been lumbered by Commonwealth and NSW State Governments with a list of costly conditions.
Maules Creek Mine will bulldoze and dig up 1665 hectares of the Critically Endangered Ecological Community at the Leard State Forest, near Narrabri in the North West of NSW.
Together with nearby Boggabri open-cut coal mine, Maules Creek will destroy around half of the Forest. Big mining will driving another nail in the coffin of the 30 endangered animals that the forest provides unique habitat for with its Box-Gum Grassy Woodland. The Box-Gum Grassy Woodland ecological community is already down to just one per cent of its original national extent and only half a percent in NSW.
A cornerstone of the government conditions put in place to compensate for destruction of the Leard State Forest is the permanent reservation of a “biodiversity corridor”. The purpose of the corridor is linking whatever fringes of the doomed Forest remain after Whitehaven and its neighbour Idemitsu’s Boggabri Coal has finished blasting, digging and destroying it.
This, Whitehaven told both the State and Federal governments in submissions during negotiations over approval conditions, has effectively “sterilised” a large percentage of available coal.
The company was also required to secure in perpetuity a large number of “biodiversity offsets”, nearby farms with remnants of white box grassy woodland on them, and rehabilitate them into a Leard Forest-like habitat for hundreds of species, many endangered with extinction.
How can Whitehaven reconcile their business proposition of being a low-cost producer with the fact that they have a raft of challenging and expensive conditions like the biodiversity corridor, extensive (and flawed) offsets, and rehabilitation of mined land over the life of the mine?
The answer has emerged with startling clarity. According to the recent history and actions of the company it would appear to have no intention of ever fulfilling the conditions. This is becoming clear from the way it has side-stepped and avoided all attempts by regulators to date to make them do so until now.
Key deliverables in respect of future rehabilitation and biodiversity protections have been left in abeyance, while the mine construction proceeds.
This is the story of how Whitehaven has been able to proceed with the Maules Creek mine, despite crucial plans being over one year late according to the mines conditions. It is the story of approval creep, a technique for effectively neutralising conditions of planning approval, which they have expertly deployed.
It is also a technique used to stymie community opposition until the mine has cleared the forest and condemned the local community to subsisting with the impacts of the mine.
Documents obtained through freedom of information legislation demonstrate that the miner has consistently declined to provide more detailed and enforceable plans for the future environmental rehabilitation and biodiversity management of what will remain of the Leard Forest after the miners have finished with it.
Whitehaven Coal’s Maules Creek mine is apparently due to start producing its high grade low-ash black coal in January 2015. It would thus appear to the casual observer that Whitehaven has overcome over two years of delays linked with regulator negotiations and legal challenges in the Federal Court and the NSW Land & Environment Court, as well as operational delays created by the Leard Blockade, mass walk-ons and arrests that have plagued the project for nearly a year.
However the casual observer has had the wool pulled over its eyes, along with Whitehaven shareholders and even the Australian financial media. The coal producer is running woefully late in tabling critical plans required by its approval conditions. Despite the statement in its 2014 Annual Report stating that “[a]ll sites have approved management plans” (at p 5 ) this omits to point out that two of the most important planning documents for Maules Creek mine remain under a cloud of uncertainty.
These are the Mine Site Rehabilitation Plan (RMP), a draft was submitted to the NSW Department of Planning and Environment in January 2013, and the all-important Leard Forest Mining Precinct Biodiversity Strategy ( also known as the Regional Biodiversity Management Strategy) Stage 2 due 30 months from the date of approval (last August) and not expected to be completed until April-May 2015.
Approval of the RMP (under condition 73) is at a stalemate. It will never occur. With the blessing of a number of consent agencies, all NSW government entities, the requirement for the RMP transmogrified into a Mining Operations Plan (MOP) under the stewardship of the Department of Resources and Energy (DRE). So why not change the condition to reflect reality? That, of course, would attract too much outside scrutiny.
The MOP states that it has “been prepared to satisfy the requirements of Condition 73”, but it does not address rehabilitation at the depth which would be expected. This MOP skims over the subject of rehabilitation like a butterfly, with statements like:
“Temporary rehabilitation only will be undertaken in all domains to reduce the potential for soil and sediment erosion and prevent subsequent air quality and surface water issues. Further rehabilitation will be discussed in subsequent MOPs as mining progresses.”
This is clearly a plan for Whitehaven Coal to make things up as it goes. If there is no management plan, there can be no performance measures. If there are no performance measures, there can be no compliance monitoring nor effective regulation.
This is what Narrabri Shire Council’s submission concerning the Maules Creek mine draft Mine RMP stated:
“The management plan is difficult to follow and is not considered to be operationally friendly. For example an environmental officer could not easily pick this document up and determine how to rehabilitate a section of, or a whole mine domain. The plan should be restructured to consider this context. Further, it is considered that the plan lacks certainty with respect strategy and it does not clearly define how the risks described in Appendix D are being addressed.”
Whitehaven went so far as to submit the draft Mine Rehabilitation Plan containing no maps, earning the following comments from the Office of Environment and Heritage (OEH):
“The draft RMP does not contain any maps. OEH recommends that Table 6-1 is accompanied by, at a minimum, maps of each domain and component to be rehabilitated, including planned progression, the intended final landform and native vegetation communities.”
OEH went on to state:
“The objectives, indicators and completion criteria are not well linked to contingency measures in the RMP, nor specific trigger points for their implementation. It is not clear why the Trigger Action Response Plan (TARP) has not been included in the RMP. It is not considered sufficient to only devise trigger points for corrective action once substandard performance has been detected. OEH recommends that the TARP is developed upfront in relation to performance targets associated with the current life of the plan at a minimum.”
How seemingly intent Whitehaven is to minimise certainty.
And that is no doubt exactly how Whitehaven likes it. This is because for the past two years or so, the company has waged a successful campaign of “approval creep” by which it has left crucial regulatory commitments behind while gaining incremental variations which allow it to press on with the construction of the mine.
The most high profile example of this was Whitehaven’s highly controversial Biodiversity Management Plan (BMP), which acknowledges:
“The Project Boundary includes a substantial proportion of Leard State Forest and contains significant flora and fauna values. The vegetation within Leard State Forest contains several threatened vegetation communities and provides habitat for a range of fauna species, including several threatened species.”
Ignoring the convention that forest clearing should not take place during winter if hibernating species are present and their own BMP, Whitehaven resolved to clear Leard Forest in winter anyway when scores of mammal and reptile species are hibernating and unable to escape. Changes to the BMP were rushed through without the stipulated environmental group consultation, although Whitehaven continued to declare in its consultative committee minutes that the group Greening Australia was on the committee and being consulted.
Somehow the OEH was prevailed on to sign off on the ghastly plan, which led to an injunction application by the Maules Creek Community Council, and a campaign of tree-sitting by protesters from the Leard Blockade in the freezing and damp cold of last winter.
The miner appealed to the NSW Government that they couldn’t wait for the Regional BMS to be complete. Documents obtained through Government Information Public Access show how NSW bureaucrats have struggled with the sub-standard strategy.
Far from being held up by bureaucrats, as Whitehaven likes to be believed, the Regional BMS, is in fact being held up by Whitehaven’s own failure to respond to some very reasonable directions from OEH.
Whitehaven’s initial scoping report was said by OEH, SEWPAC (now Commonwealth Department of the Environment) and NSW Planning not to adequately address the requirements for the project approval conditions. Since then, there have been two reviews of the Scoping Report, one initiated by the NSW Government itself.
While Mark Vaile, Chairman of Whitehaven Coal, complains that Whitehaven needs regulatory “certainty” it should look to itself to provide more certainty, not the governments.
It has steadfastly declined to provide adequate planning information to allow bureaucrats to sign off. The Scoping Report for the Regional Biodiversity Strategy was so vague and lacking in substance that the OEH commented:
“It remains unclear what the purpose of the Regional Biodiversity Strategy is meant to be. Confirmation of the purpose may influence the final composition of the objectives of the RBS.”
The OEH also stated that certain parts of the Scoping Plan were “slightly misleading”.
Ecologist and former Queensland mine inspector turned whisteblower Dr Jim Leggate said that although it is common in the mining industry, Maules Creek coal mine is an example of “approval creep at its worst”:
“We have observed around Australia that rehabilitation becomes a low priority once approval has been granted and it, frequently, is not integrated into early mine production. Rehabilitation is never delivered as promised and the environmental impact from coal mining is always more than was declared at the start of mining. Regulation has failed spectacularly. Governments have failed – and that is why new mines are now opposed by local communities.”
Approval creep is an indispensible strategy for Whitehaven Coal, because the conditions imposed on the mine are so onerous, so expensive, that Whitehaven cannot possibly be true to its number one investment proposition of being a low-cost coal producer.
After all, you can’t imagine it would be cheap to honour the approval conditions that they replicate the critically endangered Leard Forest on what is now predominantly grazing land. That is essentially what is called for.
So the mine drags the chain wherever the plan or strategy is too difficult or expensive to honour it, and that applies to all of their long-range rehabilitation, void contours, drainage and reforestation plans. While doing so, they get the mine running, lobby hard and tie up the regulators in endless time wasting. Once the mine is up and running, according to the approval creep strategy, you’re home.
Mark Vaile said in an interview with The Weekend Australian on 1 November 2014, “opponents have not accepted the regulatory process – which has ensured the mine will have to comply with more than 100 state government conditions” and “what’s Australian is respecting the umpire’s decision.”
Whitehaven itself is refusing to accept the umpires’ decisions. It doesn’t accept the biodiversity corridor and offset provisions and appears intent on avoiding ever having to comply with them.
The many inadequacies of the Maules Creek mine plans are so glaring that they make Mark Vaile’s statements about a well-regulated coal mine appear very ill-informed.
As Dr Leggate told me:
“Opponents to coal mining have learned that mining companies in Australia consistently operate above the law. There is seldom any independent audit to verify compliance and recently the Qld Auditor-General , the National Audit Office and the Productivity Commission have all expressed concern about this serious compliance issue.”
Approval creep has been a winning strategy for Maules Creek mine, and its next-door neighbour Idemitsu’s Boggabri Coal mine, and they look like pulling off a major feat – destroying a critically endangered ecosystem in a State Forest, destroying a swathe of prime farmland and communities and leaving a black hole. All in less than 30 years. Bravo Mark Vaile and friends, no doubt very proud of yourselves.