The tiny community of Bulga will continue their David and Goliath fight in the courts against a coalmine that threatens the very existence of their village.
The decision to go back to court comes in the wake of the March 5 approval by the Planning and Assessment Commission (PAC) for the expansion of Rio Tinto’s giant Mount Thorley-Warkworth coalmine, despite two court decisions against the project.
The PAC also suggested that the village of Bulga be "relocated", partly funded by the government. In essence this means that NSW taxpayers will pay to move the village, against its residents’ will, for the sole purpose of increasing the profits of a multi-national environmental polluter.
Bulga is a tiny village, founded in 1825, on the periphery of the upper Hunter Valley in NSW. It rests on the edge of the largest wilderness in Australia’s south-east, the Wollemi National Park — nearly 1 million acres of natural beauty.
Saddleback Ridge, which acts as a buffer between the village of Bulga and the Mount Thorley-Warkworth open-cut coalmine, is a dense woodland. Home to squirrel gliders, black cockatoos and many rare and endangered plants, the ridge is the last of its kind on Earth.
But Saddleback Ridge and Bulga stand between mining giant Rio Tinto and the proposed expansion of the Warkworth mine.
In 2003 Coal & Allied and its parent company Rio Tinto applied to expand the Warkworth mine. As part of the expansion approval the mine owners agreed to protect the ridge and its endangered ecological communities in perpetuity.
Perpetuity to a mining company must be just over five years, because in 2009 Warkworth applied for a further expansion. That approval, given in 2012 by the PAC and then-minister for planning Brad Hazzard — before he resigned after adverse findings from ICAC — would have resulted in the clearing of almost 800 hectares, home to four types of endangered ecological communities protected under threatened species legislation, and the complete removal of Saddleback Ridge.
However, in that decision the PAC acknowledged that small villages faced with a mine on their doorstep could have their character radically changed, and that they frequently all but disappear due to an exodus of residents.
The PAC’s report concluded: “If this is to change then New South Wales will need to develop a clear policy position that provides further guidance to decision makers as to how social impacts on rural villages are to be balanced in the approval process for coal mines.”
This statement encouraged worried Bulga residents to play their last card — they appealed to the Land and Environment Court to overturn the approval for the mine. The Environmental Defender’s Office (EDO) — which, coincidentally, lost $10 million in federal funding shortly afterwards — agreed to take on the case, saying it believed the decision to expand the mine was flawed because Warkworth was being allowed to renege on its past undertakings.
The court agreed and upheld the appeal. Approval for the mine’s extension was withdrawn due to its “significant and adverse impacts on biological diversity, and the adverse noise, dust and social impacts on Bulga”.
The case made legal history. It was the first time in NSW that a judge of the Land and Environment Court had overturned a government decision that had been in favour of an open-cut mine.
The judge, Brian Preston, found that the environmental offsets offered by Rio Tinto were less than adequate. He said: “It is not appropriate to trade offsets across different ecological communities. Where a project impacts on a specific ecological community, any offset must relate to that same ecological community which is impacted.”
The judge concluded that the enlarged mine would certainly adversely affect the village: “I am satisfied that approval of the project would have some positive social impacts, particularly in the form of continuing employment in the local and broader community, but there will be significant negative social impacts arising from continuation of adverse impacts of noise and dust, visual impacts, and adverse impacts arising from a change in the composition of the Bulga community.”
Rio Tinto and the state government immediately launched an appeal in the Supreme Court, to overturn the decision on the basis that the PAC had decided the mine was overwhelmingly in the public interest.
In April last year the NSW Court of Appeal unanimously rejected all their arguments and ruled in favour of the residents of Bulga and for the protection of the rare forest and its endangered plants and animals.
The EDO’s Sue Higginson, again representing the Bulga community, said: “The Court of Appeal found no fault with the Land and Environment Court decision that the economic benefits of the coalmine did not outweigh the significant impacts on Bulga residents and the destruction of rare forests containing endangered plant and animal species.”
Having fought and won two court cases against the mine’s expansion, the residents of Bulga once again find themselves with approval for a massive open-cut coalmine on their doorstep.
Bulga-Milbrodale Progress Association spokesperson John Krey told ABC News the PAC decision leaves many questions unanswered.
He said the proposal that the government and Rio Tinto foot the bill for the relocation of the village, after the PAC found the mine extensions could be approved despite the impact on Bulga, sets a dangerous precedent.
"Every village in New South Wales should now be concerned, because the impact is going to be so great that you won't be able to live in the village of Bulga," he said.
"Now that should be enough to actually stop this mine proceeding and it should stop the PAC from recommending approval.
"There is nothing now stopping any mining company from an open cut mine simply going straight through a village."