Court rejects Bulga mine expansion, fight not over

Mount Thorley Warkworth mine.

Despite two court decisions rejecting Rio Tinto’s bid to expand a Hunter Valley coalmine, the expansion may still go ahead under NSW government rules that allow the company to override environmental concerns and local community objections.

Locals campaigning against the expansion welcomed a unanimous decision by the NSW Court of Appeals to reject an appeal by Rio Tinto on April 7. The mining giant wanted the court to reinstate approval to expand its Warkworth mine near the Hunter Valley township of Bulga. Instead, the court upheld a ruling of the Land and Environment Court from April last year that ruled out the expansion.

In his ruling, Land and Environment Court judge Brian Peterson said: “The economic benefits of expanding the mine were exceeded by the harm it would do to the environment”.

The mine expansion would eventually move operations to within 2.6 kilometres of Bulga. Local residents have banded together to oppose this, saying it would result in noise and dust pollution, and the destruction of areas of big ecological significance.

Rio Tinto’s expansion plans break a promise it made in 2003 to never damage the sensitive ecosystems that lie between the existing mine and the Bulga township. This includes the Warkworth Sands Woodland, which would be destroyed by the expansion.

The woodland rests on ancient sand dunes and is the only known landform of its kind left on the planet. It is also home to several endangered species, such as the squirrel glider and the speckled warbler. The NSW government still lists it as an “endangered ecological community”.

A week before the court of appeals decision, Rio Tinto lodged a new application to expand the mine. Even though the proposal is unchanged, it will not be open to a similar legal challenge under recent state government planning rules.

Sue Higginson, principal solicitor for the Environmental Defenders Office of NSW, said on April 7: “The type of legal challenge used in the Bulga case ... is becoming a thing of the past in NSW.”

She said the NSW government now has the Planning Assessment Commission simply hold a public hearing into all new mining proposals, which “then rules out any appeal to Land and Environment Court on the overall merits of a project”.

John Krey from The Bulga Milbrodale Progress Association said on April 7: “Today's judgment proves once again that the expansion of the Warkworth mine is a bad idea. The costs of the mine outweigh the benefits, as the court has upheld.

“Yet the mining company and the NSW Planning Department are making a mockery of fair procedure and the rule of law by simply restarting the approval process for the mine and shutting the courts out of the new process. We now face the likelihood that the Warkworth coalmine expansion will go ahead, despite two courts ruling that it shouldn't.”

Krey said: “The NSW Planning Department is colluding with Rio Tinto to ensure this mine project is approved regardless of the costs to the community and the environment.”