The perpetual motion machine that is the Australian approvals process

WINNING government approval for a mining project is not what it used to be, as Hogsback has been noticing in the Rio Tinto coal-mining dispute in NSW, and which he might soon be watching in the case of Clive Palmer’s coal project in Queensland.

Staff Reporter

On the surface there appears to be big differences between the problems dogging Rio Tinto’s plans to expand its Warkworth and Mount Thorley mines near Bulga in NSW and Palmer’s plans for his China First project near Alpha in Queensland.

For starters one has been in production for years, the other is planned. One is in NSW, the other across the border in Queensland. One is in a populated area, the other in the middle of Queensland’s remote cattle country.

The differences go on, but both are in the coal business and while both have received all necessary state government endorsements both are subject to two wild cards: environmental protests and activist judges using the power of their courtrooms to override government, effectively creating a perpetual motion machine of appeal and counter-appeal.

Warkworth/Mount Thorley is where the combination of protest and judiciary has been most obvious with a decision in April by Chief Justice Brian Preston in the Land and Environment Court, leading to a high profile appeal.

Of particular interest to The Hog is that the appeal is not simply by Rio Tinto. The NSW Government has joined in, effectively disputing a decision made by a judge it appointed.

If this is getting too far ahead for readers who have not followed the Warkworth/Mt Thorley situation here is a quick refresher.

Four years ago (yes, it was that long ago) Rio Tinto started a process aimed at ensuring continuity of operations at its mines near the small town of Bulga, not far from Singleton in the coal-mining centre of the Hunter Valley.

After a tortuous process all NSW government departments and the minister responsible approved the plan. This annoyed a small group of residents who live close to the mines and the very active NSW environmental movement, which took their protests to the Land Court.

It was there that Justice Brian Preston conducted what turned out to be a re-run of the four-year approvals process, calling in his own witnesses and finding that there would be unacceptable impact on biological diversity and local residents.

Rio Tinto was dismayed and the NSW government was made to look incompetent and unable to govern as elected.

The real power in NSW, so it seems, rests with judges who have a precedent set to overrule what the government decides.

How far this judicial oversight goes is an interesting question but not one for The Hog to consider.

What he finds interesting is that legal decisions in Australia have a habit of crossing state borders. Even if the popular view is that it cannot happen in the case of Palmer’s China First project there will be environmentalists looking at the NSW case and wondering how to mount a similar action.

What the anti-coal brigade will be looking most closely at will be the next stage of the China First approvals process, which is the lodging of an environmental statement with the Australian government, and the possibility of international action via the United Nations.

In other words the Palmer project faces multiple potential hiccups along its pathway to development, and that is without considering the need to raise the estimated $6.4 billion to fund the mine, railway and port facilities.

The potential hiccup of particular interest lies in the use of judicial appeals to whatever government might decide, which is what has happened at Warkworth/Mount Thorley.

Preston, perhaps inadvertently, has provided a route map for coal protestors to follow whenever government makes a decision they do not like.

If anyone doubt the courts are a useful place to prevent something happening, rather than simply judging who is right and who is wrong in a dispute, consider what happened in WA when the state and the Australian governments passed laws requiring iron ore miners to share the use of infrastructure such as railways and ports.

Despite repeated government decisions aimed at enforcing the so-called “third party access” rules it has never really happened thanks to the astute use of legal appeals, and appeals on appeals in what has become a legal perpetual motion machine.

What happened in iron ore seems to be happening in coal with Warkworth/Mount Thorley a test case that will be used by others to tie the coal industry in the legal knots of appeal and counter-appeal at precisely the time in can least afford it.

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