The application filed with the Federal Court contends that former federal environment minister Tony Burke committed errors of law in granting the approval on February 11.
The involvement of the NSW Environmental Defenders’ Office (EDO) in appealing the approval granted for the Maules Creek project is another example of “the absurdity of a government providing taxpayers’ money to fund legal challenges against its own approvals decisions”, according to the NSW minerals Council.
Just over two weeks ago, the federal Attorney-General announced $300,000 of funding to the NSW EDO.
“Cashed-up with this fresh injection of taxpayer’s funds from the federal Attorney-General, the NSW EDO has now launched a legal challenge against the decision of one of his colleagues, former environment minister Tony Burke,” a spokesman for the NSW Minerals Council said.
“It’s an absurd situation where one federal minister is funding an organisation to mount a legal challenge against the actions of another federal minister.”
The NSW Minerals Council claims the EDO also has a history of supporting anti-mining activists such as Jonathan Moylan, whose alleged “hoax” financial announcement relating to this project prompted an investigation by ASIC and charges being laid over misleading the market.
The Maules Creek project has received all necessary state and federal approvals after one of the most rigorous environmental assessment processes ever undertaken in Australia, according to Whitehaven.
“In this litigation, the Federal Court has jurisdiction to determine whether the federal minister committed an error of law in granting the approval,” the company said.
“It is not a merits appeal. The court does not have the task of determining whether or not the project should be approved. In this regard, it is a different type of litigation to the case concerning the Warkworth Extension Coal Project in the Hunter Valley, which was a merits appeal in the NSW Land and Environment Court.
The Maules Creek coal project involved a comprehensive assessment and decision-making process. But if the court was to find that there was any legal error in the minister's granting of the approval, the company will request that the minister promptly cure the error, re-determine the application and grant a new approval.
“There is no contention in this litigation that the minister is prohibited from granting an approval for the project.”
The mere start of the litigation does not preclude the company from relying on the approval to proceed with construction, it said.
“Whitehaven Coal is keen to ensure that this litigation is determined as soon as possible. As a respondent, it will be entitled to request that the court expedite the hearing of the proceedings.”
The project is also one of the most significant developments underway in regional NSW, with 340 jobs in construction and approximately 470 during ongoing operations.
“It is an important project for the region and should be allowed to proceed,” the NSW Minerals council said.
