Lock the Gate challenges Minister Stokes to urgently restore legal appeal rights as Bulga residents withdraw challenge in Land & Environment Court

Published: May 20, 2016

Following news today that the residents of Bulga have been left with no choice but to drop their latest court challenge against the approval of the Warkworth coal mine expansion, Lock The Gate Alliance says merits appeal rights for coal mine approvals must urgently be restored.

Former Planning Minister, Prue Goward, took away the opportunity for anyone to challenge the approval of the Warkworth expansion project on its merits in November 2014. After the project was approved in November last year, the Bulga Milbodale Progress Association launched a judicial review case, which only allows for review of procedure, rather than examining whether the approval was the right decision.

“We're devastated by this news. This community has fought for over six years to save their village from the Warkworth coal mine. They twice beat Rio Tinto and the Government in court, twice showed that on merits, this project will do more harm than good. But their victories were cruelly snatched away from them by a government that seems more intent on appeasing the whims of a coal industry in its death throes, than on protecting the health and livelihoods of Hunter communities.”

“Bulga is an icon for everything that is wrong with the way NSW deals with coal mines. The system is unjust and perverse. It is breaking Hunter communities, who are never now allowed the right to challenge the merits of mining approvals in court. Bad decisions are being made and there is no recourse to justice.

“Planning Minister Rob Stokes must ensure that the terrible injustice inflicted on the people of Bulga can never happen again. Two more villages in the Hunter, Bylong and Wollar, are facing extinction by the Bylong and Wilpinjong coal mines. We need Minister Stokes’ assurance they will be allowed their legal rights.

“Minister Stokes must restore the right of local communities to appeal the merits of coal mine approvals in court. This basic legal right is denied with almost every mine approval in NSW, and it was denied to Bulga people in this case.

“Without merits appeal rights, mining approvals are given out based solely on information provided by mining companies, without interrogation. The Independent Commission Against Corruption told the Government years ago that merits appeal rights helped prevent corruption. Taking this basic right away from powerless villagers would be a terrible legacy for Rob Stokes as Planning Minister.

“There is little to nothing now that the people of Bulga can do to save their village or prevent the extinction of the unique woodland community that fringes it. The former Planning Minister failed them, as the current Planning Minister continues to fail people throughout the Hunter region, when he snatches away their basic legal rights to seek review of coal mine approvals.

"We challenge him to stop this practice, and give the public a fighting chance against the inexorable bulldozers of the coal industry.”

A statement from Bulga Milbrodale Progress Association is available here.



A short history of the Battle for Bulga.

 2003: As an “offset” for a newly approved expansion of the Warkworth mine, Rio Tinto and NSW Government sign a Deed of Agreement to protect Saddle Ridge from mining. The area is to be protected as a conservation zone. 

2010: Rio Tinto lodges an application for the Warkworth Extension Project, proposing to open cut mine through Saddle Ridge and the Warkworth Sands Woodland, towards the village of Bulga. 

At a town hall meeting, the community of Bulga votes unanimously to object to the project.

February 2012: Despite a mountain of submissions against the project by the local community, the NSW Department of Health, ecologists, and many others, the O'Farrell Government approves the project.

March 2012: The Bulga Milbrodale Progress Association lodges a merits appeal against the approval in the NSW Land and Environment Court. This is a rare case, merits approval rights are usually denied by the NSW Government when granting mine approvals. The case is heard over September and October 2012. 

April 2013: The NSW Land and Environment court overturns the approval of the Warkworth Extension Project, judging that the impacts of the project on biodiversity and the Bulga community outweigh any benefits it would bring to NSW. 

The decision is immediately appealed to the Supreme Court by Rio Tinto, with the NSW Government joining the appeal a week later. The appeal is heard in September and October 2013.

July 2013: NSW Mining Minister Chris Hartcher and Planning Minister Brad Hazzard team up to change mining regulations (the Mining SEPP – State Environment Protection Policy) to make the “economic significance” of a coal resource the primary consideration for mine approvals. Gazetted November 2013.

November 2013: Rio Tinto lodges application for Modification 6 of the previous Warkworth mine approval. This would allow them to mine into a section of Saddle Ridge. The Mod 6 approval is rushed through the Planning Department at unprecedented pace, with no meaningful public consultation. It is approved in January 2014.

April 2014: Anticipating the loss of their appeal, on 1st April Rio Tinto submits a “new” application for the Warkworth Continuation Project. It is a proposal for a large mine expansion over the same area of Saddle Ridge and the Warkworth Sands Woodland previously ruled unacceptable by the court. 

On 7th April, the NSW Supreme Court upholds the Land and Environment Court ruling against the mine expansion. 

October 2014: NSW creates the "Major Projects Offset Policy" which removes the need for biodiversity offsets for mines to be comprised of the same ecological community or species that is being lost. This clears the way for clearing of Warkworth Sands Woodland for the Warkworth expansion project, as the community grows nowhere else, and Rio Tinto would not otherwise be able to find offsets for clearing 72 hectares of what is now listed as a critically endangered community.

November 2014: The NSW Office of Environment and Heritage gives "biodiversity certification" for the project, saying its biodiversity offsets are "adequate" under the Government's policies. 

NSW Planning Minister Pru Goward calls a Planning Assessment Commission “Review” of the new mine application, and removes third-party (community) merits appeal rights. 

March 2015: The PAC Review recommends approval for the mine, but warns that Bulga might have to be "relocated".

July – August 2015: New Planning Minister Rob Stokes removes the “Resource Significance” SEPP, and calls a second PAC Review. Merits appeal rights have not been restored. 

November 2015: After a high profile campaign by the Bulga community, and thousands of submissions against the project, including by experts on biodiversity, pollution, and community health, the project is approved by the NSW Government (Planning Assessment Commission). It is functionally the same project that has previously been ruled unacceptable by the courts. 

2016: The Bulga Milbrodale Progress Association files in the Land and Environment Court for a judicial review of the new approval. Unlike a merits appeal, a judicial review cannot argue the merits and impacts of the mine approval, but is restricted to administrative points of law. 

In May 2016, on advice from their lawyers, the BMPA drop their case. There is no longer any legal avenue available to them to stop the mine. 


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