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Whitehaven hoax shows NSW planning system can’t cope with community concern

When the community feels locked out of the environmental approvals process, they look for other avenues. Kate Ausburn

Whitehaven hoax shows NSW planning system can’t cope with community concern

This week’s hoax email from an anti-coal activist, Jonathan Moylan, highlights an emerging issue in land-use conflicts both in Australia and internationally. Activists, and in many instances, communities, feel increasingly compelled to engage in extreme actions to have their voices heard.

Within a regulatory regime that prioritises development interests, and provides limited opportunity for independent arbitration of development decisions, this is hardly surprising.

The mining boom has created unprecedented land use conflicts, particularly in rural and regional Australia. Agricultural communities and environmentalists are engaged in disputes with mining and gas companies over the use and management of natural resources. In many cases, these conflicts have eluded resolution.

The Maules Creek mine, near Narrabri in the north-west of New South Wales (and the subject of the aforementioned hoax email), is one such conflict. The proposed 2,000 hectare greenfield open-cut coal mine project sought to clear more than 1,300 hectares of the Leard State Forest. The forest is a high conservation wildlife habitat, and is home to such threatened species as the Masked Owl, as well as 1,500 hectares of critically endangered Box Gum woodland (some 700 hectares of which would be cleared for the proposed mine project).

Leard State Forest was previously mapped in the NSW Government’s draft Strategic Regional Land Use Plan as high conservation value land to be protected from further biodiversity loss. But this was not reflected in the final plan.

As the constitution does not list minerals as an area of federal government jurisdiction, the states and territories regulate mine development consent. In New South Wales, mining leases are granted under the Mining Act 1992, and development consent for mining activities is granted under the Environmental Planning and Assessment Act 1979 (EP&A Act).

Under the Mining Act, any person can lodge an objection to a mining lease. However, this entitlement is lost where development consent is required under the EP&A Act and objectors have already had the opportunity to raise concerns during the development application process. Most mining activities are considered large-scale, state-significant developments for which development consent is required. So public opposition to mine development is usually raised under the EP&A Act.

Following public notice of a development application, there is an exhibition period in which any person may lodge a written objection to the project. It is critical that objectors raise their concerns during this time, as rights to appeal decisions to the Land and Environment Court are only available to those with objector “status”.

The Planning Assessment Commission (PAC) usually determines more contentious applications from private developers. The EP&A Act requires that the decision maker take into account environmental and social impacts of the development, any public submissions, and the public interest.

The public has different appeal rights against determinations than development applicants have. Objectors can only seek to have the decision reconsidered if they have made a written submission during the public exhibition period. They have 28 days in which to lodge their appeal. However, where the PAC conducts a review of an application that includes a public hearing, this avenue of appeal is extinguished.

Under request from the minister, the PAC conducted a review of the Maules Creek mine project, including a public hearing in November 2011. Objectors raised many concerns about the environmental impacts of the project, including the clearing of significant endangered woodland and resulting biodiversity losses. The PAC acknowledged these in their final decision, but determined that the project could nonetheless proceed with certain conditions in place to offset biodiversity loss.

Adding insult to injury for already angered community and environmental groups was a ministerial request that the PAC hold a public hearing as a part of their review that closed off any opportunity to lodge a merits appeal with the Land and Environment Court. Some felt that the right to appeal to the independent umpire was deliberately circumvented.

In their deliberations, PAC were careful to note the concerns raised by community and environmental groups. But ultimately the project was approved with conditions many feel are inadequate to protect both environmental and community welfare. With no right to appeal the decision, other avenues to voice discontent with the determination have been sought.

Despite recent reforms, the planning regime in New South Wales still attracts much criticism.

It is accused of being a top-down framework that facilitates development and delivers royalties to government at the expense of environmental and social concerns. The Environmental Defender’s Office has previously argued that the regulatory framework for mining must enshrine guaranteed rights of community consultation through increased legislative requirements for public input, and greater access to merits appeals and judicial review.

Such reforms would give members of the public more ability to raise their concerns over development projects. Reforms would arguably reduce the need to resort to civil disobedience (or worse) to make concerns heard.

The regulatory framework for mining development fails to meet the expectations of the public, increasingly driving some to take alternative direct actions. This week’s hoax email case demonstrates that when we rely on legal arrangements that simplistically consider the role of communities and the nature of land use conflict, we create the potential for adverse consequences. We need to think more creatively about how communities and resource users resolve disputes, as land use demands will only increase in intensity and complexity.