ENVIRONMENTALISTS involved in a last-ditch legal challenge to prevent the controversial $767 million Maules Creek coalmine from proceeding have been dealt a severe blow to their case.
An amendment to national environmental law nullifies one of the key arguments presented by the Northern Inland Council for the Environment (NICE) in its appeal against the project’s approval to the Federal Court.
The change – supported by both the Coalition and Labor – removes the need for ministers to consider expert conservation advice pertaining to endangered species when approving major projects, including mines.
The sunset clause, which expires on December 31 but is applied retroactively, means NICE’s claim that then-environment minister Tony Burke failed to consider the mine’s impact on a threatened plant species is invalid, regardless of how the judge rules.
Sue Higginson, principal solicitor at the Environmental Defenders Office NSW, represented NICE in the case and said the law change would “protect decisions that have been made unlawfully”.
“The amendment is an attack on the integrity of the laws that are designed to protect threatened species,” Mrs Higginson said.
“It certainly will impact on the arguments that our client made before the Federal Court that the minister didn’t consider approved conservation advice.
“If (the judge) finds that it wasn’t considered and it ought to have been, then ultimately this law now makes good that invalidity.”
Whitehaven Coal’s open-cut mine at Maules Creek, which will create about 450 full-time jobs, has received approval at both state and federal level, meaning the Federal Court challenge represents the final legal avenue for protesters to halt its progress.
NICE spokesman Phil Spark said he found it “very disturbing” that the parliament would employ such “underhanded tactics” to “cut environmental protection”.
“The government obviously thinks that we have a strong case against the approval of the Maules Creek mine – strong enough for them to change the law to avoid being penalised – never mind the fact the mine will destroy Leard State Forest,” he said.
“The whole purpose of what was the legal requirement to consider the conservation advice for threatened species was to ensure planners and developers could not ignore scientific advice, and ensure that threatened species were properly protected.
“The public should have no faith in a government that changes the rules in the middle of the game to protect themselves and put mine development ahead of protecting the environment.”
Environment Minister Greg Hunt told parliament on Monday the legislation was aimed at “covering and protecting all of the decisions made by the previous government”.
“There is an existing set of appeals. There could potentially be more based on technicalities. These could cause endless delays without there being any substantive basis for the claims of improper decision-making,” he said.
Mrs Higginson said despite the change to the Environmental Protection and Biodiversity Conservation Act, the argument over the threatened plant species formed only one aspect of her client’s appeal.