If mining conflicts suppress the right of public participation, then can mining be sustainable?
Mining of natural resources has surpassed agriculture as the basis for Australia’s economy; but at what cost? It is essential to Australia’s economic health to have access to a continuing income stream from a number of sources including minerals. However, there is a presumption – in both the political and resources sectors – that mining interests should trump all other interests, including social and environmental ones. A number of recent conflicts involving major mining projects in Australia and overseas have highlighted the fallacy of the claimed economic and social benefits, as well as the dangers to the community, the legal profession and the judiciary of suppressing public participation in the environmental impact assessment (EIA) process.
Any actions by the executive to exclude public participation in reviewing documentation related to resource management and extractive developments by legislative or policy changes such as the proposed new planning legislation in NSW and the new mining State Environmental Planning Policy (Mining Petroleum, Production and Extractive Industries) Amendment (Resource Significance) 2013 (Amended Mining SEPP), are retrogressive steps. The argument in this paper is that, due to the often negative and large-scale impacts that mineral extraction developments may have on the community and the environment, mineral extraction developments should be subject to a rigorous EIA processes which incorporate effective and inclusive rights of public participation, especially in relation to major projects. Such rights should be enshrined in environmental legislation in the objects clause, standing for merit and judicial review provisions, and there should be a duty for the decision-makers to properly consider public submissions. Such provisions may lead to revision of the development or its outright rejection. Furthermore, innovative policies, programmes and legislative reform should be drafted to protect public participation and the right to oppose inappropriate developments.
G Bates, Environmental Law in Australia (LexisNexis Butterworths, 7th ed, 2010) 215.
G M Mudd, ‘The Environmental Sustainability of Mining in Australia: Key Mega-Trends and Looming Constraints’ (2010) 35 Resources Policy 98, 98.
International Institute for Environment and Development, Mining, Minerals and Sustainable Development 10 years on’ (IIED) .
International Institute for Environment and Development, ‘Breaking New Ground’ (The Report to the Mining, Minerals and Sustainable Development Project, IIED, May 2002)
F Solomon, E Katz and R Lovel, ‘Social dimension of mining: Research, Policy and Practice Challenges for the Minerals Industry in Australia’ (2008) 33 Resources Policy 142, 142.
Bulga Milbrodale Progress Association v Minister for Planning and Infrastructure and Warkworth Mining Limited  NSWLEC 48 (Preston CJ).
B Lagan, ‘What Happens With Rio Tinto, Stays With Rio Tinto’ The Global Mail (online), 2 October 2013 .
United Nations, ‘United Nations Global Compact’ (21 February 2014) UN
World Business Council for Sustainable Development, ‘Vision 20’ WBCSD .
United Nations Conference on Environment and Development (UNCED), Rio de Janiero, 4-14 June 1992.
Telstra Corporation Limited v Hornsby Shire Council (2006) 146
LGERA 10; Taralga Landscape Guardians v Minister for Planning (2007) 161 LGERA 1; Hub Action Group Inc v Minister for Planning (2008) LGERA 136 (Preston CJ).
Hub Action Group Inc v Minister for Planning (2008) 161 LGERA 136.
M Halle, Executive Director of the European Office of the International Institute for Sustainable Development, ‘Rebooting Sustainable Development: Why it Hasn’t Worked and What to do About it’, (11 March 2010), .
J Sax, Defending the Environment: A Strategy for Citizen Action (Vintage Books, 4th ed, 1972).
S McIntyre, A Concise History of Australia (Cambridge University Press, 199) 91.
C Kent, ‘Reflections on China and Mining Investment in Australia’ (Speech delivered by the Assistant Governor to the Reserve Bank of Australia, Perth, 15 February 2013) .
C Taylor et al, Beyond the Boom: Australia’s productivity imperative (August 2012) McKinsey Global Institute .
R Gittens, ‘Mining Boom too Big to go Bust Just Yet’, Sydney Morning Herald (Sydney), 24-25 August 24 2013, 8
A Grant-Taylor ‘A Snapshot of Mining in Australia’ (2013) Spirit Regional Australia 95, 96.
IHS, ‘Global Insight Country Intelligence Report for Australia’ (Report, IHS, 2012) accessed September 2013, 25 (now no longer available).
Land and Environment Court Act 1979 (NSW) s 17;
Land and Environment Court, Practice Note - Class 1 Development Appeals, 30 April 2007.
Warkworth Mining Limited v Bulga Milbrodale Progress Asssociation Inc  NSWCA 105.
H Kenyon-Slaney, ‘Keep Mining Approvals out of Court’ Australian Financial Review (online) 14 October 2013, .
Matt Siegel, ‘Coal Mine Fight Embodies an Economic Struggle in Rural Australia’, New York Times (online) 13 August 2013, .
Tim Lamacraft and Sally Block, ‘Landmark Court Case Begins Over Disputed Coal Mine Near Singleton’, ABC Online, 14 August 2013 .
Planning and Assessment Commission, ‘NSW Planning and Assessment Commission Determination Report Warkworth Coal Mine Modification 6’ (29 January 2014) .
M Chambers, ‘Rio coal project hit by dollar, red tape’ The Australian (online) 13 July 2013, .
L C Paddock, ‘The Role of Public Engagement in Achieving Environmental Justice’ in Le Bouthillier et al (eds), Poverty Alleviation and Environmental Law (Edward Elgar, 2012) 133.
Michelle Harris, ‘Rio Takes a Fresh Tilt at Mine Extension’, Newcastle Herald (Newcastle), 21 March 2014, 24.
Peter Ker, ‘Rio has a New Bid for Hunter’, The Sydney Morning Herald (Sydney), 20 March 2014, 22.
Letter from the Chief Executive Officer of the NSW Business Chamber to the Premier of NSW, 21 May 2013.
State Environmental Planning Policy (Mining, Petroleum, Production and Extractive Industries Amendments (Resource Significance) 2013.
The Hon Chris Hartcher MP, former Minister for Resources and Energy, Special Minister of State and Coast, ‘Improving Certainty for the Community and Investors in Mine Proposals’ (Media Release, 29 July 2013).
NSW Minerals Council, Submission to NSW Planning and Infrastructure, Mining State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) Amendment (Resource Significance), August 2013, .
Environmental Defender’s Office NSW, Submission to NSW Planning and Infrastructure, State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) Amendment (Resource Significance), 2013.
Planning Bill 2013 (NSW).
EDO ‘NSW Submission on A New Planning System for New South Wales – White Paper’ (EDO, June 2013) 29, .
HRH Prince Charles, ‘Plenary Address to Business Leadership in the New Global Innovation Economy: The Race Is On’ (Business Leaders Forum on Sustainable Development, Parliament House, Canberra, 16-17 June 2011).
Deloitte, Tracking the trends 2013: the top 10 issues mining companies may face in the coming year (2013) Deloitte
World Business Council for Sustainable Development, ‘Vision 2050: The new agenda for business’ (Report, WBCSD, 2010).
P Martin, ‘Embedding Social Justice in the Design of Environmental Regulation’ Le Bouthillier et al (eds), Poverty Alleviation and Environmental Law (Edward Elgar, 2012) 194-195.
Share this article:
This work is licensed under a Creative Commons Attribution 4.0 International License.