When Whitehaven Coal recently faced serious criminal charges brought by the NSW EPA in a NSW Land and Environment Court trial, observers expected the Namoi region’s worst polluter to plead guilty and cop a fine. That is what Whitehaven did when its Narrabri underground mine was prosecuted in 2020 for 19 charges of causing significant harm in Pilliga Forest during coal exploration, and again when it pleaded guilty to a polluting blast at its Rocglen mine (near Gunnedah) in 2019.
However, faced with nine separate blasting offences at its Maules Creek coal mine, Whitehaven is vigorously defending itself against charges that it breached its Environmental Protection Licence and conducted blasting incompetently.
Knitting Nannas Against Gas and Coal @knitnannasSYD, a prominent group of seniors opposing fossil fuel expansion, have been observing the first four of these prosecutions over a two-week hearing during which Her Honour Justice Sarah Pritchard listened to the account of workers at the neighbouring Boggabri Coal mine 3km away from the blast, who were sent to Boggabri hospital after experiencing ear pain and headaches.
On Thursday, 20th August 2020 a massive blast at Maules Creek mine was triggered which caused a thick cloud of dust and debris to be blown in a south-easterly direction towards the Leard State Forest, and the Commonwealth-protected 500m wide Leard Biodiversity Corridor. This blast caused a 100-strong pit crew at neighbouring Boggabri Coal to be evacuated to crib huts and bussed away from the scene to avoid the oncoming threat.
Just last year, Whitehaven Coal was also convicted of another blasting-related offence where the serial offender mismanaged the storage of blasting materials which escaped into Back Creek, part of the Namoi River catchment area.
Whitehaven has not called any witnesses to defend itself, relying on a strategy of demonising the NSW EPA’s principal investigator, cross-examining him with apparent intent to show he is a vexatious litigant with an unwarranted grudge against the coal mine. (This appears to be a similar tactic to that which was used by the Turnbull family when prosecuted for unlawful land clearing at Croppa Creek, which culminated notoriously in the murder of Department of Environment officer Glen Turner).
Whitehaven’s barrister, Mr Thomas Howard SC has adopted some classic defence tactics to delay the trial, arguing endlessly for the Court not to hear evidence from community members who witnessed the fallout, noise and overpressure from the blast. Mr Howard grilled the stalwart EPA principal investigator, he appeared to insinuate that the man had an improperly close relationship with a nearby resident who was also a witness.
The defence’s intimidation of potential witnesses for the prosecution was clearly on display when Mr Howard SC repeatedly referred to them derogatively as “Persons of Interest”, a term used in criminal law to describe potential suspects in a crime. After an objection by the prosecutor, Mr Craig Leggat SC, Justice Pritchard upheld the objection, expressing her disapproval of the defence’s use of that terminology.
Finally, on the final afternoon of what was originally supposed to be a ten-day trial – which had by then blown out to 18 days due to Whitehaven’s delaying tactics – defence counsel blew up proceedings by requesting a further three days of interlocutory hearings in which to argue why the whole prosecution should be permanently stayed.
The desperation of Whitehaven Coal’s approach to this series of prosecutions is a remarkable change from previous prosecutions. No doubt, the fact that workers from Boggabri Coal are alleged to have been injured as a result of the blast is a major consideration, as the Knitting Nannas reported, Whitehaven has concerns for “the legal consequences of the facts”.
The Court heard that no Whitehaven Coal workers are alleged to have been injured by the blast, which is unsurprising as the blast impacts had been modelled to go towards Boggabri Coal. However, Whitehaven Coal has previous form in delaying and attempting to avoid reporting serious injuries like in this 2018 case where the company claimed a critically injured worker airlifted to John Hunter Hospital after being trapped in a burning vehicle had suffered minor injuries.