Whitehaven Lawyers Foreshadow Board to Consider Guilty Plea in Fume Cases
This week (Thursday, 31st October), the day after Whitehaven Coal’s 2024 Annual General Meeting, the company’s lawyers are set to make sentencing pleas in relation to four recent convictions in the blasting case that caused workers at Idemitsu’s Boggabri Coal mine to be sent to hospital.
Typically this would see the company argue for clemency and mitigation of the penalty, which is expected to climb since the company’s last prosecution where it was fined $200,000 for unlawfully capturing a billion litres of water during the 2016-2019 drought.
In response to questions from The Northern Daily Leader, a Whitehaven spokesperson foreshadowed the kind of argument that can be expected at the NSW Land and Environment Court sentencing hearing before Justice Sarah Pritchard, telling the NDL:
“Since 2020, Whitehaven has made significant investments to improve its environmental compliance performance… with the company reporting zero environmental enforcement actions in the last two years.” However, this is going to be hard to argue when the Whitehaven Coal Board of Directors is expected to consider pleading guilty to 8 further criminal offences related to incompetent blasting practices at the Maules Creek open cut mine over a 17 month between October 2021 to March 2023.
The 8 charges (which are unconnected to four earlier convictions related to the abnormally huge blast of 20th August 2020 which is subject of the forthcoming sentencing pleas) concern toxic nitrogen dioxide fumes emitted from blasts at Maules Creek Coal mine, near Narrabri.
In arguments before Justice Sandra Duggan in the NSW Land and Environment Court on 20th September, Whitehaven Coal legal representatives argued that the 8 blast fume prosecutions currently being heard in the NSW Land and Environment Court should not proceed until the company’s Board of Directors meets to consider its position.
This is a signal that Whitehaven may ask the Board to consider a plea of guilty, effectively silencing any further evidence of the systemic operational and technical problems and breaches of the mine’s Blast Management Plan which have plagued Whitehaven’s Maules Creek and Rocglen coal mines. A plea of guilty would effectively shut down evidence of lax blasting procedures, failure to complete necessary checklists, and understaffing at Maules Creek Coal mine.
The Whitehaven Coal Board is scheduled to meet on 21st October and 11th-12th December 2024, but Whitehaven’s lawyers said it was not possible for the Directors to consider the company’s legal position until a further meeting in the New Year. Justice Duggan disagreed, stating that the company could call a special Board meeting, but the prosecutor the NSW Environment Protection Authority did not object to the further delay.
“Reluctantly, but by consent”, Justice Duggan granted an adjournment until 7th February 2025, but emphasised, “but I’m not going to adjourn again. Don’t ask me to adjourn again.”
This comes after Whitehaven counsel previously argued that the Court should order a permanent stay of prosecution because of perceived technical errors in the wording of the criminal charges, which have now been remedied by the EPA. Similar arguments have been used by Whitehaven in relation to the four earlier criminal charges relating to a large blast on 20th August 2020 which led to workers at the nearby Boggabri mine suffering ear injury due to overpressure.
The multiple prosecutions have been tainted by conduct on the part of lead barrister Mr Howard SC who was reprimanded for being “disrespectful” to the Court and the sole witness called on behalf of Whitehaven Coal, US blasting expert Dr Cathy Aimone-Martin, who became uncooperative. She was told by the Judge “Dr Aimone-Martin you must answer the question”. Both apologised to the Judge.
In a desperate and failed bid to derail the prosecutions, Whitehaven Coal also appealed to the NSW Court of Criminal Appeal to force Justice Sarah Pritchard to recuse herself on grounds of apprehended bias.
Rejecting Whitehaven’s argument, the urgent judgment issued by five Appeal Judges said the Court will not entertain “frivolous and speculative” cases.