The NSW Court of Criminal Appeal’s overturning of the Land & Environment Court’s conviction of Maules Creek Coal for incompetent blasting should be seen as an unmistakable message to the NSW Independent Planning Commission not to rely on promises by Minister Paul Scully’s Planning Department that “strict controls” and “a robust regulatory regime that is rigorously and effectively enforced” apply to major extractive projects. The Court’s decision concerned a blast on 20th August 2020, which though it did not trigger exceedances at any of the mine’s monitoring locations caused reverberations around the Boggabri region, and forced the neighbouring Boggabri Coal mine to evacuate.
It also resulted in the adjacent EPBC-protected Leard Forest and Leard Biodiversity Corridor being showered with large “Volkswagon” size boulders. In spite of video evidence showing massive volumes of rock and debris raining down on the Biodiversity Corridor, Maules Creek’s Environmental Superintendent Emma Bulkeley provided evidence to trial Judge Sarah Pritchard that she inspected the Biodiversity Corridor following the unprecedented blast and saw no evidence of harm to the bushland, only a “few broken sticks”.
A long list of allegations was made by the EPA prosecutor against Whitehaven Coal, including:
- deviating from standard blast design
- failure to complete drill and blast checklists
- overloading of holes
- contravention of the mine’s own loading and stemming procedures
- no risk assessment of the deviation from standard practices
- and critical communications and management decisions which suggested a chaotic and risk-taking culture within Maules Creek Coal.
Fault lies in the wording of the blasting conditions, which are so narrowly drawn that multiple failings in drill and blast design and implementation were not enough to support a conviction.
When we posted the video of the blast to facebook some of the comments from our readers were very interesting.
After six years of criminal investigations by the NSW Environment Protection Authority, weeks of court hearings and two criminal court appeals later, it is now clear that pollution licences issued by the EPA are ineffective in achieving the public’s expectations of the environmental regulator.
The Leard Forest is one of the most important remaining woodland areas in north-western New South Wales and has recently recorded sightings of substantial flocks the critically endangered Swift Parrot. Under the Maules Creek mine’s planning approval, the Leard Biodiversity Corridor was intended to provide vital habitat and safe passage for wildlife, helping connect populations of terrestrial mammals and other species across a landscape that has been decimated by open cut mining.
However, the risk assessment for the Biodiversity Corridor does not mention nearby blasting as a hazard to ecological values and wildlife, and the approval conditions did not specify them as “sensitive receivers”, that is, at-risk locations needing protection against blast impacts.
Who and what is a sensitive receiver is a matter that needs to be reviewed by NSW Government. The Australian Standard for blasting ultimately leaves it to the relevant government authority to determine who or what should be regarded as a sensitive receiver for the purposes of blast impact assessment and regulation.
AS 2187.2 – 2006 Explosives – Storage and Use – Part 2: Use of Explosives recognises that the identification of sensitive receivers is ultimately a matter for the relevant regulatory or approval authority, which may determine that particular people, properties, facilities or environmental values warrant protection from blasting impacts.
This is a grave error on the part of those who designed the Maules Creek licence that they ignored the Commonwealth conditions which only gave approval to the Maules Creek Coal mine on condition that protections of the Critically Endangered White Box Grassy Woodland be ensured. Next time the NSW Planning Department promises the Independent Planning Commission it should not be concerned about environmental risks flagged during assessment, the blasting fiasco playing out at Maules Creek Coal should be top of mind.