Warkworth Court decision and biodiversity offsets

The NSW Court of Appeal decision yesterday (Monday 7th April) which upheld the Land and Environment Court decision to reject the Warkworth mine expansion at Bulga is very good news for bio diversity offsets.

Warworth Mine

However that good news is being undermined by the Office of Environment and Heritage’s proposed new NSW Biodiversity Offsets Policy for Major Projects.

One of the grounds of challenge Rio Tinto put forward was that Chief Justice Preston had not properly considered the biodiversity offsets proposed by the mine which consisted of 5 remote sites. None of the remote sites contained the endangered Warkworth Sands Endangered Ecological Community and therefore according to the Land And Environment Court did not meet the principles contained in NSWs  Principle for the Use of Biodiversity Offsets in NSW.

In rejecting Rio Tinto’s offsets package the Chief Judge found they did not improve or maintain the viability of the ecological community and said:

“it is not appropriate to trade offsets across different ecological communities”. Rather, “where a project impacts on a specific ecological community, any offset must relate to that same ecological community which is impacted

To have this unambiguous judgement from the Court on the standards which must be achieved if offsets are to be used is good news.

Unfortunately the NSW Government is in the process of introducing a new policy called NSW Biodiversity Offsets Policy for Major Projects.

The draft policy, which is on exhibition until May 9th 2014 will:

  • not require like for like offsets (ie it would allow the destruction of the Warkworth Sands Woodland by Rio Tinto without providing an offset of the same woodland!)
  • allow a mining company to pay money into a fund without being able to demonstrate that suitable offsets can be set aside to compensate for the development.
  • allow a development company to receive offset ‘discounts’ if the offsets required would make their development unviable (ie if they can’t afford to compensate us for their environmental damage they can proceed anyway!)

These proposed changes to NSW Biodiversity Offsets Strategy will undercut part of the reason the Land and Environment Court was able to reject the Warkworth mine expansion for its inadequate offsets and biodiversity protection.

As usual the NSW Government is focused on promoting mining at the expense of environmental protection. This is not acceptable.

Please make a submission on the proposed NSW Biodiversity Offsets Policy for Major Projects.  You can see the draft policy here  and send submission to offsets.policy@environment.nsw.gov.au

James Ryan

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