WYONG SPECIAL AREA (PROTECTION) BILL 2018

2nd Reading Speech

8 March 2018


Today I introduce the Wyong Special Area (Protection) Bill 2018, which keeps an election promise made by the New South Wales Labor Opposition and Mr David Harris, MP, during the 2015 State election campaign. In a twist of historical irony, it also keeps a promise made by the Liberal Party during the 2007 and 2011 election campaigns—a promise that to this day the Liberal Party has not honoured. I will speak more about that later. This is an Act to prohibit the granting, renewal or modification of exploration, prospecting and mining authorities and titles for minerals and petroleum, and certain planning approvals, that relate to land at Wyong that is the site of the Wallarah 2 Coal Project, and for other purposes.

The proposed Act defines the Wyong special area in clause 3 as the area defined to mean the land subject to certain exploration licences and an authorisation granted under the Mining Act 1992, namely EL6514, EL4911 and A405. Clause 4 prohibits the grant or renewal of any mining authorisation in relation to land in the Wyong special area and the making of any changes to the conditions to which such an authorisation is subject. Clause 5 prohibits the grant or renewal of any petroleum title defined in the Act and the making of any changes to the conditions to which such title is subject. Clause 6 provides that a planning approval is not to be given under the Environmental Planning and Assessment Act 1979 in relation to development for the purposes of prospecting and mining activities on land in the Wyong special area and cancels any such planning approval already given.

The bill seeks to protect the Wyong water catchment area from destructive mining, thereby protecting the important water supply, which serves more than 300,000 people. Further, the bill is required to fulfil an allegedly ironclad election commitment made by the Liberal Party in 2007 and 2011, and of course by my party, the Labor Opposition, in 2015. The South Korean Government owned mining company Korea Resources Corporation [KORES], submitted, under the Wallarah 2 Coal Project, a new application to build a longwall coalmine beneath the Wyong water catchment valleys affecting the Dooralong and Yarramalong valleys. These valleys are the major drinking water resource for more than 350,000 people.

Wyong Shire Council, Gosford City Council and the Joint Water Authority engaged Professor Philip Pells to prepare the water section of their submission against the Wallarah 2 Coal Project. Professor Pells demonstrated, using the mining company’s own data, that there would be a catastrophic loss of water in the catchment if the proposal proceeded. In 1999, when BHP Billiton owned the lease under its subsidiary Coal Operations Australia Limited, its well-credentialed and respected hydrology consultant, Mitchell McCotter, found in its report produced in 1999 that there were transient pathways in the geology that would enable surface water and aquifer water to travel to the mine workings if mining occurred. These facts were presented at the Chikarovski inquiry in 2008 and were ignored by the panel members. In March 2011, prior to the State election that year, the then Minister for Planning, Tony Kelly, rejected the mine proposal. In a letter to the community group fighting against the mine, the Australian Coal Alliance, he said:

The project does not adequately address potential surface water quality impacts, resulting in uncertainty around the ability of the project to meet acceptable water quality outcomes.

The Minister , in rejecting the mine application , further stated:

The project is not considered consistent with the principles of ecologically sustainable development, including the precautionary principle, and as a consequence is not considered to be in the public interest.

Leading up to this decision the Liberal Party in opposition championed the community’s cause again s t the mining project , and the two particular proponents were Chris Hartcher and Barry O ‘Farrell. The Liberal Party committed itself in writing twice that if elected it would not allow the coalmine proposal in the water catchment valleys. Barry O’Farrell stood before a crowd of more than 300 people at a rally in January 2009 and said :

The next Liberal-National government will not allow mining to occur here, will not allow mining to occur in any water catchment. Mining leases and mining permits will reflect that common sense. No ifs, no buts, a guarantee.

Barry O’Farrell , in an email to community leader Alan Hayes the day after the rally, said:

I especially appreciate the opportunity to reiterate the Liberal Party’s opposition to the coal mining proposal and our determination, in office, to prevent it going ahead.

Prior to the March 2011 election the Liberal Party said , again in writing , that it was now Liberal Party policy that there would be no coalmining in the Wyong water catchment valleys . Liberal Party members ran their election campaign on t he Central Coast on the back of the anti-coalmine campaign, engaged the community’s assistance through the Australian Coal Alliance, proudly wore their “Water Not Coal” T -shirts and waved the “Water Not Coal” placards throughout the four State seats of the Central Coast  which of course they won largely on the back of that campaign . Ironically , one of the casualties at that election was David Harris, the then member for Wyong and now again the member for Wyong. Despite ensuring that the previous Labor Government had rejected the application , he was tagged with the allegation that somehow he and Labor supported the mining proposal, which they did not. Therefore, the Liberal Party won those four seats on the promise to legislate to stop the mine After the 2011 election Chris Hartcher said on ABC Radio:

No candidate would have been elected [on the Central Coast] had they not opposed the coalmine.

In a press release sent to Alan Hayes in April 2011 and published in the local community newspaper he also said:

Having attended a number of public meetings and having been fully briefed by the Australian Coal Alliance, in 2007, the Liberal Party (through its leader Barry O’Farrell) declared support for the community campaign against the coal mine and pledged to ban the coal mine (with legislation in the Parliament if necessary) if elected in 2011.

In the same press release Chris Hartcher further said :

On the 4th March, the last day at law that they could make a decision, the Labor Party caved in to community pressure and the ACA’s campaign and promised what the Liberals had promised 4 years earlier. Well … not exactly. The Liberals promised to introduce legislation to ban mining beneath the water catchment area around Wyong.

Barry O’Farrell confirmed to local residents at the Community Cabinet meeting held at Gosford in December 2012 that the mine would not proceed. Despite these supposedly repeated and ironclad promises in writing and in public, the New South Wales Liberal  National s Government has repeatedly failed to deliver on those commitments and has allowed the South Korean mining company KORES to pursue this project. The Liberal-Nationals Government has said that New South Wales could be subject to legal proceedings if it does not allow the planning process in connection with the project to proceed. That is not correct. Section 127 (1) of the Mining Act states:

The holder of an authority is not entitled to compensation merely because the authority is cancelled.

The term “authority” includes both exploration licences and mining leases. The current Government could and should have acted on this, but it has not and once again the community on the Central Coast is at risk. I will develop that theme. Professor Pells was again retained by local government and the Joint Water Authority to provide a report on their opposition to the Wallarah 2 Coal Project when a second environmental impact statement [EIS] was submitted. He proved, once again using the proponent’s own data in its new environmental impact statement, that there would be an unacceptable loss of the Central Coast’s major drinking water resource if the project proceeded.

Pages 9 to 17 of the EIS health assessment risks contain a full analysis of the possible increased deaths and sickness from the dust generated by the mine. The mine surface facility is adjacent to the largest urban growth area in the region and the mortality figures in the EIS are, as cited by the proponent, “conservative” and do not take into account the growing population of the area or the large volume of traffic travelling along the F3 expressway or the link road past it. Perhaps honourable members in this Chamber would like to turn their minds to this question: Which Central Coast families would want to sacrifice any of their loved ones or put at risk their water resources so that a South Korean mining company can extract coal to meet the needs of South Korea or generate profits for the company? The risks embodied in this proposal are not acceptable.

The Central Coast Region already has the highest rate of avoidable respiratory related deaths in the country. D Peter Lewis, Director of Public Health for the Central Coast and North Sydney, in a report prepared for the Wallarah 2 submission stated :

Increased particulate exposure (from the Wallarah 2 coal surface facilities) could cause deaths, require hospital admissions, and make children have more chest colds, night-time coughs and trips to the doctor.

He further stated that the mortality and morbidity figures would be seven-fold those estimated by the mine proponent. His report only became public after being unco vered by the Australian Coal Alliance, but it was still ignored by the State Planning Assessment Commission [PAC] for the previous Wallarah 2 submission.Wallarah  2 further admitted in a ppendix H of the environmental impact statement [ EIS ] that 245 homes w ould be subsided by up to one metre, and in some cases up to two metres. It states :

The overall movement predicted for the houses within the study area are greater than those predicted to have occurred for the houses at Tahmoor, Teralba, West Cliff and West Wallsend Collieries. It is expected that impacts would be greater (for these houses in the Study area).

In addition, 755 rural structures and 420 rural dams will be subsided to varying degrees. Dooralong/Jilliby Road is predicted to fall 1.75 metres in p laces, as well as subsidence in Dickson, Durren and Smith roads . Many farms are predicted to subside 1.6 metres or more. This would make it worse tha n any other mine in the country , as far as I am aware. In 2012, Sam Haddad, t hen Director- General of Planning, made it a requirement that the mining company individua lly consult with all subsidence  affected landholders during the preparation of the EIS. It is a  matter of record that that was not done.

During the 10 years that the Korea Resources Corpor ation [KORES] ha s held the exploration lease , as far as I am aware it has never consulted directly with any of the 245 affected landholders. Professor Philip Pells, after spending many hours trying to work out the subsiden ce damage, concluded that the EIS ,and in particular the Mine Subsidence Engineering Consultants Pty Limited [ MSEC ] subsidence impact prediction on houses, has been presented in such a way that it is impossible to determine the likely damage to any particular house . That means it is impossible for a particular landowner to work out what is predicted for his or her home . Professor Pells said in an email to Alan Hayes:

There is a list of 245 houses, numbered 1 to 245 but without location defined, and there are plans showing each house, but without being numbered. So one cannot relate the list and the damage details in that list to the houses on the maps.

I thought I could work out the numbering system by carefully studying the subsidence prediction contours in relation to the house positions. My conclusion from this is that the numbering of the houses has been made “chaotic” so that it is impossible to know in what damage category a particular house will fall.

It is as if the mining company is trying to cover its tracks and make unknowable the damage it will wreak upon the community. In a further email to Alan Hayes, Professor Pells said:

So the focus of the report at this stage of the approval process was to provide an indication of overall spread of subsidence predictions and potential impacts for houses rather than predictions and assessments at an individual level.

If landowners independently looked up our report to find what the predictions are based on the mine plan right now, they would be forgiven for thinking that these were the numbers that will apply to their house if the mine was approved.

They may not realise that mine plans can change in the future. This might create extra angst in the future if the predictions from the final layout were higher than those shown at the moment because the longwalls have shifted or changed orientation or something.

Again, the information presented in the EIS is presented in such a way that the community is not able to ascertain what is predicted for their home. That is shocking and scandalous. Even more shocking and scandalous is the inaction of the Government around this issue. Even if it had not made commitments which it has  how can it not keep faith with the community of the Central Coast ? It is beyond understanding. In stage one of the proposed mine 150 brick homes in the modern rural Hue Hue subdivision sit directly above Awaba Tuff material, which is described as unstable and unpredictable and casts doubt on the validity of the mine ‘s subsidence figures. Awaba Tuff is described in all mining manuals as being particularly difficult material to stabilise. This puts the Wallarah 2 proposal into the realms of a dangerous experiment and risking the fabric of many family homes. From 2002 un til 2012 the Mine Subsidence Board has accepted only 45 per cent of subsidence claims, many of which still remain unpaid as people have to slug it out in the Mining Warden’s Court.

In 2014, the PAC accepted that the economic analysis in the EIS was  grossly flawed  and that there will be little economic value flowing to the Government and the Central Coast region. It was further found that the royalties and other miscellaneous income streams back to the Government from the mine would be far less than the subsidised benefits the miners would receive from the Government, leaving New South Wales shelling out more than it would receive from the project. The damage to public infrastructure, in particular the 39 high voltage electricity transmission towers and rail upgrade s, has never being fully assessed or addressed to determine who will cover the cost. A conservative estimate has it running into many millions of dollars. This project is both economically and socially irrational.

Approval of the Wallarah 2 Coal Project wa s dependent upon consent from the Darkinjung Local Aboriginal Land Council to allow the mining company to build a rail spur through their land. This consent was refused and th e matter was taken to the Land and Environment Court, which ruled that the develo pment application was defective and could not be approved without the land council’s consent. T he Government has accepted the c ourt’s decision Forced mediation between the land council and the mining company has also failed, with access consent still bein g withheld.

Operation Spicer—well known to all of us in this place and which saw the demise of the careers of  number of Liberal Party m embers of Parliament revealed secret meetings between the mining company and senior Ministers of the O’Farrell Government . Those meetings included a trip to South Korea to the mining company’s head office and dinner parties attended by senior Ministers and executives of the mining company held at one of the executive’s home. I ask rhetorically, Is there a causal nexus between this association and the inaction of the Government ? The community and local government have soundly rejected this project since its inception because the risks are so great to the water supply of the Central Coast region . Some members of this House live in that region. It is dangerous to the health outcomes of residents.

The Dooralong and Yarramalong water catchment is the major water resource for more than 350,000 people and the growing housing development in the northern area of Wyong Shire, which sits beside the proposed coal mine loading and transport facility. It should be noted that in September 1950 the New South Wales Government Gazette No. 153 proclaimed the Wyong Water Supply Catchment District to be preserved in connection with the Wyong water supply under the control of the Council of the Shire of Wyong. It is of direct interest to them as end users and as local regulators. Another great issue of concern affectingCentral Coast communities is the legacy issues.

In June 2016 the Korean Times reported that the project’s parent company, the South Korean government  ow ned Korea Resources Corporation [KORES], is to quit its overseas development operations. The company’s debt ratio stands at a staggering 6,905 per cent. According to the Korean Board of Audit and Inspection, a total of 35.8 trillion Korean won was invested in overseas resource development, with little gain so far leading KORES to slash 118 international jobs. The announcement that the company is withdrawing is and should be of great concern to the people of the Central Coast and to others opposing this mine. The problem is that the remedial and rehabilitation work that the mine company undertook to do in its original application could well be unrealised because the proponent, Wyong Coal Pty Limited, has paid  up capital of only $400. The total liability of this company is limited to the total amount of its paid  up capital. It could simply walk away and leave t he Central Coast community and the State Government bearing the burden of the cost.

Given the reported financial woes of the parent company and its move to withdraw from overseas resource development s , it is highly unlikely that the current proponent would want to develop the mine and would wish merely to on-sell an approved licence. That raises the question of who will pick up the tab. Any sound purchaser would not want to foot the bill for liabilities of the past. In addressing the requirements for the a mended development application, the proponent must take into account other community interests. In its proposal the proponent mentions nothing about the development that is currently being examined for Darkinjung Local Aboriginal Council land where, througbuilding proposal , it intends , initially, to subdivide 500 building lots on land directly adjacent to the mine project boundary. The Australian Coal Alliance received legal advice that the department is bound to take into account the proposed development of this land , given that it has progressed to a stage where the department has determined that the planning proposal should proceed and has directed Central Coast Council to make the local environmental plan.

That legal advice further states that the requirement to consider the planning proposal falls within section 79C (1) (e) of the Environmental, Planning and Assessment Act 1979, which requires the department to consider the public interest when assessing applications. Likewise, the department is required to consider the planning proposal under section 79C (1) (b), which requires the department to consider the social and economic impacts in the locality of the development.

In both cases, it is necessary to show that the impact of the coal project on the development proposed under the planning proposal is relevant and that the department is bound to take that into account because of its relevance—although it has so far failed to do so. There are 500 houses on the boundary of the coal loader that have not been taken into account. Moreover, the new proposed coal loader, which is nine‑storeys high, is approximately 300 metres from the suburb of Blue Haven in the Wyong State electorate. The people who live in those areas knew nothing about this proposal. The impact on them will be significant, not just in relation to dust but also in relation to noise. The mining company has failed to address those issues.

The Government members in this House now have a further opportunity to support Labor’s private member’s bill—which has twice been passed in the Legislative Assembly—and fulfil the promise that was made to the community in both 2007 and, importantly, 2011, which is the year this Government took office. Now is the chance to support the legislation that would block this mine once and for all. There is no case now for approving a mine under water catchments when the area is experiencing massive urban population growth. As we all know, across this State there is significant pressure on scarce land for the provision of homes for an increasing population and a need to address the issue of affordable housing. Coalmines that potentially, and in this case probably, will affect water supplies are not consistent with meeting those needs. Imagine a whole community whose water is put at risk. It is and should be unthinkable.

This bill is an opportunity for every member of the House not only to protect the water supply of the Central Coast but also to put the interests of the community first—instead of putting first the interests of overseas big business and big money, which may withdraw from the project and leave the Central Coast community and the State of New South Wales with a liability that will never be met. As I reach the conclusion of my second reading speech, I pay tribute to the hard work of Mr David Harris, MP. He has fought hard since 2006 to have this project stopped. He paid the price when he lost his seat in 2011 on the back of, frankly, a dishonest campaign by his opponents. Rather than give up, he returned to the fight. He won back the Wyong electorate and has since continued to represent his community on this and many other struggles. I recognise his hard work and the work of all those who over the years have sought to protect valuable water from this inappropriate mining proposal. I include Alan Hayes and all those involved in the Australian Coal Alliance in this connection. I commend the bill to the House.