Gloucester, NSW

The ruling against the Rocky Hill open cut coal mine in NSW attracted a lot of attention for the role climate change played in the decision. But that wasn’t the only reason it got rejected – the verdict also represents a landmark legal decision for Aboriginal communities when it comes to protecting sacred lands from mining interests.

On February 8 this year, the NSW Land and Environment Court (Preston CJ) rejected the mining company Gloucester Resources Limited’s appeal to develop the Rocky Hill Coal mine.

Following on from this rejection, the mining company has now formally withdrawn its intent to lodge an appeal against the rejection by the NSW Land and Environment court.

This verdict in February received a lot of global media attention because his Honour dismissed the appeal partly because of the mine’s likely contribution to climate change.

The other lesser reported key factors included the failure by the company to adequately assess the social impacts of the mine on Aboriginal heritage.

This was a truly landmark decision on Aboriginal heritage, as much as it has been for climate change. But the Aboriginal heritage is not necessarily linked to natural resource projects and is therefore far more reaching.

The state government’s Social Impact Assessment Guidelines played a key role 

In September 2017 the NSW Department of Planning and Environment released the Social Impact Assessment Guidelines to assist community and stakeholders to fill the guidance gap with the Environmental Planning and Assessment Act 1979.

The Act required projects to assess social impact. But the guideline goes one step further and clarifies what is required for state significant resource projects (mining, petroleum and extractive industry development).

How it all began

Back in December 2012, mining company Gloucester Resources Limited lodged its development application for the Rocky Hill Coal Mine.

This application was made as a state significant development application within the meaning of s4.36(1) of the Environmental Planning and Assessment Act 1979 (EPA Act).

The company then lodged an amended application in August 2016 together with an amended environmental impact statement (EIS).

The proposal included three contiguous open cut pits covering an area of over 800 hectares, and up to 220 metres in depth.

It also included the construction of a haul road to transport coal by truck to an existing facility, Stratford Coal Mine, several kilometres to the south.

Following public feedback on the proposal, the department did not recommend approval of the development.

The planning minister was due to be the relevant consent authority in accordance with the Act, but in lieu of this, the minister delegated to the Planning and Assessment Commission.

The PAC accepted further written and oral submissions and then refused consent to the application giving three reasons:

  1. the location of the mine would be in contravention of the relevant zoning under the Gloucester Local Environment Plan 2010;
  2. the visual impact of the mine would be significant; and
  3. the project was not in the public interest.

The PAC assessment made no mention of the social impact of the mine generally. There was no mention of any Aboriginal heritage or social issues as reasons for rejection.

Under the Act, the social impact of the development was one of the matters to be taken into account by the PAC.

The mining company’s EIS did deal with the social impact of the mine and touched upon some Aboriginal issues, although very lightly.

The EIS identified that potentially nine Aboriginal “sites” would be affected by the mine, but really gave little significance to these sites or any objects that were found as part of the study.

The company’s proposed mitigation measures to be adopted during the construction and operation of the mine would include:

  • salvage all identified Aboriginal artefacts;
  • storage of the artefacts in a way agreed to by “Aboriginal stakeholders”;
  • attempt to locate further artefacts;
  • produce an Aboriginal Cultural Heritage Management Plan in consultation with Aboriginal stakeholders;
  • devise an appropriate procedure should any human remains be discovered; and
  • preparation and delivery of an Aboriginal Cultural Heritage education campaign for the GRL workforce.

During the assessment process, members of the Cook family made a series of submissions relating to Aboriginal heritage.

Jack Cook, born in 1838 and passed away on 7 August 1925, was also known by his traditional name of Malakut, which is the Katang word for lightning. Jack was known locally as the King of the Barrington Blacks which highlights the significance of Jack Cook in the Gloucester region.

His 600 descendants have a deep and spiritual connection with the Gloucester region that would have been lost if the mine was built in such a sacred area. I was lucky enough to be selected by my family to represent the descendants of Jack Cook.

Photo of author Michael Manikas’s family with Jack Cook (back right)

The Cook family raised concerns that the mining company’s Heritage Assessment failed to meet the appropriate guidelines and requirements, and that the company had not undertaken proper and effective consultation.

The submission explained that the Cook family had a number of important concerns, including:

  • the importance of the region and the connection to country of the Cook family;
  • the number and type of Aboriginal sites that would be destroyed by the project;
  • the manner in which Aboriginal artefacts would were proposed to be removed and stored;
  • the potential to unearth remains of descendants of the Cook family;
  • the proximity of the mine to numerous sacred areas; and
  • the impact of the mine on Aboriginal cultural, traditional and historical ties to the area.

How the company responded confirmed its consultants did not understand the broad and spiritual aspects of Aboriginal culture, or did not take them seriously.

It didn’t end there

Notwithstanding the Cook family’s submissions, the department largely accepted GRL’s proposals and considered that all Aboriginal Heritage issues could be adequately dealt with by appropriate conditions of consent.

Its Assessment Report did not really come to grips with the points that the Cook family were making about the need for proper and effective consultation, and the need to consider broader cultural and spiritual issues.

The mining enterprise then decided to appeal the decision handed down by the PAC, and this appeal was to proceed with GRL as the applicant and the department as the respondent.

Thankfully for the Cook family, the Groundswell Gloucester action group logged an application to join the proceedings as a second respondent and this was subsequently approved by the court.

Groundswell Gloucester was represented by the NSW Environmental Defenders Office and the Cook family provided vital feedback to the second respondent on the important Aboriginal Heritage issues in relation to the social impact of the proposed mine.

The mine lost, but there was more to the story than climate change

The NSW Land and Environment Court (Preston CJ) rejected the appeal earlier this year, and the company has now formally withdrawn their intent to lodge an appeal against the rejection.

Although the case attracted a lot of attention because climate change was part of the reason the judge ruled against the mine, the media largely failed to cover the significant social impact of the verdict and the failure by the mining company to adequately assess the social impacts on Aboriginal heritage.

A truly landmark decision on Aboriginal heritage, as well as climate change

A fellow local Worimir Elder Ken Eveleigh also provided a submission in support of the Cook family. Eveleigh stated in his submission:

“The Bucketts and The Mograni look down upon this valley; it is a very spiritual and sacred place. If you belong to Country you feel the spirit and hear the rivers flow and you know that your Ancestors are still here with nature and it is not just in one spot; it runs through the valley.

“By looking down the valley, you can see that it is a significant and very spiritual place for Aboriginal people of the Worimi and its history needs to rest in peace. My Ancestors need to travel with the Dreaming through the valley and along the rivers. One who loses his dreaming is lost.”

The Bucketts and the Mograni are the two large rocky ranges on either side of the Gloucester Valley where the proposed mine was to be located.

According to his honour chief justice Preston, the court’s reasons for refusal included:

“The Rocky Hill Coal project will adversely impact on people’s culture in two key ways: impacts on Aboriginal culture and connection to Country and impact on heritage-scenic quality.

“The Social Impact Assessment for the amended environment impact statement failed to assess the social impacts of the Rocky Hill Coal Project on Aboriginal people. [Social researcher called by the minister Dr Rebecca Lawrence] observed that Aboriginal people have not been adequately addressed in the social baseline.

“There was no information about their socioeconomic status, their way of life, or their fears and aspirations about the future. Dr Lawrence considered that community consultations and stakeholder meetings do not appear to have included specific consultations with Aboriginal people or Aboriginal organisations.

“This was concerning ‘given that culturally appropriate consultations with Aboriginal people, as a marginalised and vulnerable population, is considered best practice in SIA methodology’ (Lawrence report, p 24).

“Dr Lawrence stated: ‘Aboriginal people of the Gloucester area have expressed concern in the media and through submissions to the DPE that consultations with them have been inadequate regarding the Aboriginal cultural heritage assessment.

“Further, it would seem that targeted consultations with Aboriginal people and organisations have been completely absent in the SIA process itself concerning broader issues of the proposed project’s impacts on Aboriginal culture, rights, interests and connections to Country.

“It is a standard requirement of SIA practice that Indigenous peoples be consulted in culturally appropriate ways and that particular attention be paid to the impacts of a project on them.

“Yet, there is no discussion in the social baseline (or elsewhere) of the significance of the Gloucester area to Aboriginal people’s way of life, or their culture, historically or presently. It is a significant failing of the SIA that it does not assess, or even discuss, the impacts of the proposed project on Aboriginal rights, interests and connections to Country” (Lawrence report, pp 26-27).”

His honour found that:

“… the project will have significant negative social impacts on culture. The project will adversely affect Aboriginal people of the area, by impacting their culture and Country. The impacts are not merely to the individual Aboriginal sites that have already been identified, but also there is the risk that other unidentified Aboriginal sites might be affected.

“There is also the broader impact on the landscape that is of high spiritual significance to the Aboriginal people. The Aboriginal elders who spoke to [the social researcher called by Gloucester Groundswell, Dr Hedda Askland] and gave evidence at the hearing expressed a high level of concern about the adverse effects of the project on their Country and culture.

“The negative social impacts will affect a large proportion of the population group of Aboriginal people, itself a sizeable population group as approximately 9.5 per cent of Gloucester’s population are of Aboriginal descent (Ryan report, p 27, table 9 and Joint Social Impacts Expert Report, p 41).

“The negative social impacts will endure, not only for the duration of the project, but long afterwards. The rehabilitation of the mine will not heal the harm to Country and culture.

“The scale or degree of change from the existing condition as a result of the social impact of the project will be substantial.

“The Aboriginal people, and their cultural heritage, have high sensitivity to the adverse changes caused by the project. The Aboriginal people and their Country are highly susceptible or vulnerable to the adverse changes caused by the social impacts of the Project.

“The Aboriginal people place high importance on the existing landscape and its contribution to their life and culture.

“By reason of these impact characteristics (see table 5, p 36 of the Guideline), the consequence of the negative social impacts on Aboriginal people will be “major” and the likelihood of the negative social impacts is “likely”, resulting in an “extreme” social risk rating (see Figure 6, p 42 of the Guideline).”

It is clear from this decision that Aboriginal heritage must be taken seriously in future rulings on state significant developments.

This must also include genuine and effective consultation with relevant Aboriginal parties. This will hopefully lead to greater respect of the significance of Aboriginal heritage on future developments.

Michael Manikas is the general manager of DLG Shape, a majority owned Indigenous business that specialises in commercial fitout and construction services for both government and private sector clients.

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