A new legal challenge has been launched today against the operator of Whitehaven’s Maules Creek mine for failing to secure thousands of hectares of biodiversity offsets for the controversial coal mine near Narrabri in central north NSW.

The mine gained federal approval in 2013 on the condition that the company secure 5,532 hectares of biodiversity offsets to compensate for clearing a critically endangered ecological community, known as box gum grassy woodland. Whitehaven had until midnight on Tuesday 31 March 2020 to secure its biodiversity offsets. As predicted by the community at the time the approval was granted, seven years on Whitehaven has been unable to secure those offsets.

The legal action is being brought in the Federal Court by Environmental Defenders Office on behalf of our client South East Forest Rescue (SEFR) against the operator of the Maules Creek mine, which is majority owned by Whitehaven Coal.

“The recent Australian bushfires devastated threatened species and native habitat across the country. Protecting our unique landscapes has never been more important,” said David Morris, EDO CEO. “That is why we are proud to represent South East Forest Rescue in taking the brave step of pursuing this matter in the Federal Court to protect valuable endangered woodland.”

SEFR is seeking declarations from the Federal Court that Whitehaven has breached, and will continue to breach, its federal approval conditions by failing to secure some 5,532 hectares of box-gum grassy woodland. Our client also seeks orders requiring that the biodiversity offsets are secured and independently verified before further clearing goes ahead.

“The use of biodiversity ‘offsets’ as a tool to address the impacts of mining and other developments is failing us, failing future generations and our precious plants and animals”, David Morris said. “It condemns forests and wildlife to ‘death by a thousand cuts’ because it allows clearing of sites now, on the promise of something else being secured in the future.”

Whitehaven’s Maules Creek coal mine is a prime example of why biodiversity offsetting doesn’t work. In 2013, Whitehaven gained approval for the mine on the condition that it obtain biodiversity offsets to compensate for clearing the iconic and critically endangered box gum grassy woodland, more formally known as White Box-Yellow Box-Blakely’s Red Gum Grassy Woodland and Derived Native Grassland. Seven years on, it still has not secured those offsets, in the order of some 5,532 hectares. Meanwhile, the bulldozing has continued.

The company has now applied for its third extension of time to comply with the offsetting conditions in its federal approval.

This is in circumstances where the community, informed by experts, has been raising concerns that Whitehaven’s proposed offsets areas would not deliver the necessary environmental outcomes since the project was first assessed, and then approved, in 2013.

The federally listed box gum grassy woodland is an ecological community on the brink of extinction. The iconic woodland once existed across millions of hectares in eastern Australia. Today, there is far less than 5% left in the world. It provides important habitat for rare and endangered species like the Superb Parrot, Regent Honeyeater and the Squirrel Glider.

“EDO has consistently called for reform of biodiversity offsetting rules,” said David Morris. “Maintaining biodiversity is critical to supporting healthy communities and a healthy environment.”

EDO considers that biodiversity offsets are a last resort for residual impacts and must be like-for-like, identified and reserved in perpetuity.  They must be secured up front, before any clearing takes place, and must provide an improvement for the impacted species or ecological community. Anything less results in a net loss of threatened species and communities and essentially facilitates and endorses local extinctions of our unique wildlife.

UPDATE: Shortly after filing these proceedings, we were advised by Whitehaven’s lawyers that the Minister for the Environment had granted Whitehaven another 12 months to secure its offsets – this being the third time the approval has been varied in this way. The case continues as SEFR alleges that Whitehaven has failed to verify that its proposed offset areas will satisfy its offsetting requirements and that Whitehaven is proposing to contravene its offsetting conditions.

EDO has briefed Madeleine Ellicott and Bruce McClintock SC of counsel to appear in the proceedings for SEFR.  We are grateful for their ongoing assistance.

For more on EDO’s work on offsets policy, see: Endorsing extinction is not a ‘minor’ admin task