After Rio Tinto had its approval to expand a mine in the Hunter Valley overturned by a court, it entered into a flurry of correspondence with the NSW Government. The government joined with Rio to appeal the decision and now wants to change planning laws to favour mining companies. The Global Mail applied under FoI to have the correspondence released - we got a big no.

The global mining giant Rio Tinto has strenuously - and successfully - objected to The Global Mail’s attempts to use freedom of information laws to discover what role it had in persuading the New South Wales government to change mining laws so they are weighted in favour of big coal miners.

After a six-week push to obtain Rio Tinto’s submissions to the government and details of a meeting between the mining conglomerate’s global head of energy and the NSW Premier, Barry O’Farrell, The Global Mail has been advised that Rio Tinto lobbied against the release of all of that information, claiming that if it were made public, it would set back its mining operations in NSW.

The NSW Department of Planning and Infrastructure has decided that emails, letters, documents and legal advice - preceding the government’s announcement at the end of July that it would make the economic benefits of coal mining paramount when deciding if more new coal mines could go ahead - should not be released. The government accepted Rio Tinto’s argument that making them public would harm Rio Tinto’s business, commercial or financial interests.

The government, in a letter to The Global Mail setting out its reasons for refusing to make Rio Tinto’s emails and letters to it public, said Rio Tinto had objected because they contained sensitive information about potential redundancies and job losses at its large Mount Thorley Warkworth coal mine near the tiny township of Bulga in the Hunter Valley.

“The third party [Rio Tinto] has also stated that the information is highly confidential and its disclosure would prejudice the third party’s business interests and it would impede the third party’s opportunity to seek development approval for mines in other areas of NSW in the future. The release of this information could significantly disadvantage the third party’s ability to carry out mining operations in NSW,” the government letter said.

The government announced proposals to change the state’s laws governing the approval of new coal mines to make the economic benefits of coal mining paramount, after the NSW Land and Environment Court in April stunned the mining industry by becoming what is believed the first Australian court to overturn an approval for a large mine expansion to go ahead. That mine was the Mount Thorley Warkworth mine, controlled by Rio Tinto.

Rio Tinto had won approval from the NSW Government’s Planning Assessment Commission to vastly expand the mine and in doing so destroy previously protected areas of the Warkworth Sands Woodlands, near the Hunter Valley town of Bulga. Formed 18,000 years ago, they include landforms classed as the last of their type on the planet. Approval was given to expand the Warkworth mine to within 2,600 metres of Bulga village, despite the company having previously given a written promise that it would never seek to expand its mine in that manner. Rio Tinto claimed the increasing price of coal justified its about turn.

But the Land and Environment Court overturned that approval in April this year. Among the reasons cited by the court’s Chief Judge, Justice Brian Preston, were that the Rio Tinto’s claimed economic benefits - such as the number of new jobs the expanded mine would create - did not stack up. The judge also found that the environmental and social impacts of an expanded mine would outweigh the economic benefits of allowing it.

Justice Preston delivered his judgment on April 15. A schedule of documents caught - but most not released - by The Global Mail’s freedom of information request shows that, within one month of that decision, a flurry of activity began between Rio Tinto and the NSW Government in the form of letters, emails and legal advice.

Also within weeks of the decision overturning Rio Tinto’s Mount Thorley Warkworth approved mine expansion, Harry Kenyon-Slaney, Rio Tinto’s chief executive for Energy, flew out from London for a meeting with the NSW Premier, Barry O’Farrell.

Of this visit, Rio Tinto’s spokesman previously told The Global Mail: “Rio Tinto’s chief executive for energy Harry Kenyon-Slaney met with the NSW Premier in Sydney in May to discuss a number of matters. The Land and Environment Court’s rejection of the Warkworth Extension Project was obviously part of this discussion, due to the threat it poses to the jobs of the 1,300 employees who rely on the mine and the serious implications for the New South Wales mining industry through the precedent set by this judgment.”

Kenyon-Slaney subsequently wrote an opinion piece for The Australian Financial Review, leaving no doubt about what Rio Tinto thought of the Australian system which had allowed the people of Bulga their day in court. Kenyon-Slaney argued that courts should be stripped of their powers to decide whether big mining projects should go ahead or not: “Courts are no place to decide the future of major mining projects.”

Not only did the NSW Government agree to join Rio Tinto in a Supreme Court appeal of Justice Preston’s decision, but it also greatly surprised the environmental lobby when it announced at the end of July that it would be changing the NSW planning laws to elevate the economic benefits of coal mines over environmental and social impacts.

Had Rio Tinto, through its behind-the–scenes lobbying pressure, been instrumental in persuading the NSW Government to change the laws in favour of coal miners because of the big setback they’d suffered in Justice Preston’s Bulga decision?

The NSW Minister for Resources and Energy, Chris Hartcher, a strong advocate for coal mining, insisted on radio in Newcastle in July that it was merely “coincidental” that the decision to elevate the economic benefits of coal mining within planning laws had followed Rio Tinto’s setback in the Land and Environment Court.

When asked by ABC Radio morning host Jill Emberson if it were merely coincidental, Hartcher replied: “It is only coincidental in this sense; that the new NSW planning policy does not relate to the matter which is now before the court.”

The case he refers to is Rio Tinto’s appeal against the Bulga decision (the appeal hearing has now concluded and a decision is expected this month). Hartcher added that the proposed coal-mine planning laws would have no effect on the decision of the court hearing Rio Tinto and the Government’s appeal of the Bulga decision.

What he did not say was that, if the new mining laws are passed and should Rio Tinto lose its current appeal, it will be open to the company to resubmit its entire case for its Mount Thorley Warkworth mine expansion. John Krey, the Bulga resident who engineered the successful challenge to the mine expansion in the Land and Environment Court believes that Rio Tinto’s case would succeed with the new laws in place.

Of 38 sets of documents the government said came within the ambit of The Global Mail’s freedom of information request, only three sets of documents were released. Among them was a Department of Planning briefing note setting out the rationale for changing the mining laws to further favour big coal miners.

The briefing note said mining provided substantial benefits to the state of NSW through job creation, economic growth, investment in infrastructure, and royalties paid by mining companies to the state government, which amounts to hundreds of millions annually.

The note then said: “Despite the significant contributions of resource industries to the State, there is currently no express requirement in planning legislation to acknowledge this when determining a mining development application.”

The NSW Environmental Defenders Office (EDO) – the law centre which ran the case against Rio Tinto in the Land and Environment Court – was among one of more than 1,000 groups and individuals who made submissions to the Government about the changes to the mining laws. A large majority were against the proposed changes.

The EDO said the Government – by promoting the changes to the law – appeared to be saying that the economic benefits of mining would in future outweigh the negative impacts on rural towns, villages and the natural environment around them. It said these communities would be even more disadvantaged under the new laws because mining developments would be more likely to encroach upon them.

Of the 38 sets of documents the Department of Planning found were caught by The Global Mail’s freedom of information request, it refused to release 20 on the grounds that their secrecy needed to be preserved because they involved the department’s staff communicating with the department’s in-house lawyers.

The department wrote: “Client legal privilege can be claimed in relation to communications between a client (in this case, departmental offices) and a lawyer (in this instance, a departmental lawyer) which are confidential in nature and were brought into existence for the dominant purpose of enabling the client to obtain , or a lawyer to give legal advice.”

The correspondence from the Department of Planning is here.

The three sets of documents released in response to our FOI are here.

And while Chris Hartcher has denied there is a connection between the Land and Environment Court’s landmark Bulga decision and his government’s plans to change planning laws to favour miners, the department’s letter to The Global Mail suggests there might be a connection: it said the information in the documents it was holding back was relevant to both the Land and Environment Court’s decision to overturn approval for Rio Tinto’s Mount Thorley Warkworth mine expansion and the subsequent proposals by the government to change planning laws in the miners’ favour.

What Happens With Rio Tinto Stays With Rio Tinto