The New South Wales Court of Appeal has quashed the second appeal by South Korean mining company Kepco in relation to its controversial mining project in the Bylong Valley.
- Bylong residents hope the verdict will breathe new life into the community
- The IPC first rejected the project in September 2019
- Kepco says it is weighing up its next move
The court heard the appeal on August 25, 2021 after the company challenged a 2019 Independent Planning Commission (IPC) refusal of its Bylong Coal Project.
Bylong Valley Protection Alliance (BVPA) president Phillip Kennedy hopes the decision will allow the community to rebuild itself.
“I’d really like to see this valley that’s been purchased by Kepco under the pretense of a proposed coal mine 10 years ago when they started [to be given back],” he said.
“We would like to ask the South Korean government to release that land back, to allow the mums and dads and the farmers of Australia to come here and to bring it back to what it once was.”
The appeal zeroed in on the interpretation of parts of environmental policy and whether or not the IPC’s refusal was legally sound.
But today’s verdict backed the IPC’s judgement that the project would cause “long lasting environmental, agricultural and heritage impacts”.
What grounds did Kepco appeal on?
The five-hour August appeal hearing largely boiled down to the interpretation of 171 words of state government environment policy.
The clause, nestled in the mining specific State Environmental Protection Policy, says the consent authority – in this case the IPC – “must consider whether or not the consent should be issued subject to conditions” that would make an approved development go ahead in an “environmentally responsible manner”.
It goes on to say that the consenting authority must consider approval conditions to ensure that impacts on water resources, threatened species, biodiversity and greenhouse gas emissions are minimised.
The IPC rejected the project on environmental impact grounds, expressing concerns about groundwater impacts and the contribution of the project to greenhouse gas emissions (GHG).
Kepco’s lawyers argued the IPC failed to give due consideration to imposing conditions on a potential approval to minimise those environmental impacts.
“It is true that they do not talk about conditions,” Kepco representative Jeremy Kirk SC told the court.
Mr Kirk said he accepted that the revised project offered conditions, but argued that the IPC did not consider those conditions, including carbon offset targets, before it rejected the proposal.
“There are ways that these things could have been dealt with by conditions,” he said.
In today’s judgement, the Court of Appeal said Kepco’s original proposal did include conditions, which were therefore considered by the IPC.
“To say that the proponent had not minimised GHG emissions meant that it had not proposed a condition which, if implemented, would minimise GHG emissions,” the judgement reads.
“The commission therefore considered whether conditions which would satisfy [the environmental policy clause] had been identified, but found them absent.”
A Kepco representative said the company was considering its next move.
“Kepco is disappointed that the court did not find in favour of the project and will now take some time to review the decision and consider its next steps,” they said.
Is this the last legal avenue?
This second appeal is the third legal fight between Kepco and the BVPA.
“It is possible [for Kepco] to seek a special leave application to the High Court,” Environmental Defenders Office lawyer Rana Koroglu, who was on the BVPA’s legal team, said.
“But this judgement was a unanimous verdict by all three judges from the Court of Appeal.
“We think [Kepco] would have a very uphill battle to get before the High Court on this.”
Ms Koroglu says the case comes at a time when mine approvals are of extreme significance to climate change.
Time to move on
Phillip Kennedy and the BVPA, which is mostly comprised of the 12 remaining locals in Bylong, hope that this is the last time they have a mining company on their doorstep.
“We call on the Berejiklian Government to extinguish this [mining] licence and to put this to bed once and for all,” he said.
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