This article has been updated to include the Land and Environment Court judgement issued on June 19.
Controversial charges brought against the Wollar Three, who were arrested for protesting against coal mine expansion in Australia’s Hunter Valley, were dismissed today (Tuesday) at a court in Mudgee.
Environmentalists have called for the anti-protest laws under which the three were charged to be repealed.
The Wollar Three – Beverley Smiles, Bruce Hughes, and Stephanie Luke – were arrested on April 12 last year and were the first people to be charged under the anti-protest laws introduced by the New South Wales government in March 2016. They had faced a possible seven years in jail.
The three were in a group of about thirty people who gathered outside the entrance to the Wilpinjong mine and stopped incoming traffic during a shift change.
They were protesting against the expansion of Wilpinjong, which would bring the mining operation to just 1.5 kilometres from the village of Wollar.
Wilpinjong is owned and operated by Wilpinjong Coal Ltd, a wholly owned subsidiary of Peabody Energy Australia Ltd. The Peabody parent company, which is based in the United States, is the world’s biggest private sector coal producer.
Smiles and Hughes, who are both in their sixties, live on properties on the edge of the land owned by Peabody outside Wollar village. Luke, aged 52, lives in Bathurst, but was so shocked by the effects of the Wilpinjong mine that she joined the protest. The three refused to move on when asked to do so by police.
There was cheering from the public gallery when magistrate David Day dismissed the charges that Smiles, Hughes, and Luke had rendered a public road useless and hindered the operation of equipment belonging to a mine.
Day found the three guilty on a separate “Road Rules” charge of obstructing pedestrians and drivers, but did not record a conviction and imposed 12-month good behaviour bonds.
The magistrate said there was no evidence that the protest against expansion of the Wilpinjong mine had rendered the road outside the mine “useless” due to damage requiring repair. All the evidence, he said, was that the road was obstructed and easily cleared.
People standing on the road obstructing traffic were not rendering the road useless, Day said. “The road could not be safely used for a period of time, but there was no ‘rendering’. Nothing was done to the road.”
Day compared the protesters’ obstruction of the road to a picket line. “I observe that it was a blockade, not unlike the old-style union picket lines, not seen much in recent times,” he said.
The magistrate also found that police had not provided evidence to prove that machinery cited in the hindrance allegation was owned by Wilpinjong.
Smiles said that justice had prevailed. It had been a gruelling period for the three, with the charges hanging over their heads, she said.
‘It is a relief not to be found a criminal for standing up for my community,” Smiles added.“The level of support we have received from the broader community shows that the New South Wales government has gone too far with these anti-protest laws, doing the bidding of voracious multinational mining companies.”
The Wollar community will continue to fight for survival, Smiles says. “The severity of the charges and our successful defence has cemented stronger relationships in the remaining community.”
Smiles says that the state government has required Peabody to develop a social impact management plan and it was the social impacts on the local community that had caused people to protest in the first place.
She told reporter Andy Paine from 4ZZZ radio: “We are hoping that, because this is the very first social impact management plan for a mine in New South Wales, that the New South Wales government actually approves a very strong plan and not the weak draft that the community was given by Peabody a couple of weeks ago.”
The Wollar Three were represented by solicitor Sue Higginson from the Environmental Defenders Office, who points out that the issue of the anti-protest laws restricting the right to demonstrate remains “live”.
She said that the charges against the Wollar Three were dismissed on the technical issues of whether the road was rendered “useless” and the failure to prove that the equipment in question was owned by the mine, therefore the protest rights issue remained untested.
Greens MP in the New South Wales parliament Jeremy Buckingham congratulated the Wollar Three and called for the law to be changed so that the act of protesting against mining operations could not lead to a potential seven-year jail term.
“I’m very pleased that the court has dismissed the serious criminal charges that these brave protesters faced, but the draconian anti-protest laws brought in by the Baird government need to be urgently repealed as future cases may result in a significant injustice,” Buckingham said.
David Day said that if, in the charge about hindering the operation of equipment, the police had used the words “associated with” the mine rather than belonging to it, they would, in his mind, “have made out the offences by virtue of the inferences available on the evidence that machinery was in use”. This, Buckingham said, was alarming.
Buckingham added: “The lack of evidence also meant that the magistrate did not have to consider whether these anti-protest laws breach the implied freedom of political communication under the Australian constitution.
“This is still a live question that should be answered by the parliament by repealing these laws and guaranteeing the freedom of political communication – the right to protest.”
Buckingham said the Greens were calling on the Premier of New South Wales, Gladys Berejiklian, to listen to the legal experts who warned that “these laws and associated penalties represented significant overreach”. The anti-protest laws were far too harsh and far too broad, he said.
“Australians should have the right to express their views and protest projects they see as harmful to humanity and the environment.”
David Shoebridge, who is also a Greens New South Wales MP, tweeted: “This is a win for people power and the right to protest. Congratulations to the Wollar Three, this was always a political prosecution that should have never been brought.”
Today’s judgement had shown just how illegitimate the anti-protest laws were, Shoebridge said.
Environmental activist Cate Faehrmann, who was a member of the New South Wales Legislative Council from 2011 to 2013, said on Facebook that the Wollar Three were “climate heroes”.
She said that “if climate activists in the future are to protest against the real climate criminals without fear of imprisonment”, the “outrageous law” under which the Wollar Three were charged had to be overturned.
David Day said that, in giving his judgement in this case, he did not need to consider whether the subsections of the Crimes Act under which the Wollar Three were charged offended the implied constitutional right of freedom of political communication.
The Wollar Three had thought they would most likely be charged with obstruction under the Roads Act, but were shocked when they were also charged under the new legislation in the Crimes Act.
The Act already included a section about interfering with mines, but this was originally about workers’ safety rather than protest. It was amended and ramped up to cover protests against coal mining and gas exploitation.
It refers not only to land owned by a mining company, but anything associated with the company’s mine, and carries a maximum penalty of seven years’ imprisonment and a fine of 5,000 AUD (about 3,800 US$).
The New South Wales government has removed the right of the community to appeal the merit of Department of Planning decisions about coal mines in the Land and Environment Court, and this is what drove the protest in April.
Wollar has already been devastated by coal mining. There is very heavy noise and air pollution in the area, and expanding Wilpinjong will make this worse.
Aboriginal cultural heritage is being destroyed and serious environmental damage has already been caused by coal mining.
Wilpinjong Coal now owns most of Wollar village. In what was once a thriving community, only four properties remain in private ownership.
If the new mine extension project is approved, Peabody will be authorised to extract up to 16 million tons of coal per year and extend the life of the mine for an additional seven years to 2033.
“They are not renewing the contract to the power station, so the last seven years will all be pure export,” Smiles points out.
The expansion will require clearance of about 354 hectares of native vegetation, including 9.5 hectares of box gum woodland that is listed as a “threatened ecological community”.
Peabody says there will be 1,100 hectares of offset areas, comprising approximately 996 hectares of native vegetation.
Mudgee now has three coal mines on its doorstep – Wilpinjong, Moolarben, and Ulan – and one more mine is planned at nearby Bylong.
The Hunter Valley is a stunningly beautiful area that is one of Australia’s main wine-producing regions, but the local landscape is now dominated by mine pits and mining infrastructure.
The ecosystem has been irreparably damaged, local wildlife have lost vital habitat, and the owners of Wilpinjong have run roughshod over local people’s lives and livelihoods.
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Noise and air pollution
When the mining started, Smiles says, Peabody promised huge benefits for the local community. “The exact opposite has occurred. Because of the topography of the area, the noise has been far greater than ever predicted or imagined.
“They got a set of conditions based on their noise management operation and the only way they could keep operating was to buy out more and more and more people.”
The more local properties the mining company owns, the fewer the complaints.
“The company was looking to future possible expansion so they also bought large properties where they knew there was a coal resource,” Smiles told Changing Times. “And they started buying up some of the houses in Wollar for worker accommodation.”
Coal mining companies are not allowed to open-cut on land they don’t own.
Smiles says that many more people are being impacted by the Wilpinjong mine than was ever predicted.
“We are talking about 24-hour-a-day, seven-day-a-week mining; between four and five different pits being operated concurrently.”
The number of coal trains is also increasing all the time.
The noise from the trains is as annoying as the noise from the mine, Smiles says. “We’ve now got three mines with approval to produce, between them, more than fifty million tons of coal a year. That’s a lot of trains.”
Smiles says that when there is what is called a “temperature inversion”, and there are frosts and fog, noise carries a very long way and there is no other background noise to mask the noise of the mine. And, during blastings, people’s whole houses shake, and things fall off the walls.
Hughes is particularly disturbed by low-frequency noise. “It’s a hum; a vibration. It wakes me at night-time and then, once I’m awake, I actually hear it then, even more so.
“The general noise is below what they’re allowed to emit, but the low-frequency noise has never been tested.”
Hughes says he is seriously affected “nervously and mentally” by noise and other impacts. He has been diagnosed with early Parkinson’s disease.
“The last few years, life’s been a living hell dealing with what’s been happening with this mine, I think that could have triggered it.”
Low-frequency, or C-weighted, noise travels much further than higher frequency, or A-weighted, noise. The A-weighted noise attenuates more quickly and it can mask the lower frequency noise.
The demolition of a community
The cumulative impact of all the buyouts has never been researched, Smiles says. “Peabody Energy now even owns the Wollar general store.”
The mining company also bought both of the local churches, which have now closed down. “The school is still open,” Smiles said, “and we are fighting tooth and nail to keep it that way.”
Wollar has lost most of the services that were provided at the general store and no longer has a local mechanic.
“The shop used to have basic produce like stock feed, hardware, building supplies, and groceries,” Smiles said. “There was a bottle shop and you could pick up your mail. The family that ran the shop was an integral part of our community. Once they left, all of those services left with them.”
There used to be a five-day-a-week mail service at the store, but now it’s down to two. Some people in outlying areas still get mail delivered to their roadside mail boxes two days a week, but it used to be three.
Wollar’s volunteer bushfire brigade was closed down because there were no longer enough volunteers, and it was amalgamated into another brigade that is more than forty kilometres away from Wollar.
There also used to be a weekly veterinary service in Wollar, and fuel trucks used to do deliveries. “There are not enough properties now for the fuel trucks to come out to deliver,” Smiles said.
The village also used to have sporting associations. There was a cricket team, and regular community activities such as dances, concerts, and fairs. All of these are gone.
With only five people left in the town, and other volunteers living outside of Wollar, it is very difficult to maintain the community infrastructure, and too little support to make community activities viable.
Colin Faulkner (pictured left) is one of the five remaining people in Wollar. If the new extension goes ahead, he says, he’ll no doubt complain about the noise and the dust, but he won’t sell.
Faulkner says he can’t drink the rainwater in Wollar anymore. “There’s black dust up there in my gutters.”
Smiles points to the threat the mine extension poses to wildlife; not only to koalas, but also to the already endangered bird, the regent honeyeater (Anthochaera phrygia).
“Every mine in this area has had approval to remove critically endangered habitat for this species, and conditions for mitigating this are getting worse and worse and worse,” she said.
Destroying cultural heritage
The chairwoman of the Mudgee Local Aboriginal Land Council (LALC), Aleshia Lonsdale (pictured left), says the council’s opinions and values are overridden by the coal mining companies.
“Our cultural perspectives and heritage are not considered to be as significant as the economic or scientific value of a place, or what is there.”
Lonsdale says that when mine managements talk about habitat rehabilitation, they talk about “making it the same as it was before”. This can’t be done, she says.
“You can do all your rehabilitation, and plant all your trees and place all your rocks, but it’s not the same.”
Challenge in the Land and Environment Court
In a case brought before the Land and Environment Court, the Wollar Progress Association has challenged the decision made by the New South Wales Planning Assessment Commission (PAC) to allow the Wilpinjong mine extension.
The case was heard on February 8, 9, and 12, this year and judgement is still awaited. The progress association is arguing that the approval of the extension is invalid because, among other things, the PAC hasn’t considered climate change impacts.
The New South Wales government introduced a State Environmental Planning Policy in 2007 that requires decision makers to consider the greenhouse emissions of mines, including downstream emissions.
Under its 2016 Climate Change Policy Framework, New South Wales currently has a target of net zero emissions by 2050.
The progress association says that, in light of government objectives to reduce greenhouse gas emissions, the PAC should have considered emissions from Wilpinjong coal burning.
The association is also arguing that the approval is invalid on other grounds: that the PAC was not properly constituted in accordance with legal requirements, that it did not undertake a proper assessment of the impacts on biodiversity, and that the Wilpinjong mine will clear endangered ecological communities.
Wollar is not the only village in the Hunter Valley that has been devastated by coal mining. Bylong, northeast of Mudgee, has suffered the same fate.
The Korea Electric Power Corporation (KEPCO) is proposing to build an open-cut and underground coal mine there.
Approval has not yet been given, but the company has already bought up most of the properties in the village and most of the gates, including the one to the local church, are chained and have security signs on them.
KEPCO has bought up more than 13,000 hectares of Bylong Valley land since 2010 and imposed gag clauses as part of the purchase contracts.
The corporation’s acquisitions include the Bylong public school, the Tarwyn Park stud and natural sequence farm, and the village’s general store.
This report, which was updated on 6/6/2018, contains comments made to Changing Times by Bev Smiles and other interviewees last year. You can read the full story about the effects of coal mining in the Hunter Valley here.
The Wollar Progress Association has failed in its attempt to obtain a judicial review of the Wilpinjong extension project. The case that the association brought before the NSW Land and Environment Court has been dismissed.
The association said it was disappointed by the ruling, but the local community would continue to fight for the right to exist.
“We are very concerned that the New South Wales government is destroying communities and their legal rights at the behest of the fossil fuel industry,” said Bev Smiles, who is the association secretary.
The New South Wales government denied the Wollar community the right to appeal the merit of the Wilpinjong extension project so as to test the quality of the environmental assessment of noise, dust, and social and other key impacts.
“We lodged a judicial review of the Planning Assessment Commission approval of the mine extension on three grounds, only to have two of those grounds removed through secret amendments to the New South Wales planning legislation before our case was heard,” Smiles said.
The NSW government, Smiles says, continues to shift the goal posts in favour of the multinational fossil fuel industry.
“It appears from the judgement handed down today that New South Wales policies such as the mining state environmental planning policy and the climate change policy are unenforceable and do not stand up to legal scrutiny.”
Smiles added: “While the system is stacked against us, we will not stop fighting for our right to exist as a community and our right to live in an environment that is not polluted by coal mining or devastated by climate change.”
The association was assisted in its appeal by the New South Wales Environmental Defenders Office.