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June 20, 2014
Issue 48
Wallarah 2 cannot proceed without Aboriginal Land Council consent he Land and Environment Court has found that the Wallarah 2 coal mine development application is “defective”, a decision that the Darkinjung Local Aboriginal Land Council considers a victory for land rights.
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D a r k i n j u n g challenged the $800 million project for a controversial new underground coal mine on the basis that the mining company had failed to secure consent from the NSW Aboriginal Land Council (NSWALC). Under the d e v e l o p m e n t application submitted for Wallarah 2 by the Wyong Areas Coal Joint Venture, controlled by Korean company KORES, lands owned by Darkinjung were to be taken over for a rail link. The court case was heard on April 17 and, on Thursday, June 12, Justice Malcolm Craig released his judgment, finding in favour of Darkinjung. The judgment said: “The defect is of such significance that any determination of it without the defect being cured, that is by the provision of a consent by the State Land Council, would result in a decision that is invalid.”
D a r k i n j u n g has welcomed its courtroom victory as “a breakthrough for land rights in NSW”, because it upholds its argument that the development application was defective without consent from NSWALC. Land council chairman Josh Toomey and CEO Sean Gordon said in a joint statement that: “It is gratifying that the NSW Government, through the Minister for Planning, has already indicated that it will accept the judge’s decision on this matter and that we don’t have to seek an injunction to stop approval of the development. “Our case was that the development would effectively annex valuable Darkinjung land acquired under the NSW Aboriginal Land Rights Act for the mine’s rail link, and that this would be invalid without written consent from NSWALC. “That’s exactly what the court found,
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Proposed mine location and proximity to main northern rail line
and it means that any approval for the defective application as it currently stands – with consent having been refused by NSWALC in March – would be invalid under law. “This is a breakthrough for land rights in NSW and demonstrates that Aboriginal ownership cannot be treated lightly
or taken for granted by private developers or the government. “We warned repeatedly that failure to gain consent would be a problem and we were ignored.” The Wallarah 2 application has been under consideration by the NSW Planning Assessment Commission (PAC), which held public
hearings in April, and which released a report recommending approval of the mine only subject to numerous strict conditions. Mr Gordon appeared at the PAC hearings and argued that the Wallarah 2 application should not be approved pending a decision in the Land and Environment Court.
Following the court decision, however, Darkinjung understands that any planning approval would be invalid unless the defect confirmed by Justice Craig is remedied by NSWALC providing its written consent. Media release, 13 Jun 2014 Jodi Shannon, Darkinjung LALC
the Wyong Shire