Justice John Robson rejected Muswellbrook Shire Council’s argument that a 2014 approval required the mine to use a contemporary natural landform method to re-shape three huge embankment areas that have been rehabilitated over decades using the “traditional” method of benching slopes.

But, while it lost the case the council’s desire to improve mine rehabilitation standards was acknowledged by Justice Robson, who said there was no indication the Department of Planning had “embraced” the “more exacting conditions” supported by the council.

“I accept that the proper rehabilitation of the mine is a significant matter for future generations and that council harbours a genuine concern that such rehabilitation is not being conducted appropriately,” Justice Robson said.

“I note that the court has not been asked to make an adjudication of the merits of the scheme of rehabilitation being undertaken at the mine or on the appropriate standards of mining rehabilitation more generally. It is always open to Parliament and the relevant consent authorities to impose more stringent conditions and rigorous processes in respect of rehabilitation.”

Justice Robson noted the 2014 approval did not require the mining company to re-disturb formerly rehabilitated mine areas, “irrespective of whether better environmental outcomes might be achieved by doing so”.

Justice Robson accepted Mt Arthur’s argument that its rehabilitation strategy was an “aspirational” document responding to the department’s requirements that rehabilitated mine sites should be safe, stable, non-polluting, vegetated, and final void high walls should minimise instability risk “to the greatest extent practicable”.

The Department of Planning’s acceptance of an “aspirational” strategy was legally reasonable, in part because mining and rehabilitation are “dynamic and ongoing”, Justice Robson said.

There was no evidence before the court that previously-mined areas had not been rehabilitated or that the rehabilitation was inappropriate, he said. 

Justice Robson made the comments after the council argued the rehabilitation strategy did not provide detail on how the mine would achieve the department’s requirements, including how the risk of potentially acid-forming materials in a closed mine site would be ascertained and managed.

Muswellbrook Council initiated legal action against Mt Arthur coal mine in August, 2017 only weeks after separate legal action to force mining company Ridgelands Resources to establish a $5 million community fund as a condition of its 2013 exploration licence consent.

The Mt Arthur case followed a council complaint to the Department of Planning that it was not enforcing a 2014 condition of consent requiring the mine to rehabilitate areas using a contemporary natural landform system that leaves overburden embankments in a more natural, rather than benched, state, with more natural water flows to reduce erosion.

The council argued the 2014 condition required the mine to apply the method across the entire mine site, rather than a “showcase” area within the rehabilitation strategy accepted by the Department of Planning. 

An expert for Mt Arthur, environmental manager Michael McLeary, told the Land and Environment Court it would cost BHP more than $107 million to “retrospectively” rehabilitate areas that had already been rehabilitated using the traditional benching method.

BHP argued that even if Justice Robson found the rehabilitation strategy was defective, or that the department had erred in accepting it, the court should not find for Muswellbrook Council “because to grant the orders sought would be expensive and environmentally damaging”.

A second expert for the mine told the court “traditional” rehabilitation of Hunter coal mine overburden embankments involved the regrading of slopes in keeping with the surrounding environment. Bengalla, Muswellbrook Coal, Mt Owen, Glendell, Ravensworth, Liddell, Hunter Valley Operations, Mt Thorley Warkworth, Bulga, United, Wambo, Bloomfield and Rix’s Creek were mine sites that used the “traditional” rehabilitation approach, the court was told.

The Department of Planning argued that exceptional circumstances existed because there were 13 other mines with rehabilitation conditions similar to those at Mt Arthur.

The Mt Arthur case raised the core question of Department Secretary Carolyn McNally’s “powers and responsibilities” to determine if mines were satisfying their rehabilitation requirements, the department told the court.

Lock the Gate Alliance NSW coordinator Georgina Woods said it was a “disappointing outcome” for Muswellbrook Council.

“It is clear that policy and law reform are needed if the public is to have confidence that mining in the Hunter will be fully and appropriately rehabilitated,” Ms Woods said.

"If you give mining companies an inch, they will take a mile, and it will be a mile of pretty, productive undulating countryside they turn into unnatural mounds of spoil and salty pit lakes.

"It is very concerning that the industry and the NSW government want to uphold bad decisions made in the past to let mining companies leave Hunter Valley landscapes unnatural and unproductive after mines close down.”

Ms Woods said the Hunter would left with “a bitter patchwork legacy” if contemporary rehabilitation methods are not applied to old mining areas.

“Clearly, in the absence of mandated standards and targets for progressive rehabilitation, mining companies will do as little as they can get away with,” Ms Woods said.

A BHP spokesperson said the company welcomed the Land and Environment Court decision.

The company had progressively rehabilitated 1198 hectares of land at Mt Arthur coal mine by 2018.

“We are currently using leading practice landform design and this underpins the effective revegetation process. Rehabilitation is inspected by government annually and assessed against criteria that has been developed in consultation with the community,” the spokesperson said.

The company remained committed to progressively rehabilitating parts of the mine that were not required for active mining and would “continue to employ leading practice landform design as part of our future rehabilitation”.

”Rehabilitation outcomes are reported on annually in the Annual Environmental Management Report which is also made available to the public.”

Mt Arthur would continue to consult with the community on rehabilitation and other environmental matters, the spokesperson said.