THE NSW Department of Planning and other government agencies secretly workshopped "problematic" mine approval conditions with mining companies "as a matter of convention" for more than 20 years, says a bombshell submission from Glencore seeking to continue the arrangement with the Independent Planning Commission.
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It was "the usual practice" for consent authorities, including NSW Planning Assessment Commission panels, to share draft conditions of consent with mine owners before approval, said the Glencore submission, despite no public acknowledgement of such an arrangement on a government, department or commission website.
The arrangement allowed consent authorities to make "informed decisions" about the "commercial, practical and legal implications" of conditions on mine owners before final determinations and provided "practical procedural fairness" to mining companies, Glencore told the commission in an email on July 24.
Glencore asked the commission for draft conditions of consent for its massive United Wambo expansion proposal, and sought a meeting with the commission panel assessing the project to discuss the conditions, in an email acknowledging the Department of Planning had already given Glencore a draft of the conditions of consent.
The commission is yet to make a final decision about the United Wambo expansion. Glencore proposes to mine an additional 150 million tonnes of coal over 23 years from the United Wambo site west of Singleton in a joint venture with Peabody.
Glencore advised the commission that in the past, when a Planning Minister was the consent authority, "his officers... would, as a matter of convention, share draft conditions of development consent" with mine owners.
Glencore complained that despite Independent Planning Commission advice on its website on June 7 that a decision was imminent, "Some seven weeks later no decision has been made."
In a response to the email commission chair Mary O'Kane said she had forwarded the Glencore email to a three-person panel considering the United Wambo proposal.
In a statement to the Newcastle Herald the commission said it was not unusual for a panel to consult the department about any proposed changes to draft conditions of consent "to ensure there are no unintended consequences for the project".
All meetings between the commission and other parties, including mine proponents, are now recorded and transcripts posted on the commission website.
Lock the Gate Alliance spokesperson Georgina Woods said the Glencore email illustrated the "huge chasm" between community and mining industry expectations about how coal project decisions are made.
"Through this letter, Glencore has unwittingly exposed what many Hunter people have long suspected: that fair dealing and access to decision making about damaging coal mines is granted to mining companies, not to the people that suffer the impacts of those mines," Ms Woods said.
"What the Planning Commission needs to consider is whether this mine is in the public interest, given the need for economic diversification in the region, the water already being lost from the Hunter River, and the air pollution that already exceeds national standards.
"For a decade, people in communities like Bulga, Camberwell, Wollar and Maules Creek have participated in the planning process in good faith while the Department of Planning has privately workshopped conditions of approval with mining proponents on the assumption that coal mines will get the go ahead regardless of the damage they do to rural communities, waterways, or the environment."
Hunter environment activist Bev Smiles said Glencore's comments were not a surprise, after she used freedom of information legislation to obtain documents showing the extent of changes to conditions at the Moolarben mine between Denman and Mudgee after discussions between government agencies and the mine owner.
"It makes a joke of the mining industry's regular statements about how they're subject to onerous conditions of approval - that they've had the opportunity to change and suit themselves," Ms Smiles said.
Griffith University Institute for Ethics, Governance and Law director Professor Charles Sampford said he was "delighted" that the commission was recording all meetings and making the transcripts available to the public.
"It's not because I believe corruption is common, but if you are recording it, it's very unlikely corruption will occur," Professor Sampford said.
While it was sometimes useful to hear from companies about the impact of conditions of consent "it needs to be a public process", he said.
"When the company talks about procedural fairness, others should be able to comment on the process as well," he said.
A NSW Auditor-General's report in January, 2017 about transparency and the NSW Planning Assessment Commission noted public concerns that the PAC decision-making process "favours the applicant and that public consultation is not genuine".
The Auditor-General's report and a timeline of the assessment process made no mention of draft conditions of consent being routinely made available to mine owners after public consultations were completed, and immediately before final decisions.
"Our review of cases did not find evidence that commissioners spent more time with the applicants than with other stakeholders," the Auditor-General's report said.
The Planning Assessment Commission, which was established in 2008, was replaced by the Independent Planning Commission in March, 2018.
The NSW Minerals Council declined to respond to questions about the Glencore email.
Planning Minister Rob Stokes said the Independent Planning Commission operated at arm's length from Government and played "an important role in building community confidence in the decision-making processes for major developments in NSW".
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