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Graham, Nicole --- "Improving on Sugarloaf: the regulation of longwall subsidence impacts on 'unimproved' lands in New South Wales" [2015] UTSLRS 9; (2015) 18(2) Australasian Journal of Natural Resources Law and Policy 125

Last Updated: 8 March 2017

IMPROVING ON SUGARLOAF: THE REGULATION OF LONGWALL SUBSIDENCE IMPACTS ON ‘UNIMPROVED’ LANDS IN NEW SOUTH WALES

NICOLE GRAHAM

ABSTRACT

This article is concerned with the regulation in New South Wales of the effects of subsidence impacts caused by underground coal extraction technology known as longwall mining on ‘unimproved lands’. The uncritical and continued use of the anachronistic distinction between ‘improved’ and ‘unimproved’ lands is symptomatic of the overreach of 17th century thought in contemporary law. It also inhibits the capacity of mining law and policy in the 21st century to address current issues, adapt to current circumstances and incorporate current scientific evidence. After a discussion of longwall mining subsidence impacts and the relevant legal framework, the article will consider an alternative legal response to these effects — Earth Jurisprudence. The article advances its argument by analysis of the subsidence events and the failed remediation of the site in Sugarloaf State Conservation Area in 2012–2013 as a small example of the issues. The premise of the article is optimistic — that mistakes open educative possibilities and opportunities for law reform. Although widely acknowledged as an environmental ‘disaster’, the example of Sugarloaf need not end there. What can we learn from Sugarloaf and how can we ‘improve’ on the legal categories of land and land use decision-making that were the conditions of its possibility?

I INTRODUCTION

Coal has been an important natural resource of energy to human societies all over the planet for hundreds of years owing to its biological origins. Like all plants, the compacted and solidified plants that now constitute rocks of coal once converted UV radiation from the sun into energy stored in the chemical bonds of organic carbon molecules. Unlike other plants, the plants from which rocks of coal have since formed have not yet transferred or released that energy to other matter, life forms or the atmosphere because they were not eaten, or burned nor did they decay and consequently avoided the oxidation processes that usually accompany those fates. Effectively buried alive through glacier activity, the plants retained their carbon and energy content.[1] The extraction of coal, in thermodynamic terms, is a necessary but otherwise insignificant step towards the release of its energy on the heating and burning of coal rocks. However, in environmental terms, the extraction of coal is a significant event in itself to vital interrelated Earth systems, particularly geohydrological systems, well before the energy of coal is released. This article is concerned with one particular aspect of the extraction of coal in one jurisdiction in Australia: the regulation in New South Wales of the effects of subsidence impacts caused by underground coal extraction technology known as longwall mining.[2]

The exploration for and extraction of coal in New South Wales stretches back over two hundred years.[3] Indeed, Australia’s first export was a shipload of coal bound for Bengal in 1799.[4] Underground coal mining is a well-established extraction technique imported into Australia from Britain.[5] Mechanised longwall mining was introduced to New South Wales on a trial basis in 1972 and progressed from contributing 4.3 per cent of all New South Wales coal extraction in 1979 to 39.6 per cent in 1988.[6] Today, longwall mining is the ‘most common method of underground coal mining in Australia, as it is safer and more efficient in extracting coal than other extraction techniques.’[7] Longwall mining in New South Wales takes place at a depth of 200 to 600 metres under the Earth’s surface and is used to extract large panels of coal from 150 to 400 metres wide and 1 to 4 kilometres long.[8] It is well known that ‘all coal mining that involves extensive pillar removal can be expected to cause subsidence and surface movement. The most significant cause of such subsidence in Australia is longwall mining.’[9] Subsidence from longwall mining is therefore regarded as predictable and immediate,[10] unlike subsidence from other underground mining methods which may occur decades after the mine is abandoned.[11] Longwall mining in New South Wales takes place predominantly in the Hunter and Illawarra regions of the Sydney coal basin. Mining-induced subsidence has a long history in New South Wales, dating back to at least the 1880s.[12] In the 19th and 20th centuries, the effects of mining-induced subsidence included the loss of human life, landslip, and damage to a tramway, houses, a hotel, Council chambers, a hospital, water pipes, gas services and a soccer ground in Newcastle.[13] These events eventually led to the enactment of the Mine Subsidence Act 1928 (NSW) and its replacement in 1961 with the Mine Subsidence Compensation Act 1961 (NSW).

This article is not concerned with the regulation of the effects of longwall subsidence impacts on either human life or ‘improved lands’ (that constitute and legitimise private property and public infrastructure). Rather, it is concerned with the regulation of the effects of impacts on ‘unimproved lands’: state conservation areas and national parks. Modern law, particularly pertaining to property rights, land and natural resources, has relied on the concept of improvement since the 17th century. The notion of improvement was used to rationalise the enclosure of common lands in Britain and the contemporaneous colonisation of foreign lands around the world.[14] The view that lands may be classified as ‘unimproved’ or ‘improved’ derives from this peculiar and out-dated paradigm of modern property relations and is consistent with broader Enlightenment thought. This dichotomous model of the world categorises and separates human from non-human life and attaches significance and meaning according to an anthropocentric logic, for example nature/culture; cultivation/wilderness; civilised/savage. It is this same logic that classifies land as either ‘improved’ or ‘unimproved’ in contemporary Australian natural resources law with regard to the effects of mining subsidence. In New South Wales in 2015, mining law uses the vocabulary of improvement and its logic to differentiate legal remedies for the effects of longwall subsidence impacts corresponding to the classification and consequent economic value of land as either improved or unimproved. The uncritical and continued use of the anachronistic distinction between improved and unimproved lands is symptomatic of the overreach of 17th century thought in contemporary law. It also inhibits the capacity of mining law and policy in the 21st century to address current issues, adapt to current circumstances and incorporate current scientific evidence. This article considers the regulation of the effects of subsidence impacts on unimproved land only not to reproduce the category, but to redress the inattention to it by way of advocating for closer analysis and overdue consideration of this neglected area of law.

After a discussion of longwall mining subsidence impacts and the relevant legal framework, the article will consider alternative legal responses to these effects. In particular, the author explores the perspectives of two recent and related environmentalist critiques of modern law: Earth Jurisprudence and Wild Law, contending that the former offers a potentially better outcome for three reasons. First, the latter’s investment in a rights-based approach shifts the focus from the agency of the state government and mining company to prevent and minimise the effects of subsidence to the right of the land not to subside, which is absurd. Second, from a practical perspective, it would be easier to articulate and attach duties or responsibilities of proprietorship to existing proprietors (of the lands and the coal) by simply incorporating existing knowledge concerning subsidence and geohydrological systems into the enjoyment of the property rights. Third, from a longer-term perspective, this approach would signal a necessary transition towards an evidence-based model of ownership that integrates into the rights of proprietorship the responsibilities or duties to account for currently externalised costs of the enjoyment of those rights.

The article advances this argument by analysis of the subsidence events and the failed remediation of the site in Sugarloaf State Conservation Area in 2012–2013 as a small example of the issues. The premise of the paper is optimistic — that mistakes open educative possibilities and opportunities for law reform. Although widely acknowledged as an environmental ‘disaster’, the example of Sugarloaf need not end there. What can we learn from Sugarloaf and how can we ‘improve’ on the legal categories of land and land use decision-making that were the conditions of its possibility?

II SUBSIDENCE IMPACTS FROM THE LONGWALL MINING OF COAL

Concerns about coal mining have conventionally been articulated in anthropocentric terms pertaining to several adverse social and industrial relations issues, including especially workplace health and safety, pay and conditions and child labour for example, as well as slag heap visual and sometimes physical impacts. However, since the 1970s, concerns about the environmental effects of coal mining have also emerged. Most recent expressions of concern about the adverse environmental consequences of coal mining focus on the fact that coal is a leading anthropogenic source of atmospheric pollution in the form of carbon dioxide and therefore its contribution to broader fossil fuel induced climate change.[15] For at least 30 years, analysts of the Australian coal industry have observed that while other nations were concerned to find alternatives to fossil fuels due to their carbon dioxide emissions, Australia was continuing to invest in and extend coalmining activity.[16] However, concerns about the adverse environmental consequences of coal mining have increasingly focused on the process of extraction itself (as distinct from emissions-based environmental concerns) including both open-cut and underground mining technologies. The major adverse environmental consequences of open-cut mining include the clearance of vegetation, sometimes also involving deforestation and consequential loss of area specific biodiversity habitats, loss of soils and soil erosion, and contamination of surface and groundwater systems. The major adverse environmental consequences of underground mining include alteration and possible contamination of groundwater and surface water processes and flows and subsidence. Unlike open-cut mines, underground mines are not visible at the surface under which they operate and consequently, the perception of their environmental consequences addresses associated subsidence impacts.

In Australia, underground coal mining occurs ‘principally in the coal basins of New South Wales and Queensland’ because the coal seams in other states are at shallow depths or of insufficient commercial quality to justify investment in underground mining technology.[17] Longwall mining is the most common form of underground coal mining in Australia. The principle of longwall mining is to extract a long wall of coal as a single block or panel of between 1 and 4 kilometres in length and from 150 to 400 metres wide and ‘allow the roof and overlaying rock to collapse into the void left behind.’[18] The process involves cutting a wall of coal using a continuous miner machine with haulage tunnels and ventilation established along its length. Self-advancing powered hydraulic jacks then support the roof of the panel of up to 1000 tonnes each of the overlying strata.[19] As the longwall face progresses through the coal seam, creating a void beneath the overlying strata, the weight of the earth above ‘bends or sags into the void and the subsidence process of the overburdened strata commences.’[20] The ‘maximum vertical subsidence occurring at the land surface from the extraction of a seam is typically 1–2 metres, or the equivalent of more than half the thickness of the coal seam extracted.’[21]

Subsidence from longwall coal mining is a known and accepted consequence of its operation. And since longwall mining has operated in New South Wales for about 35 years, much of it ‘near sensitive environments and urban areas such as residential areas and reservoirs’,[22] the attention of both the mining industry and the government has been on the management of the effects of subsidence impacts. The objective of subsidence management is to maximise the coal extracted from the earth while simultaneously maximising human safety through relevant infrastructure features.[23] The following section of the article outlines the regulation of the management of mining induced subsidence and the effects of its impacts.

III CURRENT REGULATION OF SUBSIDENCE IMPACTS IN NEW SOUTH WALES

Conventionally, mining law and laws related to mining were concerned with the socio-economic aspects of mining including variously with questions of acquisition, proprietorship, access and use; revenue, health, safety and labour conditions; and compensation for adverse effects of mining on improved lands whether private or public.[24] In New South Wales, the law imposes certain restrictions on mining to protect privately owned and agricultural land generally by prohibiting the mining of the surface of those ‘improved’ lands without express written consent of the landowner,[25] unless the Minister is satisfied that specific conditions attaching to the mining lease would minimise any damage to the surface of agricultural land.[26] The Mine Subsidence Act 1928 (NSW) was established to provide compensation to private proprietors for subsidence-induced damage to their properties. This was repealed and replaced with the Mine Subsidence Compensation Act 1961 (NSW) (‘the Act’) in 1961. The scope of the Act is limited to the category of ‘improved’ lands which Section 4 defines as ‘any building or work erected or constructed on land; any formed road, street, path, walk or drive-way; any pipeline, water, sewer, telephone, gas or other service main, whether above or below the land’.[27] In 2007, the New South Wales Court of Appeal in Ulan Coal Mines v Minister for Mineral Resources[28] reiterated the importance of protecting ‘improved’ land subject to an application for a mining lease such as ‘important agricultural infrastructure or valuable historical buildings’ from the adverse effects of mining. The case demonstrates the currency and centrality of the notion of ‘improvement’ to the regulation of mining in New South Wales.

The notion of ‘improvement’ with regard to land first arose in connection to the idea of private property. In the 17th century, John Locke published anonymously the theory that the labour one invested into the development and production of land’s natural resources justified one’s private ownership not only of the profits of those resources but of the land itself. The moral premise of his theory is that the natural environment is inherently wasteful, and upon this premise the cultivation and productivity of the natural environment is by contrast, virtuous.[29] Locke favoured agriculture to other land use practices and his theory is replete with the metaphors and vocabulary of agriculture: the ‘fruits of labour’ are contrasted to the ‘wastelands’ of the unimproved ‘state of nature’. Since Locke’s time, the notion of improvement became central to the theory and justification of private property, which itself has become central to Australia’s law and economy in the 21st century.[30] The regulation of mining and particularly the method and consequence of mineral extraction has therefore been accompanied by an enduring concern to protect private property from the adverse consequences of mining on the basis that privately held land is ‘improved’ land and therefore worthy of state protection. Mining law reproduces the distinction between unimproved and improved lands not only through its protection of private property from adverse effects of subsidence impacts, but also through its lack of protection of unimproved lands from the same fate.

Recent developments in environmental and planning laws have broadened the scope of mining regulation to address some obvious environmental risks and effects of mining operations but, as the example of longwall mining indicates, these are predominantly limited to environmental risks and effects on ‘improved’ lands. For example, the NSW Strategic Regional Land Use Plan: Upper Hunter[31] indicates that the mining of lands identified as ‘biophysical, strategic agricultural land’ will be subject to a dedicated environmental evaluation called a ‘gateway assessment.’ The Environmental Planning and Assessment Act 1979 (NSW) requires all major mining project applications to include an Environmental Impact Assessment, and since 2011 the Water Management Act 2000 (NSW) requires successful applications to obtain an aquifer interference approval. Conditions are thus routinely attached to the approval of a mining project application and, since 2004, include the preparation of Extraction Plans (‘EPs’) (previously referred to as Subsidence Management Plans) prior to the commencement of underground mining that could lead to subsidence.[32]

EPs predict subsidence impacts and outline strategies to mitigate and rehabilitate the effects of those impacts. Their non-regulated method and vocabulary derives from subsidence research (the majority of which is funded)[33] through the Australian Coal Association Research Program (‘ACARP’).[34] The ACARP system for assessing and ranking the risks of the effects of subsidence impacts represents an attempt by industry to regulate itself in the absence of prescriptive regulated criteria for the preparation of EPs through the design of a formula to ‘score’ the risks presented by a given proposed new project.[35] The ACARP ‘score’ suggests a degree of consistency and transparency in the reporting and evaluation of the risks associated with subsidence impacts in the preparation of EPs. However, while subsidence is expected and therefore predictable as an event, the precise effects of each and every subsidence impact are less reliably and accurately predicted despite the creation of an ACARP score or ranking system. The ACARP system of scoring or ranking the potential subsidence effects of an individual project may be regarded as an important effort to incorporate several diverse factors into a single assessment process, rather than as a reliable and scientific methodology. The weighting of qualitative factors of a subjective nature (for example, ‘aesthetics’), combined with the potential conflict of interest presented by a single entity occupying the roles of project proponent and assessor, renders the ‘calculation’ less than suitable for a scientifically robust assessment standard or process.[36]

EPs are designed to provide for the management and the monitoring of the risks of subsidence to public health and safety, and built features and consequently articulate primarily anthropocentric concerns to protect only human health and ‘improved’ lands. The protection of the category of ‘unimproved’ lands comprising what is broadly regarded as the natural environment from the adverse consequences of mining is however still in its legal nascence. Critics have contended that EP approval process is ‘failing to protect the environment from subsidence damage’ because ‘they offer no accurate assessment of the damage that may occur.’[37] The category of ‘unimproved’ land known as a ‘State Conservation Area’ was introduced in New South Wales in 2002 specifically ‘to reserve lands only where conservation values and mineral values do not allow for reservation under any other reserve category, such as national park or nature reserve.’[38] State conservation areas ‘protect natural and cultural heritage values and provide recreational opportunities’ while simultaneously providing for ‘mineral exploration and mining, and petroleum exploration and production.’[39] There is no restriction of mining in the lands of state conservation areas.[40] By contrast, some national parks enjoy protection of both their surface and the earth beneath them; while others are protected only to a certain depth beneath which mining is legally possible. The regulation of the environmental risks and effects of mining operations on national parks and state conservation areas classified as ‘unimproved’ lands is significantly weaker than the longer established and stronger regulatory protections of ‘improved’ lands. At the core of the issue, in doctrinal terms, is the inherently subjective nature of determining ‘acceptable’ levels of the effects of subsidence impacts in the preparation and approval of EPs. But the deeper issue is the uncritical reproduction of the out-dated distinction between improved and unimproved lands. The effects of and failed remediation of the subsidence impacts in Sugarloaf State Conservation Area offers an example of these issues and is discussed in the following section.

IV SUBSIDENCE AND POLLUTION OF SUGARLOAF STATE CONSERVATION AREA

Oceanic Coal Australia Pty Ltd (‘OCAL’) operates the West Wallsend Colliery (which has been active since 1969) from which it extracts coal using the longwall method within 23 per cent of the Sugarloaf State Conservation Area (‘SCA’) in the Hunter region of the Sydney coal basin with the approval of the New South Wales Government including importantly a (previously named) Subsidence Management Plan (‘SMP’). In late 2012, pursuant to its SMP and with a consent issued by the New South Wales Office of Environment and Heritage, OCAL commenced remediation work of surface cracking in the SCA owing to ‘greater than predicted impact from a subsidence event.’[41] The Newcastle Herald published photographs of the damage that included crumbled and collapsed cliff faces and hillsides, including one of more than 20 metres, and large cracks that had opened up at the surface.[42] The cracks emerged in ‘remote and steep areas’ of the Sugarloaf SCA and the remediation method chosen was grouting. In June 2013, OCAL notified the New South Wales Office of Environment and Heritage of a pollution incident arising from their remediation work. The grouting product ‘Air-O-Cem’ (aerated cement) used for the work had leaked approximately 250 metres down from the work area into a drainage channel within the Cockle Creek catchment. The width of the leaked grouting was approximately 1.5 metres and depth around 200 millimetres. The detailed incident report noted that the leak into the drainage channel consisted of approximately 75 cubic metres of the product.[43] Inspection of the affected area revealed ‘damage to the vegetation, rock, soil, sand, stone’ within the reserve.[44] A second leak site was reported in September 2013 and in the same month a cliff fall was reported at the north of the same SCA but was attributed to ‘historical mining’ that had over time contributed to ‘ongoing instability in some cliffs and steep slopes within the area’.[45] In early 2015, OCAL reported the formation of a ‘very large (approximately two metres wide in places and one hundred metres in length) crack in the SCA.

In 2010, prior to the subsidence event at Sugarloaf SCA, the assessment of the potential effects of subsidence impacts from longwall mining evaluated them as follows:

...the results indicate that the cliff’s mining impact rating is Very High to Extremely High; the aesthetics and public exposure impacts is Very Low to Insignificant; with natural instability having a Low impact. The overall impact rating is Moderate after consideration of all three categories.[46]

The ACARP system used (by the mining company) to assess and rate the risks of the effects of subsidence impacts in the Sugarloaf SCA in 2010 relied on scoring several factors (each with different weighting) which include non-quantifiable properties. For example, ‘aesthetics’ and whether a cliff line can be ‘seen easily’ by the ‘public’, are non-quantitative factors that are given a numerical score that is subsequently factored into a ‘calculation’ of the overall risks of the project in the SMP. These two qualitative factors alone constitute 35 per cent of the total factors in the rating system, and because the mining company scored the aesthetics and the public exposure of the area as ‘Very Low to Insignificant’ there was subsequently a substantial under-estimation of the effects of the subsidence impacts of this project.

In 2013, after the subsidence event and failed remediation, the reaction of the public indicated that this assessment was incorrect. The responses of local media and key stakeholders expressed anger, frustration and concern not only about the events but also about the alleged complicity of government in their occurrence, not least through the approval process which includes importantly assessments of risks of precisely such events. In August 2013, the Newcastle Herald ran an editorial about the ‘Sugarloaf Mining Disaster’ and contended that:

It might be argued by the government that the spectacular ruin of a public conservation asset is of little consequence, since the same government readily permits coal companies to uproot forests, divert creeks and streams, chop into aquifers and alluvium, discharge saline water to rivers and even close roads and impinge in towns and villages. Indeed, it would not be surprising if the government attempted to make that case, since it ... elevate(s) economic considerations even higher above all others in the mine approval process.... How the government reacts to the destruction wrought at Sugarloaf may help many observers decide whether this cynical but increasingly widespread view is fair.[47]

In addition to the newspaper’s critique of the subsidence event and its failed remediation, spokesperson for another key non-proprietorial ‘stakeholder’, the National Parks Association (Hunter) President, Ian Donovan, said ‘This would be totally unacceptable in an urban environment, but it appears to be acceptable at least to mining companies, in a State Conservation Area.’[48] The 2010 assessment of the potential effects of subsidence events substantially under-valued the significance of ‘the aesthetics’ and ‘natural stability’ that is higher in the view of the public than in the view of the assessor. This error in the calculation led directly to the selection of a lower-than-actual ‘impact rating’. The ‘public’ reaction demonstrated care and concern about the ‘aesthetic’ and ‘ecological’ effects of the impact regardless of whether these were ‘out of view’ and on ‘unimproved land.’

Recognising and responding to public concerns, the then Premier of New South Wales, the Hon Barry O’Farrell MLC, told New South Wales Parliament that:

[W]e have to send a very strong message to those engaged in mining in this State, no matter what economic growth it provides to the State, no matter what jobs it provides to the State; they have to start complying with regulations. We need to ensure that those regulations around environment and workplace safety are complied with.[49]

According to the Premier, the responsibility for the subsidence and the failed remediation was that of the mining company. His account aligns the state with ‘the people’ from whom he distinguishes and separates the mining company. His political message is that the regulations themselves were not in question but that non-compliance was at the heart of the problem. The institutional response has been to ensure public safety and minimise environmental damage. The areas have been closed off to the public, security installed and compliance with the remediation order to remove the grouting was completed in 2015.

Whether the ACARP system viewed in full context is ‘flawed’[50] is an important question for policy makers to consider. Another significant issue within the assessment process is the extent to which accuracy is a realistic expectation given that ultimately the process is predictive in nature and that it is subject to a range of ‘geological unknowns and geotechnical uncertainty.’[51] Seedsman and Pells note that the subsidence event in the Sugarloaf SCA apparently surprised the mining company and the government, indicating that subsidence impacts from longwall mining are ‘substantially unpredictable, and may be severe.’ They therefore describe the current regulatory system as ‘fragile because of the requirement for accurate predictions’ and advocate an ‘antifragile system that acknowledges geological reality, incorporates the limitations and capabilities of geotechnical engineering in a collapsing environment and accepts uncertainty.’[52] The following section considers the possibility of a regulatory system capable of integrating uncertainty through a consideration of two recent and related alternative approaches to law from an environmentalist perspective.

V ALTERNATIVE APPROACHES TO REGULATION OF SUBSIDENCE IMPACTS

‘Earth Jurisprudence’ is a 21st century philosophy of law and theory of governance, first proposed by Thomas Berry in 2001,[53] that brings together the various critiques of anthropocentrism that underpin environmental ethics, the deep ecology debate of environmental philosophy and the nested structure of natural law theory. Earth Jurisprudence is premised on Berry’s two notions: ‘Earth community’ and the ‘great law’. The ‘Earth community’ is that to which all life on Earth belongs and through which it inter-relates, depends and exists. ‘[T]he planet Earth constitutes a single integral community. It lives or dies, is honoured or degraded, as a single interrelated reality.’[54] The concept of Earth community is at odds with the conventional anthropocentric logic of nature/culture; wilderness/civilisation, unimproved/improved underpinning modern law because it situates humans within a broader ‘web of life.’[55] The ‘great law’ is the notion of a non-anthropogenic over-arching natural law constituted by the Earth’s various inter-related and dynamic systems. Neither ‘romantic’ nor ‘moral’[56] in its regard of the ‘Earth’, Berry’s concept of ‘the great law’ emphasises the nested structure of human laws within ecological conditions and limits beyond which human laws may transgress but cannot sustain themselves.[57] In this sense, according to Earth Jurisprudence, ‘the great law’ is another way of saying the Earth’s laws to which ‘human laws’ are either adapted (and thus ‘legitimate’) or not. The criterion for evaluating the legitimacy of human laws is their viability, adaptability and sustainability within the local conditions and limits of the Earth’s several systems. Cormac Cullinan, author of Wild Law, however, writes of the ‘laws or principles’ that comprise ‘the great law’ as ‘timeless and unified in the sense that they all have the same source’.[58] With his emphasis on universalism, stability and consistency, Cullinan’s interpretation of ‘the great law’ does not acknowledge the dynamism, diversity and inconsistency of life. The Earth is constantly changing and presumably therefore, ‘the great law’ is fundamentally a law embracing constant change. My own interpretation of ‘the great law’ is that it is neither singular nor eternal but as plural and dynamic as the Earth’s many varied and changing systems themselves. An important aspect of ‘the great law’ that is attractive to many is, as Peter Burdon contends, that it is determined by reference to science, thus strengthening ‘the relationship between science and law by prescribing normative standards that are directly referable to verifiable information.’[59] Owing to the physical and materialist orientation of the twin notions of ‘Earth community’ and ‘the great law’, and despite significant variation in the interpretations and applications of Earth Jurisprudence, there does seem to be a clear advocacy for highly transdisciplinary research that connects otherwise disparate fields of knowledge[60] within the taxonomies and processes of law and government. However, it is important to acknowledge that Earth Jurisprudence is still a new school of thought, the parameters of which are still developing through the contributions of several scholars and lawyers whose perspectives reflect a diverse range of expertise and purpose.

Another important feature of Earth Jurisprudence is its potential application to concepts of property and ownership. Burdon explores this application at length and contends that because Earth Jurisprudence is concerned with many different kinds of relationships between members of the Earth community, it is possible to integrate nonreciprocal obligations into a model of proprietorship where none currently exist.[61] One of the reasons he argues for the introduction of these obligations towards the Earth community into the property relation is to redress substantial environmental harms caused by and incidental to property law.

Mining interests are a species of property less than a full fee simple. However, in material terms, they bear greater impact and are permitted far greater social and environmental licence than a fee simple holder notwithstanding myths of property in modern liberal societies. Proponent companies of coal mines reap the ‘fruits’ of their ‘labour’ from the ‘improvements to the land’ on which their legal interests in the coal are (theoretically) based. Attaching some nonreciprocal obligations toward the landscape to their rights to the ‘profits’ of the land above the mines is an alternative approach that could change the incentives and risks for the companies with regard to designing, preparing and operating the mine. It is precisely the carving out of the land (physically and legally) sections as though they are divisible that is the problem. Ownership of rights ‘below the soil’ needs also to connect to responsibility for what is in and above the soil.

Wild Law is a variant of Earth Jurisprudence and an activist project of its implementation rather than a philosophy in itself.[62] Oriented towards activating law reform, proponents of Wild Law adopt a more instrumental idea of law, aiming to correct and/or improve the unsustainable relationship between humans and the environment using law.[63] Ambitiously, its advocates, like those of Earth Jurisprudence, propose a paradigm shift in legal thought and practice from the dominant anthropocentric approach that characterises Anglo-Australian laws and policies to a radical ecocentric paradigm.[64] Accordingly, the specific and ultimate objective of both Earth Jurisprudence and Wild Law is to disincentivise and/or outright prohibit the ongoing use and abuse of ‘natural resources’,[65] which it regards differently as intrinsically valuable members of the Earth community.

The principal mechanism by which progress towards the objectives of the Wild Law project is advocated is through the creation and recognition of the rights of nature.[66] A program of law reform based on extending the existing liberalist concept of a ‘right’ to nature is, however, limited in terms of radical possibilities. Rights are central to the thought and language of contemporary law and practice, especially land law and law relating to land use.[67] The concept of an individual right abstracts disputes and debates about land use and the environment to a socio-economic framework. A focus on rights is inherently abstract and diverts attention from materiality and keeps it firmly within the anthropocentric world of human society and human economy. Whether those rights are allocated, recognised, traded or lost, they cannot provide a materialist account of the dispute or debate because rights are fundamentally dephysicalised in order to be related to other rights through various legal equations. The rights based approach of Wild Law not only fails to acknowledge the role of rights in dephysicalising law, it potentially compounds the problems of law’s dephysicalisation by introducing non-human actors as individual rights-holders into law’s abstract equations. As Burdon and Williams point out, the ‘rights of nature’ thesis of Wild Law ‘represents a minimalist alternative and seeks to mitigate environmental damage from firmly within the coordinates of the current system’.[68] Burdon contends that a paradigmatic shift would remain unavailable without also radically changing dominant economic and political structures.[69]

More fundamentally however, the very expression ‘Wild Law’ arguably reproduces the same dichotomous thought (nature/culture; wild/civilised) that underpins the anachronistic distinction between improved and unimproved lands that was used to dispossess peoples of their lands and their laws.[70] Deployed strategically in colonial projects around the world, the term ‘wild’ means: ‘living in a state of nature, as animals that have not been tamed or domesticated’; or ‘growing or produced without cultivation or the care of humans, as plants’; or ‘uncultivated, uninhabited, or waste, as land.’[71] To adopt the heavily value-laden term ‘wild’ to achieve radical law reform for the benefit of the environment may not be strategically and intellectually sound. It preserves the possibility of lands and waters being regarded as wilds or as a wilderness devoid of humanity, rather than as landscapes supporting a myriad of networked life forms, including, potentially, humans and accordingly seems to situate humans and human law outside Wild Law.[72] It fails to acknowledge the historical and ongoing role of the term ‘wild’ in the dispossession and colonisation of indigenous nations and the failure to recognise indigenous laws as laws.[73] Inverting the values of the hierarchically paired wild/civilised is similarly problematic given existing conflation in non-Indigenous culture of Indigenous culture with intrinsic environmentalism.[74] For this reason, some scholars sympathetic with the objectives of Wild Law have preferred the original expression, Earth Jurisprudence, to convey those objectives. But the two approaches are not synonymous and the differences between them are more than discursive. Their differences may become further apparent with a consideration of their possible applications to the regulation of the effects of longwall mining subsidence impacts.

One of the problems with the current regulation of the effects of longwall mining subsidence impacts is the assessment process used to predict the effects of the impact and to determine the acceptability of these effects. The law concerning effects on ‘improved lands’ is well established; the tolerance for risk to human life and private property is very low.[75] However, the law concerning effects on ‘unimproved lands’ exhibits a very high tolerance for risk, as the Sugarloaf SCA example demonstrates. At the basis of the assessment process is the preparation and submission of an EP by the proponent of the new longwall project. Each project involves subsidence caused by the extraction of the coal, so the issue is not the predictability of subsidence events as these are expected. The issue is the criteria against which the effects of the impacts of those events are determined to be acceptable or not. Currently EPs are used as a means to present options for the management of, rather than the prevention or minimisation of, the effects of subsidence impacts. Unlike damage to ‘improved lands’ for which compensation is payable and rebuilding available, the ‘unimproved lands’ category includes state conservation areas and national parks for which compensation is meaningless, and damage cannot be repaired. This contrast is demonstrated by the grotesque failure of the rehabilitation and remediation orders carried out in the Sugarloaf example. Accordingly, it is important to focus law reform efforts on the planning elements that anticipate and minimise the damage of subsidence events rather than elaborate different or better remedies for any damage (which in the case of Sugarloaf exacerbated the damage).

According to Pells, Young and Turner,

[C]riteria for protection of the natural environment do not exist, probably because they are strongly subjective. The extremes of subjective views range from those for whom any creek, swamp, tree or frog has intrinsic value so great that no disturbance is acceptable, to those for whom the economic and postulated societal benefits from mining far outweigh other considerations.[76]

Referring to the Sugarloaf example and many others, these scientists point to the strangeness of the criteria used in an assessment process of ‘unimproved lands’. For example, they contrast the legal protection of visually spectacular waterfalls with the non-protection of ‘ecologically crucial small pools’ on which entire ecological communities depend.[77] Bringing their knowledge of the ecology and geohydrology of lands affected by longwall mining subsidence impacts to the question of assessment, Pells, Young and Turner’s contribution would be welcomed in an Earth Jurisprudence approach. Committed to an evidence-based framework, Earth Jurisprudence would actively seek to obtain extensive information about the area in which the new project is proposed as a starting point for consideration of questions of the acceptability of the effects of its impacts. Important points to ascertain would involve an understanding of the relationships between the flora and fauna with the abiotic environment, and an appreciation of the capacity of these relationships to withstand change and to what degree and at what pace? A wealth of information is available concerning ecological integrity of various diverse ecosystems under which any longwall mining project would take place. Much of this knowledge includes known and quantifiable ecological and geohydrological conditions and limits that could be incorporated into an assessment system, replacing the ACARP system. Instead of assessing a subjective ‘aesthetic’ value of a cliff and the degree to which the ‘general public’ would be exposed to viewing any subsidence effects, an Earth Jurisprudence approach might incorporate assessment factors pertaining to the inherent value of the cliffs to the habitats they provide for non-human life forms. Earth Jurisprudence might allow also for the anthropocentric perspective that because ‘human well-being is derivative’ of the ‘well-being of the integral world community’,[78] it is necessary to accord a higher weighting to the environmental factors than to the social factors (such as aesthetic value and whether the cliff can be seen easily by the public) precisely to preserve human wellbeing.

In the absence of the relevant information about the lands above a proposed longwall mining project, an Earth Jurisprudence approach might involve an application of the Precautionary Principle owing to its primary concern to situate human laws within the broader limits of Earth laws (which are not necessarily already and always understood). The development of an Earth Jurisprudence approach to the regulation of longwall mining and the effects of the impacts of subsidence could accept and incorporate the inherently unpredictable aspects of the land use, and ‘dispense with the false idea of accuracy.’[79] Seedman and Pells state that ‘there is enough geotechnical engineering knowledge to understand the overall deformation patterns, and to know that accurate prediction is futile.’[80] They suggest the reform of the current regulatory system to incorporate and accept uncertainty. Rather than create an illusion of control and predictability in a system like the ACARP system, Seedman and Pells suggest it is better to abandon this approach as ‘intellectually dishonest’ and develop better acceptability criteria similar to the NSW Aquifer Interference Policy which they contend is the exception in the field of environmental assessment with regard to the effects of mining.

A Wild Law approach to regulating mining induced subsidence impacts and their effects, by comparison, might contend that the cliffs ought to possess rights at law. If these were recognised, what form would they take? Taking an example from another jurisdiction, in the Equadorian constitution, ‘nature’ or ‘Pachamama’ has ‘the right to exist, persist, maintain, and regenerate its vital cycles, structure, functions and its processes in evolution’.[81] Further, nature has the ‘right to integral restoration’ even in ‘cases of severe or permanent environmental impact.’[82] But in the example of the collapse of a cliff due to the impacts of mining subsidence, how might one articulate this right? Would a cliff possess a right not to subside? How viable is a restorative remedy in this context given the Sugarloaf example? Given that cliffs are also subject to non-anthropogenic subsidence events, such as earthquakes, are the rights of nature said to exist universally or to be triggered only in the context of human activity? The notion that a right does not exist universally but only in relation or in response to human activity seems at odds with the logic of a network of life.

A Wild Law approach to regulating the effects of mining induced subsidence impacts might focus the attention of law reform on the subject of the subsidence, using the Sugarloaf example, the cliffs and the habitats they support, rather than on the agent of the subsidence, the state and the mining company. Strategically, it seems important to strengthen the focus of law on the agent of the subsidence and to build into both the proprietorship of the minerals and the approval of their extraction, more effective and better-articulated duties or responsibilities with regard to subsidence management. Taking an Earth Jurisprudence approach might work better to achieve this, not least because it incorporates into the human laws the broader Earth laws including the laws of the geohydrological system particular to the place being mined.

Another concern about a Wild Law approach to regulating the effects of subsidence impacts is that it maintains the possibility of an ongoing classification of land as improved or unimproved. Using the example of the development of legislation to protect flora and fauna, it is not beyond policy makers in Australia to develop similar regulation to protect the abiotic environment such as landforms (which are significant in World Heritage law).[83] If the landscape is approached holistically, as advocated by proponents of Earth Jurisprudence, rather than as either a wilderness, or as a repository of natural resources, it may become possible to regulate the effects of longwall mining subsidence impacts more effectively for the Earth community as a whole.

VI CONCLUSION

This article has explored the regulation of the effects of subsidence impacts from underground longwall coal mining activity in New South Wales and has considered what Earth Jurisprudence and Wild Law approaches might look like as alternatives to the current framework, particularly the assessment process. The Earth Jurisprudence approach would focus on the agency of the state and the mining company to prevent and minimise the effects of subsidence through improved assessment criteria taking into account known and unknown factors more comprehensively from a non-anthropocentric perspective. The Wild Law approach however might allocate a legal right to the land not to subside, which could only be activated by human activity. It seems more rational and prudent to transition towards an evidence-based model of ownership that integrates into the rights of proprietorship the responsibilities or duties to account for currently externalised costs of the enjoyment of those rights, particularly when the costs include damage that is not only not accurately predictable but quite likely also unknown in their long term effects.


[1] Barbara Freese, Coal: A Human History (Perseus Publishing, 2003) 4–20.
[2] Given its focus on the physical rather than the commercial aspect of underground coal mining, this article uses the word ‘extraction’ rather than ‘production’ to describe the coal mining process. However, in doing so, the author does not wish to confuse readers with the legal distinction between ‘minerals’ and ‘extractive materials’ made in the Mining Act 1992 (NSW) wherein coal is not regarded as an ‘extractive material’ for the purposes of the Act. See David Farrier and Paul Stein (eds), The Environmental Law Handbook (Redfern Legal Centre Publishing, 5th ed, 2011) 720.
[3] Australian Bureau of Statistics 1910, 1910 Year Book Australia, cat. No. 1301.0, ABS, Canberra, 1.
[4] NSW Department of Resources and Energy, Exploration and Production in NSW, accessed, 22 November 2014 <http://www.resourcesandenergy.nsw.gov.au/landholders-and-community/coal-seam-gas/the-facts/exploration-and-production> [See under subheading History of Mining and Gas production in NSW].
[5] John Wilkinson, ‘Coal Production in New South Wales’ (Briefing Paper No 10/95, NSW Parliamentary Library Research Service 1995) 8.
[6] Ibid 15. See also Bart Lucarelli, ‘Australia’s Black Coal Industry: Past Achievements and Future Challenges’( PESD [Program on Energy and Sustainable Development] Working Paper No 101, Stanford University, 28 March 2011) 33.
[7] Department of the Environment (Cth), Subsidence from Coal Mining Activities: Background Review (June 2014), Department of the Environment, Australian Government, 2 <https://www.environment.gov.au/system/files/resources/1ebc143e-e796-453d-b9d6-00cdbbabdee3/files/background-review-subsidence-coal-mining.pdf>.
[8] Ibid 3.
[9] Ibid 12.
[10] Robert G Darmody et al, ‘Agricultural Impacts of Longwall Mine Subsidence: The Experience in Illinois, USA and Queensland, Australia’ (2014) 1(2) International Journal of Coal Science and Technology 207, 207.
[11] Department of the Environment (Cth), Subsidence from Coal Mining Activities: Background Review, above n 7, 10.
[12] NSW Government, Mine Subsidence Board <http://www.minesub.nsw.gov.au/templates/mine_subsidence_board.aspx?edit=false & pageID=3870> .
[13] Ibid.
[14] Nicole Graham, Lawscape: Property, Environment, Law (Routledge, 2011) 32–6, 60–6, 100–104.
[15] Wilkinson, above n 5, 39–41. See also Graeme Aplin et al, Global Environmental Crises: An Australian Perspective (Oxford University Press, 2nd ed, 1999) 222–6.
[16] Wilkinson, above n 5, 39–41.
[17] Department of the Environment (Cth), Subsidence from Coal Mining Activities: Background Review, above n 7, 1.
[18] Ibid 6.
[19] Ibid 8.
[20] Ibid.
[21] Ibid 2.
[22] Ibid vii.
[23] M Robinson, ‘West Wallsend Colliery: A Coordinated Approach to Managing Subsidence Impacts on Multiple High Risk Sensitive Surface Features: LW27 Case Study’ in Mine Subsidence 2007: Proceedings of the 7th Triennial Conference on Mine Subsidence (Mine Subsidence Technological Society, 2007) 13.
[24] Samantha Hepburn, Mining and Energy Law (Cambridge University Press, 2015) 81.
[25] Mining Act 1992 (NSW) s 62(1)(c) and sch 1, cl 22.
[26] Ibid sch 1, cl 23(3).
[27] Mine Subsidence Compensation Act 1961 (NSW) s 4(1).
[28] Ulan Coal Mines v Minister for Mineral Resources [2007] NSWSC 1299 (16 November 2007).
[29] Graham, above n 14. 46.
[30] Ibid ch 6.
[31] NSW Department of Planning and Infrastructure, Upper Hunter Strategic Regional Land Use Plan (September 2012) <https://www.nsw.gov.au/sites/default/files/initiatives/upperhunterslup_sd_v01.pdf>.
[32] Extraction Plans came into effect on 1 July 2014, replacing Subsidence Management Plans. See Department of Industry, Resources and Energy website: <http://www.resourcesandenergy.nsw.gov.au/miners-and-explorers/applications-and-approvals/environmental-assessment/subsidence-management> .
[33] ACARP was established in 1992 by a Memorandum of Understanding between the Minister for Primary Industries and Energy and the Chairman of the Australian Coal Association, replacing the National Energy Research Development and Demonstration Program.
[34] Department of the Environment (Cth), Subsidence from Coal Mining Activities: Background Review (June 2014), Department of the Environment, Australian Government, above n 7, 42.
[35] Phillip J N Pells et al, ‘On the Establishment of Acceptability Criteria for Subsidence Impacts on the Natural Environment’ Mine Subsidence 2014: Proceedings of the 9th Triennial Conference on Mine Subsidence (Mine Subsidence Technological Society, 2014) (not paginated).
[36] Ross Seedsman and Phillip J N Pells, ‘On the Deception in Requiring and Providing Singular Accurate Predictions for Surface Subsidence, Tilt and Strain’, Mine Subsidence 2014: Proceedings of the 9th Triennial Conference on Mine Subsidence (Mine Subsidence Technological Society, 2014) 64.
[37] Total Environment Centre, Impacts of Longwall Coal Mining on the Environment in New South Wales (Total Environment Centre, January 2007) <http://www.australiancoalalliance.com/Information/TEC%20LCM%20Report_final.pdf> .
[38] NSW Department of Environment and Climate Change, Review of State Conservation Areas (November 2008) 4.
[39] Ibid.
[40] NSW Environmental Defenders Office, Mining Law in New South Wales: A Guide for the Community (2012) 39–40.
[41] NSW Office of Environment and Heritage, Subsidence and Pollution Incidents in Sugarloaf State Conservation Area (19 February 2015) <http://www.environment.nsw.gov.au/protectedareas/sugarloafsca.htm> .
[42] Donna Page, ‘Mine Subsidence Devastates Sugarloaf: Video , photos’, Newcastle Herald (online), 27 August 2013 <http://www.theherald.com.au/story/1735241/mine-subsidence-devastates-sugarloaf-video-photos/> .
[43] NSW Office of Environment and Heritage, NSW National Parks & Wildlife Service, ‘Direction to Carry Out Remedial Work’ Notice No DOC13/33914, 28 August 2013.
[44] Ibid.
[45] NSW Office of Environment and Heritage, Subsidence and pollution incidents in Sugarloaf State Conservation Area (19 February 2015) <http://www.environment.nsw.gov.au/protectedareas/sugarloafsca.htm> .
[46] Pells et al, above n 35.
[47] Editorial, ‘Sugarloaf Mining Disaster’, Newcastle Herald (Newcastle, Australia), 28 August 2013.
[48] Donna Page, ‘Mine Subsidence Devastates Sugarloaf Conservation Area’, Sydney Morning Herald, (Sydney, Australia), 28 August 2013.
[49] NSW, Parliamentary Debates, Legislative Assembly, 12 September 2013, 23441 (Barry O’Farrell).
[50] Pells et al, above n 35.
[51] Seedsman and Pells, above n 36, 64.
[52] Ibid 64.
[53] Peter Burdon, Earth Jurisprudence: Private Property and the Environment (Routledge, 2015) 80, citing Cormac Cullinan, ‘A History of Wild Law’ in Peter Burdon (ed), An Invitation to Wild Law (2011) 12–23.
[54] Ibid 65, citing Thomas Berry, The Sacred Universe: Earth, Spirituality and Religion in the 21st Century (Columbia University Press, 2009) 95–6.
[55] Ibid.
[56] Ibid 86.
[57] Ibid.
[58] Peter Burdon, ‘Eco-Centric Paradigm’ in Peter Burdon(ed), Exploring Wild Law:The Philosophy of Earth Jurisprudence (Wakefield Press, 2011), 65, citing Cormac Cullinan, Wild Law: A Manifesto for Earth Justice (Green Books, 2003) 84.
[59] Burdon, Earth Jurisprudence: Private Property and the Environment, above n 53, 87.
[60] Ibid 80–93.
[61] Ibid 114.
[62] Peter Burdon and Claire Williams, ‘The Rights of Nature: A Constructive Critique’ in Douglas Fischer (ed), Environmental Research Handbook (Edward Elgar, 2016) (forthcoming).
[63] ‘Earth jurisprudence’ was proposed by Thomas Berry in 2001. Drawing on Berry’s work, Cormac Cullinan coined the phrase ‘Wild Law’ in 2002 to describe laws that are consistent with the principles of Earth Jurisprudence. Earth Jurisprudence and Wild Law are different ideas although they have been used interchangeably and are occasionally conflated in the literature of the proponents of both. This article will deal exclusively with Earth Jurisprudence.
[64] Burdon, ‘Eco-Centric Paradigm’, above n 58, 85–96; Burdon, Earth Jurisprudence: Private Property and the Environment, above n 53, 7–8.
[65] For an exemplary discussion of the concept of natural resources, see Peter Gilbert Brown, ‘Are There Any Natural Resources?’ (2004) 23(1) Politics and the Life Sciences 12.
[66] Begonia Filgueria and Ian Mason, Wild Law: Is There Any Evidence of Earth Jurisprudence in Existing Law and Practice? (UK Environmental Law Association and the Gaia Foundation, 2009) 4, 51 <http://www.gaiafoundation.org/sites/default/files/documents/Gaia%20-%20UKELA%20Wild%20Law%20Report%202009.pdf> .
[67] Graham, above n 14, 171–6.
[68] Burdon and Williams, above n 62.
[69] Burdon, Earth Jurisprudence: Private Property and the Environment, above n 53.
[70] Peter Fitzpatrick, The Mythology of Modern Law (Routledge, 1992).
[71] Macquarie Dictionary: Federation Edition (Macquarie Library, 2001) 2152.
[72] Lesley Head, Second Nature:Tthe History and Implications of Australia as Aboriginal Landscape (Syracuse University Press, 2000).
[73] For a discussion of the strategic use of the dichotomous logic of wild/civilised and unimproved/improved in the colonisation of Australia, see Graham, above n 14, 95–104.
[74] See Shepard Krech III, The Ecological Indian (W W Norton Co., 2000).
[75] Pells et al, above n 35.
[76] Ibid.
[77] Ibid.
[78] Thomas Berry, Airlie Principles (approved at the 1st Earth Jurisprudence meeting, Washington, April 2001) Gaia Foundation <http://www.gaiafoundation.org/sites/default/files/documents/Thomas%20Berry%20Airlie%20Principles%202001.pdf> .
[79] Seedsman and Pells, above n 36.
[80] Ibid.
[81] Constitution of the Republic of Equador, 2008, art 1.
[82] Ibid art 2.
[83] Seedsman and Pells, above n 36.


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