A more publically accountable and transparent planning and assessment process is urgently required in order to prevent further unnecessary damage to the quality and health of our natural environment, writes David C. Paull.

Koalas, Coal and Cash: How consultancies keep the mines in business.

It was inauspicious, barely raising media interest at the time, but its demise was key for the mining sectors plans to keep the good times going. In 2011, NSW Greens MP, Cate Faehrmann introduced a bill to Parliament to establish an accreditation scheme for ecological consultants. The Threatened Species Conservation Amendment (Ecological Consultants Accreditation Scheme) Bill 2011 would have required ecological consultants to undergo formal accreditation and included a mechanism to settle disputes.

The Liberal Government, led by Barry O’Farrell at the time, defeated the bill claiming that it would hurt ‘mums and dads’ by making them have to pay more for environmental assessments. Of course nothing was further from the truth. The bill was a response to the widely known fact that the environmental assessment industry in NSW was broken and the public interest was being forsaken for the interests of mining company’s bottom lines.

Despite some of the more romantic images people may have of biologists gathering data from fields of daisies, the fact that development companies pay for the services of those consultants in order to get their approvals through the planning and assessment process appears not to be problematic for some. But here lie the seeds of corruption, particularly in an environmental sector without any professional standards. Environmental consultants are professionals with degrees and higher degrees, and often associated with universities. Other professional groups have associations that include enforceable standards and codes of conduct, like engineers, planners, doctors, lawyers, while there are reputable associations which consultants could join, the association of choice in NSW is the Ecological Consultants Association of NSW. This organisation has no accreditation system for its members, despite attempts to introduce such a scheme for at least 10 years, unsuccessfully as it turns out to this day.

Currently for the ECANSW, a primary objective is to “ensure that their private and government clients receive the most professional and efficient service possible”. Government guidelines for any kind of standard among consultants merely state that they need to have ‘degree or equivalent’ in a relevant field.

For environmental consultants and many others, the sectors where millions can be made in NSW are in mining and residential development. When big money projects are involved, and this has been particularly the case in the last 10 years in NSW with a mining and a housing boom, proponents want favourable outcomes for their high cost and often high risk projects. But how the industry now operates shows that instead of obtaining high diligence and thorough assessments, their often large investments has led to assessments that are primarily designed to minimise issues for the client.

A look at the consulting field servicing the mining sector in NSW shows it is dominated by a few key players. The big miners have their own favoured consultants, with Rio Tinto and its affiliated organisations using a number of organisations but favouring Cumberland Ecology and Xstrata (later Glencore) using Umwelt exclusively. Other big miners like Peabody and Whitehaven have used others like RPS, Parsons Brinkerhoff, Ecological Australia and Niche. But despite the fact that there are literally dozens of possible companies a mining company could use, there is only a small number who have ‘cornered’ the big players.

For example, a look through the Cumberland Ecology track record with big mining companies shows a pattern of litigation and controversy.

Cumberland Ecology, headed by ANU affiliate Dr David Robertson, was a relatively small operation based in Sydney, though quickly gaining a reputation for getting the job done amongst the mining sector. This includes a number of recent controversial projects. Rio’s Warkworth/Mt Thorley Mine where Cumberland Ecology were found to have grossly over-estimated the amount of the endangered community, Warkworth Sand Woodland, in the NSW Land and Environment Court leading to the project’s rejection on merit. Next was Whitehaven’s Maules Creek Mine where evidence was provided to the Senate Inquiry into Offsets (2014) that ‘false and misleading information’ was used by Cumberland Ecology. Then was Shenhua’s Watermark Mine on the Liverpool Plains which again was taken to the L&E Court on the basis that Cumberland Ecology had failed to take into account the impact of the mine on the local Koala population. This was ultimately rejected by the court on the basis of a new planning regulation which states that in fact consultants do not have to take assessments of significance implicitly into account for major projects.

The 2014 senate inquiry found that to prove ‘false and misleading’ was difficult with respect to questions of the accuracy of information provided in EISs and Offset Plans. What is clear, however, is that in order to get the best results, it pays to fall short on the due diligence. From my experience in the mining sector as a consultant and as a government regulator, doctoring of assessments in major EISs is widespread. This is achieved through the omission of information if considered too controversial, failure to verify mapping or modelled outputs, failure to undertake adequate baseline studies, failure to adequately test for the presence of threatened species of concern, erroneous interpretations of science or environmental matters and the failure to adequately identify or describe impacts.

But more to the point, if you, as a consultant, put something in a report that the mining company doesn’t want, you will be sacked, threatened or otherwise persuaded or offered very large amounts of money. Of course smart consultants know how to avoid these ‘conflicts’.

Environmental assessments require one key ingredient to provide the impression of due diligence, that is the publicly available vegetation, wildlife and groundwater databases. These are often overlooked. However, while these products are good starting points, they do not substitute for local baselines data or eliminate the need for field verification. Consultancies are really bad at this. For the Maules Creek Project, the vegetation communities in the offsets appear not to have been verified, or if they were, were inaccurately recorded. The reliance on regional based mapping products by consultancies which can have low levels of accuracy, is widespread. Where the existing mapping is in your favour, it appears, it is convenient to use this, regardless of what may actually be on the ground.

Environmental consultancies tend to underplay the possible presence of threatened species on ‘greenfield’ sites because, from my experience, mining companies are very threatened by any potential loss of expected revenue. Take the Koala for example, an Australian icon and symbol of how we are looking after our environment for many in the public sphere, rarely shows up in environmental assessments, and when it does, there are hundreds of them. It goes like this. If there are none there, then no one has to worry and if there are hundreds of them, as in the Shenhua Watermark site, then it’s still OK because there are hundreds of them and they can be easily put in a bag and moved if need be. While Cumberland Ecology’s Koala survey for the Maules Creek Mine did not find one Koala poo – even though later community surveys found scats and animals they were literally falling out of the trees at Watermark.

The issue of Koalas on the Liverpool Plains is interesting as it illustrates well the relationship between mining and the evidence used to further their interests. The Koala density estimates used by Cumberland Ecology in their report for the Shenhua Watermark mine the same as used in the ill-fated Gunnedah Koala Plan of Management. This work was paid for by BHP Caroona Coal and was conducted by a north coast firm BioLoaning Greenstudies in conjunction with well-known Koala identity, Dr Steve Phillips. Dr Philips in fact devised the methodology used in the Plan and in the Shenhua Watermark assessment and has publicly endorsed Dr Robertson’s work. They estimated that there are over 12 000 Koalas in the Gunnedah local government area, which many consider to be a highly erroneous over-estimation, including Shenhua’s new Koala man, John Lemon, recently retired from the National Parks and Wildlife Service. Mr Lemon is actually undermining the validity of his employer’s work, while at the same time, believes that the removal of 800 ha of Koala habitat will achieve ‘good outcomes’ for local Koalas.

Dr Robertson’s other great contribution to the conservation of the Koala was his claim that grassland is Koala habitat in the Koala Plan of Management he prepared for Shenhua. No doubt to make his offsets sound more palatable. Unfortunately, any undergraduate could tell you that a Koala does not eat grass and does not live in grass and so by itself cannot be regarded as habitat. Not good for someone who is supposed to at least have a science degree.

If we go back to our list of preferred consultants, we find Umwelt, based in the central coast. Unlike Cumberland Ecology, Umwelt are not a member of the Ecological Consultants Association of NSW but have a wonderful office in Teralba which has won energy awards with its solar power and passive heating design. Umwelt have been closely linked to Xstrata/Glencore for over a decade, undertaking most of their assessment work including project management, supporting mine activity in the Hunter coal fields, such as Bulga, Liddell, Ravensworth, Mt Arthur and Mt Owen Mines.

Umwelt has never reported seeing a Koala, except in an EIS used to support the Williamtown Sand Mine (with its connections to controversial Port Stephens mayor Bruce Mackenzie). In this case, despite admitting that Koalas were observed on the site, no details of locations or numbers were provided to the consent authority.

Perhaps Umwelt’s most successful tactic to get results the mining companies want is to ignore the recommended advice regarding how biodiversity information should be gathered and assessed. That is by the use of a ‘BioBanking Assessment Methodology’ a government devised methodology that Umwelt have staunchly refused to undertake for major project assessments since it’s inception eight years ago. Instead, the company follows the approach of coming to the table with their own assessment methodology, which at no time has been accepted by the environment department as an adequate substitute.

Despite this, projects that Umwelt support sail through the approval process, with just a little assistance of the NSW Planning Department who broker the resulting ‘negotiated’ outcomes, and whose job it seems is to guarantee the passage of all coal and gas projects which cross their desks with as little environmental ‘liabilities’ as possible for the mining company.

This tactic of just refusing to comply with the recommended government guidelines and policy, is now becoming more widespread among consultancies, an example is the EIS provided by Hunter Eco to support the extension of Peabody’s Wilpinjong Mine in the Goulburn River valley. Despite only coming up with half the biodiversity credits required to retire the impact on the Regent Honeyeater, Hunter Eco state, “The new NSW Offset Policy … requires a higher ratio than previously required, and in some cases, significantly more. For example, certain species (e.g. Regent Honeyeater) have very low Tg scores which are driving high offset multipliers (perverse outcomes) …”

Essentially saying the new whole of government offset policy is unreasonable and should be disregarded (despite years of development of the policy involving literally hundreds of experts). In fact, the updated credit scores for the Regent Honeyeater is consistent with the recent upgrade of its status as being ‘critically endangered’.

Consultants know they can disregard environmental policies as the system lets them do so. When the system fails, there are few recourses for environmental justice which can occur and this is where a strong industry code of practice or accreditation scheme becomes important. When calls were made to the ECANSW by concerned members to reprimand Cumberland Ecology for issues relating to their Maules Creek assessment, no action was taken by the association. At the same time, the number of prosecutions against consultants could be numbered on one hand, the number of successful litigation actions are fewer.

Meanwhile a few favoured companies continue to cash in at the end of the mining boom. But while mandated professional standards would help to achieve more transparent outcomes, the problem in this sector lays deeper.

It lies squarely with the relationship between the assessment process itself, the involvement of the proponents in the collection and analysis of the data and the roles played by the determining authorities. There is a clear conflict of interest that mining companies have to resolve environmental and social issues where there is an impediment to financial gain. Is it really the expectation that mining companies would undermine their own interest when billions are to be made? No reasonable person could say under these circumstances that the public interest would at all times be protected.

In order for this to happen, and to restore public faith in the planning and assessment process in NSW, an overhaul is needed. The most effective way and one which would require relatively little change to the system, would be to establish an independent environmental assessment authority which collects and analyses data on a project by project basis and provides that information to the regulator and the proponent Such a centralised approach would also facilitate cumulative impact assessment, a type of impact assessment which has been seriously neglected in NSW.

Environmental assets once destroyed can usually never be replaced. Despite what the new paradigm of offsetting purports to do – a loss is a loss even where time lags and changes in tenure are taken into account. The public of NSW deserve a higher stake in the future our environment that is now currently provided if we are to have a fairer and more sustainable balance between environmental and ‘economic’ outcomes. A more publically accountable and transparent planning and assessment process is urgently required in order to prevent further unnecessary damage to the quality and health of our natural environment.