This is the sequel to When Brad Hazzard came to town (Casino).
I’ve just read a couple of media reports about last Wednesday’s Brad Hazzard Lismore SRLUP* gathering. What a complete misrepresentation of the meeting! Yes, we were loud, and yes, we took control of the meeting. But we were also well-informed and articulate, and on the occasions that Mr Hazzard didn’t try to pass the buck, or bluster or bullshit his way through an answer, we did listen. It’s just that those occasions were few and far between…
What the media reports didn’t mention were all the audience questions-to-the-panel that pointed out the discrepancy between government/industry rhetoric and the actual facts. Listening to the questions, I was very proud to belong to a community that showed themselves as well-informed and capable of critical thought, as this one. Many of the questioners had educational qualifications in excess of those represented on the panel. Yet what was presented in the media was a rabble of ill-informed hecklers, unwilling to engage in the process of consultation.
For consultation to occur, both parties must be willing. Our community has shown itself very willing. We’ve engaged with the Upper House Inquiry into CSG, spending many weeks researching and preparing submissions. We welcomed the committee here, sang them songs, made them scones, spoke with them. We take time off work, unpaid, to turn up to meetings with industry and government representatives. We inform ourselves, each other and the politicians.
We have tried to engage with Brad Hazzard before, asking questions and raising points in letters, emails, and when he visited in Casino. But instead of answering our questions, he replies with glossy marketing spiel, much of which is demonstrably untrue. In the past, we’ve been polite about it, because we genuinely want the consultation process to work. But on Wednesday, whenever the panel tried to assure us of something that we knew to be untrue, the crowd finally gave voice to its indignation. There’s no time to be polite anymore – this is our lives and livelihoods at stake.
For example, one pillar of the new CSG regulations is a set of Codes of Practice. We often hear phrases like, “CSG mining in NSW is tightly regulated because companies are required to adhere to the Codes of Practice as part of their licence conditions”. We certainly heard it on Wednesday. But to anyone who takes a closer look, it’s obvious that that’s not true. Mining companies are supposed to adhere to the Codes of Practice, but if they don’t there’s no effective deterrent penalty. I spent Monday morning on the phone trying to find out what the NSW government would do if a company breached a Code of Practice. These are actual quotes:
- Dept of Planning and Infrastructure, SRLUP info line: “The Division of Resources and Energy developed the Codes, so best to phone them.”
- Division of Resources and Energy, switch: “I really don’t know who could answer that.” He put me through to the Titles section.
- Division of Resources and Energy, Titles section: “That’s a good question I guess. The license could be cancelled. I don’t know.”
- Division of Resources and Energy, Environmental section: “I would have thought those people [meaning the first number we phoned] would have had a better idea.”
In a couple of hours of phoning around, including the Compliance section, I never got a straight answer. So I read the actual policy documents and relevant legislation. This is what I found:
The Petroleum (Onshore) Act 1991 (Section 136A) allows only for fines of up to a maximum of $110 000, and that’s in exceptional circumstances. Last time Brad Hazzard visited us, he told us of a mining company that had paid $300million simply for a mining opportunity. To them, a maximum penalty of $110 000, or even a $million, is hardly a deterrent. The Environmental Protection and Assessment Act does allow for penalties of up to $1.1million, but again, only in exceptional circumstances. Most potential fines would be a fraction of that.
Section 22 of the Petroleum (Onshore) Act 1991 gives the government power to cancel or suspend the title in the event of a breach, without having to pay any compensation to the company. But Barry O’Farrell effectively told our community in a letter dated Sept 25 this year, that a breach of the Codes would be highly unlikely to result in a cancellation of title.
So Wednesday’s panel consisted of people whose own departments don’t know how they’d enforce the Codes. Their own policy documents tell us that their plan to enforce the Codes consists of fines that would simply be pocket change to mining companies. And Barry O’Farrell has effectively told our communities in a letter that his government would be highly unlikely to use its power to cancel a title. So even though we keep being told that mining companies are required to adhere to these Codes, in fact that’s not true because there’s no effective deterrent penalty for breaches. Much of the audience on Wednesday would have been aware of that.
So when panel members, with a straight face, tried to assure us that “Mining companies are required to adhere to the Codes of Practice”, it’s hardly surprising that the audience reacted with outrage and disbelief.
Another pillar of the new policy is the Agricultural Impact Statement, which is supposed to “allow the Government to carefully assess potential agricultural impacts … and ensure that even preliminary exploration activities do not adversely impact our valuable agricultural and water resources.” (from the SRLUP brochure, p6)
But what isn’t emphasised is that the AIS is to be written by the mining company itself, and if they understate the impacts of their operation, then there is no penalty (beyond having to redo if they’re caught). The SRLUP info line (1300 305 695) confirmed this on Monday. Obviously, with no penalty, mining companies have significant motivation to understate the potential effects of their operations in order to get approval, even if there’s a chance an overworked compliance officer will occasionally catch them out. So even though the panel said that the AIS provides protection for agricultural land, in fact that’s not true.
On Wednesday, Mr Hazzard assumed, quite incorrectly and offensively, that we hadn’t done our research, and that we might be fooled yet again by the misleading AIS sales pitch. The audience expressed its umbrage verbally, and with volume commensurate with its exasperation.
An environmental scientist in the audience explained that her research area is on chemicals that are carcinogenic in concentrations that are too small for us to be able to test for. Some of these carcinogens are likely to be present in fugitive methane from CSG operations. How was Brad going to make sure we weren’t exposed to carcinogens like these?
Brad’s response was, and unfortunately I found myself too gobsmacked to write down his exact words, something along the lines of, “if you have new information, give me your details because it’s important that we test for those as well.”
First, this is not new information. I earned my PhD in 2001, and I knew about such chemicals then.
And yes, Brad, let’s test for chemicals that you’ve just been told we can’t test for. No wonder the audience had a good laugh and a heckle. We’re trying to consult, but it’s just not getting through.
The panel tried to tell the audience that our water/air/land was protected because under the (unenforceable) Codes of Practice that are part of the SLRUP, mining companies are required to submit information on all the chemicals that they intend to use in fracking. The idea is that the NSW government will refuse approval to frack for those companies who say they are intending to use unsafe fracking chemicals.
Dr Mariann Lloyd-Smith, Senior Advisor to the National Toxics Network and former member of the UN Expert Group on Climate Change and Chemicals, told the panel that she had just returned from an OECD meeting in Paris, where there were chemical regulators representing nearly 100 countries. There, a recurring theme was that no-one had sufficient information to assess the safety or otherwise of fracking chemicals.
So (ignoring the obvious difficulty of ensuring that mining companies tell the truth about their chemical use) the question became, “how is the NSW government in a position to approve or disallow particular fracking chemicals, when no-one has sufficient data to assess their safety?”
The panel responded by saying:
a) that NSW had tested some of the chemicals themselves.
Really? NICNAS, Australia’s national chemical regulator, has yet to assess the bulk of common fracking chemicals, and chemical regulators from 100 other countries haven’t been able to get sufficient data to do it, either. So how has NSW?
b) that if mining companies admit to the government that the list of chemicals they’ve submitted is incomplete, then the government won’t approve the frack until the list is completed.
Remember, this is a response to the question, “how is the NSW government in a position to approve or disallow fracking chemicals, when no-one has sufficient data to assess their safety?” How is b) an answer? It presents a highly unlikely, irrelevant scenario, and tells us what the government would do in that other situation.
How can you reasonably consult with that? No wonder the audience was rowdy. We were being lied to, shown contempt for, and when we asked specific, well-informed questions about flaws in the mining regulations, we were given nonsense responses.
Here is another example:
A woman stood up, from the Byron area. She said that as part of her job, she was required to put in a community consultation submission in response to a mining development application (DA), but that neither the Planning Dept nor the company involved had allowed her to sight the DA, and the deadline was looming. (Unfortunately, I didn’t write down the details of where she said she worked, or what exactly the DA was in relation to. If you’re that woman, and you read this, please contact me and I’ll fill in the missing bits of information if you’d like.) She was asking to be allowed to read the DA, and also for an extension of the submission date.
Panel member Brad Mullard, Executive Director, Mineral Resources, gave the reply. He began his response by carefully explaining the submissions process! This woman’s job involved writing submissions in response to DAs. Yet Brad Mullard assumed she was a moron, and didn’t know how to do her own job. The woman patiently explained that she knew the process, she was just trying to get a look at the DA, and an extension of the deadline. Mullard asked – wait for it – “so, have you put a submission in yet?”
We were in Alice in Wonderland. Of course she hadn’t put in a submission – she hadn’t seen the DA. The audience was aghast. How were we to have “community consultation” with that?
For consultation to occur, both parties must be willing and able to consult. We are willing and able, as the questions-to-the-panel on Wednesday clearly demonstrated. But what was also clearly demonstrated, notwithstanding media reports, was that the NSW government is not.
So before I give up on trying to reason with these people, I’d like to ask a couple more questions. First, Mr Hazzard, do you know what “regulatory capture” is? Wikipedia says “Regulatory capture occurs when a regulatory agency, created to act in the public interest, instead advances the commercial concerns of interest groups that dominate the industry it is charged with regulating. Regulatory capture is a form of government failure”
The panel on Wednesday represented bodies that regulate mining in NSW. They’re paid for by our taxes, and exist to act in the public interest. I think it was clear to most people at the meeting that those bodies are not acting in the public interest, but in the interests of mining companies. Otherwise, why are they introducing unenforceable regulations? and why won’t they discuss the safety and environmental issues rationally? and why would they ignore the hundreds of gasfield-free-road declarations and the 87% of the Lismore council area that voted against CSG in the last council elections?
My final question is, how is this scenario different from regulatory capture, “a form of government failure”?
- Thomas George, our pro-gas state MP and one of the panellists on Wednesday, has appealed on behalf of Metgasco, a company that holds exploration licences in our area, to Parliament.
- Thomas’ son, Stuart George, is employed as community relations manager for Metgasco. At the time he began working for them, he was still a councillor on one of our local councils (Richmond Valley).
- Brad Mullard, currently Executive Director, Mineral Resources with the NSW government and another one of the panellists on Wednesday, was in 2008 a senior officer in Ian MacDonald’s Department of Primary Industries.
- Ian MacDonald is currently under investigation by ICAC for corruption involving decisions on mining licences in 2008.
- The ABC reports that another staffer in MacDonald’s department was transferred for objecting to the granting of the licences. However, despite his protestations that he, too, objected to the grantings, Brad Mullard got to stay where he was.
* SRLUP stands for “Strategic Regional Land Use Policy”, the new rules governing CSG mining.