The ink has barely dried on the New South Wales government’s new, big-coal friendly mining laws. Now Rio Tinto, the global mining giant whose public threats to lay off workers and secretive lobbying preceded the new laws, has moved swiftly to become the first to use them.

Rio Tinto has lodged an application under the new rules – which elevate the economic benefits of coal mining over its adverse environmental and social effects – to again seek permission to expand its already huge Hunter Valley Mount Thorley Warkworth open-cut mine, which produces about 10 million tonnes of coal a year. This is the same mine expansion that the Chief Justice of the NSW Land and Environment Court, Brian Preston, knocked back in April – which provoked outrage from Rio Tinto and the mining lobby across Australia.

Preston’s decision, and Rio Tinto’s lobbying, led the NSW government to rapidly announce that it would change the state’s mining-approval laws so that planning decision makers and courts would in future give precedence to a coal mine’s economic benefits over its adverse environmental and social effects.

The changes only became law six days ago.

On Wednesday, Rio Tinto moved. It lodged a fresh application to expand its Mount Thorley Warkworth mine, near the hamlet of Bulga in the Hunter Valley, which employs about 1,300 people. The application will now be considered under the changed law.

The company decided to act without waiting for the outcome of a Supreme Court appeal to Justice Preston’s decision – launched jointly by Rio Tinto and the state government – which is due to be handed down any day. The mining company’s decision to move now suggests that it believes it has little likelihood of winning the Supreme Court appeal to Preston’s decision.

And – whatever the outcome of the appeal – Rio Tinto has been able to effectively circumvent it by taking advantage of the changed planning laws.

Rio Tinto announced its move to be the first to use the new laws in The Australian newspaper on November 14. The newspaper also published an opinion piece penned by Rio Tinto’s head of coal operations in Australia, Chris Salisbury, justifying the rapid use of the new laws.

Both the NSW state government and Rio Tinto have refused to disclose what passed between them in the course of the lead up to the laws being changed. The state government refused The Global Mail’s applications to obtain that information under freedom-of-information laws after Rio Tinto objected to the release of its communications with the government.

When Judge Preston refused to allow Rio Tinto to expand its Mount Thorley Warkworth mine, he delivered a withering judgment that was highly critical of Rio Tinto’s proposed efforts to mitigate the loss of 766 hectares of four different types of endangered ecological communities that would be destroyed by the expanded mine.

These included the loss of more of the area’s precious Warkworth Sands Woodland – the last of its type left on earth. Justice Preston found that the environmental offsets Rio Tinto proposed – seven other areas of bushland and vegetation that would be protected in return for allowing it to mine sensitive areas around Bulga – were far from adequate. Most were far away – up to 110 km distant from the areas to be subsumed by the mine.

The expanded mine would have also destroyed an historic local landform, Saddle Back Ridge, which is the last natural buffer between the mine and the town of Bulga.

And Preston largely rejected Rio Tinto’s claimed economic benefits for an expanded mine, finding the miner’s claim that it would produce some 44,000 extra jobs – both direct and indirect – to be vastly inflated.

This time around, Rio Tinto appears to have taken a more strategic approach; it has substantially reduced the size of the mine’s expansion and, while it will still cut into Saddle Back Ridge, it won’t mine right through it – for now.

Still, another 15 hectares of endangered ecological communities including Central Hunter Ironbark, Spotted Gum and Grey Box forest will be destroyed under Rio Tinto’s latest plan. In all, another 30 hectares of vegetation will be removed, but the miner is proposing to protect another 31 hectares of what it claims is similar native vegetation nearby. Rio Tinto also claims that the greatly reduced expansion plan will minimise the social and environmental impacts. The scale of Rio Tinto’s interim and reduced expansion plan can be gleaned by comparing the 30 hectares of vegetation that will be destroyed under the new proposal, with 766 hectares that would have been lost under the previous plan.

All the same, the architect of Bulga’s victory over Rio Tinto and the Land and Environment Court, Bulga resident, John Krey, says Rio Tinto has been deceitful. At a meeting of Rio Tinto’s Community Consultative Committee two weeks ago, Krey says that Rio’s representatives had made no mention of their renewed push to expand the mine, although it was fully documented and ready to proceed.

“We are the people most impacted by any expansion of this mine and yet we are told about this the day before the application is made,” says Krey. “This demonstrates the arrogance of this company and we find it extremely disappointing considering the impact the mine has had on us.”

The reduced mine-expansion plan appears to be designed to make refusal difficult when the plan comes to be considered by the state’s Planning Assessment Commission. However, Rio Tinto is making clear that it has only curtailed its expansion plan at the mine for the time being; it has flagged its intention to seek, down the track, permission to enlarge the mine even further.

Writing in The Australian, Rio Tinto’s head of Australian coal operations, Chris Salisbury, said the new expansion plan submitted will allow the mine to keep operating for another two years.

He added: “Importantly, it will also provide us with two years to look at options for further planning approvals to provide a longer-term future for the mine.”

In line with other Rio Tinto executives, Mr Salisbury characterised the planning-approval delays and rejections Rio Tinto has suffered at its Mount Thorley Warkworth mine as symptomatic of the failures of planning law.

What he did not say is that Rio Tinto signed a Deed of Agreement with the NSW Government in 2003 not to further expand the mine through sensitive areas of forest and habitat – an agreement that landowners in the area relied on when making decisions to purchase or improve their properties.

It seems that Rio Tinto is demanding – and getting – a guarantee from the state for its continuing coal-mining operations that is far more ironclad than the no-expansion deed it signed in 2003.

Rio Rides Again