The next battle looming in the Ashton South East Open Cut mine expansion is the future of the Camberwell Common.
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Last week the NSW Land and Environment Court rejected an appeal by the Hunter Environment Lobby to stop the mine’s expansion.
In her judgement on the appeal Justice Nicola Pain said the South East Open Cut (SEOC) could be granted but that approval must be subject to adequate conditions about which a number of issues of clarification and possible alteration remain.
When the judgement was announced those opposed to the project said they would be seeking an immediate appointment with the NSW Minster for Lands to demand the retention of the Camberwell Common.
The struggle to save the Common began back in 2010 when the now disgraced former Labor Minister for Planning Tony Kelly gave control of land to Ashton Resources - operators of the nearby coalmine.
The common in Camberwell had been in existence for more than 125 years when it was handed over to the Ashton mine.
Residents and their supporters were devastated and shocked at Minister Kelly’s decision and have waged a campaign for the return of the land. They have been assisted in their fight by legal representatives from the NSW Environment Defenders Office who also represented them in their court appeal against the SEOC.
In August last year the NSW Government announced the establishment of a replacement or alternative common known as the Glennies Creek Common, covering 61 hectares near the Camberwell village.
But even this common has been surrounded in controversy with the election of trustees to run the common postponed by the NSW Lands Department last November and there has been no announcement yet as to when the election will take place.
Common land or commons date back to the Middle Ages in England and were land usually surrounding villages that were used by the residents of that village for the purposes of grazing livestock.
In their submission to the appeal the Hunter Environment Lobby claimed the Camberwell Common to be of heritage significance to the Camberwell community.
“The residents have clearly fought hard to have the common returned to the village, and given that history, it is unlikely that it would be further revoked in the future to facilitate the (Ashton) South East Open Cut project,” their submission stated.
“In these circumstances, the Court should accept the recent Government decision to return the land to community ownership, and the South East Open Cut (SEOC) project should not be approved over the historic common property, contract to the principle of intergenerational equity.
“The common is an important part of Camberwell village with social, cultural and historic values that are tied to the land. Those values will be permanently lost if the SEOC project is allowed to proceed.
“Depriving future generations of the opportunity to enjoy these diverse and unique environmental characteristic for the sake of a short-term project with marginal economic benefits, is contrary to the principles of intergenerational equity, which requires the maintenance and enhancement of those values for the benefit of future generations.”
In their submission to the appeal Ashton Coal Operations, the mine’s proponent, said it was not a common established under the Commons Management Act. There has not been a declaration of the creation of the common for the purposes of the Commons Management Act.
“The property had its status as a common revoked. The alternative or replacement common has been provided by Ashton and is being used as a common.”
Justice Pain accepted the property in dispute was not declared as a common under the Commons Management Act.
“Somewhat curiously the Glennies Creek Common Trust has been established under the Commons Management Act to manage the property but that does not render it a common,” her judgment states.
Justice Pain accepted the evidence submitted by Camberwell resident Deidre Olofsson and Singleton local historian Lyn MacBain of the longstanding use of the land which in turn demonstrated it had historical and cultural significance to the Camberwell community.
“…its loss remains a relevant impact to consider as one of the social impacts of the SEOC project,” Justice Pain wrote in the judgement.
Correction: In an earlier version of this story it attributed the submissions made by the Hunter Environment Lobby as being made by Justice Pain that was incorrect.