EDO lodged a complaint last December on behalf of Scott Franks, an Elder of the Plains Clan of the Wonnarua People, against NSW Mining’s “Responsible mining” advertising for misleading claims about its mining practices. In February, Ad Standards agreed with our client’s concerns when it found the ad to be in breach of the Environmental Claims Code.
The NSW Minerals Council, trading as NSW Mining, is a lobbying body created by large mining companies operating in New South Wales for the purpose of forwarding the economic interests of those companies and related industries.
Represented by EDO, Scott Franks, a member of EDO’s Board and First Nations Advisory Committee, formally complained to Ad Standards that NSW Mining may have breached the regulator’s Environmental Claims Code for its “Responsible mining” advertisement which claims that “[i]n NSW, we mine responsibly for today and tomorrow” and that “[t]here are teams like us all over NSW restoring the land being used for mining.”
Mr Franks was concerned that the advertisement implies:
- that coal mining is a sustainable practice; and
- that NSW Mining and its members are making a special effort to engage in extensive restoration and rehabilitation efforts, without disclosing to viewers that they are legally required under their licences and approvals to undertake mine rehabilitation activities.
Sustainable Mining Claim
It is well established that the development of new fossil fuel supply will hinder tackling climate change and the net zero energy transition. Despite this, various of NSW Mining’s members continue to pursue their current coal projects as well as substantial new and extension/expansion projects, contrary to scientific consensus of what is required to address climate change and transition to net zero.
However, NSW Mining only emphasises the positive activities it and its members have undertaken, without providing any information regarding the detrimental impacts of mining, particularly relating to climate change contrary to the Environment Code.
Restoration Efforts Claim
In NSW, all exploration licences, mining leases and production leases contain specific conditions requiring rehabilitation. Licence and lease holders are required to comply with these conditions as well as the statutory requirements set out in the legislation.
Moreover, rehabilitation of mine sites is only necessary due to the severe degradation caused by mining activities. The rehabilitation undertaken by mining companies may improve the land from its post-mining state but does not undo the harm caused by the mining.
The ACCC’s draft guidance on environmental and sustainability claims states “you should not make claims that your product, service, or business has a specific environmental benefit if… That environmental impact is a legal requirement (and you don’t make this clear but instead represent that your business is doing something special to achieve an environmental benefit).”
The decision1
Ad Standards found that that ad gave the misleading impression that the restoration and rehabilitation efforts were solely the initiative of Mining NSW’s members, suggesting that they were exceeding their obligatory duties.
It therefore found that the ad breached the Environmental Code and NSW Mining in response removed the ad from YouTube and adjusted their website information
Ad Standards rejected the sustainable mining claim as they found the advertisement was unlikely to give the average consumers the impression coal mining was sustainable.
1 https://adstandards.com.au/wp-content/uploads/2024/02/0295-23.pdf, https://adstandards.com.au/wp-content/uploads/2024/02/0296-23.pdf
