Adani Mining Pty Ltd v Land Services of Coast and Country Inc & Ors
[2015] QLC 48
•15 December 2015
LAND COURT OF QUEENSLAND
CITATION: Adani Mining Pty Ltd v Land Services of Coast and Country Inc & Ors [2015] QLC 48 PARTIES: Adani Mining Pty Ltd
(applicant)v Land Services of Coast and Country Inc
(first respondent)
and
Conservation Action Trust
(second respondent)
and
Chief Executive,
Department of Environment and Heritage Protection
(Statutory Party)FILE NO: MRA428-14 & EPA429-14 (MLA 70441)
MRA430-14 & EPA431-14 (MLA 70505)
MRA432-14 & EPA433-14 (MLA 70506)DIVISION: General Division MATTERS: Applications for mining leases; objections to mining lease applications; objections to application for environmental authority DELIVERED ON: 15 December 2015 DELIVERED AT: Brisbane HEARD ON: 31 March; 7-10 April; 13-17 April; 20-24 April; 27-30 April; 1 May; 14 May 2015
Written submissions: 14, 28 May; 25 June 2015HEARD AT: Brisbane PRESIDENT: CAC MacDonald ORDERS:
1. Pursuant to s 269(1) of the Mineral Resources Act 1989, I recommend to the Honourable the Minister administering the Mineral Resources Act 1989 that, subject to the inclusion of additional conditions in the environmental authority as set out in Order 2 below, mining leases 70441, 70505 and 70506 be granted over the application area.
2. Pursuant to s 190(1)(a)(ii) of the Environmental Protection Act 1994, I recommend to the administering authority that the environmental authority be issued in the terms of the draft environmental authority issued on 28 August 2014, subject to the insertion of the following conditions into the BTF Species Management Plan referred to in Condition I6 of the environmental authority:
(a)
i. monitoring of water bodies should be conducted over at least a six hour period commencing from dawn in order to accurately capture utilization of the watering points;
ii. detailed botanical assessment should be focussed on all BTF siting locations to record habitat values within those locations;
iii. more effort should be placed into actively locating BTF and collecting information on their movements across the project and offset areas;
iv. call playback should be used when BTF are encountered to assist in gaining a more complete identification of birds present in the local area;
v. specific surveys targeting breeding be undertaken to provide details on locations and habitat values in breeding areas;
vi. persons undertaking the survey/monitoring should be experienced ecologists with sound understanding of the BTF and its habitats;
vii. any future revision of the current survey and monitoring programs should be developed in consultation with researchers from the BTF recovery team and independently peer reviewed.
(b) The research management plan include provision for funding a research project to determine the correlation between water source, woody habitat and Poaceae food resources across the MLA areas and the proposed offset areas, to determine the interrelationships between these factors.
(c) The research management plan include a provision that the Ten Mile Bore and its surrounds be investigated to determine whether that area maintains an important function in sustaining the BTF population.
3. Orders 1 and 2 above will not be made final until 17 December 2015 at 4:00 pm or until such further Order of the Court, so as to allow the parties to make any submissions to the Court as to why the conditions set out in Order 2 should not be included in the environmental authority.
4. I direct the Registrar of the Land Court to provide a copy of these reasons to the Honourable the Minister administering the Mineral Resources Act 1989 and to the administering authority under the Environmental Protection Act 1994 and to direct those persons’ attention to my observations in [583] – [586].
CATCHWORDS: Mining – application for mining lease – objections – functions and powers of the Land Court – statutory criteria in considering grant – Mineral Resources Act 1989 (MRA) ss 268, 269
Mining – application for environmental authority – objections – functions and powers of the Land Court – Environmental Protection Act 1994 (EPA) ss 190, 191
Mining - Mineral Resources Act 1989 and Environmental Protection Act 1994 – different and competing objects – Land Court must endeavour to construe provisions of both Acts to give effect to presumptions that the statutes are intended to work together – Xstrata decision followed
Mining - Environmental Protection Act 1994 – object of EPA is to protect Queensland’s environment while allowing for development that is ecologically sustainable
Mining ‒ Environmental Protection Act 1994 – relevance of Standard Criteria (Schedule 2) and relevance of environmental harm s 14
Mining – determination of significant project by Coordinator-General – no inconsistent environmental conditions permissible – Xstrata decision followed
Mining – application for mining lease – precautionary principle explained and applied
Mining – application for mining lease – objections considered under headings – groundwater, groundwater dependent ecosystems, impact on biodiversity (endangered bird species and vulnerable plant species), climate change, financial capacity and economic viability
Groundwater – complexity and uncertainty with expert evidence – uncertainty about source of aquifer supplying springs – hydrochemistry – fault lines – regional geology – groundwater modelling – precautionary principle applied ‒ draft EA and Federal conditions sufficient
Ecology – springs – complexity and uncertainty with expert evidence – precautionary principle applied
Ecology – Waxy Cabbage Palm – precautionary principle - draft EA conditions sufficient
Ecology – Black-throated Finch - biodiversity offsets - precautionary principle not applicable – serious irreversible damage – impose further conditions to draft EA ‒ not inconsistent with Coordinator-General’s conditions s 190(2)(b) EPA
Climate change – whether any “adverse environmental impacts” – whether public interest will be prejudiced – relevance of global Scope 3 emissions ‒ Hancock and Coast and Country decisions followed
Economics – future price of carbon – energy markets – projections as to future use of coal – economic modelling
Financial capacity – economic impact and profitability to be considered under MRA ss 269(4)(c) and (f)
Environmental Protection Act 1994
Environmental Protection (Greentape Reduction) and Other Legislation Amendment Act 2012
Environment Protection and Biodiversity Conservation Act 1999 (Cth)
Mineral Resources Act 1989
National Environment Protection Council (Qld) Act 1994
State Development and Public Works Organisation Act 1971Armstrong v Brown [2004] 2 Qd R 345
Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234
Coast and Country Association of Queensland Inc v Smith [2015] QSC 260
Hancock Coal Pty Ltd v Kelly (No. 4) [2014] QLC 12
McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423
O’Sullivan v Farrer (1989) 168 CLR 210
Sinclair v Maryborough Mining Warden (1975) 132 CLR 473
Telstra Corporation v Hornsby Shire Council (2006) 67 NSWLR 256
Water Conservation & Irrigation Commission (NSW) v Browning (1947) 74 CLR 492
Wildlife Preservation Society of Queensland, Proserpine/Whitsunday Branch Inc v The Minister for Environment and Heritage (2007) 232 ALR 510
Xstrata Coal Queensland Pty Ltd & Ors v Friends of the Earth – Brisbane Co-Op Limited (2012) 33 QLCR 79COUNSEL: Mr P Ambrose QC for the applicant
Mr S Holt QC with Dr C McGrath for the first respondent
Ms KM Clayton for the statutory partySOLICITORS: McCullough Robertson for the applicant
Environmental Defenders Office of Queensland for the first respondent
Ms K Harbert, Senior Lawyer, Department of Environment and Heritage Protection, for the statutory party
INDEX
Subject Paragraphs
Background [1] – [19]
Legal framework
Mineral Resources Act 1989 [20] – [23]
Environmental Protection Act 1994 [24] – [35]
Precautionary principle [36] – [37]
Intergenerational equity [38]
Conservation of biological diversity and ecological integrity [39]
The character, resilience and values of the receiving environment [40] – [41]
The public interest [42] – [45]
The relevance of environmental harm for the objections decision [46] ‒ [48]
The Court’s response [49] – [58]Water Objection [59] – [63]
Doongmabulla Springs Complex – the source aquifer [64] – [78]
Permeability/hydraulic conductivity of Rewan Formation [79] – [83]
Faulting in the Rewan Formation [84] – [97]
Seismic data [98] – [99]
Drilling data [100] – [101]
Self Sealing [102] – [107]
Hydrochemistry [108] – [110]
Groundwater flow [111] – [127]
Unexplained discharge [128] – [131]
Groundwater heads [132] – [136]
Bore C14012SP [137] – [140]
Shoemaker 1 Bore [141] – [144]
Bore HD02 [145] – [147]
Regional geology [148] – [155]
Shoemaker 1 Bore log data [156] – [168]
Conclusions about the source aquifer of the DS [169] – [181]Groundwater modelling [182] – [185]
Conductivity [186] – [197]
Recharge [198] – [201]
Discharge [202] – [203]
Storage [204] – [205]
Failure to model certain features [206] – [214]
Analysis of model uncertainty [215] – [223]
Calibration [224] – [228]
Automated calibration [229] – [230]
Peer review [231] – [235]Impacts of mine on spring flow [236] – [245]
Proposed environmental conditions relevant to the Doongmabulla
Springs [246] – [247]
Draft Environmental Authority conditions
Groundwater [248] – [257]
EPBCA Approval Conditions [258]
Condition 23 – groundwater model rerun [259] – [262]
Conditions 27 and 28 – Rewan Formation connectivity research plan [263] – [265]Conclusions about groundwater objections [266] – [275]
Springs Ecology – the Doongmabulla Springs and the Mellaluka
Springs [276] – [277]
Mellaluka Springs [278]
Doongmabulla Springs [279] – [299]
Draft EA conditions [300] – [302]
EPBCA approval
Conditions 5, 6(f), 9, 11(o) and 12 [303] – [310]
Conditions 25 and 26 – GAB Springs Research Plan [311] – [315]
Conclusions about springs ecology [316] – [322]Waxy Cabbage Palm (Livistona lanuginosa) [323] – [337]
The proposed offset and management strategy [338] – [346]
Conclusions about the Waxy Cabbage Palm [347] – [353]Black-throated Finch [354] – [356]
Approval Conditions [357] – [358]
Impacts of project [359] – [367]
Site Studies [368] – [377]
Provision of offsets [378] – [386]
Grass species [387] – [399]
Other matters [400]
2015 BTF recovery team report [401] – [403]
Experts’ recommendations [404] – [405]
Conclusions about black-throated finch [406] – [419]Climate change [420] – [437]
First Respondent’s submissions [438] – [439]
Mineral Resources Act 1989 [440]
Section 269(4)(j): Whether there will be any adverse environmental
impact caused by those operations and the extent thereof [441] – [446]
Section 269(4)(k): whether the public right and interest will
be prejudiced [447] – [449]
Environmental Protection Act 1994 [450] – [457]Financial capability [458] – [462]
The evidence [463] – [488]Energy markets [489] – [498]
Economic Impact [499] – [516]
Analysis of reliability of applicant’s model input data –in
both models [517]
Estimated royalties are unproven and unreliable [518] – [520]
Coal prices are unjustified and unrealistically high [521] – [525]
Corporate tax does not account for deductions or tax havens [526] – [530]
Costs optimistically underestimated [531] – [532]
Analysis of assumptions in applicant’s CGE model [533]
Conventional economics would see increased supply, increasing
consumption and reducing price [534] – [535]
Applicant’s model conflates several assumptions [536]
Applicant’s model assumes perfect substitution of quantity [537] – [541]
Applicant’s CGE model assumes objectively low discount rates [542] – [543]
Applicant’s CBA model is highly susceptible to assumptions [544] – [548]Conclusions about financial capability and economic impact
assessment
Financial capability [549] – [558]
Energy markets [559] – [561]
Economic modelling [562] – [575]Second respondent’s objection [576] – [580]
Conclusions about the second respondent’s objection to the
application for the EA [581] – [582]Observations to the Honourable the Minister administering the
Mineral Resources Act 1989 and the administering authority
under the Environmental Protection Act 1994 [583] – [586]Section 269(4) of the Mineral Resources Act 1989 [587]
Section 269(4)(a) – whether the provisions of the Act have been
complied with [588] – [589]
Section 269(4)(b) – whether the area of land applied for is
mineralised or the other purposes for which the lease is
sought are appropriate [590] – [591]
Section 269(4)(c) – whether there will be an acceptable level of
development and utilisation of the mineral resources within the
area applied for [592] – [596]
Section 269(4)(d) – whether the mining lease sought is of an
appropriate size and shape [597] – [598]
Section 269(4)(e) – whether the term sought is appropriate [599] – [600]
Section 269(4)(f) – whether the applicant has the necessary
financial and technical capabilities to carry on mining operations
under the proposed mining lease [601] – [602]
Section 269(4)(g) – whether the past performance of the applicant
has been satisfactory [603] - [607]
Section 269(4)(h) – whether any disadvantage may result to the
rights of holders of existing exploration permits or mineral
development licences or applicants for such permits or licences [608] – [609]
Section 269(4)(i) – whether the operations to be carried on under the
authority of the proposed mining lease will conform with
sound land use management [610] – [612]
Section 269(4)(j) – whether there will be any adverse environmental
impact caused by those operations and, if so, extent thereof [613] – [617]
Section 269(4)(k) – whether the public right and interest
will be prejudiced [618] – [620]Section 269(4)(l) – whether any good reason has been shown for
a refusal to grant the mining lease [621]
Section 269(4)(m) – taking into consideration the current and
prospective uses of that land, whether the proposed mining
operation is an appropriate land use [622Section 191 of the Environmental Protection Act 1994 [623] – [625]
Final Conclusions [626]
ORDERS
Background
Adani Mining Pty Ltd (the applicant) has applied for three mining leases, ML 70441, ML 70505 and ML 70506, under the provisions of the Mineral Resources Act 1989 (MRA), and an associated environmental authority (EA) under the Environmental Protection Act 1994 (EPA). The applications relate to the proposed Carmichael coal mine located in the north Galilee Basin approximately 160 kms north-west of Clermont in Central Queensland.
It is proposed that the Carmichael mine will be an open cut and underground coal mine which will extract approximately 60 million tonnes of coal per annum (mtpa) and will have an operating life of approximately 60 years. The mining lease development will include
· Six open-cut pits with a combined capacity of 40 mtpa and five independent underground longwall mines with a combined capacity of 20 mtpa of product coal, mining two seams over 45 km north to south;
· A coal handling and processing plant designed to process 74.5 mtpa of raw coal and out-of-pit waste rock structures for the storage of the critical volumes of the project’s 13.1 billion bank cubic metres of over and interburden prior to storage of waste rock in mine voids when available;
· Coal stockpiles, tailings storage cells, water management structures, a 2.5 km portion of the rail loop and coal-loading facilities adjacent to the rail; and
· Development of off-lease quarries and mine support infrastructure, including a workers accommodation village, industrial precinct and an airport.
ML 70441 was applied for on 8 November 2010 and ML 70505 and ML 70506 were both applied for on 9 July 2013. Each of the mining lease applications (MLAs) seeks a mining lease with a term of 30 years. The applicant has indicated that it will apply for a renewal of the mining leases at the appropriate time during the operation of the mine.
On 26 November 2010, the mine and rail aspects of the Carmichael mine were gazetted as a coordinated project under the State Development and Public Works Organisation Act 1971 (SDPWOA) for which an environmental impact statement (EIS) was required. The project was subject to the environment impact assessment process under the SDPWOA.
On 6 January 2011, the Commonwealth Government determined that the Carmichael mine and rail project constituted a controlled action pursuant to the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBCA).
On 25 May 2011, the terms of reference for the EIS were finalized by the Coordinator-General. In November 2012, Adani Mining submitted the EIS for the coordinated project and public notification occurred from 15 November 2012 until 11 February 2013. On 26 March 2013, the Coordinator-General requested additional information from the applicant to address matters raised about the EIS. This information was incorporated into a supplementary environmental impact statement (SEIS) which was made available for public and agency comment from 25 November 2013 to 20 December 2013. Adani subsequently prepared additional information for the EIS (AEIS) which was supplied to the Coordinator-General.
On 9 July 2013 the applicant submitted an application for a site-specific environmental authority for the mine.
On 7 May 2014 the Coordinator-General’s report evaluating the EIS was released. The Coordinator-General recommended approvals for the Carmichael mine project subject to the conditions and recommendations set out in the report.
On 24 July 2014 the Federal Minister for the Environment granted approval for the Carmichael Coal Mine and Rail Infrastructure Project pursuant to the EPBCA, subject to conditions. That approval was subsequently withdrawn and a new approval, with conditions, was granted on 14 October 2015[1].
[1]AA072, Exhibit 140. With the consent of the parties, a copy of the new approval was provided to the Land Court on 28 October 2015 and was made an exhibit in the proceedings. References to the EPBCA approval in these reasons are to Exhibit 140.
On 28 August 2014, the delegate for the administering authority under the EPA issued a draft environmental authority to Adani Mining for the mine. The draft EA included a number of conditions including the relevant conditions required by the Coordinator-General. The Statutory Party says that the conditions proposed in the draft EA were reasonable, necessary and desirable to deal with the impact of the mining activities.
Following notification of the mining lease applications and application for associated draft environmental authority, objections were lodged with the relevant departments to the MLAs and the draft EA. Those objections were referred to the Land Court on 1 October 2014.
The first respondent, Land Services of Coast and Country Inc, objected to the grant of the MLs and also to the application for the EA. Pursuant to a Land Court Practice Direction[2], the first respondent elected to be a Level 3 Objector, that is, to participate fully in the proceedings.
[2] Practice Direction No. 7 of 2013.
The second respondent, Conservation Action Trust, an organization based in Mumbai, India, objected to the application for the EA. The second respondent elected to be a Level 1 Objector, that is, to rely only upon its notice of objection and not to attend the hearing. Accordingly the second respondent did not file any material, call any evidence, cross-examine any witnesses or make any final submissions.
The Chief Executive, Department of Environment and Heritage Protection, is a statutory party to the application for the EA, pursuant to s 186(a) of the EPA.
In general terms, the first respondent objected to the applications on a number of grounds:
(a) the impacts of the mine on groundwater and groundwater dependent ecosystems, particularly the Doongmabulla Springs Complex (DSC);
(b) the impacts of the mine on biodiversity, particularly an endangered bird species, the black-throated finch (BTF) (poephila cincta) and a vulnerable plant species, (the waxy cabbage palm (WCP) livistona lanuginosa);
(c) the contribution that the burning of the coal from the mine will make to climate change, thereby contributing to environmental harm to the Great Barrier Reef World Heritage Area;
(d) the mine is not economically viable; and
(e) approval of the mine is contrary to the public interest.
The second respondent’s objection relates to the impacts on the local environment and communities of existing and in-development power stations in India that are owned by the group of companies of which the applicant is a part.
Under the MRA, the Land Court must hear the applications for grant of mining leases and the objections thereto and all other matters that are to be heard, considered or delivered by the Court and to determine the relative merits of the application, objections and other matters[3]. The Court is also required to make a recommendation to the Minister that the application be granted or rejected in whole or in part and may make a recommendation that the mining lease be granted subject to such conditions that the Land Court considers appropriate[4]. The Court must take certain matters into account under s 269(4) of the MRA when making a recommendation that the mining lease be granted in whole or in part. Those provisions are considered in detail below.
[3] Section 268(1) and (2) Mineral Resources Act 1989.
[4] Section 269(1)(d), (2) and (3) Mineral Resources Act 1989.
Under s 185(1) of the EPA the Land Court must make an objections decision in relation to the referral of the application for a draft environmental authority. Section 190 of the EPA sets out the nature of an objections decision.
It is not part of the Court’s function, under either statute, to consider the associated rail project.
Legal framework
Mineral Resources Act 1989
The major relevant provisions of the MRA are set out in this section. Their application in relation to the specific issues raised by the parties will be considered where relevant throughout the decision.
The objects of the MRA are set out in Section 2 which provides that:
“2 Objectives of Act
The principal objectives of this Act are to –
(a) encourage and facilitate prospecting and exploring for and mining of minerals;
(b) enhance knowledge of the mineral resources of the State;
(c) minimise land use conflict with respect to prospecting, exploring and mining;
(d) encourage environmental responsibility in prospecting, exploring and mining;
(e) ensure an appropriate financial return to the State from mining;
(f) provide an administrative framework to expedite and regulate prospecting and exploring for and mining of minerals;
(g) encourage responsible land care management in prospecting, exploring and mining.”
Section 268(1) and (2) provide:
"268 Hearing of application for grant of mining lease
(1) On the date fixed for the hearing of the application for the grant of the mining lease and objections thereto, the Land Court shall hear the application and objections thereto and all other matters that pursuant to this part are to be heard, considered or determined by the Land Court in respect of that application at the one hearing of the Land Court.
(2) At a hearing pursuant to subsection (1) the Land Court shall take such evidence, shall hear such persons and inform itself in such manner as it considers appropriate in order to determine the relative merits of the application, objections and other matters and shall not be bound by any rule or practice as to evidence. "
Section 269 relevantly provides:
"269 Land Court’s recommendation on hearing
(1) Upon the hearing by the Land Court under this part of all matters in respect of an application for the grant of a mining lease, the Land Court shall forward to the Minister -
(a) any objections lodged in relation thereto; and
(b) the evidence adduced at the hearing; and
(c) any exhibits; and
(d) the Land Court’s recommendation.
(2) For subsection (1)(d), the Land Court’s recommendation must consist of -
(a)a recommendation to the Minister that the application should be granted or rejected in whole or in part; and
…
(3) A recommendation may include a recommendation that the mining lease be granted subject to such conditions as the Land Court considers appropriate, including a condition that mining shall not be carried on above a specified depth below specified surface area of the land.
(4) The Land Court, when making a recommendation to the Minister that an application for a mining lease be granted in whole or in part, shall take into account and consider whether -
(a) the provisions of this Act have been complied with; and
(b)the area of land applied for is mineralised or the other purposes for which the lease is sought are appropriate; and
(c)if the land applied for is mineralised, there will be an acceptable level of development and utilisation of the mineral resources within the area applied for; and
(d)the land and the surface area of the land in respect of which the mining lease is sought is of an appropriate size and shape in relation to -
(i) the matters mentioned in paragraphs (b) and (c); and
(ii)the type and location of the activities proposed to be carried out under the lease and their likely impact on the surface of the land; and
(e) the term sought is appropriate; and
(f) the applicant has the necessary financial and technical capabilities to carry on mining operations under the proposed mining lease; and
(g) the past performance of the applicant has been satisfactory; and
(h) any disadvantage may result to the rights of
(i) holders of existing exploration permits or mineral development licences; or
(ii) existing applicants for exploration permits or mineral development licences; and
(i)the operations to be carried on under the authority of the proposed mining lease will conform with sound land use management; and
(j)there will be any adverse environmental impact caused by those operations and, if so, the extent thereof; and
(k) the public right and interest will be prejudiced; and
(l) any good reason has been shown for a refusal to grant the mining lease; and
(m)taking into consideration the current and prospective uses of that land, the proposed mining operation is an appropriate land use.
(5) Where the Land Court recommends to the Minister that an application for the grant of a mining lease be rejected in whole or in part the Land Court shall furnish the Minister with the Land Court’s reasons for that recommendation.
…"
Environmental Protection Act 1994
The object of the EPA is set out in Section 3 which provides that:
"3 Object
The object of this Act is to protect Queensland's environment while allowing for development that improves the total quality of life, both now and in the future, in a way that maintains the ecological processes on which life depends (ecologically sustainable development)."
In Telstra Corporation Ltd v Hornsby Shire Council[5], Preston CJ said that ecologically sustainable development, in its most basic formulation, is “development that meets the needs of the present without compromising the ability of future generations to meet their own needs”[6]. More particularly, his Honour said, ecologically sustainable development includes a cluster of elements or principles. Three of these principles are the precautionary principle, principles of equity and the conservation of biological diversity and ecological integrity[7].
[5] (2006) 67 NSWLR 256.
[6] At [108].
[7] At [113], [116] and [118].
Section 5 provides:
“5 Obligations of persons to achieve object of Act
If, under this Act, a function or power is conferred on a person, the person must perform the function or exercise the power in the way that best achieves the object of this Act.”The word “environment” is defined in s 8 as follows:
“8 Environment
Environment includes –
(a) ecosystems and their constituent parts, including people and communities; and
(b) all natural and physical resources; and
(c) the qualities and characteristics of locations, places and areas, however large or small, that contribute to their biological diversity and integrity, intrinsic or attributed scientific value or interest, amenity, harmony and sense of community; and
(d) the social, economic, aesthetic and cultural conditions that affect, or are affected by, things mentioned in paragraphs (a) to (c).”
“Environmental value” is defined in s 9 as follows:
“9 Environmental value
Environmental value is –
(a) a quality or physical characteristic of the environment that is conducive to ecological health or public amenity or safety; or
(b) another quality of the environment identified and declared to be an environmental value under an environmental protection policy or regulation.”
The first respondent submitted that the following are all components of the “environment” and “environmental value” as defined in ss 8 and 9:
(a) the biological integrity of an aquatic ecosystem that is effectively unmodified or highly valued (in relation to groundwater supply to the Doongmabulla Springs Complex, which are high ecological value waters, particularly the Moses Springs);
(b) biodiversity (such as represented by the black-throated finch and waxy cabbage palm);
(c) the social, economic, aesthetic and cultural conditions that affect, or are affected by the environment, such as jobs, royalties and taxes;
(d) the concentration of carbon dioxide (CO2) in the atmosphere and its associated greenhouse effect;
(e) the climate.
The application for the environmental authority was referred to the Land Court under s 185(1) of the EPA for an “objections decision”.
Section 190 of the EPA provides:
"190 Nature of objections decision
(1) The objections decision for the application must be a recommendation to the administering authority that -
(a)if a draft environmental authority was given for the application -
(i) the application be approved on the basis of the draft environmental authority for the application; or
(ii) the application be approved, but on stated conditions that are different to the conditions in the draft environmental authority; or
(iii) the application be refused; or
…
(2) However, if a relevant mining lease is, or is included in, a coordinated project, any stated conditions under subsection (1)(a)(ii) or (b)(i) –
(a)must include the Coordinator-General’s conditions; and
(b)can not be inconsistent with a Coordinator-General’s condition."
Section 191 of the EPA specifies the matters that the Land Court must consider for an objections decision. The section provides:
“191 Matters to be considered for objections decision
In making the objections decision for the application, the Land Court must consider the following –
(a) the application;
(b) any response given for an information request;
(c) any standard conditions for the relevant activity or authority;
(d) any draft environmental authority for the application;
(e) any objection notice for the application;
(f) any relevant regulatory requirement;
(g) the standard criteria;
(h) the status of any application under the Mineral Resources Act for each relevant mining tenure.”
“Standard criteria” is defined in Schedule 4 to the EPA to mean:
“standard criteria means -
(a) the following principles of environmental policy as set out in the Intergovernmental Agreement on the Environment –
(i) the precautionary principle;
(ii) intergenerational equity;
(iii) conservation of biological diversity and ecological integrity; and
(b) any Commonwealth or State government plans, standards, agreements or requirements about environmental protection or ecologically sustainable development; and
(d) any relevant environmental impact study, assessment or report; and
(e) the character, resilience and values of the receiving environment; and
(f) all submissions made by the applicant and submitters; and
(g) the best practice environmental management for activities under any relevant instrument, or proposed instrument, as follows—
(i) an environmental authority;
(ii) a transitional environmental program;
(iii) an environmental protection order;
(iv) a disposal permit;
(v) a development approval; and
(h) the financial implications of the requirements under an instrument, or proposed instrument, mentioned in paragraph (g) as they would relate to the type of activity or industry carried out, or proposed to be carried out, under the instrument; and
(i) the public interest; and
(j) any relevant site management plan; and
(k) any relevant integrated environmental management system or proposed integrated environmental management system; and
(l) any other matter prescribed under a regulation.”
It can be seen that paragraph (a) of the definition of “standard criteria” refers to the principles of environmental policy set out in the Intergovernmental Agreement on the Environment (IGAE). The IGAE is defined in Schedule 4 to mean the agreement made on 1 May 1992 between the Commonwealth, the States and Territories and the Australian Local Government Association[8].
[8]A note to the definition provides that a copy of the agreement is in the National Environment Protection Council (Qld) Act 1994, Schedule.
The IGAE provides as follows in relation to the precautionary principle, inter-generational equity and conservation of biological diversity and ecological integrity:
“3.5.1 Precautionary principle
Where there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation.
In the application of the precautionary principle, public and private decisions should be guided by:
(i) careful evaluation to avoid, wherever practicable, serious or irreversible damage to the environment; and
(ii) an assessment of the risk-weighted consequences of various options.
3.5.2 Intergenerational equity
The present generation should ensure that the health, diversity and productivity of the environment is maintained or enhanced for the benefit of future generations.
3.5.3 Conservation of biological diversity and ecological integrity
Conservation of biological diversity and ecological integrity should be a fundamental consideration.”
Precautionary principle
The first respondent submitted that the precautionary principle was engaged in this case in relation to the DSC, the black-throated finch and the waxy cabbage palm. The application of the precautionary principle was discussed in detail in Telstra Corporation Ltd v Hornsby Shire Council[9], where Preston CJ said[10]:
“The application of the precautionary principle and the concomitant need to take precautionary measures is triggered by the satisfaction of two conditions precedent or thresholds: a threat of serious or irreversible environmental damage and scientific uncertainty as to the environmental damage. These conditions or thresholds are cumulative. Once both of these conditions or thresholds are satisfied, a precautionary measure may be taken to avert the anticipated threat of environmental damage, but it should be proportionate.”
[9] (2006) 67 NSWLR 256.
[10] At [128]. (citation omitted)
His Honour went on to say that
·determining the existence of a threat of serious irreversible environmental damage does not involve, at the stage of assessing the first condition precedent, any evaluation of the scientific uncertainty of the threat. If there is not a threat of serious or irreversible environmental damage, there is no basis upon which the precautionary principle can operate[11].
[11] At [137], [138].
·The second condition precedent required to trigger the application of the principle is that there be a “lack of full scientific certainty”. The uncertainty is as to the nature and scope of the threat of environmental damage[12]. Full scientific certainty is not required[13]. If there is no, or not considerable scientific uncertainty, the second condition precedent is not satisfied and even though there is a threat of serious or irreversible environmental damage (that is, the first condition precedent is satisfied) the precautionary principle will not apply. The threat of serious irreversible environmental damage can be classified as relatively certain because it is possible to establish a causal link between an action or event and environmental damage, to calculate the probability of their occurrence, and to insure against them. Measures will still need to be taken but these will be preventative measures to control or regulate the relatively certain threat of serious or irreversible environmental damage, rather than precautionary measures which are appropriate in relation to uncertain threats[14].
[12] At [140].
[13] At [143], [145].
[14] At [149].
· If each of the two conditions precedent is satisfied the precautionary principle will be activated. At this point the evidentiary burden of proof shifts. A decision–maker must assume that the threat of serious or irreversible environmental damage is no longer uncertain but is a reality. The burden of showing that the threat does not exist or is negligible reverts to the proponent of the development. The rationale for requiring this shift of the burden of proof is to ensure preventative anticipation; to act before scientific certainty of cause and effect is established. The preference is to prevent environmental damage rather than to remediate it[15].
[15] At [150], [151].
·The function of the precautionary principle is, therefore to require the decision-maker to assume that there is or there will be a serious or irreversible threat of environmental damage and to take this into account, notwithstanding that there is a degree of scientific uncertainty about whether the threat exists[16].
[16] At [152].
·There is nothing in the formulation of the precautionary principle which requires the decision-maker to give the assumed factor (the serious or irreversible environmental damage) overriding weight compared to the other factors required to be considered, such as social and economic factors, when deciding how to proceed. The effect of the shift in the evidentiary burden of proof simply means that, in making the final decision, the decision-maker must assume that there will be serious or irreversible environmental damage. That factor must be taken into account in the calculus which decision-makers are instructed to apply under environmental legislation[17].
[17] At [154].
·The precautionary principle should not be used to try to avoid all risks. Rationality also dictates that the precautionary principle and any preventative measure cannot be based on a purely hypothetical approach to the risk, founded on mere conjecture which has not been scientifically verified[18].
[18] At [157], [159].
·The type and level of precautionary measures that will be appropriate will depend on the combined effect of the degree of seriousness and the irreversibility of the threat and the degree of uncertainty. This involves assessment of risk, namely the probability of the event occurring and the seriousness of the consequences should it occur. The more significant and more uncertain the threat, the greater the degree of caution required[19].
[19] At [161].
·Prudence also suggests that some margin for error should be retained until all the consequences of the decision to proceed with the development are known[20]. One means of retaining a margin for error is to implement a step-wise or adaptive management approach, whereby uncertainties are acknowledged and the area affected by the development plan, program or project is expanded as the extent of uncertainty is reduced[21]. An adaptive management approach might involve the following core elements:
[20] At [162].
[21] At [163].
Ø monitoring impacts of management or decisions based on agreed indicators;
Ø promoting research, to reduce key uncertainties;
Øensuring periodic evaluation of the outcomes of implementation, drawing lessons, and review or adjustment, as necessary, of the measures or decisions adopted;
Øestablishing an efficient and effective compliance system[22].
·The precautionary principle embraces the concept of proportionality, that is that measures should not go beyond what is appropriate and necessary in order to achieve the objectives in question. A reasonable balance must be struck between the stringency of the precautionary measures, which may have associated costs, such as financial, livelihood and opportunity costs and the seriousness and irreversibility of the potential threat[23].
·The precautionary principle, where triggered, does not necessarily prohibit carrying out the development plan, program or project until full scientific certainty is attained[24]. The solution is to assess the risk-weighted consequences of various options and select the option that affords the appropriate degree of precaution for the set of risks associated with the option[25].
·The precautionary principle is but one of the sets of principles of ecologically sustainable development. It should not be viewed in isolation, but rather as part of the package. This means that the precautionary measures that should be selected must not only be appropriate having regard to the precautionary principle itself, but also in the context of the other principles of ecologically sustainable development, including inter-generational and intra-generational equity and the conservation of biological diversity and ecological integrity[26].
[22] At [164].
[23] At [166], [167].
[24] At [179].
[25] At [181].
[26] At [182].
Intergenerational equity
In relation to the principles of equity, Preston CJ said that there is a need for inter-generational equity and intra-generational equity. He explained that inter-generational equity means that the present generation should ensure that the health, diversity and productivity of the environment are maintained or enhanced for future generations. This is the definition contained in s.3.5.2 in the Schedule to the IGAE. Preston CJ said that intra-generational equity involves considerations of equity within the present generation, such as uses of natural resources by one nation-state (or sectors or classes within a nation-state) needing to take account of the needs of other nation-states (or sectors or classes within a nation-state)[27].
[27] At [117].
Conservation of biological diversity and ecological integrity
In Bentley v BGP Properties Pty Ltd[28] Preston CJ said:
“Maintaining ecological integrity involves maintaining ecosystem health. Ecosystems become unhealthy if their community structure (species richness, species composition or food web architecture) or ecosystem functioning (productivity, nutrient dynamics, decomposition) has been fundamentally upset by human pressures …
The conservation of threatened species is an essential action in the conservation of species diversity, and hence of biological diversity and ecological integrity.”
[28] (2006) 145 LGERA 234 at [61], [63].
The character, resilience and values of the receiving environment
The character, resilience and values of the receiving environment are matters identified in para (e) of the definition of standard criteria which the Court is required to take into account under s 191(g) of the EPA.
The first respondent submitted that the agreed ecological value of the DSC and low resilience to changes in groundwater supply are clearly matters requiring careful consideration. Similarly the potential loss of the core habitat of the most important population of the threatened black-throated finch and the very low resilience of the species to further impact are matters requiring careful consideration.
The public interest
Paragraph (i) of the definition of the standard criteria in the EPA identifies the public interest as another matter which the Court must consider under s 191(g) of the EPA.
The public interest involves a discretionary balancing exercise of the widest import confined only so far as the subject matter and the scope and purpose of the statute may enable[29].
[29]See O’Sullivan v Farrer (1989) 168 CLR 210 at 216; Water Conservation & Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 at 504-5 (Dixon J); McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423 at [55].
The first respondent submitted that while the public interest is a relevant consideration under both the EPA and MRA, they are two very different Acts with very different objects. This means, said the first respondent, that there are different frameworks for considering the public interest under the two Acts. The MRA provides a system aimed at promoting the development of the mining resources of the State, while the EPA is focussed on the protection of the environment. These elements overlap to some extent but they are quite different, said the first respondent, and it would be wrong to assume that the public interest aspect of the mining lease application under the MRA and the consideration of public interest in the application for the environmental authority under the EPA are the same.
This submission will be considered below when discussing the application of the public interest test under the EPA.
The relevance of environmental harm for the objections decision
Section 14 of the EPA defines “environmental harm” to mean:
“14 Environmental harm
(1) Environmental harm is any adverse effect, or potential adverse effect (whether temporary or permanent and of whatever magnitude, duration or frequency) on an environmental value, and includes environmental nuisance.
(2) Environmental harm may be caused by an activity –
(a) whether the harm is a direct or indirect result of the activity; or
(b) whether the harm results from the activity alone or from the combined effects of the activity and other activities or factors.”
The first respondent submitted that:
·An act that adversely affects the biological integrity of the Moses Springs, loss of biodiversity, the concentration of CO2 in the atmosphere, or the climate, constitutes environmental harm.
·While s 191 of the EPA and the standard criteria do not refer to environmental harm specifically, it is clear from the structure and objects of the EPA that the risk and extent of likely environmental harm is central to assessing any application for an environmental authority and, therefore, any objections decision.
·The EPA directly links the concept of environmental harm to an environmental authority granted under it in the following way:
ØSections 437 and 438 of the EPA provide criminal offences for unlawfully causing serious or material environmental harm (which are defined in ss 16 and 17 of the EPA).
ØIn the context of sections 437 and 438, causation of environmental harm must be construed by reference to section 14.
ØSection 493A provides that serious or material environmental harm is lawful, if amongst other things, it is authorized under an environmental authority.
·Therefore, the environmental harm that the mining activity will cause (which, absent the environmental authority, is unlawful) must be considered in granting an environmental authority for it. Were this not the case, the decision to grant the authority would authorize something that was not considered in making the decision.
·Therefore having regard to the subject matter, scope and purpose of the EPA and the central function of the grant of an environmental authority, it is apparent that the enumerated factors in s 191 do not constitute an exhaustive list. It follows that the environmental harm that any activity may cause is a “relevant consideration” that the Court is bound to consider in respect of the grant of an environmental authority to authorize that activity (or, rather, the environmental harm that flows therefrom). A failure to have regard to relevant matters may lead a decision-maker to wrongly deny the existence of its jurisdiction or mistakenly impose limits on its functions or powers. Considering something irrelevant might disclose a constructive failure to exercise jurisdiction.
Although s 191, which sets out the matters to be considered for an objections decision, does not expressly refer to “environmental harm”, as defined in s 14, as a matter to be taken into account by the Court in making an objections decision, I accept that in considering the matters set out in s 191 the Court will inevitably consider activities that may constitute “environmental harm” as defined. This does not, however, mean that the Court’s jurisdiction to examine factors such as any climate change caused by burning the coal from the mine is thereby expanded. This issue is considered further in the discussion of climate change below. At this point it is sufficient to say that the Court will only consider those aspects of environmental harm that are within its jurisdiction.
The Court’s response
The applicant and the first respondent do not agree as to the appropriate response of the Court to circumstances where any of the principles of ecologically sustainable development are infringed.
Section 5 of the EPA provides that
“5 Obligations of persons to achieve object of Act
If, under this Act, a function or power is conferred on a person, the person must perform the function or exercise the power in the way that best achieves the object of this Act.”
The first respondent submitted that a relevant question to ask is whether the purpose of the EPA means that a recommendation by the Court to approve an unsustainable activity is invalid having regard to the language, scope and object of the Act. Legislation must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals, and where conflict is found, the Land Court may be required to determine a hierarchy of provisions, citing Project Blue Sky v Australian Broadcasting Authority[30].
[30] (1998) 194 CLR 355 at [70], (McHugh, Gummow, Kirby and Hayne JJ).
The first respondent submitted that s 5 states a clear legislative intent that, in exercising its functions under the Act of hearing the objections and making its recommendation to the Minister, the Land Court must “perform the function or exercise the power in the way that best achieves the object of this Act” of ecologically sustainable development. In contrast ss 190 and 191 provide a list of matters that the Court is required to consider but leave it to the Court to determine the appropriate balance and weight to be given to each consideration. The EPA creates a hierarchy in which the obligation in s 5, linked directly to the object of the Act stated in s 3, provides an overriding duty when exercising any function under the Act including the functions of the Court. This construction is confirmed by the Environmental Protection Bill 1994 Explanatory Notes because the reasons for the Bill state – “protection of the environment is ensured by requiring economic development to be ecologically sustainable”. (emphasis added by first respondent).
If the Court concludes that a proposed mining activity is unsustainable, the first respondent submitted, the Court is obliged to recommend that the activity is refused. The effects of the mine on the exceptional ecological values of the DSC and the black-throated finch, and the contribution of the mine to climate change raise first order questions of unsustainability, the first respondent submitted.
The applicant submitted in relation to the precautionary principle, that if the precautionary principle is enlivened in relation to any specific risk identified and relevant to the objections, the Court may have regard to the conditions of the draft EA and to some degree the EPBCA approval. The parties and the Court must assume that the applicant will act lawfully and abide by these conditions if the EA is issued. The applicant submitted that the evidence establishes that the draft EA applies a cautious adaptive management approach.
In the event that the Court is not satisfied that the conditions of the draft EA address the established risk of damage and uncertainty, the applicant submitted that the proper approach is not to refuse the application. This would apply the inappropriate no risk response.
In my opinion, the Court is required to carry out its obligations under the EPA by considering the provisions of that Act in the context of the Act as a whole, as recognized in Project Blue Sky, and on the basis that its provisions are intended to give effect to harmonious goals. To that end it may be necessary to determine a hierarchy of provisions.
In addition, however, because this Court is dealing with applications under the MRA and the EPA, the Court must also consider the objects of the MRA and, as recognized in Xstrata Coal Queensland Pty Ltd v Friends of the Earth – Brisbane Co-op Limited, the Court must endeavour to give effect to the presumption that two laws made by the one legislature are intended to work together[31].
[31](2012) 33 QLCR 79 at [32]; see also Ferdinands v Commissioner for Public Employment (2006) 225 CLR 130 at [49] (Gummow and Hayne JJ).
In light of those general principles, and the terms of s 5 of the EPA, I accept that the Court must exercise its powers in the way that best achieves the object of that Act. That is, the Court must recognize that the object of that Act is to protect Queensland’s environment while allowing for development that is ecologically sustainable. The relevant development here is the operation of the mine and associated activities, which will be enabled if the mining leases are granted. The first question for the Court to determine is whether the mine can be developed in an ecologically sustainable way. It is unnecessary for me to determine, at this point, the consequences, if I were to conclude that the development would be unsustainable.
Water Objections
The following grounds of the first respondent’s objection to the MLA are relevant to the issue of water:
(1)If the mine proceeds, there will be severe and permanent adverse environmental impacts caused by the operations carried out under the authority of the proposed mining leases.
(3)Good reason has been shown for a refusal to grant the mining leases due to the risk of environmental impacts and the lack of scientific certainty regarding those impacts.
(8)In the alternative to grounds 1 - 7 above, if the applications are not refused, conditions should be imposed to address the matters raised in grounds 1 – 7.
In the “Facts and Circumstances” attached to the objections, the first respondent said:
Groundwater
11. If the mine proceeds, it will cause severe adverse environmental impact to groundwater and dependent users, species and ecosystems.
12. If the mine proceeds, it will impact groundwater dependent springs and systems that are important for human use, agriculture and biodiversity, including but not limited to:
(a)the Doongmabulla Springs Complex – including Moses, Little Moses and Joshua;
(b)the Mellaluka Springs Complex – including Mellaluka Spring, Lignum Spring and Stories Spring.
13. The full extent of the adverse environmental impacts to groundwater and dependent species and ecosystems cannot be particularized by the objector due to the inadequate information provided by the Applicant in the applications, EIS and SEIS.
14. It has not been adequately demonstrated that the mine will not have an unacceptable adverse impact on groundwater and dependent species and ecosystems. In particular:
(a)it has not been adequately demonstrated that the mine will not have an unacceptable adverse impact on the environment by changes to the quality and quantity of groundwater considering section 269(4)(j) of the MRA;
(b)the absence of adequate scientific information about a potential impact with severe and long term impacts is good reason to refuse the mining lease applications considering section 269(4)(l) of the MRA; and
(c)the adverse environmental impacts and potentially severe adverse environmental impacts caused by these proposed mining operations on groundwater make it an inappropriate use of the land when current land use does not pose a similar threat considering section 269(4)(m) of the MRA.
Surface water
15. If the mine proceeds it will cause severe adverse environmental impacts to surface water and dependent users, species and ecosystems on and associated with the area of the mine and downstream.
16. The full extent of the adverse environmental impacts to surface water and dependent users, species and ecosystems cannot be particularized by the objector due to the inadequate information provided by the Applicant in the application, EIS and SEIS.
17. It has not been adequately demonstrated that the mine will not have unacceptable adverse impacts and potentially severe and long term adverse impacts on the quantity and quality of surface water and dependent ecosystems and species that have not been adequately assessed. In particular:
(a)the mine will have an unacceptable adverse impact on the environment by adverse impacts on surface water quality, quantity and ecology, (including dependent species) considering section 269(4)(j) of the MRA;
(b)the absence of adequate scientific information about potentially severe and long term impacts is good reason to refuse the mining lease applications, including section 269(4)(l) of the MRA; and
(c)the adverse environmental impacts and potentially severe adverse environmental impacts caused by these proposed mining operations on surface water by the creation of a permanent final void, alienating the land from current and future productive use, make it an inappropriate use of the land when current land use does not pose a similar threat considering section 269(4)(m) of the MRA.
The first respondent also objected to the EA application on the basis of the considerations stated in ss 3, 5, 171 and 191 of the EPA. In particular, the first respondent said, approval of the mine would be contrary to the object of the EPA stated in s 3; contrary to the requirement in s 5 for the decision-makers to perform a function or exercise its power under the Act in the way that best achieves the object of the Act; contrary to the precautionary principle, intergenerational equity and the conservation of biological diversity and ecological integrity; would cause environmental harm to the character, resilience and value of the receiving environment; contrary to the public interest; and would cause material and serious environmental harm.
The facts and circumstances relied on by the first respondent in its notice of objection to the EA application are similar to those set out in relation to the facts and circumstances set out in the MRA objection.
In the first respondent’s further amended preliminary identification of issues[32], these objections were particularized as follows:
[32] OL010, Exhibit 2.
5. The Doongmabulla Springs Complex (DSC) comprises a group of several large permanent springs that supply base flow to the Upper Carmichael River which flows permanently in this area. The Doongmabulla Springs lie only ~ 8km west of the proposed mine.
6. Dewatering for the proposed mine is modelled in the SEIS to have only a minor impact on the Doongmabulla Springs (DS), because they issue from a sandstone unit that is separated from the coal-bearing Colinlea Sandstone by a regional aquitard, the clay-rich Rewan Formation.
7. There is considerable uncertainty about the likely impact of the proposed mine on the hydrogeology relevant to the DSC.
(a)It is likely that the DS are supplied from the Colinlea Sandstone rather than the lower sandstone overlying the Rewan Formation. Evidence for this includes:
(i) the hydraulic head in the sandstone at the DS site, as shown by Bore HD02, is several metres below ground level, whereas the hydraulic head for the aquifer supplying the springs is at least 3 metres above ground level. (Note there are no measurements of the existing hydraulic head at the DS, rather, the average head pressures are assumed based on the maximum height of the water level in the dam fed by the springs);
(ii) the DS are most likely fed by flow along a fracture/fault, as is the case for the Mellaluka Springs, which receive groundwater from the Colinlea Sandstone;
(iii) the Rewan Formation generally has a very low permeability, but measurements on this unit around the proposed Alpha Coal Mine to the south show that it contains zones of high permeability that are likely to be fractures;
(iv) groundwater with a similar salinity to the DS occurs in the Colinlea Sandstone to the east of the DS;
(v) there is a marked trough in the potentiometric surface of the Permian Units to the east of the DS which suggest the influence of a fault;
(vi) the potentiometric surface of the Permian Units is sufficiently elevated within part of the proposed mine area to drive groundwater flow to the DS.
(b)The applicant’s predictive numerical modelling does not account for a major fault/fracture system feeding the springs, which would require model cells to be defined with the appropriate locations, dimensions and hydrogeological properties for groundwater flow along this fracture system.
(c)If the DS are fed by groundwater flow from the Colinlea Sandstone, then the impact of the mine dewatering on spring flow will be similar to that at Mellaluka Springs, i.e. the springs will be likely to permanently dry out.
8. In turn, this will remove baseflow from the Carmichael River which will no longer flow permanently in this area.
9. There can be no confidence in the analysis of river hydrology and river-groundwater interaction analysis in the SEIS.
10. The Mellaluka Springs Complex to the south east comprises three separate springs that lie along a straight line. The Mellaluka Springs Complex is supplied by groundwater flow from the Colinlea Sandstone.
11. Dewatering for the proposed mine will severely impact these springs, which are likely to disappear.
12. The DSC has exceptional ecological value:
(a)The exceptional ecological value of the DSC is primarily based on the unusually high level of endemism among the species for which it provides habitat.
(b)This high level of endemism in the DSC is understood to be largely a consequence of in situ evolution driven by factors among the following:
(i) the age of the springs – DSC is likely to be at least 1 million years old;
(ii) the isolation of the DS; and
(iii) the particular/peculiar water chemistry.
13. It is accepted that the proposed mine may lead to the permanent drying of the Mellaluka Springs Complex such that that Springs’ ecological values will be permanently lost.
14. The likely impacts of the proposed mine on the ecological values on the DSC are not clear.
(a)If the drawdown impact on the DS is greater than predicted by the applicant’s numerical modelling, then the impact on the Springs’ hydraulic head and flow rates will be greater than anticipated.
(b) The applicant does not properly assess the potential or likely extent of the ecological impacts on the DS;
(i) the applicant’s hydrogeological modelling indicates that the mine dewatering will have some impact on the DS.
(ii) any drawdown from the source aquifer will have an impact on the DS, such as a reduction in the flow rate into the springs and some reconfiguration of the habitat, ie reduction in the volume of any pools and the area inundated by the DS.
(iii) if the drawdown impacts reduce the flow rate but maintain artesian discharge, the extent of the impacts on the ecology of the DS is very difficult to predict.
(c)Subject to the outcomes of the meetings of experts in hydrogeology, there appears to be significant uncertainty or disagreement about:
(i) which of the underlying aquifers is the likely source of water to the DS;
(ii) whether the applicant’s predictive numerical modelling:
A. adequately reflects the geological features that create the DS;
B. accurately predicts the likely extent of groundwater drawdown impacts on the DS.
(d)If the DS dry, either permanently or temporarily, any endemic species will not survive and become extinct.
Doongmabulla Springs Complex – the source aquifer
There are two areas of springs that will be impacted by the mining operations at the Carmichael mine – the Doongmabulla Springs and the Mellaluka Springs.
The Doongmabulla Springs Complex consists of
a.Joshua Spring;
b.The Moses Spring group; and
c.Little Moses Spring
The evidence was that while the Mellaluka Springs do not support vegetation of exceptional ecological value, the DSC has exceptional ecological values. A major issue in this case is the impact that the mine may have on the DSC.
The conceptualisation of the geology in the region of the proposed Carmichael lease relied on by the applicant is set out in the EIS for the project. Dr Webb disagreed with that interpretation and has re-conceptualised the regional geology, relying on additional materials. The first respondent submitted that the regional geology is relevant only to the extent that Mr Bradley relied on the Vine et al regional geology in his alternative conceptualisation of the source aquifer of the DS, the first respondent submitted. The issue is discussed further below, in that context.
The applicant says that the geological strata in the general region of the Carmichael mine occur in the following descending depth order (where they exist):
i.Moolayember Formation;
ii.Clematis Sandstone;
iii.Dunda beds;
iv.Rewan Formation;
v.Bandanna Formation;
vi.Colinlea Sandstone; and
vii.Jochmus Formation (known as the “Joe Joes”).
Coal at the Carmichael mine will be extracted from the strata below the Rewan Formation, being the Bandanna Formation and the Colinlea Sandstone. The coal bearing seams below the Rewan formation will be dewatered.
It is the case for the applicant that the source aquifer for the DSC must be above the Rewan Formation and, therefore, the dewatering caused by the mine will have little impact on the DSC. The applicant acknowledged however that if the source is below the Rewan, the impacts will be significant and the Doongmabulla Springs will not merely suffer drawdown but will be lost.
The first respondent says that the DS are sourced at least in part from an aquifer below the Rewan Formation, namely the Colinlea Sandstone, and, therefore, as the applicant had conceded, the springs will be lost.
The applicant retained Mr John Bradley in relation to groundwater and geology. Mr Bradley is the principal hydrologist at JBT Consulting Pty Ltd and is a geologist and hydrogeologist with over 23 years experience in groundwater assessment and management. The applicant also engaged Dr Noel Merrick of Heritage Computing Pty Ltd. Dr Merrick is a hydrogeologist with over 40 years experience in groundwater modelling, assessment and management.
Dr John Webb was engaged by the first respondent. Dr Webb has over 30 years experience in geology and 20 years experience in hydrogeology, both in practice and in tertiary level teaching. The first respondent also engaged Dr Adrian Werner who is a professor in hydrogeology at Flinders University and a chief investigator of the National Centre for Groundwater Research and Training. Dr Werner has expertise in hydrogeology and groundwater modelling.
The experts produced two joint reports, the first dated 9 January 2015[33] and the second dated 27 March 2015[34]. In addition, two individual reports by Mr Bradley were tendered[35] as was one individual report by each of Dr Merrick[36], Dr Webb[37] and Dr Werner[38].
[33] JR004, Exhibit 14.
[34] JR010, Exhibit 15.
[35] AA008, Exhibit 16 and AA020, Exhibit 17.
[36] AA010, Exhibit 19.
[37] OL012, Exhibit 18.
[38] OL011, Exhibit 20.
As noted above, the applicant says that the water source for the DS is the Clematis Sandstone, which lies above the Rewan Formation. This is because, the applicant said, the incredibly low permeability of 90% of the Rewan Formation, coupled with the fact that zones of somewhat higher permeability are isolated from each other such that there is no continuous zone of high permeability throughout the strata, means that, at most, only a negligible amount of groundwater could possibly move through the Rewan Formation from strata below.
Furthermore, the applicant submitted, even if there is a high permeability pathway through the Rewan Formation that allows groundwater to move from below the Rewan Formation to above the Rewan Formation, such movement would only occur if the groundwater head above the Rewan Formation is lower than the head below (due to accepted hydrogeological principles that groundwater will move from a high head to a low head). There is no evidence that the head differential between the Clematis Sandstone and the Colinlea Sandstone would lead to groundwater flowing from the Colinlea to the Clematis, said the applicant.
The first respondent says that the DS are sourced at least in part from an aquifer below the Rewan Formation, namely the Colinlea Sandstone.
Dr Webb’s evidence was that while the Rewan Formation is generally a low permeability unit and acts as an aquitard, it is “leaky” – that is, it has areas of high vertical conductivity and is capable of transmitting significant volumes of groundwater in places. He relied on a combination of a number of lines of evidence to support his conclusion that the spring water is derived at least in part from the underlying Permian aquifers[39]:
a.There is a marked trough in the potentiometric surface of the Permian Units to the east of the springs (EIS hydrogeology 4-8 to 4-12), and in fact the groundwater flow directions in the Colinlea Sandstone to the north, south and west of the springs converge on the springs. This is most easily explained if the springs represent a discharge point for the aquifer.
b.The potentiometric surface of the Permian Units is sufficiently elevated to drive groundwater flow to the springs, particularly north of the springs within the mine lease (EIS hydrogeology).
c.There is evidence for a fault through the middle of the Carmichael lease, as interpreted by Xenith Consulting (2009); this fault could breach the Rewan Formation and allow upwards groundwater flow from the Colinlea Sandstone.
d.Although faults and fractures in the Rewan Formation might be expected to be self-sealing due to the clay-rich nature of this formation, there is clear evidence that the Colinlea Formation to the west of the Carmichael lease is recharged through the Rewan Formation which therefore must allow groundwater flow through it in places.
e.Groundwater with a similar salinity to the springs occurs in the D seam in two bores to the east of the springs (50-60 mg/L Cl).
f.The Sr isotope composition of most springs matches that of Mellaluka Bore, consistent with the origin of the spring water from the same aquifer i.e. the Colinlea Sandstone or immediately underlying Joe Joes Formation.
g.To obtain artesian pressures within the Dunda Beds sufficient to drive the groundwater flow at Joshua Spring, there must be a confining layer within the Dunda Beds. There is no clear evidence of this and bores in the Dunda Beds near the springs ( e.g. HD02) are not artesian. The previous geological map for the springs area assigns these outcrops to the Clematis Sandstone as previously discussed; there is little evidence of major confining layers within the Clematis Sandstone wherever it outcrops.
[39] OL012, Exhibit 18 at [54].
Permeability/hydraulic conductivity of Rewan Formation
The evidence is that the Rewan Formation is extremely thick in the area of the DS. Core sample results from the closest available bore, Shoemaker 1 bore, which is approximately 500 m from Joshua Spring, record the Rewan Formation as being 279.2 m thick, commencing at 246.8 m below ground level and extending to 526 m below ground level.
Mr Bradley’s evidence was that the median hydraulic conductivity values of the Rewan Formation are:
a. 2.78 x 10-9 m/second in areas expected to have lower hydraulic conductivity (being areas predominantly comprised of fine grained sediments such as siltstones and claystone); and
b. 1.16 x 10-6 m/second in areas expected to have higher hydraulic conductivity (being areas predominantly comprised of coarse grained sediments such as sandstone and sandy clay).
The median value of the hydraulic conductivity is markedly lower than a recognized international standard for sufficiently low permeability to act as a liner preventing seepage[40].
[40]The Environment Protection Society in South Australia requires that a waste water lagoon be constructed with a .3 metre compacted clay liner with permeability of less than 1 x 10-9 metres/second.
Mr Bradley said that the sandy, higher hydraulic conductivity regions of the Rewan Formation are isolated and discrete and comprise no more than 10% of the total Rewan Formation thickness. There is a continuous low permeability zone of the Rewan Formation approximately 134 m thick before the first region of higher hydraulic conductivity commences at 384 m below ground level. The hydraulic conductivity of that continuous zone has a median value of 2.78 x 10-9 m/second. Further there are two additional continuous zones of low permeability in the Rewan Formation of 48 and 38 m. These additional zones further impede the vertical flow of any groundwater through the Rewan Formation.
Dr Webb’s evidence was that the piezometric data for the Colinlea Sandstone shows that there is a groundwater divide to the west of the Carmichael lease in the vicinity of Lake Galilee. (This issue is discussed further below). Accordingly, Dr Webb said, recharge to the Colinlea Sandstone must be occurring along this groundwater divide. However, on either conceptual model of the hydrogeology, the Rewan Formation overlies the Colinlea/Bandanna aquifer along the groundwater divide so that, Dr Webb said, recharge to the Colinlea Sandstone is occurring through the Rewan Formation which must be a leaky aquitard. Dr Webb accepted that the Rewan is dominantly clay-rich and the majority of hydraulic conductivity measurements from the Formation are low, and that Mr Bradley had said that any fractures or faults through the Rewan might be expected to self-heal. Nevertheless the presence of the groundwater divide to the west of the lease area indicated unequivocally, Dr Webb said, that recharge is occurring through the Rewan Formation. Further, the data from the Kevin’s Corner EIS showed that parts of the Rewan are quite transmissive.
The applicant said that Dr Webb had ignored the relevant evidence in relation to the permeability values. Dr Webb’s only reference in his written report to permeability data, the applicant said, was a statement that “parts of the Rewan Formation are quite transmissive, as shown by scattered high vertical hydraulic conductivity values of 0.3 – 1.2 m/day”, referring to the Kevin’s Corner EIS, 12 Groundwater, Table 12-30. The applicant submitted that that statement by Dr Webb selectively ignored much more geographically relevant data sourced locally from the Carmichael mine site and immediate surrounds. Further, the publicly available EIS for the Kevin’s Corner project showed that the context in which Table 12-30 was included was a summary of the contents of the table as follows[41]:
“These results indicate heterogeneity within the Rewan Group, which contains layers of very low permeability. These zones provide the confining pressures for artesian and sub-artesian conditions recorded in the GAB and reduce the potential for vertical induced flow. The results match the conceptualisation of the Rewan Group acting as a regional aquitard, which prevents inter-aquifer and inter-basin flow.
The impacts of mine dewatering on the Rewan Group and ultimately to the Clematis Sandstone are, as predicted in the groundwater model (section 12.11.3), therefore recognised as negligible.”
[41] AA041, Exhibit 75 at 128.
Faulting in the Rewan Formation
The first respondent said that the DS are most likely fed by flow along a fracture/fault as is the case of the Mellaluka Springs which receive groundwater from the Colinlea Sandstone. The first respondent submitted that complete disruption of the Rewan was not necessary for faulting or fracturing to create a preferred flow pathway. Dr Webb’s evidence was that there may be a smaller amount of movement or fault so that one side moves up a small amount compared to the other side so that aquifers do not match, but the fault can open and leave a space that can provide a pathway for groundwater movement.
The applicant submitted that there was no evidence of any fault through the Rewan Formation in the location of the DSC and none should be implied. Mr Bradley and Dr Merrick were of the opinion that there was no evidence of any fault through the Rewan Formation which could transmit significant groundwater flow. They noted that:
a.there was no evidence to establish the presence of faults with a continuous hydraulic connection;
b.the probability of such continuous faults through the Rewan Formation was extremely low; and
c.the Rewan Formation would “self heal” any faults, such that they would not affect the low permeability of the Rewan Formation.
The applicant’s conceptual model of the groundwater system does not attempt to model any faults. The groundwater experts disagreed on the need to invoke faults as a major feature in the conceptual model of the groundwater system. Mr Bradley and Dr Merrick considered that the principle of parsimony[42] should be applied as there is no definitive evidence of faults affecting the groundwater system. Dr Werner’s view was that the analysis of faults and other preferential pathways such as abandoned wells was inadequate to predict with reasonable certainty the competence of the aquitards as barriers to flow. Dr Webb believed that because faulting may be feeding the DS, faulting should be a major feature of the conceptual model.
[42] That is, that the number of entities should not be increased without good reason.
Mr Bradley’s evidence was that if the presence of faults with a continuous hydraulic connection has not been established (e.g. by drilling, geophysics, geochemistry etc) then the inclusion of faults should not form part of the conceptualization, and modelling of water level impacts due to faulting should not be attempted. He considered that the water source for the Doongmabulla Spring Complex is above the Rewan Formation and therefore it was not necessary to invoke faulting as the explanation for the water source.
Mr Bradley also said that discussions with site geological personnel indicated that the Rewan Formation is generally a difficult formation to drill because open bore holes tend to close within one or two drilling shifts due to the presence of swelling clays that can completely close the bore hole. This demonstrated the properties of clay within the Rewan Formation that would tend to heal any faults rather than allow the presence of hydraulically continuous faults through the entire thickness of the Formation. Accordingly the presence of fault traces within the Rewan Formation would not necessarily indicate the presence of hydraulically continuous zones that would allow the vertical transfer of water. Mr Bradley’s opinion was that due to the thickness of the low-permeability sediments and the field observations that swelling clays tend to heal bore holes, the probability that hydraulically continuous faults occur through the Rewan Formation is extremely low.
In any event, Mr Bradley said, the Commonwealth EPBCA approval conditions specify a requirement to undertake a study that specifically focuses on the issue of connectivity of the Rewan Formation. This will allow this hypothesis to be tested and remedial actions to be developed as appropriate.
There is evidence that a number of springs in the Great Artesian Basin occur because of faulting. Dr Fensham (called by the first respondent) said that about 35% of the discharge springs would be associated with fault structures. He said that the seismic record shows that there is a displacement of the rocks and that the aquitard is just too thick to conceivably be penetrated by the groundwater without a fault, a pathway.
Dr Webb pointed to evidence of a fault in the middle of the Carmichael lease as interpreted by Xenith Consulting (2009)[43]. Dr Webb said that this fault could breach the Rewan Formation and allow upwards groundwater flow from the Colinlea Sandstone.
[43]Xenith (2009) is a report entitled “Link Energy Ltd Galilee Project – MDLa372 Insitu Coal Resource Estimate” produced by Xenith Consulting Pty Ltd, November 2009, AA030 Exhibit 53.
It is evident from that report that, although a fault had been identified, the authors recommended that further work should be carried out to increase the understanding of the interpreted fault structure in the middle of the deposit[44].
[44] At 13, 31.
The applicant relied on two more recent reports to demonstrate that there is only minimal faulting in the region of the Carmichael lease. The first is a report entitled “Adani Mining Pty Ltd JORC Coal Resource Estimate – Carmichael Coal Project” produced by Xenith Consulting Pty Ltd in April 2013 (Xenith 2013) report[45]. That report says that four faults are interpreted to exist with vertical throws of between 20 m to 40 m and that more drilling focussed around the faulted zones will be needed to better pinpoint the location, throw and angle of the fault plane. The applicant submitted that these throw amounts should be compared to the estimated thickness of the Rewan Formation of approximately 279 m in the location of the DS. The second report, authored by ROM Resources[46], refers to minor faulting in the D1 fault seam in the area of the lease and the geological modelling assumption of the presence of four faults with vertical throws of between 20 to 40 m but does not state that further work is required to understand faulting in the region.
[45] AA031, Exhibit 54.
[46]Carmichael Coal Deposit, Queensland Minescape Model Report and 2014 Resource Statement (to the 2012 JORC Code) April 2014, Exhibit LL1 to AA005, Exhibit 4.
The first respondent referred to the Independent Expert Scientific Committee (IESC) advice[47] which includes the following observations:
“Regional Faults: The conceptual model would benefit from an assessment of regional faults. The proponent’s groundwater model does not take into consideration the influence of faulting within the Rewan Formation. The Committee notes that faults have been identified on the eastern boundary of the Galilee Basin within the Rewan Formation in other project proposals, but their potential role on groundwater flow processes has not been considered in this project.”
[47] IESC Advice to Decision-maker on Coal Mining Project, OL032, Exhibit 59 at 3.
The applicant said that in its response to that advice, GHD[48] had noted that following overall assessment of the publicly available regional geology reports and maps together with JORC resource modelling by recognized independent geologists, it was concluded that there was a general absence of any significant faults in the area[49].
[48]GHD Pty Ltd are the authors of the EIS, SEIS and additional SEIS which were prepared for and on behalf of the applicant.
[49] GHD Response to the IESC Advice February 2014, MR204 at 2.2.2.
Annexed to the GHD Response to the IESC Advice, is a document entitled “Short Technical Series for Adani Mining Pty Ltd: a Short Review of Regional Structure in the Region of the Carmichael Coal Deposit Central Queensland” written by Mr M Biggs of ROM Resources in February 2014[50]. Mr Biggs reviewed the available literature including multiple reports as to the results of drilling, seismic surveys and geological investigations. He concluded that it was unlikely that there were any significant faults in the region and he expressly rejected the idea that there could be a fault disrupting the entirety of the 280 m thick Rewan Formation which would thereby connect the coal bearing sequences to the aquifers above the Rewan Formation.
[50] MR204 at Attachment 5.
However, even if it were accepted that the first respondent’s position is correct, I do not consider that any consequent increase in the supply of coal and reduction in price provides reasons for refusing approval of the mine.
The first respondent submitted and adduced evidence that the discount rates adopted by Dr Fahrer to value further future income in present day values, were lower than those recommended in the NSW guidelines. That does appear to be the case. The consequence is that Dr Fahrer’s estimates of income may be somewhat overstated.
I also accept that Dr Fahrer’s CBA analysis does not include the externality costs attributable to total emissions from burning the coal produced by the mine. Dr Fahrer’s evidence was that it would not be conceptually correct to count those externality costs in a CBA for the mine project because the cost of any environmental damage caused by GHG emissions from burning the coal should be included in a CBA of the electricity production. I have accepted that evidence and therefore do not consider that Dr Fahrer’s CBA model is defective in not including the externality costs.
Overall, my conclusions about the financial and economic evidence are that the applicant has overstated certain elements of the benefit of the mine both in the EIS and in the evidence before this Court. In particular:
·the I/O analysis in the EIS estimated the number of Queensland jobs generated by the mine alone to be over 10,000 fte jobs per annum from 2024. Dr Fahrer’s evidence, which I have accepted, was that the Carmichael Coal and Rail Project will increase average annual employment by 1,206 fte jobs in Queensland and 1,464 fte jobs in Australia;
·the applicant’s input figures contained in Dr Fahrer’s CGE and CBA modelling probably overstate the selling price of the coal and therefore the royalties generated by the project and the corporate tax payable;
·the discount rates adopted by Dr Fahrer, to value future income in present day values, are lower than those recommended in some guidelines;
While the employment benefits have been corrected in Dr Fahrer’s analysis, the other figures remained. The result is that the benefits of the project are likely to be less than modelled by Dr Fahrer. This is not a matter which leads me to conclude that I should not make a recommendation that the applications not be granted. Rather, I shall draw this information to the attention of the Minister.
Second respondent’s objection
As noted above, the second respondent, Conservation Action Trust, objected to the application for the EA under the provisions of the EPA. Pursuant to Land Court Practice Direction No 7 of 2013, the second respondent elected to be a Level 1 Objector. The Practice Direction provides for Level 1 Objectors to rely upon their notice of objection only and would not attend the hearing. Accordingly, the second respondent did not file any material, call any evidence, cross-examine any witnesses or make any final submissions. The information set out in the following paragraphs is taken from the second respondent’s Submission Form[145].
[145] SP001.15
The Conservation Action Trust is an organization located in Mumbai, India. The organization works with communities in Mundra, Tiroda and Bhadreshwar in India, all of which are in the proximity of coal-fired power plants that are currently operational or in development and that are owned by the Adani Group of companies.
The basis of the objection was that the Carmichael mine and rail project was likely to directly harm the health of local communities in proximity to coal-fired power plants owned by the Adani Group. The second respondent said that the communities are generally poor, rural communities living in poor and inadequate living conditions. Some of the communities are already suffering from health and environmental harm from coal-fired power plants. For example, some community members report that coal ash and dust falls on to their homes, and even their bodies when they sleep on their terraces at night. The second respondent submitted that the project is likely to directly affect the communities. This is because the Adani Group intends coal from the project to be transported to India where it will be burned in the Adani Group’s power plants. The Carmichael coal will be key in meeting the Adani Group’s aim to expand its capacity to 20,000 MW of power generation by 2020.
The second respondent also said that burning coal from the project will cause pollution that harms human health in that emissions such as sulphur dioxide, particulate matter, mercury and nitrogen oxides are likely to damage health. Similarly, the coal-fired power plants create significant amounts of waste water that contain toxic pollutants which may be discharged directly from power plants. In addition, the transportation of coal from port to power plant causes pollution that harms human health and the use of water in coal-fired power plants affects the livelihood of fishing communities.
The second respondent submitted that the harm to the communities is outweighed by any purported benefits to those communities. Further, the administering authority must consider the international impacts of the project in view of Australia’s international environmental responsibilities. It was submitted that the administering authority should not grant the EA to Adani Mining for the project.
Conclusions about the second respondent’s objection to the application for the EA
Earlier in these reasons I decided that Scope 3 GHG emissions would not be increased as a result of the approval of this mine, and therefore there would not be an adverse impact from burning the coal from the mine. This was because the evidence was that if the coal is not sourced from the Carmichael mine it will be sourced elsewhere.
I consider that the same reasoning should be applied in response to the second respondent’s objection. Therefore I will not take that objection into account in my recommendation to the administering authority under the EPA. In any event, it is noted that, because the second respondent elected to be a Level 1 Objector and did not adduce any evidence in this matter, there is no proof of the factual matters which form the basis of the second respondent’s objection.
Observations to the Honourable the Minister administering the Mineral Resources Act 1989 and the administering authority under the Environmental Protection Act 1994
As discussed above, I have accepted that the survival of the globally significant population of the endangered BTF will be threatened by the proposed mine. There was evidence that the area around the Ten Mile Bore (which is located near the dividing boundary between MLA 70441 and MLA 70506) may be important in sustaining the BTF population. There is also evidence that the applicant has given consideration to changing the mine design by increasing the area of underground mining to replace open cut mining in the northern part of the lease area. There is also evidence that this may reduce the impact of the mine on the BTF habitat in that area.
I draw this evidence to the attention of the Honourable Minister and the administering authority with the suggestion that this proposal be explored further with the applicant, with a view to improving the chances of survival of the BTF.
I also draw to the attention of the Honourable the Minister administering the Mineral Resources Act 1989 that the evidence was that the estimate in the EIS of the number of Queensland jobs to be generated by the mine alone was 10,000 full time equivalent jobs per annum from 2024. The applicant’s evidence given by Dr Fahrer at the hearing was that the Carmichael Coal and Rail Project will increase average annual employment by 1,206 fte jobs in Queensland and 1,464 jobs in Australia.
Further the applicant’s input figures contained in the CGE and CBA modelling probably overstate the selling price of the coal and therefore the royalties generated by the project and the corporate tax payable. In addition, the discount rates adopted by Dr Fahrer, to value future income in present day values, are lower than those recommended in some guidelines. The consequence is that the benefits of the project are likely to be less than modelled by Dr Fahrer.
Section 269(4) of the Mineral Resources Act1989
Section 269(4) of the MRA requires the Court, when making a recommendation to the Minister that an application for a mining lease be granted in whole or in part shall take into account and consider a number of matters specified in subparagraphs (a) to (m). Each of these matters is now considered.
Section 269(4)(a) – whether the provisions of the Act have been complied with
An affidavit by Mr H Manzi, affirmed 21 November 2014, was filed by the applicant[146]. Mr Manzi deposed that on 16 April 2014, the mining registrar issued certificates of application for the three MLAs, the subject of this hearing. This means that, under s 252(1) of the MRA, the chief executive was satisfied that the applicant was eligible to apply for the mining lease and that the applicant had complied with the requirements of the Act with respect to the application. Mr Manzi also deposed that between 17 April 2014 and 17 June 2014, the applicant notified the three MLAs by posting a copy of the certificates of public notice as required by the Act, giving a copy of the applications to each owner of relevant land necessary for access and the relevant local governments, and publishing notice of the application in the Central Queensland News and Courier Mail on 21 May 2014. The applicant also provided declarations of compliance with its obligations to the Department of Natural Resources and Mines and to the Department of Environment and Heritage Protection. Mr Manzi said that to the best of his knowledge and belief, Adani Mining had complied with the provisions of the MRA in relation to the MLAs.
[146] AA004, Exhibit 3.
It appears from this evidence that the applicant has complied with the requirements of the Act and there is no evidence to the contrary. I am therefore satisfied that the provisions of the Act have been complied with.
Section 269(4)(b) – whether the area of land applied for is mineralised or the other purposes for which the lease is sought are appropriate
In an affidavit affirmed on 21 November 2014[147], Mr L Lezar, the head of open cut operations of the applicant, said that as at 31 March 2014, the estimated coal resource within the mine project was 11.04 BT (billion tonnes) of which 4.00 BT is classified as measured resource, 3.22 BT is classified as indicated resource and 3.82 BT is classified as inferred resource within the meaning of those terms as contained in the JORC Code.
[147] AA005, Exhibit 4.
There was no evidence to indicate that the area of land is not so mineralised. Accordingly I am satisfied that the area of land applied for is mineralised.
Section 269(4)(c) – whether there will be an acceptable level of development and utilisation of the mineral resources within the area applied for
Aspects of this provision were considered in the discussion above about the likely profitability of the mine. I concluded in that regard that I had accepted the applicant’s evidence.
In addition, Mr Lezar said in his affidavit affirmed on 21 November 2014, that the land will be used by the applicant for the extraction of coal (and other associated purposes) by open cut and underground mining and to accommodate infrastructure to support the mine. In Mr Lezar’s opinion there will be an acceptable level of development and utilisation of the resources on the subject land.
Mr Lezar also said that the applicant had completed a detailed mine and supporting infrastructure plan for the development of the project and, in consultation with other companies, had developed a detailed macro level life of mine plan and associated designs and had identified infrastructure equipment and plant requirements for the life of the mine. The mine plan was developed on the basis of the physical characteristics of the coal deposit, the coal resources to target and mine, the use of low risk, proven and reliable mining methods, considerations of which sections should be mined using open cut methods or underground methods, considerations of mine waste characteristics and mine waste management requirements, supporting infrastructure needs, and optimising locations for infrastructure.
Mr Lezar also said that the applicant is undertaking an ongoing program of geological and geotechnical investigations to further define the coal resources and refine the mine plan. He indicated that it may be necessary to change the mine plan (which is not unusual, he said) from time to time. One possible change identified was the extension of underground mining in the north area of the mine and consequent reduction in open cut mining in that area. Mr Lezar said that the applicant has engaged a consultant to assess the change in impact if any. He said that if the applicant intends to proceed with any optimisations or amendments to the mine plan or mine footprint, it will seek any necessary approvals.
I am satisfied from the evidence summarized above that there will be an acceptable level of development and utilisation of the resources within the area applied for.
Section 269(4)(d) – whether the mining lease sought is of an appropriate size and shape
Mr Lezar provided details of the size and shape of each of the MLA areas in his affidavit affirmed 21 November 2014. He said that the applicant had determined the shape of the land applied for under the MLAs on the basis of the location of the coal resource, using information obtained from geological and geotechnical assessments undertaken in accordance with the JORC Code. The applicant had subsequently removed some areas of land from the original application. Mr Lezar said that the size and shape of the mine now sought by the applicant was the minimum required to successfully and economically extract the resource, having regard to the mining methodologies proposed for the mine, access to power and water, ease of access and manoeuvrability within the site, local topography and the proposed layout of related infrastructure.
There was no evidence to indicate that the area sought was not of an appropriate size and shape. I have therefore accepted Mr Lezar’s evidence and am satisfied that the area sought is of an appropriate size and shape.
Section 269(4)(e) – whether the term sought is appropriate
The applicant has sought a 30 year term for the mining leases. Mr Lezar’s evidence was that the mine is proposed to operate for 60 years on the basis that 56 years mining will be necessary to extract the resource. Thereafter, final decommissioning and rehabilitation were anticipated. He said that the applicant had sought 30 year terms for the mining leases to ensure the relevance of conditions, and in his opinion, the terms of the mining lease sought by the applicant was appropriate.
There has been no objection to the grant of the mining leases on the basis of the term applied for and no evidence has been adduced to suggest that the term was inappropriate. Accordingly, I am satisfied from Mr Lezar’s evidence that the terms sought for the mining leases are appropriate.
Section 269(4)(f) – whether the applicant has the necessary financial and technical capabilities to carry on mining operations under the proposed mining lease
The first respondent objected to the MLAs on the ground that the applicant did not have the necessary financial and technical capabilities to carry out the mining activities.
That objection and the evidence in relation to it have been considered in some detail above. I concluded above that I was satisfied that the applicant did have the necessary financial capabilities to carry out the proposed mine. No evidence was led that the applicant did not have the technical capabilities to carry out the proposed mining activity. Accordingly, I am satisfied that the applicant has the necessary financial and technical capabilities to carry on mining operations under the proposed mining leases.
Section 269(4)(g) – whether the past performance of the applicant has been satisfactory
Mr Lezar said in his affidavit that the applicant had managed the exploration permits underlying the application for these mining leases by undertaking exploration activities and other works on the land. These included geological and geotechnical drilling to prove up the quality and quantity of the coal resource, geotechnical assessments for the purposes of determining mine infrastructure requirements, 2D seismic surveys over the underground mining area to clearly define the structural geology, hydrology studies to develop models of the sub-surface hydrology, ecological assessments and surveys in relation to fauna and flora on the land, rehabilitation activities and the construction and operation of an exploration camp.
Mr Lezar said in his oral evidence that since he affirmed his affidavit, he had found out that two investigations had been conducted by the Department of Agriculture and Fisheries in relation to the quarry material from the Red Hill Quarry which is within the area of the applicant’s existing exploration permits. One of those investigations was concluded after Adani paid royalties and agreed to pay investigation costs. The other is ongoing.
The applicant submitted that the investigations in question were not carried out in relation to the MRA or EPA. They did not relate to any allegations of environmental harm and they did not allege any wilful or intentional breach by Adani Mining.
There was no submission from the first respondent in relation to s 269(4)(g).
In my opinion it is doubtful whether the investigations relating to the extraction of quarry material are relevant to s 269(4)(g) as it is arguable that the subsection is referring to the performance of the applicant under the MRA and or the EPA. In any event, although the applicant has been investigated by the Department of Agriculture and Fisheries, there is no evidence that the applicant has been prosecuted, let alone convicted of any offence under the relevant legislation. In those circumstances I have come to the conclusion that the past performance of the applicant is satisfactory for the purposes of s 269(4)(g).
Section 269(4)(h) – whether any disadvantage may result to the rights of holders of existing exploration permits or mineral development licences or applicants for such permits or licences
Mr Lezar’s evidence was that two exploration permits for coal (EPCs) exist in respect of the land the subject of the MLAs, EPC1690 and EPC1080. The applicant is the holder of EPC1690. The holder of EPC1080 is Waratah Coal Pty Ltd. On 23 December 2011, Waratah Coal consented to the applicant applying for and being granted mining leases over the eastern portions of EPC1080. The applicant has lodged the subject MLAs, ML 70441, ML 70505 and ML 70506. Mr Lezar said that no person or entity holds an existing mineral development licence for the land and, except for Waratah Coal, no person or entity has applied for an exploration permit or mineral development licence for the land.
There is no evidence of any disadvantage to holders of existing permits/licences or applicants for exploration permits or licences. Accordingly I am satisfied there will be no disadvantage to such persons if the mining leases are granted.
Section 269(4)(i) – whether the operations to be carried on under the authority of the proposed mining lease will conform with sound land use management
Mr Lezar pointed out that the management and operation of the mine will be subject to the conditions imposed by the Coordinator-General and any environmental authority issued by the statutory party. Mr Lezar also said that the applicant has developed a number of management plans to ensure that the land is managed in an appropriate way, including a mine waste management strategy plan, environmental management plans for the mine and offsite land and closure and rehabilitation strategies for the mine and offsite land. The applicant has made commitments in respect of the mine to ensure that the activities on the mine constitute sound land use management.
Although the first respondent objected to the grant of the mining leases on this basis, no evidence was directed specifically to this ground of objection. It may be inferred of course that the first respondent does not consider that use of the land for mining activities will conform with sound land use management. The first respondent’s objections to the grant of the MLs and the application for the EA have been considered in detail above and there is no need to repeat any of that discussion.
If the MLs are granted as recommended, then I consider that the operations to be carried out under the authority of the MLs will conform with sound land use management.
Section 269(4)(j) – whether there will be any adverse environmental impact caused by those operations and, if so, the extent thereof
Again, the potential adverse environmental impacts have been the subject of detailed objections and evidence which I have discussed above.
I concluded above that there is some risk of loss of water flow to the DS and, consequentially, that damage may occur to the springs ecology and the Waxy Cabbage Palm. However I consider that the conditions imposed under the EPA will be adequate to manage the impact of the mine on those aspects of the environments.
I also concluded that there will be significant loss of BTF habitat with a consequential threat to the continued survival of the species in the area of the mine. This is particularly of concern because it is now recognized that the population of the endangered BTF in the mine area is the largest known surviving population globally.
As set out above, I am proposing that additional conditions be inserted into the EA in an endeavour to manage the threat to the BTF more appropriately. If those conditions are included in the EA then I consider that the impact on the BTF will be lessened.
As concluded above, the impact of the Scope 1 and 2 emissions should be taken into consideration when considering the environmental impact of the mine. These emissions will account for 0.01% of the world’s and 0.25% of Australia’s remaining carbon budget having regard to the 2°C target. Those additional emissions will also have an adverse impact on the environment, although there was no evidence as to specific adverse effects.
Section 269(4)(k) – whether the public right and interest will be prejudiced
In Sinclair v Maryborough Mining Warden[148], the High Court said, in relation to the public interest test imposed by regulation 39(2)(a) of the Mining Regulations 1971, that the Court’s task was[149]:
“Any consideration of the public interest for the purposes of reg. 39(2)(a) should, I think, involve the weighing of benefits and detriments. In this task a warden will not be required to pursue his own enquiries; he may confine himself to the material placed before him by the parties … In some special context questions of the public interest may not involve this process of weighing against each other conflicting merits and demerits; where however the concept of the public interest occurs as a factor in the grant or refusal by the Crown of a mining lease it can, I think, have only this meaning.”
[148] (1975) 123 CLR 473
[149] At 485, per Stephen J.
In the course of my consideration of the objections above, I have weighed up the potential advantages and disadvantages of the proposed mine. I have concluded that, in each case, the objection was not sufficient to warrant a recommendation that the mining lease applications be refused.
My conclusions in this regard are, I consider, relevant to a consideration of whether the public right and interest will be prejudiced by the grant of the MLs. The evidence is that major economic benefits will flow from the project to the local region, Queensland and Australia. Those benefits will come at the cost of environmental damage as set out above. Conditions will be imposed on the applicant which should result in the adverse environmental impacts being appropriately managed and mitigated. That being the case, I have concluded that, subject to further conditions being imposed in relation to the BTF as proposed, the adverse impacts of the mine will be outweighed by the economic benefits flowing from it and, therefore, I consider that the public interest will not be prejudiced by the mine.
Section 269(4)(l) – whether any good reason has been shown for a refusal to grant the mining lease
My discussion of the evidence given concerning the first respondent’s objections includes a detailed consideration of the reasons for and against the grant of the mining leases. Given my conclusions in relation to each of those matters, my opinion is that, subject to the inclusion of the proposed recommendations about the BTF, there is no good reason to refuse the grant of the MLs.
Section 269(4)(m) – taking into consideration the current and prospective uses of that land, whether the proposed mining operation is an appropriate land use
The land within the ML areas has in the past been used for grazing. That land will no longer be available for grazing for an extended period of time, and some areas will be withdrawn permanently. However, the evidence is that the land is mineralised and that the mineral resource will be appropriately exploited. In those circumstances, I consider that the proposed mining operation is an appropriate land use.
Section 191 of the Environmental Protection Act 1994
Section 191 of the EPA requires the Court to consider certain matters in making an objections decision. Those matters have been considered where relevant in the course of these reasons and it is not necessary to repeat my conclusions on those issues in detail.
I have concluded that:
·the threat to the DSC and the WCP are likely to be appropriately managed by the conditions imposed in the draft EA and the EPBCA approval;
·further conditions should be inserted into the draft EA to protect the BTF;
·there will be no increase in Scope 3 emissions as a result of the mine
·the Scope 1 and Scope 2 emissions generated by the project will account for 0.01% of the world’s or 0.25% of Australia’s remaining carbon budget having regard to the 2°C target. There was no evidence beyond that as to the impact of those emissions on the environment.
Although there will be environmental damage caused by the mine, I consider that the adverse consequences are outweighed by the benefits that will flow from the development of the mine.
Final Conclusions
I have considered the evidence in some detail and have come to the conclusions set out above. My overall conclusion is that I should recommend that the mining lease applications be granted and the environmental authority application be approved, subject to the inclusion of additional conditions relating to the protection of the BTF as set out in the Orders.
ORDERS
1.Pursuant to s 269(1) of the Mineral Resources Act 1989, I recommend to the Honourable the Minister administering the Mineral Resources Act 1989 that, subject to the inclusion of additional conditions in the environmental authority as set out in Order 2 below, mining leases 70441, 70505 and 70506 be granted over the application area.
2.Pursuant to s 190(1)(a)(ii) of the Environmental Protection Act 1994, I recommend to the administering authority that the environmental authority be issued in the terms of the draft environmental authority issued on 28 August 2014, subject to the insertion of the following conditions into the BTF Species Management Plan referred to in Condition I6 of the environmental authority:
(a)
i.monitoring of water bodies should be conducted over at least a six hour period commencing from dawn in order to accurately capture utilization of the watering points;
ii.detailed botanical assessment should be focussed on all BTF siting locations to record habitat values within those locations;
iii.more effort should be placed into actively locating BTF and collecting information on their movements across the project and offset areas;
iv.call playback should be used when BTF are encountered to assist in gaining a more complete identification of birds present in the local area;
v.specific surveys targeting breeding be undertaken to provide details on locations and habitat values in breeding areas;
vi.persons undertaking the survey/monitoring should be experienced ecologists with sound understanding of the BTF and its habitats;
vii.any future revision of the current survey and monitoring programs should be developed in consultation with researchers from the BTF recovery team and independently peer reviewed.
(b)The research management plan include provision for funding a research project to determine the correlation between water source, woody habitat and Poaceae food resources across the MLA areas and the proposed offset areas, to determine the interrelationships between these factors.
(c)The research management plan include a provision that the Ten Mile Bore and its surrounds be investigated to determine whether that area maintains an important function in sustaining the BTF population.
3.Orders 1 and 2 above will not be made final until 17 December 2015 at 4:00 pm, or until such further Order of the Court, so as to allow the parties to make any submissions to the Court as to why the conditions set out in Order 2 should not be included in the environmental authority.
4.I direct the Registrar of the Land Court to provide a copy of these reasons to the Honourable the Minister administering the Mineral Resources Act 1989 and to the administering authority under the Environmental Protection Act 1994 and to direct those persons’ attention specifically to my observations in [583] – [586].
CAC MacDONALD
PRESIDENT OF THE LAND COURT
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