Cement Australia (Exploration) Pty Ltd & Anor v East End Mine Action Group Inc & Anor (No 4)
[2021] QLC 22
•30 June 2021
LAND COURT OF QUEENSLAND
CITATION: Cement Australia (Exploration) Pty Ltd & Anor v East End Mine Action Group Inc & Anor (No 4) [2021] QLC 22 PARTIES: Cement Australia (Exploration) Pty Ltd
ACN 009 800 355
(applicant)Cement Australia (Queensland) Pty Ltd
ACN 009 658 520
(applicant)v East End Mine Action Group Inc
(active objector)Jim Elliott, Maurice James Elliott, Frank Lenz, Anne Patricia Kelly, Robert Geaney, Ross Rideout, Paula Rideout, Theresa May Derrington, Tom Chapman, Lynne Chapman, Philip Mann, Claire Mann, Brent Lashford, Gladstone Regional Council
(non-active objectors)and
Chief Executive, Department of Environment and Science
(statutory party)FILE NOs: MRA241-18 (ML 80156)
EPA242-18 (EPML 000658113)DIVISION:
PROCEEDING:
General Division
Objections to application for mining lease and amended environmental authority
DELIVERED ON: 30 June 2021 DELIVERED AT: Brisbane HEARD ON: 21, 22, 23 & 24 July 2020; 27, 28 & 29 July 2020 HEARD AT: Gladstone MEMBER: JR McNamara ORDERS: Pursuant to s 269(1) of the Mineral Resources Act 1989, I recommend to the Honourable Minister for Resources that Mining Lease 80156 be granted over the application area.1.
Pursuant to the Environmental Protection Act 1994, I recommend to the administering authority that the Environmental Authority EPML 000658113 be issued in terms of the draft amended Environmental Authority without amendment.2.
Within 28 days of the publication of these reasons any application for a costs order in this matter, supported by a statement of facts, matters and contentions, must be filed in the Land Court Registry and served on the party or parties against whom costs are sought.3.
Within 14 days of the service of any costs application and statement of facts, matters and contentions, the party or parties against whom any costs order is sought must file in the Land Court Registry and serve on the party seeking the costs order a statement of facts, matters and contentions in reply, if any. 4.
Unless the parties otherwise request in writing, the costs application will be determined on the filed material, without an oral hearing not before 14 days of the filing of the material referred to in Order 4.5.
CATCHWORDS: ENERGY AND RESOURCES – MINERALS – COURTS OR TRIBUNALS EXERCISING JURISDICTION IN MINING MATTERS – QUEENSLAND – application to extend the mine – application for mining lease – application to amend environmental authority – where there were objections to applications – where objections raised issues regarding geology, groundwater, surface water impacts, groundwater to surface water interactions, flooding, noxious weeds and subsoil moisture
ENERGY AND RESOURCES – MINERALS – COURTS OR TRIBUNALS EXERCISING JURISDICTION IN MINING MATTERS – QUEENSLAND – where the Court considered the standard criteria in s 269(4) of the Mineral Resources Act 1989 – where the criteria have been met – where the Court accepted that there would be an acceptable level of development and utilisation of the mineral resources within the area applied for – where the size and shape of the surface area is appropriate – where the applicants have the necessary financial and technical capability to undertake the proposed mining operations – where the past performance of the applicants have been satisfactory – where the operations to be carried out under the proposed mining lease conform with sound land use management – where there will be some groundwater drawdown impacts but where the surface water impacts will not be significant and the salinity of surface water beyond the mine should remain unchanged – where the applicants’ approach to avoid, minimise or mitigate adverse impacts mean the public right and interest will not be prejudiced – where there are no good reasons to refuse the grant of the MLA – where the proposed mining operation is an appropriate use of the land applied for
ENERGY AND RESOURCES – MINERALS – COURTS OR TRIBUNALS EXERCISING JURISDICTION IN MINING MATTERS – QUEENSLAND – where the Court considered the standard criteria in schedule 4 of the 2013 Environmental Protection Act 1994 – where the Court was required to consider the National Strategy for Ecologically Sustainable Development – where the threats of environmental damage and scientific uncertainty are mitigated through adaptive management and government regulation – where the Court considered the s 233 criteria of the 2013 reprint of the Environmental Protection Act 1994 – where the application documents and regulatory requirements are met – where the standard criteria were considered including the character, resilience and values of the receiving environment, the best practice environmental management, and the public interest – where the Court considered each current objection
HUMAN RIGHTS – JURISDICTION AND PROCEDURE – QUEENSLAND – whether the Court has jurisdiction to consider the Human Rights Act 2019 in the absence of objections – where the Land Court has jurisdiction and a duty to consider human rights in the absence of submissions – where s 24(2) of the Human Rights Act2019 was considered – where the human right to property would not be prejudiced – where the proposed expansion is proportionate to the public interest
Acts Interpretation Act 1954 (Qld) sch 1
Charter of Human Rights and Responsibilities Act 2006 (Vic) s 20
Environmental Protection Act 1994, as at 14 March 2013 sch 4, s 3, s 4, s 150, s 197, s 217, s 222, s 223, s 251, s 559, s 559
Environmental Protection Act 1994 s 683
Human Rights Act 2019 s 2, s 8, s 13, s 24, s 58, s 59
Land Court Rules 2000 r 24F
Mineral Resources Act 1989 s 235, s 265(2), s 268(3), s 269, s 276, s 334ZP, s 391A
Water Act 2000 ch 3, s 839ACI Operations Pty Ltd v Quandamooka Lands Council Aboriginal Corporation [2002] 1 Qd R 347; [2001] QCA 119, cited
Adani Mining Pty Ltd v Land Services of Coast and Country Inc & Ors [2015] QLC 48, followed
Alexandria Landfill Pty Ltd v Transport for NSW (2020) 103 NSWLR 479; [2020] NSWCA 165, considered
Aurukun Shire Council v CEO Office of Liquor, Gaming and Racing in the Dept of Treasury [2012] 1 Qd R 1; (2010) 265 ALR 536, consideredCement Australia (Exploration) Pty Ltd & Anor v East End Mine Action Group Inc & Anor [2019] QLC 18, cited
Cement Australia (Exploration) Pty Ltd & Anor v East End Mine Action Group Inc & Anor (No 2) [2020] QLC 25, citedCement Australia (Exploration) Pty Ltd & Anor v East End Mine Action Group Inc & Anor (No 3) [2021] QLC 15, cited
Certain Children v Minister for Families and Children (No 2) (2017) 52 VR 441; [2017] VSC 251, considered
Coast and Country Association of Queensland Inc v Smith & Ors [2016] QCA 242, applied
Environment East Gippsland Inc v VicForests (2010) 30 VR 1; [2010] VSC 335, considered
Friends of Leadbeater’s Possum Inc v VicForests (No 4) [2020] FCA 704, cited
Hail Creek Holdings Pty Ltd & Ors v Michelmore [2020] QLC 16, cited
Lee v Kokstad Mining Pty Ltd [2008] 1 Qd R 65; [2007] QCA 248, cited
Mabo v Queensland (1988) 166 CLR 186; (1988) 83 ALR 14, citedMakita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; (2001) 25 NSWCCR 218, applied
Minogue v Dougherty [2017] VSC 724, citedMt Ruby Mines Pty Ltd v Dunn [2019] QLC 46, cited
New Acland Coal Pty Ltd v Ashman and Chief Executive, Department of Environment and Heritage Protection (No 4) [2017] QLC 24, considered
New Acland Coal Pty Ltd v Smith & Ors (2018) 230 LGERA 88; [2018] QSC 88, distinguished
Oakey Coal Action Alliance Inc v New Acland Coal Pty Ltd & Ors (2019) 2 QR 271; [2019] QCA 184, cited
Pembroke Olive Downs Pty Ltd v Sunland Cattle Co Pty Ltd & Ors [2020] QLC 27, applied
PJB v Melbourne Health and Another (Patrick’s Case) (2011) 39 VR 373; [2011] VSC 327, followed
Symbolic Resources Pty Ltd v Kingham & Ors (2020) 5 QR 155; [2020] QSC 193, applied
Telstra Corporation Ltd v Hornsby Shire Council (2006) 67 NSWLR 256; (2006) 146 LGERA 10, applied
Waratah Coal Pty Ltd v Youth Verdict Ltd & Ors (No 2) [2021] QLC 4, applied
Waratah Coal Pty Ltd v Youth Verdict Ltd & Ors [2020] QLC 33, appliedAPPEARANCES: D Kelly QC, with J O’Connor (instructed by Carter Newell) for the applicants
A Lucke (advocate) for the active objector, with Mr Brady (agent, for a limited purpose)
K McAuliffe-Lake (instructed by Litigation Unit, Department of Environment and Science) for the statutory party
Table of Contents
Introduction
Background
The nature and scope of the hearing
Court Managed Expert Evidence
Pre-hearing
Submissions and pre-hearing issues
The hearing
The applicable legislation
MRA
EPA
Water Act
HRA
The objections
Geology
‘Karst explained’
‘Karst features’
Local aquifers
Core samples and drill logs
Modelling
Pumping of sinkholes
Conclusions
Groundwater
Quantity
Drawdown
Environmental impacts
Quality
Conclusions
Surface water impacts
Quality
Quantity
Conclusions
Groundwater to surface water interactions
Conclusion
Grout curtain
Conclusion
Flooding
Conclusion
Noxious weeds
Conclusion
Subsoil moisture
Conclusion
The statutory criteria
MRA
Section 269(4)(a) - Have the provisions of this Act been complied with?
Section 269(4)(b) - Is the area mineralised, or are the other purposes for which the lease is sought appropriate?
Section 268(4)(c) - If the area is mineralised, will there be an acceptable level of development and utilisation of the mineral resources within the area applied for?
Section 269(4)(d) - Is the land and the surface area of the land applied for of an appropriate size and shape?
Section 269(4)(e) - Is the term applied for appropriate?
Section 269(4)(f) - Do the applicants have the necessary financial and technical capabilities to carry on mining operations under the proposed mining lease?
Section 269(4)(g) - Has the past performance of the applicants been satisfactory?
Section 269(4)(h) - Is there any disadvantage to existing holders or applicants for exploration permits or mineral development licences?
Section 269(4)(i) - Will the operations to be carried on under the authority of the proposed mining lease conform with sound land use management?
Section 269(4)(j) - Will the operations cause any adverse environmental impact and, if so, to what extent?
Section 269(4)(k) - Will the public right and interest be prejudiced?
Section 269(4)(l) - Has any good reason been shown for refusing the application?
Section 269(4)(m) - Taking into account the current and prospective uses of the land, is the proposed mining operation an appropriate land use?
2013 EP Act
Standard Criteria (a) – National Strategy for Ecologically Sustainable Development
Precautionary principle
Intergenerational equity
Conclusion
2013 EP Act – Section 223 criteria
Section 223(a) – The application documents for the application
Section 223(b) – Any relevant regulatory requirement
Section 223(c) – The standard criteria
Standard Criteria (a) - National Strategy for Ecologically Sustainable Development
Standard Criteria (b) - Any applicable environmental protection policy
Standard Criteria (c) - Any applicable Commonwealth, State or local government plans, standards, agreements or requirements
Standard Criteria (d) - Any applicable environmental impact study, assessment or report
Standard Criteria (e) - The character, resilience and values of the receiving environment
Standard Criteria (f) - All submissions made by the applicants and submitters
Standard Criteria (g) - The best practice environmental management for activities under any relevant instrument or proposed instrument, as follows an environmental authority
Standard Criteria (h) - Financial implications of the requirements under an environmental authority as they would relate to the type of activity or industry carried out, or proposed to be carried out, under the instrument
Standard Criteria (i) - The public interest
Standard Criteria (k) - Any relevant integrated environmental management system or proposed integrated environmental management system
Standard Criteria (l) - Any other matter prescribed under a regulation
Conclusion
Section 223(d) – Wild River declaration for the area
Section 223(e) – Each current objection
Section 223(f) – Any suitability report for the application
Section 223(g) – The status of any application under the MRA for each tenement
HRA
Engagement – What rights might the objector seek to invoke?
Limitation - How might the alleged rights be limited?
Justification – Are the limitations reasonable and demonstrably justified, in accordance with procedural requirements, not arbitrary and proportionate to other competing private and public interests?
Are the limitations reasonable and demonstrably justified?
Is the limitation in accordance with procedural requirements proportionate to other competing rights and not arbitrary?
Proper consideration – Even if the limits are lawful and proportionate has the decision given proper consideration to the rights engaged?
Inevitable infringement – Does a statutory provision or law prescribe a different decision?
Conclusion on human rights
Conclusions
Orders
Introduction
The applicants (collectively, Cement Australia) operate the East End limestone mine near Gladstone. It wants to extend the mine, and has applied for a mining lease and to amend its environmental authority for that purpose.
The town of Mt Larcom is roughly 30 kilometres WNW of Gladstone. Mt Larcom is a mountain, a town, and a locality. Bracewell is a locality approximately 14 km SW of Mt Larcom. Both Mt Larcom and Bracewell are historically farming communities. Between Bracewell and the town of Mt Larcom and a little to the east, is East End, the location of the East End mine and the adjacent proposed mine expansion area. The material filed indicates that there are two aquifers in the district, the East End aquifer and the Bracewell aquifer. The geological nature of the aquifers, the connection between the aquifers, and the impact the extension of the mine might have on either or both aquifers are key issues.
More than a dozen objections were made to the mining lease application and/or the draft amended environmental authority. The making of the objections led to the referral of the applications to the Land Court for consideration and recommendation. Only one objector, the East End Mine Action Group (EEMAG), elected to take an active role in the hearing.[1]
[1]Cement Australia (Exploration) Pty Ltd & Anor v East End Mine Action Group Inc & Anor [2019] QLC 18 [1].
Mr Alec Lucke is the Research and Communications Officer for EEMAG. He now lives in NSW having retired from his family property at Bracewell. He is not an objector in his own right but was the advocate for EEMAG at all stages of this matter.
As noted in the applicants’ closing submissions the issues raised by EEMAG were broadly the same as those raised by the non-active objectors and concerned noxious weeds, groundwater and surface water impacts associated with the proposed expansion of the mine. The non-active objectors also raised flooding and sub-soil moisture.
Because objections were made to the draft amended environmental authority, the Chief Executive, Department of Environment and Science (the statutory party), was also a party to the proceedings. The matter was heard in Gladstone between 20 and 29 July 2020.
Cement Australia submits that none of the objections raised any matter of substance that will not be appropriately managed and mitigated by the measures put in place by the environmental authority or the proposals already adopted by Cement Australia. In Cement Australia’s submission, they argue that the evidence that has been adduced overwhelmingly demonstrates that a positive recommendation should be made to grant the proposed mining lease and the amendment to the environmental authority.[2]
[2] Applicants’ Closing Submissions filed 21 September 2020 [9].
The statutory party says that it has reviewed the draft amended environmental authority in light of the evidence adduced in the proceedings, the written submissions of EEMAG and the applicants, and submits that no changes to the draft amended environmental authority are necessary.
Although there are a number of grounds of objection to the mining lease application and the draft amended environmental authority, it is the factual assertion of the objectors as to the existence of a karst aquifer system in the mine expansion area which dominated the proceedings.[3]
[3] Ibid [165].
Background
Cement Australia is the largest manufacturer of cement in Australia and owns and operates the East End mine at Mt Larcom. Approximately 40% of the cement sold by Cement Australia is made from the limestone and clay extracted from the East End Mine.
While Cement Australia holds a number of mining leases in the area, open cut mining predominately takes place on mining lease (ML) 3631 - but also ML 7629, ML 80002 and ML 80127. Excavation has followed a north-west to south-east direction and Cement Australia wishes to extend its operations further to the south-east into mining lease application (MLA) 80156. MLA 80156 is the mining lease application which is the subject of these proceedings.
The process leading to this point has been protracted. The MLA and the application to amend the environmental authority were lodged in November 2008. The applications and objections were referred to the Land Court of Queensland on 26 June 2018.
As the applicants’ chronology would attest, the path from application to issue of an environmental authority for a project of this scale, or in this case an amended environmental authority, is multifarious.[4]
[4] Ibid [7].
Key milestones were:
· 14 August 2009 - the commencement of the Environmental Impact Statement (EIS) process with the notification of the publication of the Terms of Reference;
· 20 December 2012 - submission of the initial draft EIS;
· 1 August 2014 - lodgement of a supplementary EIS responding to submissions made on the EIS;
· 15 September 2014 - the statutory party provided notice to the applicants to allow the submitted EIS to proceed, requiring the applicants to prepare and submit an Environmental Management Plan;
· 18 January 2018 – the statutory party provided the applicants notice that the Environmental Management Plan met the requirements of the Environmental Protection Act 1994 (Qld) (EPA);
· 30 April 2018 – certificate of public notice issued for the MLA and application for an environmental authority;
· 18 May to 12 June 2018 – public notification period, objections lodged to both MLA and amended environmental authority; and
· 26 June 2018 – the applications and objections were referred to the Land Court.
A number of these stages allowed for public notification, the making of submissions, and the consideration, amendment and supplementation of material relevant to the assessment of key documents.
The nature and scope of the hearing
The statutory framework within which this proceeding takes place is the Mineral Resources Act 1989 (Qld) (MRA), the EPA and the Water Act 2000 (Qld) (Water Act). Given the nature of the objections it was clear that much would turn on expert evidence, particularly relating to water issues and the nature of the aquifer.
Grounds of objection based on the Human Rights Act 2019 (Qld) (HRA) were not raised in the hearing. The HRA commenced in full on 1 January 2020, after the objections were made but before the hearing of the matter. I will address this in detail shortly.
Court Managed Expert Evidence
By order of President Kingham dated 24 January 2019 the matters were directed to Court Managed Expert Evidence (CMEE). CMEE allows the Court to supervise the briefing and meeting of expert witnesses and production of their joint expert reports.[5] The Court’s objective in directing a case to CMEE is to promote an effective, efficient, and fair process for expert evidence.[6] A signed list of expert issues was produced and provided to the CMEE experts. By order dated 3 March 2020, the CMEE process was terminated effective Friday 21 February 2020 without the production of joint expert reports.
[5]Land Court of Queensland, Practice Direction No 6 of 2020 – Expert Evidence in The Land Court, 14 December 2020 [41].
[6]Land Court of Queensland, Practice Direction No 6 of 2020 – Expert Evidence in The Land Court, 14 December 2020 [42].
Pre-hearing
Ahead of the hearing and pursuant to Orders of 24 June 2020, the parties filed an agreed hearing plan, an agreed index to hearing bundle, and an agreed site inspection plan (subsequently modified). Annexure A to the agreed hearing plan identified all (and the only) witnesses the parties intended to call to give evidence. The agreed hearing plan allowed for up to three full days of groundwater and surface water evidence from the nominated experts engaged by the applicants and by EEMAG to be conducted concurrently. As is the practice of the Court, orders provided that the statement of evidence sworn or affirmed by the relevant expert or lay witness would be their evidence in chief at the hearing.
Prior to the hearing, EEMAG had nominated four expert witnesses – Dr James (geology, groundwater and surface water), Mr Leggate (past performance), Professor Roberts (precautionary principle and intergenerational equity) and Mr Bruce (grout curtain).
On 15 June 2020 the applicants filed an application (pursuant to order 8 of 3 March 2020) proposing that certain expert reports filed by EEMAG, be struck out in whole, and those experts not be permitted to give evidence as to those reports. On 3 July 2020 I delivered a written decision where I dismissed the strike out application but said that if the relevant witnesses (Roberts and Leggate) were to appear at the hearing, their evidence would be treated as lay evidence unless some greater clarity regarding the quality of their evidence emerged at that time.[7] At [42]-[43] I set out the expert evidence admissibility requirements as described in Makita v Sprowles (Makita),[8] and the content of Land Court Rules 2000 (Qld) r 24F as follows:
[7]Cement Australia (Exploration) Pty Ltd & Anor v East End Mine Action Group Inc & Anor (No 2) [2020] QLC 25.
[8]Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705.
“In Makita v Sprowles, Heydon JA described six expert opinion admissibility requirements:
(a) The opinion has to be on an area that the court accepts is an area of specialist knowledge;
(b) The witness must demonstrate that by reason of specified training, study or experience they are expert in that area;
(c) The opinion must be confined to matters within that area of expertise;
(d) The expert must state, and the person calling the expert must prove, the facts on which the expert opinion is based;
(e) If any facts relevant to the opinion are assumed they must be identified and proved in some other way; and
(f) The expert must explain how the opinion expressed was reached.
Rule 24F provides that an expert’s report must, inter alia, give details of qualifications; detail literature or other material relied on in making report; and, where there is a range of opinion on the matters dealt with in the report, summarise the range of opinions and give reasons for the experts own opinion.”[9] (citations omitted)
[9]Cement Australia (Exploration) Pty Ltd & Anor v East End Mine Action Group Inc & Anor (No 2) [2020] QLC 25 [42]-[43].
In the context of these requirements, the deficiencies in the reports of Mr Leggate and Professor Roberts were not addressed nor was their content improved in the course of the evidence. I agree with the contentions of Cement Australia that properly construed, the reports comprised for the most part submissions.[10] Accordingly, as forecast on 3 July 2020 I treat their evidence as lay evidence. The subject matter will of course be addressed in this decision.
[10]Applicants’ Closing Submissions filed 21 September 2020 [138].
Submissions and pre-hearing issues
The Court was informed at the hearing that Dr James was unable to ‘participate further’ due to ill health. Accordingly, Dr James was unavailable for cross examination. The applicants in closing submissions identified 13 reports and other documents in evidence prepared by Dr James, or where he appears to be the author, between 1 July 1997 and 5 May 2020.[11] Of those documents, two (and an addendum) were prepared for the purpose of these proceedings. These include an addendum to East End Mine history filed 11 May 2020[12] and his response to Dr Merrick dated 5 May 2020.[13]
[11] Ibid [122].
[12] Ex 35, EEM0230.
[13] Ex 42, EEM0228.
It is unfortunate that Dr James was unable to appear. I cannot speculate as to what might have resulted had he appeared. The applicants submit that the orthodox course is to give his evidence little weight.[14] The fact that he did not appear deprived the applicants and the statutory party from testing his evidence. As noted in their closing submissions, the applicants’ experts’ criticism of Dr James’ views and opinions are as a result unanswered.[15]
[14] Applicants’ Closing Submissions filed 21 September 2020 [175].
[15] Ibid [127].
By 9 April 2019 the Court had made orders which resulted in an agreed list of both non-expert and expert issues.[16] Written objection was taken by the applicants at the commencement of the hearing to lay and expert evidence filed as outside the agreed scope. Annexure 3 to the applicants’ closing submissions is a schedule of objections to EEMAG’s lay oral evidence on the basis it is outside the scope of the objector’s objection, or that they relate to issues not raised in any objection.
[16] Applicants’ Closing Submissions filed 21 September 2020 [106]; Ex MFI A.
Senior Counsel for the applicants in his opening statement said:
“There are also some matters of relevant [sic] that we take the objection because we say it’s beyond the terms of this hearing and the jurisdiction conferred upon this court by way of statute, by way of processes that it follows. We don’t ask the court to waste valuable time ruling on those objections at the outset. We take the objections now in writing for the record, and we will, in our written closing submissions, deal with the objections to the extent we need to. And if it becomes necessary for the court to have to deal with the objections by way of a final decision we are content for that to occur in the reasons.
What effect that has on documents being tendered and how they are treated by way of exhibit we will provide a solution for your Honour in terms of whether it’s given an exhibit number subject to an objection being taken. So can I hand up the applicant’s objections to the EEMAG Group’s lay evidence. Now, as I said, I don’t intend for time to be wasted dealing with those objections. Can I say something more briefly about objections, your Honour. I apprehend the reality of the way this case will run is that there may be questions put – I don’t say this in a pejorative sense. But there may be questions put that are irrelevant or which are not properly put or which are potentially unfair to the witness.
My side of the record is very conscious of the agreed trial plan, the need for this court sitting effectively on circuit to adhere to the trial plan, the fact that expert witnesses are flying in. We want the proceeding to run efficiently. Where necessary – my approach to objections will be I will tend to take objections if I think it’s necessary to take them. It may ultimately be that evidence is not objected to but which is actually irrelevant to your statutory function, in which case it would appear to me to be appropriate or possible for that evidence to be noted in closing written submissions to your Honour if it is considered by either side to be irrelevant as a matter of jurisdiction. Even though it’s given an exhibit number it still seems to me to be appropriate that, by the party’s conduct, they can’t expand a jurisdiction that is given to this court under statute. That’s all I wish to say about objections.”[17]
[17] T 1-13, lines 15 to 44.
In closing submissions EEMAG address broadly a response to the issue of admissibility of evidence under the heading: “Attitude and Conduct of the applicants and their legal team Carter Newell.” They say that the applicants “virtually opposed everything EEMAG attempted.” They say that the applicants’ objections to EEMAG’s lay evidence “continues the strategy to disrupt and render ineffective” their witness statements. They concede that “some affidavit content not adequately supported by objections being legitimately struck out.”
I am precluded from hearing submissions or evidence from an objector on issues outside the scope of the objection. As noted by Senior Counsel for the applicants, while a list of objections was handed up at the outset of the hearing, the applicants did not press for each objection to be determined prior to the hearing proceeding. Rather, objections were raised when it was thought necessary to do so. There is an acceptance in this approach of the reality of a hearing such as this.
In their closing submissions EEMAG say that some of the lay witnesses they called had been:
“tutored, mentored as participants with top of the tree educationalists, Karst aquifer specialists, Smith … Finlayson … Volker and also Dr James; some EEMAG members were treated as equals in group discussions and communications … thus taking the comprehension of such individuals far beyond raw amateur status.”[18]
[18] EEMAG’s Closing Submissions filed 21 September 2020 [118]-[131].
The particular witnesses referred to in this category are some of the non-active objectors who are current or former long term residents of the Mt Larcom and Bracewell area, many of whom are members of EEMAG, and all who have been immersed in issues arising from the current East End Mine over many years.
There is no challenge to their knowledge and appreciation of their landscape; their obvious concern for their land, businesses and lifestyle; and their attention to climate and to the perceived impact of activities in and around their community. There are areas of expertise for which a formal tertiary qualification either does not exist or does not outrank the lived experience. While I accept the perceived physical effects and observations over a timespan can inform the science, that of itself is insufficient to afford the witness the label of expert. An ‘expert’ is, on the basis of the principles set out in Makita, accepted by the legal system as privileged to have greater weight attached to their opinion. That status however does not mean that their opinions should not be open to challenge.
The hearing
The hearing, preceded by a site inspection on Monday 20 July 2020, commenced in Gladstone on Tuesday 21 July 2020 and concluded on 29 July 2020. Written submissions followed, closing on 30 October 2020. The conduct of the hearing largely aligned with the hearing plan.
On 15 February 2021 a general application to reopen the hearing was filed on behalf of EEMAG. The application was heard on 23 March 2021 and on 29 March 2021 I dismissed the application and published my reasons.[19]
The applicable legislation
[19]Cement Australia (Exploration) Pty Ltd & Anor v East End Mine Action Group Inc & Anor (No 3) [2021] QLC 15.
MRA
The applicable version of the MRA for consideration of this application is, with some exceptions, the version currently in force. As noted by the parties the general entitlements of a holder of a mining lease are set out in s 235 MRA, and general conditions for each mining lease in s 276 of the MRA.
In opening submissions on the first day of the hearing and in closing submissions, the applicants noted the constraint imposed by s 268(3) of the MRA. The cases that have examined this constraint are referred to in the applicants’ opening submissions at [11] to [14], namely: ACI Operations Pty Ltd v Quandamooka Lands Council Aboriginal Corporation;[20] Lee v Kokstad Mining Pty Ltd;[21] and Symbolic Resources Pty Ltd v Kingham & Ors (Symbolic Resources).[22] In closing submissions at [99] the applicants state:
“…The constraint also extends to the making of submissions on an issue that is not within the scope of an objectors’ objections. Further, where the objections are made in broad terms, the Court may only look to the facts and circumstances as stated in the objections for guidance as to whether an issue (or evidence) is or is not within the scope of an objection. As was found in Symbolic Resources Pty Ltd v Kingham & Ors [2020] QSC 193, it is not sufficient for an objector to make objections “on a fairly basic level” and then lead evidence that is not fairly raised either by the grounds of objections themselves or on the facts and circumstances stated within their duly lodged objection.”[23] (citations omitted)
[20] [2002] 1 Qd R 347.
[21] [2008] 1 Qd R 65.
[22] (2020) 5 QR 155.
[23] Applicants’ Closing Submissions filed 21 September 2020 [99].
The Court acknowledges and accepts the operation and effect of s 268(3) as described above.
The applicants also note in closing submissions that there is no express legislative constraint akin to s 268(3) MRA in the EPA.[24]
[24] Ibid [100].
EPA
In both their opening and closing submissions, the applicants note that since their applications for a mining lease and to amend its environmental authority was lodged in 2008, the EPA was significantly amended. Those amendments commenced on 31 March 2013. The effect of transitional provision s 683 is such that the processing of the application and all matters incidental to the processing must proceed as if the amending Act had not been enacted. The EPA which applied prior to the legislative amendments is the EPA as at 14 March 2013 (2013 EP Act). The statutory party in their oral opening submissions adopted the relevant aspects of the applicants’ written submissions in this regard and EEMAG at no point contested this interpretation.
The uncontested “practical effect of this regime”[25] is that if the holder of a mining lease has already applied for and been granted an environmental authority for a lease, and wishes to apply for a further mining lease, it must apply to amend its existing environmental authority in support of its proposed mining lease.
[25] Applicants’ Opening Submissions filed 10 July 2020 [35].
As a matter of fact, and noted by the applicants in their closing submissions,[26] the administering authority decided that the level of environmental harm caused by the proposed lease was likely to be significantly increased and that an EIS was required for the proposed amendment. As a non-code compliant environmental authority application, the regime in chapter 5, part 6 of the 2013 EP Act applied. The four stages summarised at s 197 are:
· the completion of the EIS process;
· a decision by the administering authority whether to refuse or allow the application to proceed;
· the issue of a draft environmental authority or draft amended EA (draft amended EA); and
· public notification of the application documents and the receipt of objections.
[26] Applicants’ Closing Submissions filed 21 September 2020 [48].
Importantly, when an application is to amend an EA, the objection is limited in scope. Section 251(4) of the 2013 EP Act provides that an objection may be made about an existing provision of the EA only to the extent the provision is proposed to be amended, and cannot be made about mining activities carried out under the EA before the deciding of the application. The applicants accept that in making an objections decision of an application to amend an EA, the Court may have regard to an existing provision of the EA (whether or not it is proposed to be amended), and any mining activities carried out under the EA before deciding the application.[27]
[27] Environmental Protection Act 1994 s 251(5), as at 14 March 2013.
Water Act
At the review hearing on 24 June 2020, I raised a question of jurisdiction in relation to groundwater impacts which arose in New Acland Coal Pty Ltd v Smith & Ors (New Acland).[28] In written submissions the applicants summarise that the effect of changes as a result of 2016 amendments to the MRA and the Water Act was to introduce a new regime, whereby the right to take or interfere with groundwater was a right incidental to the grant of a mining lease. This raised a question in relation to applications made before the commencement date and the operation of the transitional provisions.
[28] (2018) 230 LGERA 88.
The consequences in New Acland were significant. Justice Bowskill found that on the facts in that matter it was not within the jurisdiction of the Land Court to consider and base its recommendation on the potential of groundwater impacts as that was not an activity that New Acland Coal (NAC) was entitled to undertake under the proposed mining lease. Justice Bowskill further held that there was no jurisdiction conferred on the Land Court under the Water Act.[29]
[29]New Acland Coal Pty Ltd v Smith & Ors (2018) 230 LGERA 88, per Sofronoff P (with whom Philippides JA and Burns J agreed) confirmed her Honour’s findings.
The Court of Appeal noted:
“The separation of the consideration of issues concerning groundwater from other environmental issues relating to an intended mining project was inconvenient. For this reason, amendments have been enacted so that interference with groundwater is now one of the rights of the holder of a mining lease. The consequence is that interference with underground water, of the kind in issue in this case, now constitutes part of the “operations to be carried on under the authority of the proposed mining lease” and is, for that reason, a matter to be taken into account by the decision maker. However, those amendments do not apply to this case.”[30] (citations omitted)
[30] Oakey Coal Action Alliance Inc v New Acland Coal Pty Ltd & Ors (2019) 2 QR 271 [114].
Is Cement Australia in the same position as NAC? The applicants say that despite the application having been made but not decided in the relevant period, they were, prior to 6 December 2016, not required to hold a water licence or water permit before taking or interfering with groundwater in the area of the proposed mining lease. It is necessary to set out the basis of the applicants’ submission in support of a conclusion that the application is not captured by s 839:
“24. While the Applicants did (and do) propose to take or interfere with underground water in the area of its proposed mining lease, prior to 6 December 2016, it was not necessary for the Applicants to apply for a water licence or water permit under the 2016 Water Act before they could take or interfere with that water as part of the mining activities to be conducted under the proposed mining lease. This is because:
24.1 While section 808(1) of the 2016 Water Act made it an offence to take or supply water to which the Act applied, the section also provided that no offence was committed if the taking or interference was authorised under that Act;
24.2 “Water” was defined under the 2016 Water Act to include “underground water”, while “underground water” was defined to include both “artesian” and “subartesian” water. Relevantly, “subartesian water” was defined as “water that occurs naturally in, or is introduced artificially into, an aquifer, which, if tapped by a bore, would flow naturally to the surface”;
24.3 “Artesian” and “Subartesian” underground water was treated differently under the 2016 Water Act. Section 20(2)(c) granted a general authorisation to a person to “take or interfere with subartesian water” for any purpose. There were three exceptions to this:
(a) if there was a relevant alteration or limitation prescribed under a water resource plan (s 20(2));
(b) if there was a moratorium notice issued that altered or limited the person’s right to take or interfere with subartesian water (s 20(2) and 20(3)(b)); or
(c) if a regulation was made under section 1046 of the 2016 Water Act regulating the taking or interference with subartesian water (s 20(3)(a));
24.4 The consequence was that, a person did not have to apply for a water entitlement (such as a water licence or a water permit) before the person was able to interfere with underground water if the underground water was “subartesian water” (within the meaning of that term under the 2016 Water Act) and none of the three exceptions applied;
24.5 The underground water that the Applicants proposed (and still propose) to interfere with as a consequence of their proposed mining lease is “subartesian” groundwater for the reasons set out in the Affidavit of Noel Merrick affirmed 6 July 2020 particularly at [12] to [15]; and
24.6 None of the three exceptions set out in paragraph 24.3 apply because prior to 6 December 2016:
(d) while the proposed mining lease area was located in an area covered by a water resource plan, that water resource plan (Water Resource (Calliope River Basin) Plan 2006 (Qld)) did not apply to underground water (or to subartesian water)6. As such, there was no water resource plan prior to 6 December 2016 that altered or limited the right to interfere with subartesian water in the area of the proposed mining lease application;
(e) to the best of the Applicants’ knowledge, no moratorium notice had been issued that altered or limited the right to interfere with subartesian water; and
(f) to the best of the Applicants’ knowledge and consistent with the position previously taken by the Statutory Party, a regulation had not been made under section 1046 of the 2016 Water Act regulating the subartesian water in the area of the Applicants’ mining lease application.”[31] (citations omitted)
[31]Written Submissions of the Applicants Regarding Jurisdiction as to Groundwater Impacts filed 7 July 2020 [2.4].
The applicants conclude that the 2016 amendments to the MRA include the introduction of s 334ZP which has the effect that the taking or interference with groundwater now constitutes operations to be carried on under the authority of a mining lease within the meaning of ss 269(4)(i) and 269(4)(j). They say that the taking or interference with groundwater as a consequence of the proposed mining lease is a matter that can be taken into account in the objections proceedings.
The applicants’ submission was supported by the affidavit of Dr Merrick, hydrologist and geophysicist, who at [15] says:
“In conclusion, it is my opinion that the groundwater that enters the East End Mine pit and is then pumped out is “subartesian water”. This is the only groundwater that is proposed to be taken or interfered with by the Applicants’ mining lease application 80156, and it is the impact from the taking of or interference with that groundwater that is addressed in my previous statements of evidence.”[32]
[32] Statement of Evidence of Noel Merrick filed 7 July 2020 [15].
I accept the expert evidence of Dr Merrick on this important issue. I accept the submission of the applicants that in contrast to New Acland, the applicants are not required to hold a separate water licence or water permit before taking or interfering with groundwater in the area of the proposed mining lease. In opening submissions, Counsel for the statutory party informed the Court that the statutory party agreed with the submissions made by the applicants. The active objector did not contest this conclusion.
HRA
It was established in Waratah Coal Pty Ltd v Youth Verdict Ltd & Ors (Waratah (No 1))[33] that:
· the Land Court is subject to s 58(1) of the HRA in fulfilling its function under the MRA and EPA because it is a public entity for that purpose, and in making its recommendation on the applications, the Court will ‘act or make a decision’ within the meaning of that section;[34] and
· if s 58(1) applies to the Court in its administrative function, there need be no mover to raise human rights issues because that section requires the Court to properly consider engaged human rights and to not act or make a decision that is not compatible with human rights.[35]
[33] [2020] QLC 33.
[34] Waratah Coal Pty Ltd v Youth Verdict Ltd & Ors [2020] QLC 33 [92].
[35] Ibid [90].
In the course of President Kingham’s reasoning in Waratah (No 1), her Honour said:
“…There is no dispute the Minister and the Chief Executive of the statutory party are each subject to s 58 when they make their final decision on the relevant application. To avoid acting unlawfully, they must not act or make a decision that is not compatible with human rights, and in making their decision, they must properly consider relevant human rights. If the question of compatibility with human rights is beyond this Court’s jurisdiction, the Minister and the Chief Executive of the statutory party will not have the benefit of a recommendation made after consideration of the engaged human rights. Both decision makers would likely have to develop some additional process to comply with s 58(1). Given the role the Court’s recommendation plays in the decision making process for both applications, as a matter of policy, an interpretation that avoids that burden better achieves the purpose of the HR Act.”[36]
[36] Ibid [53].
In this matter the HRA had not commenced when the relevant opportunity for lodging objections ended. Accordingly, no HRA based objection was made. However, a failure to consider the HRA would mean that the relevant Minister would not have the benefit of a recommendation made after consideration of the engaged human rights.
The HRA aims to ensure that public powers and functions are exercised in a principled way and that public power is not misused, in accordance with the main objects of the Act.[37] Section 58 of the HRA places an obligation on a public entity when acting in an administrative capacity, to act in a way which is compatible with human rights.[38] The term ‘compatible with human rights’ is defined in s 8 of the HRA as:[39]
An act, decision or statutory provision is compatible with human rights if the act, decision or provision—
(a) does not limit a human right; or
(b) limits a human right only to the extent that is reasonable and demonstrably justifiable in accordance with section 13.
[37] Human Rights Act 2019 (Qld) s 2.
[38] Waratah Coal Pty Ltd v Youth Verdict Ltd & Ors [2020] QLC 33.
[39] Human Rights Act 2019 (Qld) s 8.
Section 8 of the HRA acknowledges that human rights are not absolute and may be subject to limitations. Any limitations on the rights must have a clear legal basis and must be reasonable and demonstrably justifiable in the circumstances.[40] In Waratah Coal Pty Ltd v Youth Verdict Ltd & Ors (No 2) (Waratah (No 2)),[41] President Kingham accepted that the Land Court is required to consider the HRA and is subject to the obligations under s 58 which provides that:[42]
(1)It is unlawful for a public entity—
(a) to act or make a decision in a way that is not compatible with human rights; or
(b) in making a decision, to fail to give proper consideration to a human right relevant to the decision.
[40] Ibid ss 8, 13.
[41] [2021] QLC 4.
[42] Human Rights Act 2019 (Qld) s 58.
The obligations under s 58(1) of the HRA are both substantive and procedural. The substantive obligation under s 58(1)(a) makes it unlawful for a public entity to act or make a decision in a way that is incompatible with a human right.[43] In contrast, the procedural obligation in s 58(1)(b) notes that it would be unlawful for a public entity in making a decision to fail to give proper consideration to a relevant human right.[44] President Kingham in Waratah (No 1) discusses the distinction between these obligations at length.[45]
[43] Explanatory Notes, Human Rights Bill 2018 (Qld), 34; Human Rights Act 2019 (Qld) s 58(1)(a).
[44] Explanatory Notes, Human Rights Bill 2018 (Qld), 34; Human Rights Act 2019 (Qld) s 58(1)(b).
[45] Waratah Coal Pty Ltd v Youth Verdict Ltd & Ors [2020] QLC 33 [24]-[26].
In Waratah (No 2), the statutory party, the Department of Environment and Science (DES), identified five steps in applying human rights obligations placed on public entities under s 58:
“(1) Section 58(1)(a) – ‘Engagement’: whether the prospective decision is relevant to a human right (and which right)…;
(2)Section 58(1)(a) – ‘Limitation’: if a right is relevant, is that right limited by the decision. This is part of the compatibility question…;
(3)Section 13 – ‘Justification’: whether such limits as do exist are reasonable and can be demonstrably justified (the second part of the compatibility question: HRA s 8 and s 13). There are two overlapping requirements within this ‘step’:
i.Legality: this encompasses both procedure and substance. Any limitation must be in accordance with the procedure prescribed by law (the procedural requirements) and compatible with the rule of law (that is, sufficiently certain, accessible and nonarbitrary) (the substantive requirement);
ii.Proportionality: human rights, not being absolute, must be balanced against one another (because they may conflict with each other) and against other competing private and public interests. There may be a need to limit those rights to achieve other legitimate purposes;
(4)Section 58(1)(b) – ‘proper consideration’: even if the limits be lawful and proportionate, the decision made must give proper consideration to the rights said to be engaged;
(5)Section 58(2)- ‘inevitable infringement’: this operates where the Court could not reasonably act differently or make a different decision because of a statutory provision or under law.”[46] (citations omitted) (emphasis in original)
[46]Waratah Coal Pty Ltd v Youth Verdict Ltd & Ors (No 2) [2021] QLC 4 [9]; See also, Minogue v Dougherty [2017] VSC 724 [74]; Certain Children v Minister for Families and Children (No 2) [2017] VSC 251.
The five steps are an adaptation of the five-stage roadmap for assessing incompatibility under similar provisions of the Charter of Human Rights and Responsibilities Act 2006 (Vic) (the Charter).[47]
[47]Minogue v Dougherty [2017] VSC 724; Certain Children v Minister for Families and Children (No 2) (2017) 52 VR 441.
In addressing these five steps, the questions which I will elaborate on will be:
Engagement: which rights might the objector seek to invoke?
Limitation: how might it be alleged that the rights are limited?
Justification: if the rights are limited, is/are the limitation/s reasonable and demonstrably justified? Is the limitation in accordance with procedural requirements and not arbitrary? Is the limitation on the human rights proportionate to other competing private and public interests?
Proper consideration: even if the limits are lawful and proportionate has the decision given proper consideration to the rights engaged?
Inevitable infringement: Does a statutory provision or law prescribe a different decision?
It is convenient to provide my deliberation on these issues after my consideration of the objections relevant to the MRA and 2013 EP Act.
The objections
Objections were lodged to both Cement Australia’s application for a mining lease and its associated application for an amended environmental authority. As noted already, the issues raised by EEMAG covered the same broad matters as those raised by the non-active objectors and concerned noxious weeds, groundwater and surface water impacts associated with the proposed expansion of the mine. The non-active objectors raised two further matters – flooding and sub-soil moisture.[48]
[48] Applicants’ Closing Submissions filed 21 September 2020 [8].
For the purposes of this proceeding, the Court must only consider the following objectors’ objections:
| Objector | Objection under MRA s 265(2) | Objection under EPA s 683 |
| Jim and Maurice Elliot | X | X |
| Frank Lenz | X | |
| Anne Patricia Kelly | X | X |
| Robert Geaney | X | X |
| Ross and Paula Rideout | X | X |
| East End Mine Action Group Inc | X | X |
| Theresa Mary Derrington | X | |
| Tom and Lynne Chapman | X | |
| Philip and Claire Mann | X | |
| Brent Lashford | X | X |
| Gladstone Regional Council | X | |
| Total | 6 | 11 |
I note that two objections were lodged outside of the objections period. The late objector (the Gladstone Regional Council) lodged objections under the MRA and the 2013 EP Act. The objection lodged under the 2013 EP Act was accepted by the administering authority pursuant to s 217(3) of the 2013 EP Act. The objection lodged under the MRA was not accepted.[49]
[49] See eg, Mt Ruby Mines Pty Ltd v Dunn [2019] QLC 46.
EEMAG is the only objector that elected to be active in the proceeding. Of the non-active objectors, Mrs Derrington, Mr Elliot, Mr Lenz and Mr Lashford gave evidence at hearing. Two objectors, Mr Geaney and Mrs Kelly had both passed away prior to the hearing. Their sworn affidavits were tendered at the hearing.[50]
[50] Ex 12, Ex 71, EEM0014; Ex 13, EEM0002.
I accept the applicants’ summary of the objections as grouped into one or more of the following categories, with the addition of grout curtain per the statutory party’s summary:[51]
[51]Applicants’ Closing Submissions filed 21 September 2020 [153]; Statutory party Closing Submissions filed 19 October 2020 [108].
· Geology (specifically, the appropriate geological model to assess groundwater and surface water impacts)
· Groundwater impacts
· Surface water impacts
· Groundwater to surface water interactions
· Grout curtain
· Flooding
· Noxious weeds
· Sub-soil moisture
· Past performance of Cement Australia
I accept that save for subsoil moisture and flooding, EEMAG’s objections raise all these issues. In relation to past performance the applicants say that EEMAG’s objections did not contain any particulars.[52] Therefore, pursuant to s 268(3) as recently considered in Symbolic Resources,[53] past performance is not a ground of objection for the purpose of this proceeding. However, see the discussion at [253] – [262] below concerning s 269(4)(g).
[52] Applicants’ Closing Submissions filed 21 September 2020 [156].
[53] Symbolic Resources Pty Ltd v Kingham & Ors (2020) 5 QR 155.
I will consider each category in turn.
Geology
EEMAG contend that the EIS, which preceded the draft amended EA, was based on an incorrect groundwater methodology which infected everything that follows. They say that because local aquifers are not correctly categorised as karst the risk assessment is invalid.[54] This conclusion they say is supported by the work of Dr James (1997), Associate Professor Findlayson (2002), Associate Professor Smith (2003), Dr Eberhard (2010) and Dr Dudgeon (1980). Non-active objectors Mr Geaney (deceased), Mrs Derrington and Mr Lenz assert that the evidence of a karst aquifer is compelling.
[54] EEMAG Closing Submissions filed 18 September 2020, page 8.
The material exhibited by EEMAG to their submissions and tendered at the hearing included a range of letters, reports, logs, hydrographs, studies, figures, papers, articles, photographs, and correspondence of mixed provenance and created over an extended period. Some of this material is referenced in these reasons.
The witnesses who provided expert reports to the Court relevant to geology, groundwater, surface water and flooding, and who appeared at the hearing together with their area of expertise were Mr Starr (geotechnical engineer – geology), Mr Collins (hydraulic and water resource engineer – surface water, groundwater to surface water interaction, flooding) and Dr Merrick (hydrogeologist and geophysicist – groundwater modelling).
Mr Huntley (Principal Resource Consultant, Groundworks Plus) and Mr Frost (Mine Manager) also provided affidavits and were called by the applicants and gave evidence relevant to these subjects.
There were numerous reports and statements of Dr PM James (Consulting Geological/Geotechnical Engineer) tendered by EEMAG. Three in particular were prepared for these proceedings and were largely responsive to the expert witness reports of Dr Merrick, although the document described as an Addendum, addresses geology, groundwater impacts, and groundwater to surface water impacts.[55] As noted earlier, due to health reasons Dr James was unable to appear at the hearing.
[55] Ex 42, EEM0228; Ex 41, EEM0229; Ex 35, EEM0230.
As noted at [9] the factual assertion of the objectors as to the existence of a karst aquifer system dominated the proceedings. It is useful to extract from the material filed some explanation of ‘karst’ to provide context.
‘Karst explained’
A number of documents tendered by EEMAG provide information regarding the meaning and nature of karst. In a 2002 paper by Dr Brian Findlayson headed ‘The Karst Conundrum’ written in the context of the existing mine, the following explanation appears:
“The general term karst is applied to landscapes composed of limestone and similar rocks their special property is their solubility.
Karst explained
…
Rainwater enters limestone through bedding planes, fractures and faults in the rock. The nature of these lines of weakness are complex and dependent on the type of limestone, the way it was originally deposited, e.g. thick beds or thin beds, and the way it has been broken and deformed by earth movements. This means that no two areas of limestone are identical so each case must be examined individually. As water flows along these planes and fractures it takes the CaC03 into solution leaving behind a small amount of residue and a space, which provides a 'pathway' through the rock.
…
Why Karst is so special
Karst and non-karst aquifers
There are significant differences between karst aquifers and non-karst or ‘normal’ aquifers… These differences affect the extent to which it is possible to predict how these aquifers will react to outside interference, such as the dewatering of a mine. In a ‘normal’ aquifer, dewatering of a mine will cause the water table to be lowered adjacent to the mine; the amount of lowering and the distance away from the mine that it can be observed depends on the permeability of the aquifer. This is a measure of the ease with which water can flow through the rock and can be measured in boreholes.
…In the case of karst aquifers, the effect of the mine will depend on which and how many of the solution pipes in the rock are intercepted by the mine. Finding out how the aquifer behaves, and working out the details of the pipe network, is a time consuming exercise which involves tracing water flow through the pipes. This is usually done using dyes which fluoresce or emit light when ultraviolet light is shone on them. Each connection has to be painstakingly identified with a dye trace, which may take weeks or months to complete.” [56][56] Ex 88, EEM0106.
Further definitions are found in a document tendered in the hearing by EEMAG,[57] identified as Appendix 3 to a Science Report produced by Professor Peter Smart (School of Geographical Sciences, University of Bristol) and Boak. This document was not prepared for the purposes of any representations relevant to the existing mine or the proposed mining lease.
[57] Ex 16, EEM0105.
Under the heading ‘What is karst?’ is the following explanation:
“… it is important to distinguish between the morphological and functional recognition of karst. Many landscapes continue to display karst landforms developed in earlier phases of landscape development, even though the groundwater systems underlying them no longer function in a karstic manner. For instance, in the Carboniferous Limestone of south-west England and Wales, caves developed when the limestones were first exposed sub-aerially in the Triassic are often intercepted in quarries and other excavations. It is often found that the caves have been occluded by sediment fill, and in some cases mineralisation, and that they are no longer conduits for groundwater flow. Such fossil karst terrains are termed paleokarst. They are the result of major changes in the boundary conditions for karst development, caused by changes in climate, sea level, and patterns of sediment supply (Osborne 2000). Thus, although the presence of a distinctive karst morphology may indicate that the associated aquifer is actively karstic, this need not necessarily be the case. However, the precautionary principle should again be applied, with the aquifer assumed to be actively karstic unless it can be shown that it is not.”[58]
[58] Ex 16, EEM0105.
A passage from the same Appendix cited in EEMAG’s closing submissions at page 14 is as follows:
“... At the smallest scale is matrix porosity, comprising intercrystalline and inter-granular pores of small diameter (50-500 μm). At the intermediate scale are fractures that have experienced little or no dissolutional enlargement and have typical widths of <1 mm. Because of their small apertures, flow is laminar in both these types of opening. However, at the largest scale of dissolutional channels, apertures range from several millimetres in dissolutional fissures to metres in cave conduits, and under most head conditions flow is turbulent. The development of turbulent flow in karstic channels is important because it allows sediment transport by groundwater flow, which may impact upon water quality. More significantly, flow can no longer be described using Darcy’s Law (which applies only to laminar flow) and conventional approaches to groundwater flow modelling are inappropriate.”[59]
[59] EEMAG Closing Submissions filed 18 September 2020, page 14.
‘Karst features’
These (features) are described at page 4-20 of the EIS as follows:
“Due to the importance of groundwater flow to the Project, the karst features in the area and the type of karstification in the East End limestone is an important consideration. The limestone in the area is ancient (380-430 Ma) and, due to subsequent processes (e.g. orogenesis, dissolution, brecciation, faulting and plutonic activity), is much altered from its original orientation and composition.
Exposed limestone boulders occurring to the immediate west of the Project Area have weathering patterns characteristic of karstification. Rillenkarren (closely spaced solution channels) has formed on their surfaces with rill spacings of 2-3 cm. The underlying unexposed rock surfaces form smoother rundkarren which may include solution holes.
A few sinkholes (dolines) occur to the immediate west of the Project Area. The locations of these sinkholes are marked by the presence of fig trees that send long tap roots along vertical fissures in the limestone. The sinkholes have a clay base 1-2 m below the ground surface. In the marble pit excavation (ML 80009), a relict subterranean cave with a smooth horizontal roof occurs 3 m below the surface of the limestone deposit. This relict cave has a depth of 0.3 m and is filled with fine-grained material.
On the higher benches in the existing mine pit, the older faces on the eastern side of the pit adjacent to the crusher have been exposed for many decades. Extensive vertical fissures characteristic of epikarst are apparent in these older faces. Most of the fine-grained sediment originally present in these fissures has been eluted after exposure. As a result, the macroporosity of these pit faces does not give a true indication of the extent of secondary porosity in the unexcavated limestone aquifers surrounding the mine. The more recently exposed faces in the north, south and west of the existing mine display fissures with fine-grained sediment still intact.
The variety of clay infill in the relict fissures, caves and chambers indicates various sediment sources, and modes of deposition and alteration. The depth of clay overburden is greatest to the north of the existing pit. As seen in the higher benches, well-weathered consolidated rocks occur as “floaters” within this clay matrix.
Below a certain depth, massive limestone occurs. No caves or other dissolution features are present in this limestone.
There are many types of karst; the type of karst described above falls within the category of paleokarst or buried karst. Buried karst is typically infilled by unconsolidated younger sediments. This infilling has significance for its hydraulic properties.”[60]
[60] Ex 4, Ex 5, Ex 46, Ex 58, CEM0022, page 4-20.
As noted at [66] EEMAG assert that the EIS was based on an incorrect groundwater methodology which infected everything that followed.
Local aquifers
There are two aquifers – the East End aquifer and the Bracewell aquifer. EEMAG say that if conduits from Bracewell connect to any part of the ‘depleted East End aquifer’ then Bracewell is affected by mine pit drawdown.[61] EEMAG maintain the linkage is in the Machine Creek saddle “in the line of volcaniclastic hills between the two aquifers.”[62]
[61] T 1-19, lines 4 to 5.
[62] T 1-19, lines 4 to 5.
Drawdown (mine-caused water depletion) at East End as a result of the existing mining activities is accepted, and in the view of the applicants and the statutory party ongoing impacts are sufficiently addressed in the draft amended EA. If the expansion proceeds, continued drawdown at East End is expected. As to the Bracewell aquifer, the evidence of Dr Merrick is that the only tenable pathway for propagation of drawdown from the East End aquifer system to the Bracewell aquifer system is the narrow connective path along Machine Creek.[63] Dr Merrick concludes that there was no evidence that drawdown effects had propagated along this linkage to affect groundwater levels at Bracewell.[64]
[63] T 6-19, lines 5 to 15.
[64] Ex 58, CEM8003, lines 49-52.
If the aquifer is karst, the extent of the impact at Bracewell, according to EEMAG, cannot be assessed based on Darcian flow models. New models would need to be developed. EEMAG assert that Darcian flow methodology cannot model a karst aquifer. If the aquifer is karst, a question arises as to whether the conditions in the draft amended EA are adequate in those circumstances.
There appears to be no dispute about the characteristics of a karst aquifer of the kind EEMAG describe, that is: they are variously described as allowing fast underground flows; they can contain solutionally-widened fissures, fracture and solution channels; they have open channels and pipes; they can exist at quite deep levels; and they may contain open areas such as caves.
EEMAG quote Dr James as observing in 1997 that “karst activity in the form of open channels and pipes can be observed to quite deep levels within the open pit.”[65]
[65] EEMAG Closing Submissions filed 18 September 2020, page 10.
In his 5 May 2020 statement ‘Response to Dr Merrick’ Dr James says:
“At the end of Professor Merrick's "Statement of Evidence" there are a number of photographs that make the present East End mine look as though it is located in a semi-desert region - when it pumps out water at an exorbitant rate. Poignant attention is also drawn to the fact that the photographs reveal dry limestone faces of the mine. Such dryness is quite typical of the steep slopes of open cut mines, particularly when pumping is used at the base and draws down the outlet of groundwater. Further, it does not necessarily mean a complete of absence of water at the higher levels of an open pit, only that water seeping out to such (often hot) rock faces is quickly evapourated [sic].”[66]
[66] Ex 42, EEM0228, page 9.
Because Dr James was unable to appear and give evidence at the hearing his evidence was not heard nor tested.
In contrast to the observations of Dr James and the content of his response statement, in evidence Mr Huntley was unequivocal in expressing his view that the East End aquifer is paleokarst and that it does not function as karst.[67] Mr Huntley holds a Bachelor of Science, a Masters in Applied Science (Mining and Economic Geology), and a Masters in Engineering (Rock Mechanics). He confirmed in re-examination that the geological features of the mine pit are matters of opinion for a geotechnical engineer or geologist. Nevertheless, he said:
“I’ve always said never have I deviated from the fact that East End is paleo cast. It doesn’t function as a cast. When an alec – if you let me explain, when you look at the walls of the pit, so the – your Honour, the big south wall of the pit. I don’t know if you’re familiar with that. There’s no casting structures in it. There’s no deep-seated casting structures. I’ve been in the bottom of that pit and watched how the water inflows because it – I’m interested in it too and it’s actually fascinating. And you see the upper length by a fractured rock acquifier Darcian flow. That’s all that it is. It’s a paleo cast. You can see quasi-casting development in the upper benches. I absolutely agree with that. But you also see now they’re limited in depth to the extent they’ve been in-filled with clays. We’ve tested that clay. That clay is semi- pervious to impervious. We use it for lining the dams for lining the diversion drain, for that very purpose. So when those channels have been filled with clay, they’re in – largely have tendered the minus 9 perviousness. They’ve – they’re very very slow at transmitting [indistinct].”[68]
[67] T 2-61, lines 37 to 47; T 2-62, lines 1 to 4.
[68] T 2-61, lines 36 to 47; T 2-62, lines 1 to 4.
In re-examination Mr Huntley was asked about his reasons for disagreeing with the proposition that features in the mine pit are karstic. After describing his professional experience in limestone resources in other locations in Australia, New Guinea, China, Fiji and Africa,[69] Mr Huntley said:
“…There is absolute karst at Bracewell. Totally agree with that; totally agree. But in the East End proximity of the mine and the Schultz MLA, to the best of my knowledge and understanding, it’s, very clearly, paleokarst. You can see that in the benches. I’ve never veered from thinking it’s anything else. If it was karst, the mine, your Honour, was flooded for five years. It was flooded. If it was karst and there were sinkholes everywhere, the water would have disappeared.”[70]
[69] T 2-84, lines 16 to 30.
[70] T 2-84, lines 31 to 36.
Core samples and drill logs
Mr Huntley also rested his conclusion that the geology at East End was paleokarst on drill core samples. He said that if it was karst you would encounter large cavities all through the core. He accepted that there were some cavities in the core in the upper bench but that the formation was paleokarst, that is, karst which no longer functions as karst – karst which has been buried and channels infilled.
Mr Starr is the Principal Geotechnical Engineer with Golder Associates Pty Ltd. He holds a M. Sc Soil Mechanics & Engineering Geology, and a B. Sc Hons Geology, Physics, Mathematics. His resume outlines his employment history and extensive experience. He provided an expert opinion to the Court about geological issues in relation to these proceedings associated with a proposed expansion of the East End mine.[71] His statement includes a number of figures (photographs) of the mine pit walls. In particular, figure 5 is described as a close view of the pit wall showing evidence of groundwater inflow from highly weathered and fractured limestone; and, figure 6 is described as evidence of clay-filled void in the limestone face. At section 3.3 he says:
“… I have examined a number of the drillhole reports, and for the East End the key geotechnical findings show that geotechnical conditions within the massive limestone and marble improve at depth, with only one significant cavity intersected within drillhole EED13-01 at 15 m depth (CEM4126, page 1), which resulted in significant core loss (4.5 metres) associated with clay infill within the cavity as shown in figure 15. The occurrence of any minor cavities within the marble appears to decrease with depth as the marble becomes more massive and less weathered in nature.
I note that most of the drilling undertaken has been for the purposes of estimating mineral content and resource evaluation, rather than for geotechnical purposes. Hence, there are generally no records of RQD (Rock Quality Designation) or fracture spacing indices, nor water injection (Packer Tests). However, the geotechnical behaviour of batter slopes is generally well understood from previous workings of the existing limestone mine.
Nevertheless, it is apparent from the core photos that the rock is characterised by fractures and shear zones, and zones of locally more weathered material.”[72]
[71] Ex 46, CEM8004.
[72]Statement of Evidence of David Clark Starr in relation to Geology Issues – East End Mine Expansion Proposal filed 6 May 2020 s 3.3.
Figure 15 referred to by Mr Starr is described as a “Core photo from drillhole EED13-01 showing the only significant (clay-filled) cavity encountered during the approximately 1500 m of core drilling undertaken for the 2013-2014 resource drilling program.”[73] The drilling involved 14 cored drill holes to depths of up to 90 metres below the 2014 pit floor level. Based on this Mr Starr expressed his opinion that karst features are exceptionally rare in the mine area.
[73] Ex 46, CEM8004, page 15.
In his report under the heading ‘5.1.2.1 Karst features’, Mr Starr says that apart from (the aforementioned) surface features which may be viewed as similar to epi-karst, the existing faces in the mine workings show little or no evidence of karst features. He further expresses his opinion:
· at 5.1.3 that the geology of the expansion area is likely to be consistent with the local geology of the East End mine;
· at 5.1.5 that the aquifer system is a fractured system; and
· at 5.1.5 that it was apparent from his observations of the pit walls and the core drilling data that karst features are rare in the limestone and therefore groundwater flow via connected cavities in the limestone is likely negligible.
In his statement of evidence dated 4 June 2020 filed in response to the May 2020 expert report of Dr James,[74] Mr Starr said at page 6 that he disagreed with conclusions about karstic conditions stating that there appears to be no significant karst features in the existing extensive mine workings and therefore he “would expect the geological model in the proposed new mine to be similar to that observed over the period of the existing mine workings.”
[74] Ex 47, CEM8009, page 6.
In cross examination Mr Starr was directed to document CEM4124,[75] a Groundworks Plus 2014 Resource Review and Update. At electronic page 41, section 4.1.2 there is a reference to 2006 drilling data which referred to weathered limestone with cavities intersected at depths in excess of 60 m below 0 m AHD in the eastern sector of the ML. Mr Starr could not recall seeing the document and was unable to comment on it in the absence of context.
[75] Ex 5, Ex 46, CEM4124.
Mr Starr was asked in cross-examination by Mr Lucke for EEMAG about drill logs in the Bracewell area, Scrub Creek and Cedar Vale, which reference cavities and caves in a “20 to 30 metre zone.”[76] He considered that there was insufficient explanation provided for him to understand the conclusion. At greater depths a drill log records ‘limestone’ at 41.1 to 61 m. Mr Starr said he was unable to draw a conclusion without any supporting information – he said he would generally expect to see a description of the core “and a description of the discontinuities and … other features … relevant to the engineering properties.”[77]
[76] T 5-71, line 11.
[77] T 5-72, lines 41 to 43.
There is a difference between a drill log and a core sample. Drill logs appear to be recordings of bore drilling – while a core sample, as the name suggests, removes a complete tube of material which can be studied to assess mineral content of the material they were encountering as well as fracture spacing.[78]
[78] T 5-83, lines 2 to 4.
Modelling
In his opening address Mr Lucke referred to the Groundworks Plus Groundwater study (SEIS Appendix 9) at page 39 which refers to the karst present as paleokarst or buried karst,[79] typically infilled by unconsolidated younger sediments – which Mr Lucke suggested (in his view, incorrectly) allowed for the contention that the local karst could be modelled by Darcian flow. EEMAG says this results in severely understated dewatering impacts. EEMAG contend that Darcian flow models were “deemed unfit for the purpose”[80] by DES and DNRME however, the appropriateness of Darcian flow methodology was not revisited.
[79] T 1-17, lines 18 to 22; Ex 3, Ex 58, CEM0084.
[80] T 1-17, line 30.
When questioning Dr Merrick and Mr Collins (Principal Hydraulic and Water Resource Engineer, BMT), Mr Lucke suggested that there was “a succession of models that had been discontinued”[81] noting in particular the Kalf model which he observed Dr Merrick supported. Mr Lucke was in possession of a letter addressed to him from Dr Kalf which stated that the model had been discarded.
[81] T 6-49, lines 41 to 42.
The suggestion from Mr Lucke that the fact that the Kalf model was ‘discontinued’ was because it was unfit for purpose, was put to Dr Merrick. In response Dr Merrick said:
“DR MERRICK: You’re assuming that discontinuation of the model implies failure. I don’t accept that at all. There is nothing wrong with the Kalf models, with the second model – the second model, which was an improvement of the first model. All it means is that he – he ceased to be engaged to develop the model further for whatever reason. It does not imply failure. I still regard the second model of Kalf as the best model. It is better than the ones that have been done recently; why? Because it includes Bracewell. The two more recent models don’t include Bracewell, and the Kalf model is very well-calibrated dynamically against groundwater hydrographs; the two most recent models are not. There is nothing wrong with the Kalf model. It is not a failed model, so it’s wrong to draw the conclusion that discontinuation means failure.”[82]
[82] T 6-50, lines 10 to 20.
Fundamental to the conclusions reached by EEMAG is the understanding that there was a succession of “discontinued Darcian flow models despite evidence to the contrary,” and that the EIS is based on assumptions that the local limestone aquifers are:
paleokarst type 1 – that is, buried karst with solution channels and conduits infilled with sediment with reduced permeability at depth; and
a fractured rock mass that behaves reasonably as an equivalent porous medium.
It was repeatedly asserted on behalf of EEMAG throughout the proceeding that it was inappropriate to use Darcian flow methodology to model a karstic aquifer system. Dr Merrick in evidence at the hearing (without accepting the premise of the question) categorically dismissed that assertion.[83] He said that even if East End was full of conduits, which he did not think it was, he would still model it as a porous medium because you cannot model at the microscopic level. He stated that no professional modeller would say that it was not proper to model a karst system using porous medium. In cross examination the following exchange occurred:
“MR LUCKE: And have you ever had any experience where a karst aquifer was modelled as a karst aquifer?
DR MERRICK: Yes, I have.
MR LUCKE: And - - -
DR MERRICK: Last year, I did a model. I did it both ways, as a porous medium and as a karstified system with contiguous channelling and it made very little difference to the results. The karstified assumption was less consistent with the observed groundwater contours, the porous medium system was – matched the groundwater contours better and was a better conceptualisation, even though it was known that this particular area was definitely karstified.”[84]
[83] T 6-77, lines 24 to 47; T 6-78, lines 1 to 8.
[84] T 6-78, lines 35 to 47.
Mr Lucke during his questioning of Mr Frost, Mine Manager, made a statement that “it doesn’t really matter too much whether you’re getting this rate of flow from fractures … or whether it’s coming from conduits,” he said “the point of the matter is it’s inflowing at that rate, and just purely laminar flow can’t attain that rate of inflow.”[85] While there was no question attached to this statement, the nature of the questions generally suggest that the fact the draft amended EA would permit a pump out rate up to 30 ML/day is suggestive of an increasing rate of groundwater inflow. The evidence does not support that suggestion. As noted at [167] and [188] below, Mr Collins’ evidence is that infiltration into the mine pit due to groundwater is estimated to be between 1 and 2.5 ML/day, not groundwater inflows up to 30 ML/day.
[85] T 3-5, lines 7 to 12
Again, in relation to the nature of the geology (permeability) Mr Lucke referred to a statement in a 2002 letter from the then Minister for Natural Resources and Mines to Mrs Lucke,[86] which stated that because of the low permeability geology between Bracewell and East End it would take a number of years for a dye tracer deployed at Bracewell to arrive at the East End mine. EEMAG assert that the Minister’s statement was rebuffed by David Ingle Smith (Emeritus Faculty Australian National University, Former Senior Fellow Centre for Resource & Environmental Studies ANU, ‘karst expert’) in reply correspondence to the Minister on the basis that the aquifer was karst, despite acknowledging that karst limestone can have intergranular flow, which is slow, because “superimposed on the slower flow is a network of fast flowing pathways (conduits).”[87] The statement did not result in a question to Mr Frost, nor to any of the witnesses.
[86] Ex 59, EEM0117.
[87] Ex 59, EEM0117.
Pumping of sinkholes
In his cross examination of Mr Starr, Mr Lucke refers to an assessment, in or around 2005 by the Department of Natural Resources in relation to sinkholes in the Bracewell area which “declared the sinkholes to be blind and terminating at very shallow depth with earthen floors.” This conclusion, which EEMAG contests, has been understood by EEMAG to mean that as a result (in the view of those who conducted the assessment) the sinkholes have no capacity to link to the aquifer.
EEMAG say that this conclusion has been disproven and points to examples of experimentation at Bracewell where large volumes of water were pumped into sinkholes with little or no pooling, and the draining of ‘a lake’ into a sinkhole close to ‘Lucke farm’ (the property formerly owned by the Lucke family) after significant rains.
In a document created by Mr Lucke in 2005 it states that the Mt Larcom limestone deposits “fit within karst type 2 deposits.”[88] Referencing the deposits as karst type 2 seems to align with the “largest scale of dissolutional channels” which allow for turbulent flow as described above. At page 3 he says, “viable sinkholes are a feature of karst aquifer type 2 and where they survive intact they channel overland flow and serve as an example of surface and underground interconnectivity.”[89]
[88] Ex 14, EEM0027.
[89] Ibid page 3.
The evidence said to support this conclusion includes tests conducted in 2005 where water was pumped into a number of sinkholes in and around Lucke farm – and where the volumes were absorbed, or pooled and absorbed over a number of hours.[90]
[90] Ibid.
The applicants do not dispute that there is karst at Bracewell. Mr Huntley in re-examination said, “There is absolute karst at Bracewell. Totally agree with that, totally agree. But in the East End proximity of the mine and the Schultz MLA, to the best of my knowledge and understanding, it’s very clearly paleokarst.”[91]
[91] T 2-84, lines 31 to 33.
Mr Lucke in cross examination asked Mr Starr if he assumed that local sinkholes mostly terminated at shallow depth by earthen floors.[92] Mr Starr said that he had observed some local sinkholes but that he didn’t think they were very prevalent in the area of interest, that is in or around the proposed mine expansion area. Mr Starr said that there are ways of looking at the absorption of particular sinkholes but that he did not consider that would provide “a lot of data of use for the hydrogeologists modelling the site.”[93]
[92] T 5-67, lines 1 to 5.
[93] T 5-67, lines 18 to 19.
Section 223(c) – The standard criteria
The standard criteria are defined in schedule 4 to the 2013 EP Act as set out at [303]-[304] above.
Standard Criteria (a) - National Strategy for Ecologically Sustainable Development
The principles in the National Strategy identified and relied by EEMAG are the precautionary principle and intergenerational equity. Those matters have been discussed above at [304] – [339].
Standard Criteria (b) - Any applicable environmental protection policy
I note my conclusions above regarding the evidence of Ms Smith concerning the referral and Mr Tansley concerning the assessment of the application. Ms Smith in her affidavit at [84] says:
“The Environmental Protection Policies (EPP) for water, noise and air were considered in the identification of environmental values and the protection of these identified environmental values through the establishment of management measures within the EMP and expert reporting. I also understand that these policies were also considered by DES in preparing the draft EA…”[304]
[304] Ex 4, CEM7001, para 84.
This is confirmed in the affidavit of Ms Tansley.
There was no relevant challenge to this conclusion. I am satisfied that regard has been given to applicable environmental policy.
Standard Criteria (c) - Any applicable Commonwealth, State or local government plans, standards, agreements or requirements
In her affidavit at [85] Ms Smith says that the draft amended EA was referred to the Commonwealth Department of the Environment (the Department) under the Environment Protection and Biodiversity Act 1999 (Cth) (EPBC Act) and that on 23 December 2015, the Department issued a Notification of Referral Decision – not controlled action in respect of the mine extension.
In a table addressing the standard criteria in the assessment report,[305] it is noted that the applicable standards and requirements such as the Calliope WQO's have been considered in the assessment.
[305] Ex 1, Ex 34, DES0014, page 36.
I am unaware of any applicable government plans, standards, or agreements or requirements that have not been considered or met.
Standard Criteria (d) - Any applicable environmental impact study, assessment or report
Again, I note my conclusions above regarding the evidence of Ms Smith concerning the referral and Mr Tansley concerning the assessment of the application. Ms Smith confirms that an EIS and supplementary EIS was prepared as part of the draft amended EA process and that various drafts of an EMP were prepared.[306]
Standard Criteria (e) - The character, resilience and values of the receiving environment
[306] Ex 4, CEM7001, paras 88-89.
Issues regarding the receiving environment were the subject of considerable attention in the material filed and in the hearing. As noted in the applicants’ closing submissions the draft EA proposed a REMP, the conditions of which will require the monitoring of potential impacts to environmental values in Larcom Creek.
The evidence of Mr Collins was that any surface water impacts caused by the expansion of the mine would not be significant.[307] In particular Mr Collins’ evidence was that diversion drains would ensure pit catchments are diverted around the mine; that the proposed bund/levy bank into the Larcom Creek floodplain is to ensure creek flow and flood waters do not enter the mine pit; and that the diversion drains and levees will cause no significant changes in flow and have no impact on water quality to the downstream receiving environment.
[307] Ex 56, CEM8002.
In cross examination when discussing the potential impacts on the receiving environment, Mr Collins said with the protection of the environment in mind “it’s proposed a REMP, which then allows more monitoring, more assessment of the data over time to refine the licence conditions including pumping rates.”[308] Dr Merrick said that the “actual maximum ever pumped in the last decade is 25 megalitres a day, so the cap has never been reached.”[309] Mr Collins said that he had analysed in a lot of detail 20 years of pumping records, he reviewed “all the water quality testing done,”[310] and he had conducted inspections, to conclude that “they have complied and they are compliant.”[311]
[308] T 6-70, lines 32 to 34.
[309] T 6-71, lines 1 to 2.
[310] T 6-71, line 23.
[311] T 6-70, lines 31 to 47; T 6-71, lines 26 to 27.
In relation to the preparation of the REMP, Ms Jefferies says:
“The Draft EA conditions also require the preparation of the Receiving Environment Monitoring Program (REMP) (Condition F15). I am working with Tegan Smith of Groundwork Plus to finalise a REMP in accordance with the requirements of the Draft EA. The REMP will include a consideration of the necessary monitoring for and identification of any potentially adverse impacts to the following waterways in the vicinity of the mine:
(a)Larcom Creek;
(b)East End Creek;
(c)Machine Creek;
(d)Jacobs Creek;
(e)Scrub Creek;
(f)Schulz Lagoon; and
(g)Groundwater.”[312]
Standard Criteria (f) - All submissions made by the applicants and submitters
[312] Ex 3, Ex 71, CEM7003, para 69.
The assessment report (Attachment 12 to the Form 8 DEHP Report for the Land Court) states that: “The submissions made by the submitters to the EIS report and SEIS have been considered in the assessment and when recommending conditions for the EA.”[313]
Standard Criteria (g) - The best practice environmental management for activities under any relevant instrument or proposed instrument, as follows an environmental authority
[313] Ex 1, Ex 34, DES0014.
The assessment report says: “The conditions recommended to be included or altered in the draft EA are considered best practice environmental management for the activities taking into consideration the knowledge at the time. Ongoing monitoring and review conditions are recommended that ensure ongoing best practice environmental management.”[314]
[314] Ex 1, Ex 34, DES0014.
The applicants in closing submissions note the evidence of Mr Collins, which provides that the carrying out of a REMP is current best practice for licensing mine discharges, that they are designed to make sure environmental harm is not caused, and that the statutory party will take action in the case of non-compliance.
Standard Criteria (h) - Financial implications of the requirements under an environmental authority as they would relate to the type of activity or industry carried out, or proposed to be carried out, under the instrument
The assessment report says: “The recommended conditions are not expected to disadvantage the proponent financially beyond what is current best practice environmental management. The proponent has had the opportunity to review the conditions prior to finalising the conditions.”[315]
Standard Criteria (i) - The public interest
[315] Ex 1, Ex 34, DES0014.
The assessment report says: “This assessment and the recommended conditions are expected to meet the public interest, specifically in relation to the water and groundwater conditions. The Air and Noise sections have considered the public interest and the relevant environmental protection policies.”[316]
Standard Criteria (k) - Any relevant integrated environmental management system or proposed integrated environmental management system
[316] Ex 1, Ex 34, DES0014.
There was no challenge to the following material at the hearing.
The evidence of Ms Jefferies addressed the applicants’ policies and procedures in its integrated safety, health, environment and quality management system.[317] She says that the foundation for Cement Australia's policies and procedures is the integrated Safety, Health, Environment and Quality Management System which is certified to the international environmental management system standard, the international quality management system standard, and the Australian standard for safety management systems.
[317] Ex 3, Ex 71, CEM7003, paras 25-29.
The structure of the system, Ms Jefferies says, provides for a central ‘hub’ of corporate procedures and policies which are developed at Cement Australia’s head office and which apply to all Cement Australia operations. These policy and procedure documents include a SHEQ policy, a SHEQ Management System, an Air Quality procedure, a Water Conservation and Management procedure, and a Land Contamination Management procedure.
Ms Jefferies also noted that each Cement Australia site also develops and maintains its own procedures, which are specific to that site and its operations. For the East End mine, these procedures include an Air Quality Management Plan, a Stormwater Management Plan, a Waste Management Plan, a Noise Management Plan, a Water Management Plan, and a Land Management Plan.
The applicants also noted that Ms Smith provided evidence of Condition A10 of the draft EA which requires a certified risk management system and confirms Cement Australia’s ISO14001 accreditation.[318]
Standard Criteria (l) - Any other matter prescribed under a regulation
[318] Ex 4, CEM7001, para 94.
The assessment report says: “All matters prescribed under the regulations relevant to this amendment application have been considered in the relevant sections in the assessment above.”[319]
Conclusion
[319] Ex 1, Ex 34, DES0014.
Taking into account the evidence described above in relation to each of the standard criteria I am satisfied that the requirements of s 223(c) of the 2013 EP Act have been met.
Section 223(d) – Wild River declaration for the area
The material confirms that the mining activities do not occur in a wild river area.[320] The applicants also note that the Wild Rivers Act 2005 (Qld) was repealed in its entirety by section 95 of the State Development, Infrastructure and Planning (Red Tape Reduction) and Other Legislation Amendment Act 2014 (Qld), with effect from 1 October 2014. They submit that it is not a relevant factor for consideration by the Court in these proceedings. I agree.
[320] Ex 34, DES0037.
Section 223(e) – Each current objection
The Court in making the objections decision must consider any current objection.
As noted in the table at [60] above, there were 11 objections lodged under the 2013 EP Act.
Those objections were considered by category, in detail, at [66]-[231].
Section 223(f) – Any suitability report for the application
A suitability report is a report about a person or entity prepared to help the Chief Executive decide whether the applicants are suitable to be an operator or if a disqualifying event has occurred.[321] There is nothing in the material to indicate that a suitability report was prepared.
[321] Environmental Protection Act 1994 s 559, as at 14 March 2013.
Section 223(g) – The status of any application under the MRA for each tenement
The mining lease application is pending the recommendations of this Court.
HRA
Having considered the criteria in the MRA and 2013 EP Act, I will now turn to the five human rights steps outlined at [55] above: engagement, limitation, justification, proper consideration, and inevitable infringement.
Engagement – What rights might the objector seek to invoke?
Section 24(2) of the HRA states that a person must not be arbitrarily deprived of their property. This section is modelled on article 17 of the UDHR.[322] The protection against being deprived of property is “internally limited to arbitrary deprivation of property.”[323]
[322]Universal Declaration of Human Rights, GA Res 217A (III), UN GAOR, UN Doc A/810 (10 December 1948).
[323] Explanatory Notes, Human Rights Bill 2018 (Qld), 22; Human Rights Act 2019 (Qld) s 24(2).
The HRA does not define the concepts of ‘property’, ‘arbitrariness’ or ‘deprivation’. The Acts Interpretation Act 1954 (Qld) defines ‘property’ as:
Any legal or equitable estate or interest (whether present or future, vested or contingent, or tangible or intangible) in real or personal property of any description (including money), and includes things in action.[324]
[324] Acts Interpretation Act 1954 (Qld) sch 1.
‘Arbitrarily’ has been interpreted in the High Court to mean both ‘illegally’ and ‘unjustly’.[325] ‘Arbitrary’ also concerns capricious, unpredictable and unreasonable conduct which is not proportionate to the legitimate aim sought.[326]
[325] Mabo v Queensland (1988) 166 CLR 186, 217.
[326] PJB v Melbourne Health and Another (Patrick’s Case) (2011) 39 VR 373 [85].
‘Deprivation’ of property is not arbitrary where there is an “appropriate relationship between the means and the ends.”[327]
[327]Aurukun Shire Council v CEO Office of Liquor, Gaming and Racing in the Dept of Treasury [2012] 1 Qd R 1 [49].
There are no authorities in Queensland which consider the human right to property. However, the Charter,[328] the European Convention on Human Rights (ECHR),[329] and the Human Rights Act 1998 (UK) (UK Act)[330] contain similar provisions. There has been consideration of the related provisions in those jurisdictions.
[328] Charter of Human Rights and Responsibilities Act 2006 (Vic) s 20.
[329]Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, 213 UNTS 221 (entered into force 3 September 1953) article 1, protocol 1.
[330] Human Rights Act 1998 (UK) first protocol, article 1.
The Charter is almost identical to the HRA, stating that “a person must not be deprived of his or her property other than in accordance with law.”[331] Section 20 of the Charter was considered in PJB v Melbourne Health and Another (Patrick’s Case).[332]
[331] Charter of Human Rights and Responsibilities Act 2006 (Vic) s 20.
[332] (2011) 39 VR 373.
Three main principles can be distilled from Patrick’s Case. First, deprivation of property encompasses economic interests and deprivation in a broad sense. Second, formal expropriation is not required, and de facto expropriation of property is sufficient to breach the right. Finally, while it is not contained within the Charter or HRA, the right to ownership and peaceful enjoyment of property are key features of the common law.
If the East End mine expansion were to proceed, the human rights which might be impacted are property rights.[333] The particular property rights are discussed below.
[333] Human Rights Act 2019 (Qld) s 24(2).
Limitation - How might the alleged rights be limited?
The objections and evidence raise a number of interests relating to the objectors’ property which may be affected by the mine expansion. In particular, these objections include: that the additional depletion of groundwater would affect private bores for stock watering, irrigation of crops or pastures, and the domestic use of water; the potential for greater flood impacts on adjoining properties as a result of the construction of the bund/levy in the Larcom Creek flood plain; the loss of water from streams as a result of the deeper mine pit which would require landholders to construct additional fencing; and concerns that subsoil moisture will be adversely affected resulting in a much drier environment and greater drought affects.
My conclusions on the evidence are that additional groundwater losses as a result of the mine expansion might affect private bores in the East End. There was no evidence of the current use of bores for irrigation.
My conclusions concerning flood impacts were that the modelling demonstrated no significant adverse effects on the adjoining properties, and that velocities are such that scouring of the grazing land soils and grasses is not predicted to occur. In relation to stream losses, the evidence was that the recirculation of mine dewatering delivers an immediate ‘top up’ to the affected streams.
In evidence, Mrs Derrington described the view she enjoys from her house, watching cattle grazing on the land adjacent to her property with the Biloela Range in the background. Mrs Derrington says these views will be lost as a result of the mine expansion and construction of the bund/levy,[334] which I accept may affect her common law right to peaceful enjoyment of property.
Justification – Are the limitations reasonable and demonstrably justified, in accordance with procedural requirements, not arbitrary and proportionate to other competing private and public interests?
[334] T 4-20, lines 7 to 9.
Are the limitations reasonable and demonstrably justified?
There are two elements to this step. First, the limitation must be in accordance with the procedure prescribed by law and compatible with the rule of law (that is, sufficiently certain, accessible and non-arbitrary).
The process of justification would usually rest with the party asserting the right however in this matter, no party has raised human rights. In the absence of objections, President Kingham in Waratah (No 2) said that the Court is required to consider a range of criteria identified by the governing legislation, regardless of whether they are raised in objections.[335] The procedure prescribed by law which limits these rights have been considered in the statutory criteria analysis above. In that regard, they are demonstrably justified.
[335] Waratah Coal Pty Ltd v Youth Verdict Ltd & Ors [2020] QLC 33 [35].
The grant of the MLA, compliance with chapter 3 of the Water Act, and the development of an UWIR will allow groundwater impacts to occur. The UWIR provisions under chapter 3, part 2 include requirements for content, consultation, public notice, the provision of UWIR copies, consideration of submissions, and a process for decision in relation to the approval of the UWIR. The applicants say that impacts from proposed dewatering activities were examined by DES through the EIS process. They note that the draft amended EA provides for additional monitoring locations and quality and quantity monitoring requirements. The applicants state that whilst the approval of the mining lease application would entitle them to interfere with groundwater, the draft amended EA and Water Act will regulate the manner in which the interference can occur with a view to protecting the environment and the interests of stakeholders.
In closing submissions, the applicants describe the requirements of the Water Act chapter 3 to include:
“compliance with the Part 5 (Make good obligations for water bores); these make good provisions in Part 5 include a requirement for a resource tenure holder to comply with the ‘make good obligations’ as defined, which include obligations to enter into and comply with a make good agreement, as defined, with the owners of relevant affected bores… a process for resolution of disputes about make good agreements by negotiation, arbitration, or reference to the Land Court.”[336]
[336] Applicants’ Closing Submissions filed 21 September 2020 [85](c).
Second, the limitation on the human rights must be proportionate to other competing private and public interests. The adaptive management measures, draft EA and mining lease all consider the rights of landholders. This has been considered above, where I conclude at [285]-[293] that the public right and interest will not be prejudiced.
In the evidence of Mr Frost, Mine Manger, he describes the special conditions attached to the East End mine mining lease. He describes the make good provisions and the supporting documentation which acknowledges that the mine had an effect on groundwater in the area around the mine and set out the processes by which affected landholders could seek to have their access to water restored. Mr Frost in his affidavit provides responsive information concerning the engagement with a number of landholders who raised concerns about how the make good provisions operated since 2006.[337] It is apparent that there were issues which did not satisfy some landholders, although it appeared that the relationship in more recent times has improved. The applicants will have continuing obligations under the make good provisions.
[337] Ex 8, CEM7006.
It might be argued that the limitation (reduced landholder access to groundwater and visual amenity) is reasonable and demonstrably justified by the mitigation actions in the make good provisions and the public benefits arising from the East End mine. These mitigation actions and public benefits were articulated in Mr Frost’s affidavit at [74]-[79] regarding regional employment and community engagement and interactions, in the affidavit of Mr Davies at [33]-[41],[338] and through royalties which accrue to the State.
Is the limitation in accordance with procedural requirements proportionate to other competing rights and not arbitrary?
[338] Ex 2, CEM7000.
The element of arbitrariness corresponds with s 269(4)(k) of the MRA, which requires a consideration of whether the public right and interest will be prejudiced. I have considered s 269(4)(k) of the MRA at [285]-[293], where I conclude that the public right and interest will not be prejudiced and that the proposed extension is proportionate to the public interest.
The deprivation of property is not arbitrary because there is an appropriate relationship between the means of expanding the mine and the property rights which will be affected. There is a proportionate and appropriate relationship between the deprivation and the public interest served by the expansion of the East End mine as I have discussed above.
Proper consideration – Even if the limits are lawful and proportionate has the decision given proper consideration to the rights engaged?
The fourth step described in Waratah (No 2) states that even if the limits are lawful and proportionate, the decision must give proper consideration to the rights engaged.
If the parties raised human rights in their objections, then the proper consideration step would be used as a response to the engagement and justification steps outlined in Waratah (No 2). However, as they were not raised the Court considered the human rights in deciding what recommendation to make in the initial engagement step. This step has been deliberated above where the human right to property was considered.
Inevitable infringement – Does a statutory provision or law prescribe a different decision?
Finally, I must consider whether a statutory provision or law prescribes a different decision. While I might be precluded from hearing the objector, I am not precluded from considering human rights generally in making my recommendations, as discussed in Waratah (No 2).[339]
[339] Waratah Coal Pty Ltd v Youth Verdict Ltd & Ors (No 2) [2021] QLC 4 [76].
Conclusion on human rights
I accept that there will be property right impacts associated with the expansion of the East End mine. However, considering the elements of the human right to property, the deprivation of property is not arbitrary and is reasonable and demonstrably justifiable. I have considered the five steps in Waratah (No 2) and conclude that my recommendation would not differ based on my consideration of the human right to property.
Conclusions
I have considered in detail the objections made, the evidence presented and the submissions of all parties. My conclusions on each of the categories of objection are found in the decision following my consideration of the evidence and submissions.
In the introduction to these reasons I said that it was the factual assertion of the objectors as to the existence of a karst aquifer system in the mine expansion area which dominated the proceedings. On that subject, having considered the evidence, I concluded that there was little, if any evidence of a functioning karst aquifer as submitted. This conclusion had a bearing on other categories of objection. I accepted the evidence that the connection between the Bracewell and East End aquifers would not result in the propagation of drawdown at Bracewell as a result of the mine, and that the methodology adopted to predict drawdown was appropriate. I was not satisfied that the pumping of sinkholes at Bracewell necessarily demanded a conclusion of a karstic link to the East End aquifer.
I accepted the evidence of a 5 m drawdown for the expansion pit and that the drawdown zone is likely to be marginally larger than the MLA. In relation to groundwater environmental impacts, I noted that the applicants will be subject to compliance with ch 3 of the Water Act which requires the submission of a UWIR prior to the exercise of rights on the MLA. Accepting that the expansion of the drawdown zone is minimal, and the trigger levels and monitoring requirements in the draft amended EA, I was satisfied that the conditions of the draft amended EA sufficiently take account of and address the potential ecological impacts identified.
In relation to groundwater quality, in my view the draft amended EA proposes the monitoring of groundwater quality using a number of bores in the vicinity of the East End Mine with trigger levels specific to each bore based on historic data. The evidence regarding the placement and number of monitoring bores was that they were well distributed and were part of “a good network”.
When stream losses are induced as a result of mining, particularly from Schultz Lagoon and Larcom Creek, the evidence was that groundwater quality is likely to improve marginally as a result of the mixing of innate groundwater and introduced surface water.
As to surface water impacts, the evidence was that there should be no significant change in flow regime or water quality, the quality of surface water should remain unchanged, water release rates will not change significantly, and REMP conditions will require monitoring of potential impacts to environmental values in Larcom Creek. I am satisfied that there will be no significant impacts upon the downstream receiving environment due to the measures which will be in place. The evidence concerning the way the REMP is intended to operate to restrict mine expansion if certain limits are exceeded, renders proposed draft amended EA conditions appropriate in the circumstances.
As to mine induced losses to Larcom Creek and Schultz Lagoon, the evidence was that there is an immediate ‘top up’ as a result of the recirculation of mine dewatering. The losses to Scrub Creek and Machine Creek were modelled as minor. I accepted, that from a surface water management perspective, any impacts to surrounding streams from mine water discharges can be adequately managed through EA conditions, the current mine Water Management Plan and through the proposed expansion of the Stormwater Management Plan.
As to what EEMAG described as a ‘solution’ I accepted the evidence of Dr Bruce that the utility of a grout curtain cannot be determined in the absence of location specific hydrological circumstances which would render it most effective in mitigating otherwise adverse consequences. As the issue was not contemplated in the assessment of the conditions of the draft amended EA, I have no basis upon which to make any recommendation in that regard.
Flooding was a significant and reasonable concern for objectors. In my view at [214], the modelling undertaken to assess the potential impacts due to the construction of a bund/levy was extensive and comprehensive. I accepted the evidence and the conclusion that while some localised flood level increases due to the proposed mine expansion levee bank will occur, it will be over grazing land that is currently flood affected, and velocities are such that scouring of the grazing land soils and grasses is not predicted to occur.
I was satisfied that EEMAG’s concerns regarding noxious weeds have been and are being addressed and that the implementation of the Weed Management Plan will manage ongoing concerns. In relation to subsoil moisture, I was satisfied with the evidence that the predicted 5 m drawdown modelled would not result in in a change to subsoil moisture status.
I considered s 269(4) MRA and found that the statutory criteria had been satisfied. I accept that the matters the Land Court must consider in making the objections decision under s 223 of the 2013 EP Act include the standard criteria. I concluded that in relation to the precautionary principle the threat to environmental damage is mitigated through the adaptive management policies and procedures described at [338]. In relation to intergenerational equity, the evidence of an extremely long term depletion of the East End aquifer would seemingly trigger the principle. The evidence was that the aquifer would recharge, however that would not happen for perhaps hundreds of years. The evidence was not clear however, whether the long term depletion would be exacerbated as a result of the mine expansion and if so, to what degree. In relation to the principles of ecologically sustainable development, it is well established that none should be viewed in isolation, nor should one be given overriding weight compared to other factors to be considered.
Accordingly, noting my conclusions throughout these reasons and taking into account all the evidence relevant to each criteria, my recommendations are as follows.
Orders
Pursuant to s 269(1) of the Mineral Resources Act 1989, I recommend to the Honourable Minister for Resources that Mining Lease 80156 be granted over the application area.1.
Pursuant to the Environmental Protection Act 1994, I recommend to the administering authority that the Environmental Authority EPML 000658113 be issued in terms of the draft amended Environmental Authority without amendment.2.
Within 28 days of the publication of these reasons any application for a costs order in this matter, supported by a statement of facts, matters and contentions, must be filed in the Land Court Registry and served on the party or parties against whom costs are sought.3.
Within 14 days of the service of any costs application and statement of facts, matters and contentions, the party or parties against whom any costs order is sought must file in the Land Court Registry and serve on the party seeking the costs order a statement of facts, matters and contentions in reply, if any. 4.
Unless the parties otherwise request in writing, the costs application will be determined on the filed material, without an oral hearing not before 14 days of the filing of the material referred to in Order 4.5.
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