Corowa v Water Administration Ministerial Corporation
[2001] NSWLEC 226
•09/21/2001
Reported Decision: 118 LGERA 1
Land and Environment Court
of New South Wales
CITATION: Corowa and Anor v Water Administration Ministerial Corporation and Anor [2001] NSWLEC 226 revised - 24/09/2001 PARTIES: APPLICANTS:
RESPONDENTS
Corowa and Anor
Water Administration Ministerial Corporation & AnorFILE NUMBER(S): 30236 of 1999 CORAM: Bignold J KEY ISSUES: Water Rights :- application for water licence-objections to licence-balancing need for water under licence with need to protect water environment of threatened frog species. LEGISLATION CITED: Crown Lands Act 1989
Environmental Planning and Assessment Act 1979 s 111(4)
National Parks and Wildlife Act 1974, s 118A and s 118D
Native Title Act 1993, s 24HA
Threatened Species Conservation Act 1995
Water Act 1912, s 10, s 22BA, s 22BA(5), s 10(1A), s 11(1), s 11(5), s 25, s 5(1)
Water Administration Act 1986, s 11(1A)
Water Management Act 2000 (Act No 92)CASES CITED: Donnelly v Delta Gold Pty Ltd and Ors (2001) 113 LGERA 34;
P E Bakers Pty Ltd v Yehuda (1988) 15 NSWLR 437DATES OF HEARING: 30-31/10/00, -1-08/011/00, 19/12/00, 30/01/01, 29/05/01, 15/08/01 DATE OF JUDGMENT:
09/21/2001LEGAL REPRESENTATIVES: 1ST RESPONDENT
APPLICANTS:
Mr A Oshlack, Agent
SOLICITORS
N/A
Mr D Armstrong, Solicitor
SECOND RESPONDENT
Mr D Miller, Barrister
SOLICITORS
FIRST RESPONDENT
Solicitor for Department of Land and Water Conservation SECOND RESONDENT
Phillips Fox
JUDGMENT:
IN THE LAND AND
Matter No. 30236 of 1999
ENVIRONMENT COURT OF
Coram: Bignold J.
NEW SOUTH WALES
21 September 2001
ROBERT COROWA AND PETER STANDFORD
Applicants
v
THE WATER ADMINISTRATION MINISTERIAL CORPORATION
First Respondent
CAPRICORNIA PROSPECTING PTY LIMITED
Second Respondent
JUDGMENT
Bignold J:
1. These Class 3 proceedings have required the Court (i) to hold a public inquiry as to the desirability of granting the second Respondent’s application for a water licence made to the first Respondent pursuant to the Water Act 1912, s 10 (the Water Act); (ii) to announce its decision after holding inquiry; and (iii) to report in writing upon the inquiry to the Ministerial Corporation: vide the Water Act, s 11(5). The publication of these reasons for judgment fulfils the Court’s threefold duty.
2. The proceedings came before the Court in the following circumstances (which are related in my interlocutory judgment in the proceedings given on 27 March 2000 [2000] NSWLEC 60 and since reported in (2000) 107 LGERA 404).
By letter dated 25 August 1999, the Chairman of the Local Land Board for the land district of Tenterfield referred to this Court the matter for public inquiry that was the subject of the Ministerial Corporation’s direction given to the Board pursuant to the Water Act s 11(5) .
The reference was expressed to be made pursuant to the power conferred by the Crown Lands Act 1989 s 27(1) which provides as follows:
A local land board, instead of giving a decision in a case, may, after taking evidence, refer the case and the evidence for decision by the Land and Environment Court.
The Chairman’s letter stated that during the hearing of the inquiry , the Board had been requested by the objectors to the application for the water licence to make the reference to this Court and that the Board had decided to make the reference. A copy of the Chairman’s letter making the reference is annexed hereto and marked “A ” .
Upon the reference being so made, the second Respondent, by Notice of Motion filed on 6 October 1999, sought a declaration that this Court had no jurisdiction in the case on account of the Board’s reference being invalid, as being beyond the power of the Board to make such a reference, in circumstances where it had not received all the evidence that the parties appearing at the public inquiry wished to adduce. Additionally, the second Respondent sought an order returning the case to the Board with the direction that the Board complete its hearing of the evidence. (It was common ground that the Board had only received a small amount of the evidence the parties collectively wished to adduce.)
When that Motion came on for hearing on 29 October 1999, the parties agreed that the Motion be adjourned in order that the Minister might give consideration to making a reference to this Court of the case, thereby avoiding any doubt concerning the competence of the Board’s reference to this Court.
A short time thereafter, the Minister referred the matter to this Court pursuant to the Crown Lands Act 1989 s 28(1)(d) which provides as follows:
The Minister may refer to the Land and Environment Court any decision of a local land board if it appears that:
(d) a re-hearing or further consideration is warranted.
A copy of the Minister’s letter making that reference to the Court is annexed hereto and marked “ B ” .
Thereafter, and upon resumption of the second Respondent’s adjourned Notice of Motion, the Court, by consent, ordered that the second Respondent’s Notice of Motion be discontinued with no order as to costs.
On that occasion, the second Respondent informed the Court that it wished to challenge the competence of the proceedings before the Local Land Board. It was in these circumstances that the Court gave the following direction:
The Second Respondent file and serve a Notice of Motion and supporting affidavit on a question of law (whether the proceedings before the Land Board are competent) within twenty eight (28) days of the date of these orders.
3. In that interlocutory judgment, I rejected the second Respondent’s challenge to the jurisdiction of the Court to determine the statutory reference made to it, and dismissed with costs the second Respondent’s Notice of Motion.
4. The Applicants to the present proceedings are two of the six persons (or organisations or public authorities) who had lodged objections against the second Respondent’s licence application.
5. The first Respondent, Mr Corowa had lodged his objection, as the representative of Native Title claimants, Messrs Andrew Donnelly and David Mundine, representing the Wahlabul/Malerah Bandjalung People, who had lodged Native Title Claims (Numbers 20, 21, 26 and 97) which claims include a claim to Portion 37, Parish of Maclean which includes Nelsons Creek as it traverses that Portion, being the water source and location of the water works (pump and pipeline infrastructure) to which the second Respondent’s water application relates.
6. Although all six objectors had initially appeared at the unconcluded proceedings of the Local Land Board, by the time of the commencement of the hearing of the present proceedings in this Court, the other four objectors had discontinued their participation in the proceedings.
7. The hearing of the present proceedings was conducted concurrently with related Class 4 proceedings (No 40243 of 1998) brought by Messrs Donnelly and Mundine challenging the validity of a development consent granted in September 1998 by the Tenterfield Shire Council in respect of a development application in respect of the proposed water works designed to pump water from Nelsons Creek on Portion 37 to the Timbarra Gold Mine some 2 km distant, established by the second Respondent and related companies, on Mining Lease 1386 which required a large supply of clean water to process gold. Those same proceedings also challenged Water Permits granted in 1998 under the Water Act for that same mining purpose.
8. The present first Respondent was a party to those Class 4 proceedings but filed a submitting appearance (as did the Tenterfield Shire Council).
9. The actively participating Respondents to those proceedings were the present second Respondent and two related companies, Ross Mining NL (the parent company) and Timbarra Gold Mines Pty Ltd. Judgment in those proceedings has been delivered contemporaneously with this judgment.
10. The judgment in the Class 4 proceedings which has resulted in the making of declarations declaring the relevant development consent and water permits to be invalid has considerable significance (later to be expounded) for the present proceedings for two reasons —
(i.) because a number of issues raised by the Applicants in the present proceedings were also raised in the Class 4 proceedings; and
(ii.) because the judgment in the Class 4 proceedings has revealed a mistaken understanding on the part of the Tenterfield Shire Council, but more importantly for present purposes, the Department of Land and Water Conservation, of the relationship between the Environmental Planning and Assessment Act 1979 (the EP&A Act) and the Water Act in their respective applications to the relevant water works and use of waters of Nelsons Creek. This misunderstanding has also manifested itself in the present proceedings and the manner in which they have been conducted by the parties.
11. Both proceedings, unfortunately, have involved a protracted and discontinuous and somewhat disjointed hearing. This is the result of several re-openings of the cases, all but one of such re-openings being instigated by the present Applicants (and the Applicants in the related Class 4 proceedings).
12. Some of those re-openings were opposed by the Respondents and some were not opposed by the Respondents. The common purpose of each successive re-opening (and the last two re-openings occurred by consent of all parties on 29 May 2001 and 15 August 2001) was for the reception of new evidence that had not been available at the original hearing and was of a nature that it could not possibly have been available. For example, the vigorously disputed frog specimen held by the Australian Museum which had not been available during the hearing, so that the Court directed joint inspection of the specimen and joint conference by the two expert witnesses was frustrated, became available after the close of the original hearing. The re-opening of the case led to the joint inspection of the specimen by the two frog experts, and the tender to the Court of their joint report (Exhibit 28) which although not resolving their competing expert opinions, had always held the promise of a concurring opinion (so the Court had been informed during the course of the proceedings).
13. However, for reasons that will presently appear to be even more important to the outcome of the present proceedings than the re-opening to enable the disputed frog specimen to be jointly inspected by the competing expert witnesses, were the results of the re-openings on 29 May 2001 and 15 August 2001 when the Court received evidence that the Parent Company of the three companies responsible for the establishment and operation of the Timbarra Gold Mine on Mining Lease 1386 had recently publicly announced its decision to close the Gold Mine and to initiate planning for the re-habilitation of the Gold Mine.
14. The impact on the present proceedings of these very recently emerging factual developments should at once be appreciated by comparing the circumstances concerning the Timbarra Gold Mine and its need for a large water supply to process gold that prevailed at the time that the second Respondent applied for the water licence on 2 June 1998 (namely the commencement of the construction (infrastructure) for the Timbarra Gold Mine with the understandable commercial imperative to commence full production at the Mine by October 1998 (see Exhibit F/1, being a copy of the second Respondent’s application dated 14 August 1998 for a Water Permit to issue immediately to avoid the delay in the statutory processing of the objections raised against the second Respondent’s water licence application) with the circumstances that prevailed at the conclusion of the hearing, namely the decision to close the Timbarra Gold Mine and to initiate programming for the requisite site rehabilitation in accordance with the obligations imposed upon the companies by Mining Lease 1386 and other relevant mining laws.
15. These dramatically changed circumstances (understood in the light of the intervening history of the operation of Timbarra Gold Mine, which I shall presently narrate) in my judgment, have the most profound impact upon the ultimate adjudication required in the present case.
16. That ultimate adjudication must, of course, address the statutory question posed by the Water Act, s 11(5), namely—
- whether it is desirable (in the public interest) to grant the second Respondent’s water licence application.
17. Along the way to this ultimate adjudication, the Court must consider the several issues (or grounds) for not granting the water licence application raised by the Applicants in their document filed on 1 September 2000 entitled “Second Amended Statement of Issues”. In this respect, I should note at the outset that the Respondents submitted that many of the issues raised by the Applicants were not relevant to the ultimate adjudication required by the Court in the proceedings.
18. Additionally, as I have earlier mentioned, a number of the issues raised by the Applicants are the same as, or similar to, issues raised in the related Class 4 proceedings.
19. A copy of the Applicant’s “Second Amended Statement of Issues” is annexed hereto and marked “C”.
B. RELEVANCE OF THE ISSUES RAISED BY APPLICANTS
20. For convenience I would offer the following brief summary of the issues (or grounds) raised by the Applicants for not granting the second Respondent’s water licence application—
Ground 1: There has been no proper species impact assessment of the proposal in respect of a number of “threatened species” being animals listed in Schedule 2 to the Threatened Species Conservation Act 1995.
Ground 2:
The development consent for the water works granted by Tenterfield Shire Council on 24 September 1998 is invalid.
Grounds 3, 5, 6, 7, 8 and 9:
The Water Permit No PE002321 granted on 3 December 1998 to the first Respondent’s water permit application is invalid.
Grounds 4 and 5:
Because the second Respondent has not complied with Conditions 6, 7 and 10 of the said Water Permit (assuming its validity) and Condition 2 of the said development consent (assuming its validity), it is not a fit and proper person to hold a water licence under the Water Act.
Ground 10:
The second Respondent is not a lawful occupier of the site upon which is located the water works, the subject of the water licence application.
Ground 11:
The Timbarra Gold Mine is no longer operating, having been placed on a care and maintenance contingency basis. There is no current storage facility on the Timbarra Gold Mine site to hold water pumped from Nelsons Creek because the raw water storage dam now holds contaminated process waters. There is no need for water.
Ground 12
The Review of Environmental Factors submitted to the first Respondent in support of the second Respondent’s water licence application was misleading inasmuch as it contained misleading data on rainfall to water flows in Nelsons Creek.
Ground 12A
The second Respondent has caused pollution of Nelsons Creek.
Ground 13
There has not been undertaken any detailed archaeological or anthropological assessment on the Nelsons Creek area..
21. My contemporaneous judgment delivered in the related Class 4 proceedings has held to be invalid both the development consent granted by Tenterfield Shire Council and the Water Permits granted by the first Respondent—both granted in respect of the water works and pumping regime, the subject of the second Respondent’s water licence application. Since that judgment operates in the nature of a judgment in rem: — cf P E Bakers Pty Ltd v Yehuda (1988) 15 NSWLR 437, it governs and provides the same adjudication on the issues raised in the present proceedings
22. Moreover, since my judgment in the related Class 4 proceedings has found that the allegations of breaches by the second Respondent of Conditions 6, 7, and 8 of the Water Permit PE002321 (assuming its validity) and of Condition 2 of the development consent have not been substantiated, grounds 4 and 5 do not require further adjudication and I formally adopt, for the purposes of the present proceedings, my relevant findings in my judgment delivered in the Class 4 proceedings.
23. In the result, the outstanding issues raised by the Applicants requiring adjudication in these proceedings is limited to Issues 1, 10, 11, 12, 12A, and 13.
24. In holding that adjudication on Issues 2, 3, 4, 5, 6, 7, 8 and 9 is not required in the present proceedings because of relevant holdings and findings on those issues contained in my contemporaneous judgment delivered in the related Class 4 proceedings, I should note that both the Respondents have generally submitted that none of those issues is relevant to the adjudication required in the present proceedings.
25. I do not think it necessary to finally rule upon those objections based upon relevance because, as will hereafter appear, my adjudication is ultimately based upon my consideration of issues which are not governed by the holdings and findings in my contemporaneous judgment delivered in the Class 4 proceedings. Accordingly, no prejudice can or will be caused to the Respondents if their objection to relevance is not finally ruled upon. In leaving the question somewhat open-ended (but without creating any substantive consequence), I have not only adopted a practical approach (since voluminous documentary evidence on the issues was received at the hearing) but have deliberately acknowledged the great breadth of potentially relevant evidence going to the statutory question posed by the Water Act, s 11(5) of whether it is “desirable” in the public interest to grant a water licence.
C. THE PROCESSING BY THE FIRST RESPONDENT OF THE SECOND RESPONDENT’S WATER LICENCE APPLICATION
26. Although the Court’s adjudication in these proceedings must consider the statutory question posed by the Water Act, s 11(5) on the basis of present circumstances it will be useful to consider the history of the Water Licence Application and the manner in which it was processed by the Department of Land and Water Conservation.
27. On 2 June 1998, the second Respondent made an application under the Water Act, s 10(1A) for a pump on Nelsons Creek and pipeline on Lot 37, Deposited Plan 751528 (also known as Portion 37, Parish of Maclean) and Timbarra Road, for the purposes of supplying water to the Timbarra Gold Mine established on Mining Lease 1386.
28. The application was soon thereafter supported by a document being a Review of Environmental Factors (REF) prepared by Water Studies Pty Ltd. The application was submitted with the letter dated 2 June 1998 from Mr Russell Hetherington, agent for the first Respondent which included the following content:
- Pursuant to Section 15 of the Water Act 1912, the Ministerial Corporation has taken the view that two or more works form a combined work and it is respectfully submitted that the works constituted by the enclosed application is a combined work which should result in the issue of a single Licence.
- The issue of a licence in respect to this combined work merely replaces an existing entitlement currently subject to Water Licence 30SL065251. Accordingly, the current Section 22BA order which exists in respect to the Clarence Basin would not need to be revoked. In this regard, I direct your attention to Section 22BA(4) of the Water Act 1912 which would enable the issue of a combined Licence entitlement in respect to the enclosed application, provided the aggregate sum of the combined works does not exceed the 912 megalitres of water per annum which was specified in the application for Water Licence No 30SL065251.
Subject to the issue of a combined Licence in satisfaction of the enclosed application, Capricornia Prospecting Pty Ltd would agree to Water Licence No 30SL065251 being replaced in accordance with Section 22BA(4) of the Water Act 1912.
29. As recognised by Mr Hetherington’s letter, at the time the Water Licence Application was made, there was in force an Order made pursuant to the Water Act, s 22BA. This Order came into force on 4 August 1995 and declared that as from that date, no application for a water entitlement may be made (except for specified exceptions none of which is relevant to the water licence application).
30. That s 22BA Order was revoked on 23 October 1998 and was replaced by another s 22BA Order made on that day (vide Government Gazette No 154) which substantially re-applied the provisions of the revoked Order.
31. As required by the Water Act, s 11(1), the first Respondent advertised receipt of the water licence application and duly received written objection from six persons (including public authorities, namely the Environment Protection Authority and the National Parks and Wildlife Service (the Service)).
32. The Service’s objections expressed concern that as the environmental impact assessment for the Timbarra Gold Project “is effectively being undertaken in a staged fashion, the cumulative effect of various aspects of the development may not be adequately considered”.
33. It went on to recommend that “the approval authorities ensure that necessary information concerning the threatened species values of the proposed development site, the significance of potential impacts on those values and the specific mitigation measures necessary to minimise impacts be clearly identified and considered prior to determination”.
34. Finally, it noted the following in relation to “Aboriginal heritage”
- Previous studies have demonstrated that the Timbarra Plateau has important Aboriginal archaeological and heritage values. The NPWS considers that, given the Aboriginal heritage significance of the area, there is the potential for the proposal to impact on Aboriginal archaeological or heritage values as a result of pipeline construction and associated clearing and ground disturbance, and upgrading of relevant access roads to the pump site. Of particular concern are relic-based Aboriginal sites such as rock engravings recently recorded in the area, open artefact scatters, scarred trees (resulting from traditional Aboriginal usage of the area) and ceremonial sites which must be identified in conjunction with the Aboriginal Community.
- The NPWS notes that no assessment of the Aboriginal heritage values of the Nelsons Creek area, impacts of the proposed activity on those values, or measures to mitigate impacts on identified values has been provided in the REF reviewed. The NPWS recommends that such an assessment, including consultation with the Aboriginal community, be completed and provided to the NPWS for review prior to determination
35. On 14 August 1998 (ie at a time when the Water Licence Application was being processed to the stage where the First Respondent had received six objections against the grant of the licence application), the second Respondent applied for a water permit in respect of the same water works, the subject of the pending water licence application.
36. The water permit application was submitted with a letter dated 14 August 1998 from Mr Hetherington and supporting material that he had been asked by officers of the Department of Land and Water Conservation (DLWC) to provide detailing the history of the Timbarra Gold Project and the likely effect of delay in the supply of water to the development.
37. The supporting material provided included the following statements:
- 3. LOSS WHICH THE COMMUNITY, STATE GOVERNMENT AND ROSS MINING WILL SUFFER IF CONSIDERATION OF THE WATER LICENCE APPLICATION IS NOT DEALT WITH AND MINING IS DELA YED.
- Loss of Expectant Operating Surplus
Total Direct Cost Cash Costs figure of $10,673,000 is subtracted from the budgeted Net Sales Revenue of $20,517,800, an expectant operating surplus for the twelve-month period of $9,844,800 is reached. It is this figure that Ross Mining will be deprived of for the 1998/1999 financial year, if consideration of the subsequent Water Licence Application is delayed unnecessarily and prevents the mine from proceeding for a twelve-month period.
Construction Expenditure to Date
3.8 On the ground construction of the Timbarra Mine commenced on 3 May 1998. Earth works have commenced, as has fauna and flora clearing. Ross Mining is required to comply with National Parks and Wildlife Services guidelines relating to the clearing of flora and fauna. The guidelines contain strict requirements concerning the conduct of studies and the removal of fauna and flora prior to clearing.
3.9 As at 30 June 1998 the company had expended (or had incurred a liability to pay) $6,412,156 on construction.
38. In a detailed briefing note prepared for the Director-General of DLWC by the North Coast Regional Director, the “case for” and the “case against” granting the water permit application was considered against a statement of the “background facts” which included reference to the water licence granted to the second Respondent in 1997 to extract water from the Timbarra River (situate some 5 km distant) for the purposes of the approved Timbarra Gold Mine, the second Respondent’s pending water licence application which had reached the stage of statutory reference to the Local Land Board pursuant to the Water Act, s 11(5) which process, when combined with the right of appeal to this Court, “could take 9 to 12 months to reach a conclusion” and the legal opinion of Mr P D McClellan QC “to the effect that the water licence application and water permit application were not caught by the embargo in place by virtue of the s 22BA Order.
39. After stating the cases “for and against” the issue of the water permit, the briefing note concluded as follows:
- On balance, and mindful of the fact that granting of this application would set a precedent in some respects, the North Coast Region and the Director of the Sustainable Water Management Division are opposed to issue of the Permit at this time.
40. In a subsequent DLWC briefing note on the water permit application where the issue arising was stated to be “concern that the Nelson Creek permit not be issued while there are outstanding objections to the Nelson Creek licence application”, three options were discussed, namely—
(i.) Grant the permit;
(ii.) Await the decision of the Local Land Board; and
(iii.) Leave the second Respondent to use its Water Licence of 1997 and pump from Timbarra River
the recommendation that was adopted by the Director General on 6 October 1998 was in the following terms:
RECOMMENDATION
That the permit be granted subject to the following conditions:
1. the permit expires after a certain period of time [allowing sufficient time for the Local Land Board hearing to be completed and/or any appeal to the Land and Environment Court] or until the Local Land Board and/or Land and Environment Court make a final decision on the granting of the licence, whichever is the sooner date; and
2. no water above the 80th percentile may be extracted;
3. the total volume of water that may be extracted under the Nelson Creek permit and the Timbarra River licence is capped at 913 MI.
41. At about the same time (ie mid October 1998) the DLWC, acting upon advice from its Director, Native Title and Aboriginal Land Claims, gave notice pursuant to the Native Title Act 1993, s 24HA to the following persons of the first Respondent’s consideration of the grant of the water permit application made by the second Respondent, advising such persons of their entitlement to make comment on the proposed permit and of the fact that the “non extinguishment” principle applied to the grant of the water permit with the consequence that “any native title holder is entitled to compensation”:
(i.) NSW Aboriginal Land Council;
(ii.) Mr and Mrs Donnelly;
(iii.) Mr Eric Walker;
(iv.) Mr B and K Kum-Sung;
(v.) Mr D and L Mundine.
42. In response to this notice Mr Eric Walker, representing the Tabulam Bundjalung Aborigines, advised of his support for any water permit or water licence that might be issued.
43. Mr Oshlack responding on behalf of Mr Donnelly and Mr Robinson, objected to the grant of the water permit on a number of grounds, including the absence of proper assessment of the impacts of the grant of the permit on Aboriginal heritage and threatened species.
44. On 3 December 1998, the first Respondent granted the water permit application for a period of 12 months for the purposes of water supply for industrial (mining) purposes. The Permit was granted subject to 11 Conditions.
45. On 21 April 1999 DLWC wrote to the second Respondent advising that it had approved its water licence application for a licence to be issued for a period of five years, subject to enclosed stipulated conditions which substantially replicated the conditions that had been imposed on the grant of the water permit application.
46. The letter also advised the second Respondent that if the objections to the grant of the water licence were not withdrawn, “the application will be referred to the Local Land Board to hold a public inquiry as to the desirability of granting the application….”
47. At the same time, DLWC notified all objectors of its decision and asked whether their objections were withdrawn, advising if they were not withdrawn that the matter would be referred to the Local Land Board. The objectors notified DLWC that their objections were sustained.
48. In his affidavit sworn 24 July 2000, Mr James Morison, DLWC’s Resource Consents Manager for the North Coast Region, stated that he had determined that the second Respondent’s water licence application be granted subject to the stipulated conditions. In coming to that determination, he stated (par 11 of his affidavit) what matters he had taken into account.
49. The Water Permit was renewed for a further period of 12 months from 3 December 1999.
D. THE USE BY THE TIMBARRA GOLD MINE OF THE WATER SUPPLY AUTHORISED BY WATER PERMIT NO 30 PE002321
50. Evidence of the details of the use of water pumped from Nelsons Creek to the Timbarrra Gold Mine is provided in the affidavit of Mr Marshall Lee, sworn 4 October 2000.
51. Mr Lee has held the position of Corporate Environment Manager for Ross Mining NL (the parent company of the second Respondent) since 21 June 1999.
52. According to that affidavit, the relevant details of use of water pumped from Nelsons Creek are as follows:
(i.) Timbarra Gold Mine was constructed from 2 May 1998 to 12 February 1999 and commenced operation on 13 February 1999 (par 12);
(ii.) On 31 August 1999, Ross Mining NL decided to place the mine on a care and maintenance contingency basis for economic reasons (par 13);
(iii.) Production of gold at the mine ceased at the end of June 2000 (par 14);
(iv.) During the mining operation, 26,300 cubic metres (26.3 megalitres) of water was pumped from Nelsons Creek to the Mine in the period 22 January to 1 December 1999 and was stored in the raw water dam. Some of this water was used in the elution circuit (the employed method of processing the gold) and some was used for domestic purposes (par 15);
(v.) In the period from 21 December 1999 to 8 June 2000 1,075 cubic metres of water was pumped from Nelsons Creek to the header tank situate near the mine crushing plant—some of this water was used in the elution circuit and some was used for domestic purposes (par 17).
53. In his oral evidence, Mr Lee agreed that early in 2000, the contents of the raw water dam were pumped back to Nelsons Creek to enable the raw water dam to receive treated contaminated process waters from the Gold Mine as part of an approved experiment to dispose of an excess of treated process waters at the Gold Mine by land irrigation in order to satisfy the stormwater storage capacity requirements imposed by Mining Lease 1386.
54. The circumstances of this activity becoming necessary at the Timbarra Gold Mine are outlined and discussed in my judgment in separate proceedings brought by Mr Donnelly against the operators of the Timbarra Gold Mine challenging the validity of the Environment Protection Authority’s variation of the relevant environment protection licence authorising the land irrigation disposal of treated process waters: see Donnelly v Delta Gold Pty Ltd and Ors (2001) 113 LGERA 34.
E. THE SECOND RESPONDENT’S NEED FOR WATER SUPPLY TO THE TIMBARRA GOLD MINE
55. The need for water supply to Timbarra Gold Mine has changed dramatically from the time when the second Respondent applied for the water licence (June 1998) when water was urgently and vitally needed for the production of gold which the second Respondent had anticipated would commence in October 1998 to the present time when, in view the decision that has been recently taken to close the Gold Mine and to initiate programming for the rehabilitation of the Mine site (involving two adjoining Mining Leases 1386 and 1426) there is no present need for water supply (except perhaps for an unspecified and unquantified need for water for the purposes of rehabilitation of the Mine sites)
56. Lying somewhere between these two extremes in the overall spectrum of need for water supply for Timbarra Gold Mine was the perceived need at the time the original hearing commenced in November 2000. That need was, in truth, contingent upon the consummation of a then incipient agreement or scheme for the Timbarra Gold Project to be acquired by Perseverance Corporation Limited (Perseverance) under which scheme Perseverance planned to recommence mining at the Timbarra Gold Mine in early 2001. Perseverance had made a public announcement to this effect to the Australian Stock Exchange on 3 October 2000.
57. Accordingly, at the time the original hearing commenced, it was perfectly understandable (as a matter of business sense and prudence) that the second Respondent would wish to obtain the grant of the water licence application. A clean water supply simply was an indispensable feature of the gold process conducted at Timbarra Gold Mine and though no water had been pumped from Nelsons Creek since June 2000 (when production of gold ceased at the Mine) by which time the principal clean water storage facility (the raw water dam) was already being deployed to hold treated contaminated process waters for disposal by land spray irrigation, with the prospect now in the air of Perseverance acquiring the assets of the Timbarra Gold Mine project, with a view to re-commencing gold mining activity early in 2001, a guaranteed water supply was obviously an indispensable asset or adjunct to the Timbarra Gold Mine overall assets.
58. It was no doubt because of this contingent prospect that Mr Lee expressed his opinions on the need for Timbarra Gold Mine to be guaranteed a supply of clean water for the operation of the elution circuit.
59. However, by the end of the hearing, it had become apparent that the Perseverance scheme had not come to fruition. Instead, upon the re-opening of the hearing (by consent of the parties) evidence was received of the decision to close the Timbarra Gold Mine and to initiate a programme for mine site rehabilitation (in respect of which the Department of Mineral Resources holds from Ross Mining NL environmental guarantees in the sum of $3.02 million).
60. Despite Mr Lee’s oral evidence that even if the Mine closed, there would be a likely need for water for mine site rehabilitation purposes, this evidence was given when the Perseverance scheme was fully alive, when accordingly, the notion of permanent closure of the Mine and rehabilitation of the Mine site could only have been a remote (and unwanted) possibility. There was no mention in Mr Lee’s affidavit of the need for water supply for mine site rehabilitation purposes. Moreover, when the hearing was reopened, by consent of the parties, for the Court to receive evidence of the decision to close down Timbarra Gold Mine and to initiate a programme for mine site rehabilitation, there was no attempt by the second Respondent to call further evidence concerning the need for the grant of the water licence for the purposes of the mine site rehabilitation.
61. I should also say that upon the last re-opening of the hearing (again by consent of the parties), the Court received into evidence the following statement in the March 2001 Quarterly Report of Delta Gold Ltd (the principal parent company of all companies involved in the operation of the Timbarra Gold Mine):
- No significant environmental incidents occurred. However, at Timbarra, water was released from the site as a consequence of heavy rains and flooding across northern NSW. The relevant authorities were notified and Delta worked closely with the NSW Environment Protection Authority. No environmental impact was expected nor recorded.
62. In view of the foregoing facts, I am satisfied that there is no present need for the supply of water from Nelsons Creek to Timbarra Gold Mine. The evidence establishes that there was a need for water supply commencing at the end of 1988 and continuing until June 2000 when gold processing ceased at the Timbarra Gold Mine, and that that need was fully satisfied by the obtaining of water from Nelsons Creek throughout that period pursuant to Water Permit No PE002321 which had been initially granted in December 1998 while the Water Licence Application was pending.
63. I should also note in passing, that in the event of any future need arising for a clean water supply for the purposes of mine site rehabilitation of the Timbarra Gold Mine (and this process is likely to be complex and protracted, both in the planning and implementation phases), then the currently in force Order under the Water Act, s 22BA (as published in Government Gazette No 57 of 12 May 2000) declaring that no applications for water entitlements may be made, expressly excepts “an application for an entitlement for permits for extraction of water for …environmental purposes” (vide par 5).
F. IMPACT OF THE WATER LICENCE ON THREATENED SPECIES
64. In considering this issue, it is important at the outset to clarify with some precision the relevant legal framework against which the evidence is to be evaluated and the final decision on the merits of the case is to be arrived at.
65. Obviously that framework includes the Water Act (and its relevant terms will be presently examined). But I should immediately note the impact on this consideration of my contemporaneous judgment delivered in the related class 4 proceedings where in holding that the development consent granted by Tenterfield Council on 24 September 1998 was invalid on account of its failure to consider the environmental impact (including effects on threatened species) of the pumping of water from Nelsons Creek, I held that the extraction and pumping of that water was not relevantly an “activity” for the purposes of the EP&A Act, Part 5 because the EP&A Act required development consent to be granted to that use of Nelsons Creek and its waters. The consequence of this holding is that, contrary to the understanding of the Tenterfield Council and more importantly for present purposes the first Respondent in the present case, environmental impact assessment under the EP&A Act, Part 5, was not required in respect of the second Respondent’s contemporaneous application for a water licence under the Water Act.
66. This conclusion also means that the obligation imposed by the EP&A Act, s 111(4) to consider the effect of the proposed activity on “threatened species” and their “habitats” as defined in the Threatened Species Conservation Act 1995 does not apply to the consideration of the second Respondent’s water licence application, in the present case.
67. In this respect, it is to be noted that the Threatened Species Conservation Act does not, in terms apply to the grant of a water licence under the Water Act.
68. Thus, the crucial question that arises is—what, in the context of the present proceedings, is the source and nature of the obligation to consider environmental impact assessment (including impact on threatened species and their habitat), noting that the present context involves a situation where there is no valid development consent in force for the water pumping works, the subject of the second Respondent’s water licence application?
69. The absence of a valid development consent for the water works proposed by the water licence application has profound consequences for the consideration in the present proceedings of the impact of the grant of the water licence upon threatened species. They are—(i) there has been no proper environmental impact assessment (including impact on threatened species and their habitats) undertaken as required by the EP&A Act; and (ii) that in consequence of (i), any extraction of water from Nelsons Creek pursuant to a water licence granted under the Water Act will not satisfy the requirements of the statutory defence provided for the offences created by the National Parks and Wildlife Act 1974, s 118A and s 118D (namely harming threatened species and damaging habitat of threatened species respectively).
70. The unavailability of the statutory defence provided by s 118A(3)(b) by virtue of the fact that there was no valid development consent or no valid water permit, was so held in my contemporaneous judgment delivered in the related class 4 proceedings.
71. Even more importantly, for present purposes, the grant of a valid water licence as sought in the second Respondent’s water licence application does not fall within the scope of the statutory defences provided by s 118A(3)(b) and s 118D(3)(b).
72. The practical consequence of the foregoing discussion is that in the absence of a valid enabling development consent, the pumping of water from Nelsons Creek as sought in the second Respondent’s water licence application, almost certainly would expose the second Respondent to the liability created by the National Parks and Wildlife Act 1974, s 118A and s 118D.
73. Accordingly, though as a matter of law, the absence of a valid enabling development consent in force under the EP&A Act does not create a legal impediment to the grant of the second Respondent’s water licence application, the beneficiary of the grant would almost certainly be exposed to the liability created by the National Parks and Wildlife Act s 118A and s 118D if it acted upon the water licence, without the benefit of an enabling development consent.
74. Exposure to that liability is, in a real sense, an accident of the protracted and fluctuating history of this and the related class 4 proceedings and would be readily avoidable if recourse were had to the current provisions contained in the EP&A Act Division 5, Part 4 relating to “integrated development”.
75. What then, is the relevance to the present proceedings of the issue of the environmental impact (including impact on threatened species and their habitat) given the fact that the environmental impact assessment provisions of the EP&A Act do not apply to consideration of the grant of the second Respondent’s water licence application and that the Threatened Species Conservation Act likewise does not apply to that consideration, but in the knowledge that by itself (ie without the benefit of the existence of the necessary development consent under the EP&A Act) the grant of the water licence is likely to expose any person seeking to pump the water from Nelsons Creek to liability for offences against the National Parks and Wildlife Act, s 118A and 118D?
76. In my judgment, consideration of issues of environmental impact (including impact on threatened species and their habitat) nonetheless remains relevant by virtue of the provisions of the Water Act, supplemented by the provisions of the Water Administration Act 1986.
77. Thus, the Water Act, s 25 provides as follows:
25 Conditions relating to environmental protection
The conditions subject to which a licence, permit authority or group licence is granted or renewed under this Part may include conditions relating to the protection of the environment.
78. The Water Administration Act 1986, s 11(1A) provides as follows:
- In exercising its functions under this or any other Act or law, the Ministerial Corporation must have regard to the following matters:
(a) the principles of ecologically sustainable development
(b) the need to encourage and support sustainable water use practices,
(c) the need to integrate the management of water resources with the management of other natural resources,
(d) the need to encourage co-operation between Government and the community in the management of water and other natural resources,
(e) the need to develop and implement integrated State, catchment area and sub-catchment area approaches to the management of water and other natural resources,
(f) the need to consider the cumulative impact of its decisions on water and water systems and related natural resources,
(g) the social and economic impact on affected communities.
79. Those provisions were introduced by amending legislation enacted in 1997 and reflect the Legislature’s intention that matters of environmental protection and enhancement and conservation be factored into the existing operation of the Water Act. (The recently enacted Water Management Act 2000 (Act No 92) not yet in force, considerably advances the integration of environmental considerations into natural resources conservation and management).
80. Accordingly, although much of the expert evidence on the impact of the water licence on threatened species was directed to issues directly arising under the EP&A Act (and in particular, s 5A and related provisions), it nonetheless can be received and evaluated with necessary adaptations, as having relevance to considerations of environmental impact and environmental protection relevant to the present proceedings.
81. Without delving into the minutiae of that large volume of expert evidence going to this issue, it is sufficient for present purposes for me to say, that that overall evidence satisfies me that the pumping of water from Nelsons Creek as sought in the water licence application involves potential harm to threatened frog species and their habitats in Nelsons Creek. That potential harm or adverse impact is both real and substantial.
82. In so concluding, it is not necessary to adjudicate upon the much vexed issue of the taxonomy of the frog collected in Nelsons Creek in December 1998 and the subsequent attempts by the National Parks and Wildlife Service to have it scientifically identified. These matters are more fully discussed in my judgment in the related class 4 proceedings.
83. Two eminent experts adhered to their competing views as to the proper identification of the frog, notwithstanding their joint inspection of the specimen held at the Australian Museum and I do not think it necessary in these circumstances for me to reach a factual and legal finding on the issue.
G. VALIDITY OF THE SECOND RESPONDENT’S WATER LICENCE APPLICATION
84. The Applicants claimed that the application was not a valid application for two separate reasons—
(i.) having been expressed to be an application for an entitlement in part replacement of an existing entitlement, it was invalid by force of the Water Act, s 22BA(5);
(ii.) the second Respondent was not an eligible person to apply for a water licence.
85. The first reason was based upon the Applicants’ interpretation of the Water Act s 22BA(4) that I adopted in my judgment in the related class 4 proceedings in preference to the interpretation advanced on behalf of the Respondents in that case. In that judgment, having adopted that interpretation, I held Water Permit No PE002321 to be invalid by force of s 22BA(5). However, although the Applicants in those proceedings had also claimed that the water licence application was likewise invalid for the same reasons, I decided not to rule upon that claim, but to reserve it for judgment in the present proceedings where I had the benefit of the first Respondent’s participation, including its separate submissions on the interpretation of the Water Act, s 22BA(4).
86. Notwithstanding the benefit of the first Respondent’s independent argument supporting the construction proffered by the Respondents in the class 4 proceedings, I remain of the opinion that the construction of s 22BA(4) that I adopted, is the correct interpretation.
87. The first Respondent’s independent argument has drawn attention to the definition of “water source” contained in s 22BA(6) and its application to the facts in the present case that Nelsons Creek, being incontestably a tributary of Timbarra River, the two rivers combine to be the one “water source”.
88. Accepting the correctness of this analysis of the definition of “water source” and its application to the facts of the present case, does not, however, in my respectful opinion, overcome the embargo imposed by the relevant s 22BA Order on the making of “an application for an entitlement”, because the second Respondent’s water licence application relevantly seeks “an entitlement” within the meaning of s 22BA(4).
89. It follows from my adherence to the interpretation of s 22BA(4) adopted in my judgment in the related class 4 proceedings that the second Respondent’s water licence application is declared to be invalid by force of s 22BA(5).
90. Although the matter was not argued, and despite the obvious difficulty posed by the language of s 22BA(5), it may be possible to argue that it would be open to the second Respondent to even now amend the application so that it is based upon the total replacement of the existing entitlement and thereby avoid the embargo imposed by the s 22BA Order by satisfying the requirements of s 22BA(4).
91. I am content to leave open that possibility and to so proceed with my adjudication upon the merits of the second Respondent’s water licence application.
92. The second reason for the invalidity of the water licence application relied upon by the Applicants concerns the eligibility of a person who is not the “occupier” to apply for a water licence. As I noted in my judgment in the class 4 proceedings, s 10(1A) enables a person who is not the occupier to apply for a water licence “subject to his obtaining the right to occupy the site of the work”.
93. The evidence demonstrates that the second Respondent lodged the water licence application with the written consent of the lessee of Portion 37, Mr William Petrie, who holds that land on perpetual lease under the Crown Lands Consolidation Act.
94. If this action by Mr Petrie was not legally sufficient to qualify the second Respondent in making the application as an “occupier” within the meaning of that term contained in the Water Act, s 5(1), at the end of the hearing the second Respondent had obtained leave to re-open its case to tender evidence (Exhibit S/2) of the consent of the Minister (as owner of the Crown Land comprising Portion 37) to Mr Petrie granting “a right of occupancy or permitting any occupancy” in favour of the second Respondent in respect of the water licence application.
95. On the basis of this undisputed evidence, I am satisfied that the second Respondent’s licence application was made by a person who had relevantly obtained the right to occupy the site of the water works on Portion 37 within the meaning of the Water Act, s 10(1A).
H. OTHER ISSUES RAISED BY THE APPLICANTS
96. In my judgment, the remaining issues raised by the Applicants (namely Issues 12, 12A and 13) have either not been substantiated by the evidence or are of a nature as to have little, if any, weight in the adjudication required in the proceedings.
I. CONCLUSIONS AND ORDERS
97. Having regard to my findings of fact earlier recorded, I am of the opinion that the adjudication on the second Respondent’s water licence application requires a balancing of the second Respondent’s need for the water supply by virtue of the licence sought, and the environmental consequences (including in particular impact of the pumping of water from Nelsons Creek on threatened frog species and their habitat) which are the principal concerns raised and established by the Applicants in the present case.
98. In my judgment, the balance of those competing needs and/or interests weighs heavily and decisively in favour of the environmental protection of Nelsons Creek. In this respect, I have found that there is no present need for a clean water supply to the Timbarra Gold Mine. Nor is there a likely need for that water.
99. In my judgment, the second Respondent’s water licence application should be refused for the reasons I have given.
100. These reasons for judgment contain my report to the Ministerial Corporation pursuant to the Water Act, s 11(5). The result of my public inquiry is that the second Respondent’s water licence application should be refused.
101. The exhibits may be returned and the question of costs is reserved.
Annexures
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