Hancock Coal Pty Ltd v Kelly & Ors and Department of Environment and Heritage Protection (No. 4)
[2014] QLC 12
•8 April 2014
LAND COURT OF QUEENSLAND
CITATION: Hancock Coal Pty Ltd v Kelly & Ors and Department of Environment and Heritage Protection (No. 4) [2014] QLC 12 PARTIES: Hancock Coal Pty Ltd
(applicant)v Kathryn Kelly, Paul Anderson and Janeice Marie Anderson, Coast and Country Association of Queensland Inc, Fiorella Paola Cassoni, Patricia Julien of Mackay Conservation Group, Bruce Bede Currie and Annette Helen Currie
(objectors)Chief Executive, Department of Environment and Heritage Protection
(Statutory Party)FILE NOs: MRA082-13
EPA083-13DIVISION: General Division PROCEEDING: Application for mining lease and objections; objections to application for environmental authority, the draft environmental authority and conditions included in the draft environmental authority DELIVERED ON: 8 April 2014 DELIVERED AT: Brisbane HEARD ON: 16 September – 2 October 2013
25 October 2013HEARD AT: Brisbane MEMBER: PA Smith ORDERS: 1. I recommend to the Honourable the Minister responsible for the MRA in the alternative as follows:
EITHER
“That MLA 70426 be rejected”
OR
“That MLA 70426 be granted, subject to the condition that approval be subject to Hancock first obtaining licences to take, use and interfere with water under s 206(1)(a) and (b) of the Water Act such that all concerns pursuant to the precautionary principle are resolved”
2. I recommend to the Honourable the Minister responsible for the EPA in the alternative as follows:
EITHER
“That draft Environmental Authority (Mining Lease) Non-Code Compliant Level 1 Mining Project Permit Number MIN101017310 – Alpha Coal Mine be refused”
OR
“That draft Environmental Authority (Mining Lease) Non-Code Compliant Level 1 Mining Project Permit Number MIN 101017310 – Alpha Coal Mine be granted, subject to the following conditions:
(a) that approval be subject to Hancock first obtaining licences to take, use and interfere with water under s 206(1)(a) and (b) of the Water Act such that all concerns pursuant to the precautionary principle are resolved;
(b) the draft Environmental Authority be amended by the insertion in table 15 of three additional monitoring points, one located on each of the Anderson’s Currie’s and Ms Cassoni’s properties, with each given the parameter of water level, with at least one reading every twelve hours by electronic data reader;
and
(c) that there be a condition in the draft Environmental Authority to the effect that Hancock enter into make-good agreements with the Curries, the Andersons, and Ms Cassoni, within either twelve months of the grant of ML 70426, or before commencement of mining activities, whichever is the sooner”.
CATCHWORDS: Mining – application for mining lease – objections – functions and powers of Land Court – statutory criteria in considering grant – Mineral Resources Act 1989 (MRA) ss 268, 269
Mining – application for environmental authority – objections – functions and powers of Court – Environmental Protection Act 1994 (EPA) ss 217, 219, 222, 223
Mining – Mineral Resources Act 1989 and Environmental Protection Act 1994 – different and competing objects
Mining – application for mining lease – determination of “significant project” by Coordinator-General – limits on challenge to Coordinator-General conditions – no inconsistent conditions permissible – State Developmemt and Public Works Organisation Act 1971 ss 45(1), 46 and 49(1)
Mining – application for mining lease – requirement for water licence under Water Act 2000 – whether objections to grant licence could be heard by Court concurrently with other objections in same project
Mining – application for mining lease – whether some water issues can fall under MRA ss 269(4)(a) and EPA
Mining – application for mining lease – application of precautionary principle – EPA s 223
Mining – application for mining lease – objections – considered under wider headings: groundwater, climate change, economics, ecology, surface water, miscellaneous
Groundwater – complexity and uncertainty with evidence – precautionary approach necessary – further water issues to be determined under Water Act licence application – whether present recommendation should be dependent on future water licence evidence and decision
Climate change – whether any “adverse environmental impact” – whether MRA permits consideration of downstream indirect environmental impacts – scope of “operations” limited to physical mining activities – impermissible to consider Global Scope 3 emissions save for “public interest” – Xstrata decision followed
Climate change – “demand for coal will be met by another source” argument considered – Global Scope 3 emissions will not fall if subject proposed mine does not proceed
Economics – social cost of carbon, economic impacts, projections as to future use of coal – meaning of “economic mineralisation”
Ecology – biodiversity off-sets – rail corridor ecology impacts not relevant here
Land Court – role of Court in making recommendation to Minister – administrative not judicial task – Court totally independent in undertaking function – hearing not a “mere formality”
Orders – recommendations issued in alternative for both mining lease and environmental authority – power of Court to so order – possibility of appeal to Land Appeal Court
Environmental Protection Act 1994
Environmental Protection and Biodiversity Conservation Act 1999 (Cth)
Environmental Protection (Greentape Reduction) and Other Legislation Amendment Act 2012 No. 16
Mineral Resources Act 1989
State Development and Public Works Organisation Act 1971
Water Act 2000Armstrong v Brown (2004) 2 QdR 345
Associated Minerals Consolidated Ltd v Wyong Shire Council (1974) 2 NSWLR 681
CMR of Police v Eaton (2013) 294 ALR 608
De Lacey & Anor v Kagara Pty Ltd (2009) 30 QLCR 57
Donovan v Struber & Ors (2011) 32 QLCR 226
Dunn v Burtenshaw (2010) 31 QLCR 156
Sinclair v Maryborough Mining Warden (1975) 132 CLR 473
South Australia v Tanner (1988-89) 166 CLR 161
Xstrata Coal Queensland Pty Ltd & Ors v Friends of the Earth – Brisbane Co-Op Ltd & Ors, and Department of Environment and Resource Management (2012) 33 QLCR 79APPEARANCES: DG Clothier QC with A Pomerenke, for the applicant
AJ Finanzio SC with Dr C McGrath and R Watters, for the objector Coast and Country Association of Queensland Inc
ND Loos for the statutory party
K Kelly, self represented objector
P & JM Anderson, self represented objectors
FP Cassoni, self represented objector
BB & AH Currie self represented objectorsSOLICITORS: Allens for the applicant
Environmental Defenders Office (Qld) Inc for the objector Coast and Country Association of Queensland Inc
TABLE OF CONTENTS
Overview........................................................................................................................................ 6
Background................................................................................................................................... 17
The Hearing................................................................................................................................... 24
The statutory framework............................................................................................................. 26
........ MRA...................................................................................................................................... 26
........ EPA....................................................................................................................................... 28
........ SDPWOA.............................................................................................................................. 32
........ Water Act 2000...................................................................................................................... 35
The Objections.............................................................................................................................. 49
Groundwater................................................................................................................................. 50
........ Hancock’s reasons for adverse findings against Dr Webb and Dr Mudd.......................... 58
........ CCAQ’s reasons for adverse findings against Mr Stewart and Mr Hair........................... 62
........ Ms Cassoni’s reasons for adverse findings against Mr Stewart and Mr Hair................... 70
........ Mrs Anderson’s reasons for adverse findings against Mr Stewart and Mr Hair............... 71
........ Mr Currie’s reasons for adverse findings against Mr Stewart and Mr Hair..................... 74
........ Statutory Party’s views on Expert Groundwater Evidence................................................. 75
........ Impressions as to the evidence of each groundwater expert............................................... 76
........ Mr Stewart............................................................................................................................. 76
........ Mr Hair.................................................................................................................................. 78
........ Dr Webb................................................................................................................................ 82
........ Dr Mudd................................................................................................................................ 84
........ Closing Remarks on the Expert Groundwater Evidence.................................................... 86
........ Conclusions on Groundwater.............................................................................................. 87
Climate change.............................................................................................................................. 88
........ Demand for coal will be met from another source.............................................................. 95
........ Credibility of climate change witnesses............................................................................... 100
Economics...................................................................................................................................... 101
........ Social costs of carbon........................................................................................................... 101
........ Economic impacts, including environmental, ecological and social costs......................... 103
........ Projections as to future use of coal...................................................................................... 106
Ecology........................................................................................................................................... 107
Surface Water............................................................................................................................... 122
Miscellaneous Objections............................................................................................................. 124
........ CCAQ’s Public Interest Objections...................................................................................... 124
........ Filling of Final Voids........................................................................................................... 125
........ Impact of Final Void on Surface Water.............................................................................. 127
........ Investigation of Bores on Mr and Mrs Currie’s Property................................................... 127
........ Make good Agreements sought by the Curries and the Andersons.................................... 132
........ MCG’s objections.................................................................................................................. 136
MRA s 269(4) considerations for MLA 70426........................................................................... 137
Conclusion..................................................................................................................................... 143
Independence of the Land Court................................................................................................ 145
Postscript and Clarification......................................................................................................... 147
Orders............................................................................................................................................ 148
Overview
Mention the Bowen Basin to anyone with just a passing interest in coal mining in Queensland and they will almost certainly know what you are talking about; a rich coal deposit in Central Queensland that has been a significant contributor to the resources boom in Queensland and Australia.
The application and objections before me do not relate to the Bowen Basin but to the Galilee Basin. The Galilee Basin is also a rich coal deposit, situated to the west of the Bowen Basin. The significant difference is that there is currently no exploitation of the Galilee Basin.
If the Alpha Mine at the heart of this matter is approved and goes into production, what will flow with it is significant infrastructure which will enable the development of additional coal mines in the Galilee Basin. On the other hand, if the Alpha Mine is not approved, the development of the Galilee Basin may be somewhat more problematic.
In effect, the approval of the Alpha Mine is a watershed issue for the Galilee Basin. This explains why the various parties, representing some highly conflicting interests, have put such time, effort and finance into this matter, culminating in a three week hearing.
As a further indication of the importance which the State Government places on the Alpha Mine, the Coordinator-General declared it to be a ‘significant project’ under s 26(1)(a) of the Queensland State Development and Public Works Organisation Act 1971 (SDPWO Act) on 24 October 2008.
In this regard, the Coordinator-General’s May 2012 Evaluation Report on the environmental impact statement had this to say:[1]
[1]See Exhibit 13 RDW 10 @ 2.3 p 11.
“Coal resources in the Galilee Basin are currently undeveloped. The global demand for good quality thermal coal presents an opportunity to develop this area.
The project meets Queensland Government objectives in realising the timely development of the Galilee Basin while ensuring the community benefits and environmental objectives are supported, therefore contributing to a four pillar economy. Overarching project-wide benefits include:
·employment for construction, operation, and other indirect employment benefits, including (as presented in Appendix A of the Addendum to the Supplementary EIS):
– approximately 3600 jobs predicted during construction (1500 mine, 2100 rail) including contractors
– approximately 990 jobs predicted during operational (800 mine, 190 rail) including contractors
– indirect employment benefits
·significant export income
·local and state economic benefits
·improved infrastructure into the region, including upgrades to roads and airport, and introduction of additional power and water supplies to the region
·significant State and government taxes and royalties.”
I must stress that, whilst it is no doubt true that this Court must be aware of and take into account the Coordinator-General’s view as to the stated economic importance of the proposed Alpha Mine to both this State and the Nation,[2] that is just one of a myriad of factors to be considered. Simply because the Alpha Mine has been declared a significant project, and its development will, in all probability, lead to the opening up of the coal resources in the Galilee Basin, does not mean that this Court should simply “rubber stamp” the proposal. Far from it.
[2]See, for instance, the SDPWOA, and the objectives of the Mineral Resources Act 1989 (s 2) and various criteria in s 269(4), esp s 269 4(c).
This Court is a creature of statute, and all of its powers are sourced in various statutes. Quite simply, this Court must undertake the tasks, without fear or favour, which the legislature has given it; that is, specifically, to hear and determine the objections to the Mining Lease (ML) lodged under the Mineral Resources Act 1989 (the MRA), together with the environmental objections under the Environmental Protection Act 1994 (the EPA), and to then make relevant recommendations.
This is no easy task. For instance, as will be examined in more detail later in this decision, the objects of the EPA and the MRA are quite different. Further, the varying views of the respective parties have not been put forward in isolation, or without reference to objective evidence. One has only to view the eminence of the various expert witnesses, who in some cases draw vastly different conclusions, to realise the bona fides of the various parties.
If just one thing is clear, it is that the respective parties have diverse views as to what should be the outcome of these two cases. I conclude this overview by allowing the parties to speak for themselves, drawing from the executive summary submissions of each party.
This is how the applicant, Hancock Coal Pty Ltd (Hancock) sees the case: [3]
[3]Hancock’s submissions, 18 October 2013, paras 34, 35, 38-50.
“…the Court is presently concerned with:
(a) Hancock’s application for the grant of the proposed mining lease under s268 of the MRA;
(b) the objections to the grant of the proposed mining lease under s268 of the MRA;
(c) the objections to the grant of the draft environmental authority under ss219 and 220 of the EPA.
35.There is a degree of overlap between various objections. For the purposes of analysis, they may be divided into the following categories:
(a) groundwater;
(b) climate change, including climate change policy and economics;
(c) non-climate change economics;
(d) ecology;
(e) surface water;
(f) miscellaneous other objections.
…
II SHORT SYNOPIS
38.The following short synopsis addresses the five major categories of objection identified above.
Groundwater
39.The groundwater studies undertaken on behalf of Hancock provide an appropriate basis upon which to make an assessment of likely impacts and how they can be managed. They have been extensive and conservative. They have been refined over a number of years. In their final form they are based on an extensive body of data, including valuable data obtained from an extensive drilling programme within the mining lease area, as well as a test pit constructed on site. This means that the core features of Hancock’s analysis (e.g., the aquifer parameters) are reliable. Of course, uncertainties remain particularly in relation to features outside the mining lease area where more data is not available and not readily obtainable. But those areas of uncertainty do not detract materially from the reliability of the core features of the analysis. Having said this, the studies do not claim to predict future impacts with complete accuracy or certainty. That would not be possible. Nor is it required to warrant approval. Were it otherwise, no project would ever be approved.
40.The impacts predicted by the groundwater studies are capable of being managed appropriately by conditions. The objectors do not suggest that the impacts actually predicted by the groundwater studies are not capable of being managed appropriately by conditions. Rather, they express concern that the predictions may turn out to be wrong. This possibility is also addressed appropriately by conditions (discussed below).
41.The evidence of Dr Webb and Dr Mudd does not justify requiring further studies before approval is granted. Each was an unsatisfactory witness. They presented theoretical views which (in addition to being difficult to reconcile) have little foundation in hard data. Dr Webb, for example, accepted that his cross sections were mere “hypothesis” and that significant features were simply “guessed”.31 Dr Webb’s alternative theory as to matters such as folding under the GDR has not been shown to be valid. The available evidence suggests it is invalid. However, even if it is not dismissed completely, it does not warrant withholding approval. Neither Dr Webb nor Dr Mudd had done any modelling. Neither could make any reliable alternative prediction as to impacts. Indeed, neither sought to make any predictions as to the impact of the Alpha mine alone (Dr Webb’s predictions as to impacts in the north were based on the cumulative impacts of the Alpha and Kevin’s corner mines). Any doubt they create is quite removed from the core features of Hancock’s groundwater analysis. For example, uncertainty as to the geology directly beneath the GDR does not cast doubt on what Hancock has actually observed and measured on site. It is unrealistic to expect Hancock to resolve all uncertainty in matters of off-site regional geology before being granted approval in respect of the confined proposed mining lease area.
42.The proposed conditions address the remaining uncertainty adequately and ensure water security. The Coordinator-General has imposed important and stringent conditions. They include: (1) a condition requiring approval of a groundwater monitoring program before the commencement of mining activities (Appendix 1, Condition 17); (2) a condition requiring Hancock to implement its commitments, including to implement make-good agreements with landholders affected by groundwater drawdown (Appendix 2, Part A, Condition 1 and Appendix 5); and (3) a condition requiring Hancock to design a groundwater monitoring and reporting program capable of being used on a basin wide basis, and to contribute to any basin wide project established by the administering authority (Appendix 2, Part B, Condition 2).
43.The objections trespass into areas that are properly the subject of consideration under the Water Act 2000 (Qld) or involve an impermissible challenge to the Coordinator-General’s conditions. In the end, the groundwater objections are about water security for landowners. There are no real issues about impacts on the GAB, water quality of ecology. The objections are concerned with the extraction of water from the groundwater system, which is a matter to be considered under the Water Act 2000 (Qld) (the “Water Act”) not under the MRA or EPA: Xstrata Coal Queensland Pty Ltd v Friends of the Earth – Brisbane Co-Op Ltd [2012] QLC 13 (“Xstrata”) at [210]-[211]. Further, to the extent that the objectors suggest that further monitoring should be required before mining is permitted to commence – a matter already covered by the conditions imposed by the Coordinator-General – they are seeking to have the Court recommend a condition contrary to the intent of the SDPWOA and EPA: Xstrata at [32]. At this stage further conditions will be imposed as set out in the Coordinator-General’s Report.32 In their joint report, the experts agreed that the conditions regarding make-good ensure water security.
Climate change
44.Emissions calculations. The undisputed calculations as to greenhouse gas (“GHG”) emissions include: (1) average annual scope 1 emissions (direct emissions from the mine) will be 353,439 tonnes CO2-e representing 0.001% of global GHG emissions; (2) average annual scope 2 emissions (emissions upstream from the mine from, e.g., the mine’s source of electricity) will be 506,233 tonnes CO2-e; (3) average annual scope 1 and 2 emissions will be 859,672 tonnes CO2-e representing 0.002% of global GHG emissions; (4) average annual scope 3 emissions (emissions downstream from the mine, e.g., from the burning of the coal in an overseas power station) will be 61 million tonnes CO2-e (rounded up); and (5) average annual scope 1, 2 and 3 emissions will be 61 million tonnes CO2-e (rounded down) representing 0.16% of global GHG emissions. In a global context, the scope 1 and 2 emissions associated with the mine are infinitesimal, and the scope 1, 2 and 3 emissions are negligible.
45.No net increase in GHG emissions. Stopping the Alpha mine will not affect the amount of GHGs in the atmosphere. The GHGs will be produced almost wholly by the burning of the coal, which will take place outside Australia. If the demand for the coal is not met from the Alpha mine, it will be met from other mines with the same or possibly worse consequences in terms of GHG emissions.
46.No impact on environment in Queensland. The emissions associated with the Alpha mine are not properly characterised as a cause of any impact on the environment in Queensland. Even assuming one can take into account scope 3 emissions for this purpose (contrary to the decision in Xstrata at [530], [564]-[570], and [597]-[605]), the emissions are too insignificant and too far removed from Queensland to be linked in any scientific way to an adverse environmental impact in Queensland. Moreover, as in other areas of discourse, an activity cannot properly be characterised as a cause of an impact if the impact would have occurred in any event. Here the alleged impact on the (global) environment will occur in any event (as the same quantity of coal will be burnt overseas irrespective of whether it is obtained from the Alpha mine or another mine).
47.The Court should not lead a new policy agenda. Part of the objectors’ arguments seem to be that effective action on climate change is needed urgently and must start somewhere, and that this Court should halt the Alpha mine as a necessary first step in reducing and ultimately eliminating the extraction and burning of coal. The policy agenda thus promoted by the objectors is contrary to that of the Commonwealth and State governments. This Court is not the appropriate vehicle for the implementation of a new policy agenda of the kind promoted by the objectors. That is the province of other branches of government. The consequences of a shift in policy would be enormous, entailing very significant detrimental economic impacts without any significant corresponding benefit to the environment.
Economics
48.A project of this size will have significant economic benefits for Queensland. The theoretically based criticisms of the economic analysis undertaken on behalf of Hancock do not undermine this obvious proposition. The economic benefits outweigh any perceived adverse environmental impacts.
Ecology
49.The studies undertaken to date have been conservative. They do not suggest any ecological issues that cannot be managed by appropriate conditions. The conditions imposed in the draft environmental authority require further work before mining can commence and are comprehensive. Only one aspect of the conditions has been criticised (concerning offsets). That criticism is founded upon an unwarranted presumption of administrative failure. Applications such as the present engage the presumption of regularity, not the opposite.
Surface water
50.The unchallenged evidence adduced by Hancock demonstrates that there are no surface water issues that would warrant withholding approval.”
For her part, objector Kelly (Ms Kelly) summarises her view this way:[4]
[4]Ms Kelly’s two page summary conditions, 18 October 2014.
“CLOSING SUBMISSION OF KATHRYN KELLY (2 page summary)
1.I submit that the application for the Alpha Coal Mining Lease (ML) and Environmental Authority (EA) should be refused on the basis of the serious environmental harm that it would cause the environment, without sufficient community benefit to counterbalance that harm.
2.My objection is based primarily on consideration of the impacts of the proposal on climate change and biodiversity. In relation to these, the UNFCCC, CBD and World Heritage Convention are applicable international laws or agreements under the EPA.
3.The decision to be made in this case is one of national and global significance. It requires consideration of the Alpha project and of the combined effects of up to 10 additional adjacent mines in the Galilee Basin.
Serious environmental harm from disrupting the global climate system
4.The Alpha project will cause serious environmental harm to the global climate system. Under the EPA, this is contrary to ESD principles; contrary to an applicable Commonwealth- State agreement, specifically the National Strategy for Ecologically Sustainable Development, and the UNFCCC; and against the public interest. Under the MRA it is not environmentally responsible, will cause an adverse environmental impact and will prejudice the public right and interest.
5.The science of climate change is not disputed and is set out in ‘The Critical Decade 2013’. The primary cause of anthropogenic global warming is increasing concentrations of CO2 in the atmosphere mainly from burning fossil fuels including coal.
6.Serious environmental harm to present and future generations is being caused now and becomes of even greater concern when global warming exceeds 2°C above pre-industrial levels. Professor Jones and Professor Karoly have brought evidence about the serious adverse environmental impacts resulting from greenhouse gas emissions, both globally and in Queensland and Australia.
7.The relevant ‘activity’ for which the EA and ML are sought is ‘mining black coal’. In its natural state, coal is a stable store of carbon. When extracted from its natural state, it is unavoidable that the carbon contained in product coal will be released to the atmosphere as CO2.1 Serious environmental harm would be caused through the destruction of the stable carbon stock at the Alpha mine, which will lead directly to unavoidable massive greenhouse gas emissions, exacerbating global climate change.
8.The carbon budget links the quantity of CO2 that can be emitted to the atmosphere with the probability of the earth staying below the 2°C threshold. The CO2 pollution caused by the Alpha project is globally significant when measured against the global carbon budget and against annual emissions under scenarios representing ‘business as usual’ and effective global action on climate change. This represents a serious disruption of the climate system, on which life depends.
9.The net social impact of the Alpha project exceeds the threshold for serious environmental harm in Queensland. The harm will be magnified by additional planned and proposed mines in the Galilee Basin and is on top of that from existing mines in the region.
10.The Applicant argues that greenhouse gas emissions outside Australia should not be considered, in accordance with the NGERS Act and IPCC. These are greenhouse gas Reporting frameworks - they are not relevant to assessing environmental harm.
11.The Applicant argues that there will be no net change in greenhouse gas emissions if the Alpha project is refused because coal will be sourced from elsewhere. This is speculative and not relevant to assessing the impacts of the Alpha mine. Further, the UN Framework Convention on Climate Change states that ‘developed country Parties should take the lead in combating climate change and the adverse effects thereof.’
Serious environmental harm from impacts on biodiversity
Climate change
12.The ‘Critical Decade’ describes the risks to Queensland’s biodiversity from climate change, especially to the Great Barrier Reef and the Wet Tropics, both of which are World Heritage areas. Professor Jones’ evidence concurs. There are no state or federal conditions on the project in relation to ameliorating the biodiversity impacts from climate change.
Habitat loss
13.There will be significant permanent biodiversity and habitat loss from the Alpha mine site through clearing of around 20,000 ha of high value native vegetation. Survey work undertaken for the EIS was inadequate to establish the presence or otherwise of endangered species on the site. The mine itself will create an impenetrable 24 km long east-west barrier to land-based movement of wildlife and geneflow.
14.This impact will be multiplied at least seven-fold and up to 10 fold if other mines in the Galilee Basin gain approval and comes on top of habitat loss from existing mines. Planned and proposed Galilee Basin mines extend over 300 km north-south and up to 40 km wide. Groundwater, surface water and final void impacts are integral components of healthy ecosystems, healthy habitat and protection of biodiversity. The risks associated with these habitat impacts are also for consideration by the court.
15.Dr Dique, the Applicant’s biodiversity witness, agreed that habitat loss is one of the major threats to species and that there was inadequate survey effort. Dr Dique also agreed that a cumulative impact study in relation to the seven planned mines should be done.
Conditions ineffective
16.The Commonwealth, Coordinator General and the Draft Environmental Authority conditions fail to consider cumulative or combined impacts of multiple mines on biodiversity. Their conditions for approval of the Alpha mine all rely on offsets to mitigate the impact of the biodiversity loss. The evidence of Mr Vanderduys shows that offsets cannot result in ‘no net loss’ of biodiversity. Dr Dique agreed with eminent ecologists (Bekessey et al) that offsets need to be developed ahead of time.
17.The conditions of the three authorities, taken together, lack rigour and will not be effective in protecting biodiversity. In particular, any counterbalancing benefit provided by offsets is temporary (Commonwealth and Coordinator General conditions), uncertain, or can be replaced by financial or ‘alternative’ measures (DEA). The legal mechanisms for protecting such land can be set aside in favour of future mining.
Costs and Benefits of the Project
18.There has been no adequate cost analysis of the environmental impacts of the mine globally, on Queensland and on the local region. A more comprehensive analysis of the environmental and other costs of the project is needed.
The Application should be refused
19.I provide evidence that the project would cause serious environmental harm to the climate and to Queensland’s biodiversity. The ML and EA application does not meet the requirements of the EPA and the MRA and, in the context of the precautionary principle, should be refused.
GLOSSARY
CBD - Convention on Biodiversity
CCS – Carbon Capture and Storage
CG - Coordinator General
DEA - Draft Environmental Authority
DU – Desert Uplands
EA - Environment Authority
EIS - Environmental Impact Statement
EPA – Environmental Protection Act 1994
ESD – Ecologically Sustainable Development
GBR – Great Barrier Reef
GBOS - Galilee Basin Offset Strategy
HCPL – Hancock Coal Pty Ltd
IEA – International Energy Agency
IPCC - Intergovernmental Panel on Climate Change
ML - Mining Lease
MNES – Matters of National Environmental Significance
MRA – Mineral Resources Act 1989
NSESD – National Strategy for Ecologically Sustainable Development
NGERS – National Greenhouse and Energy Reporting Act 2007
QBOP - Queensland Biodiversity Offset Policy
UNFCCC- United Nations Framework Convention on Climate Change
WHC – World Heritage Convention”
The objector Coast and Country Association of Queensland (CCAQ) says this in its summary:[5]
[5]CCAQ summary submissions 18 October 2013.
“SUMMARY OF SUBMISSIONS
COAST AND COUNTRY ASSOCIATION OF QUEENSLAND INC.
1.Mining poses a dilemma for the community. On the one hand, it has the potential to provide significant economic rewards. On the other hand, it imposes serious costs, in particular environmental costs.
2.At the heart of both the Environmental Protection Act and the Mineral Resources Act is a recognition of this reality. In order to ensure that the benefits of mining outweigh the costs, both Acts require the Court, as an independent umpire, to consider the impacts of the proposed mine, positive and negative, and to make a recommendation about whether the mine should be allowed to proceed.
3.It is CCAQ’s position that, before it can recommend approval of Hancock’s proposed Alpha mine, this Court needs to be positively persuaded that the grant of the approvals will result in a net benefit to the Queensland community.
4.Here, the Court cannot be so persuaded because the information provided by Hancock to establish the impacts from Alpha cannot be relied upon:
(i) In relation to groundwater, the critical issue is one of uncertainty. Dr Webb’s evidence establishes that Hancock’s modelling is fundamentally flawed, but Hancock has chosen not to address those flaws and instead to attack Dr Webb. This leaves the Court without any reliable prediction of the likely impacts of Alpha on groundwater supplies, a critical environmental resource. This kind of uncertainty presents a fundamental barrier to recommending approval.
(ii) In relation to climate change, the science of climate change is undisputed. Alpha will contribute to the risk of dangerous climate change, mostly through emissions from the burning of the coal that will be mined there. Hancock asks this Court to ignore those emissions. CCAQ argues that it must not ignore them, but must take them into account in deciding whether to recommend approval. If all of Alpha’s emissions are considered, then this is a strong factor weighing against approval.
(iii) In relation to economics, Hancock argues that Alpha will produce substantial economic benefits. CCAQ contends that the predicted benefits are exaggerated by the choice of model and a failure to account for costs imposed by Alpha. More fundamentally, CCAQ contends that the basic assumption underlying these predictions, that is, constant growth in the demand for coal throughout the life of Alpha, is not substantiated by evidence.
5.If the Court is not persuaded that allowing Alpha to proceed will result in a net benefit to Queensland, then it is respectfully submitted that, consistent with the requirements of the statutory framework, the Court must recommend that the applications be refused.”
The objector Cassoni (Ms Cassoni) put her position this way:[6]
[6] Ms Cassoni’s summary submissions 18 October 2013.
“The Bimblebox Nature Refuge (BNR) encompasses the whole of the property “Glen Innes” and is around 8,000 hectares in size. Approximately 96% of the property is made up of remnant woodland – vegetation that has never been cleared. The BNR is a “Private Protected Area” part of the National Reserve System and represents over 10% of the National Reserve estate in the Desert Uplands bioregion. Broad scale clearing reduced the total extent of woodland in the district and today there is less than 5% of the Desert Uplands held in conservation reserves.
Bimblebox is within the predicted aquifer drawdown area for dewatering of the proposed GVK/Hancock Alpha Coal Mine.
My objections to the Draft EA can be summarised as follows:
· the Applicant has not provided sufficient information to demonstrate that it will not have an unacceptable impact on groundwater;
· the environmental impacts on groundwater cannot be controlled such that the operations will cause serious environmental harm despite any conditions designed to avoid it;
· the environmental impacts have not been properly identified and the Court cannot be satisfied that those relating to the impact on groundwater can be managed; and
· given the intergenerational impacts of the proposed project, a greater level of scrutiny and analysis is required, well above that which the proponent has provided to date.
The objections to the MLA effectively include the foregoing and further that the proposed land use is inappropriate when considering the current land use.
Key Groundwater issues
There remain significant uncertainties surrounding the groundwater modelling for the project. These uncertainties include:
· the project has failed to account for or model the cumulative impacts of this and other proposed projects;
· the recharge as modelled makes no sense; and
· insufficient field data has been obtained to determine the impacts of the project on the GAB.
Ecological impacts of drawdown on the Bimblebox Nature Refuge
It is predicted in URS 2012 that the impact of dewatering of the project extends onto the Bimblebox Nature Refuge, drawdown may be greater than modelled. The proponent has done no modelling of cumulative impacts, except for Kevin’s Corner project, of the cumulative impacts of this project and other proposals nearby.
Given the uncontested evidence of Mr Friend that root depth of flora on the Refuge is likely to extend down at least 9 metres, any loss of groundwater may have a catastrophic impact upon the ecological values of the Refuge – an impact that will only be noticed under the current project proposal when plants start dying.
Need for a regional groundwater model and management plan
Prior to any project in this part of the Galilee Basin being approved, a regional model and underground water impact report should be prepared by DERM/EHP.
Conclusion
The hydrogeological modelling done by the project proponent is flawed and insufficient investigation has been undertaken. Thus the project should not be approved.
This project should not have been approved at first instance. The Court cannot recommend the EA or the MLA be granted given:
· the serious concerns raised by Dr Mudd, Dr Webb, RPS (2011) and the Interim Independent Scientific Committee;
· the uncertainty surrounding the cumulative impact of this project along with other known projects in the region; and
· the intergenerational impacts on groundwater availability and the potential for this to destroy the long-term future of the district for agricultural production and impacts on a valuable ecological area, Bimblebox.
In my submission, based on the evidence the Court:
· cannot be satisfied as to the degree of the adverse environmental impact likely to be caused by the operations of each of the MLA’s (section 269(4)(j) MRA) because the Applicant has submitted insufficient information in support of its application such as to determine the extent of the adverse environmental impact;
· can be satisfied that good reason has been shown for a refusal to grant each of the mining lease applications (section 269(4)(l)MRA) because of threats to environmental value of existing groundwater and groundwater dependent ecosystems at Bimblebox.
In this instance there is not merely a threat of irreversible environmental damage should the project proceed, there is a certainty that such damage will occur. The lack of certainty surrounding the exact groundwater impacts of the project and the inadequacies of the investigations by the proponent point to an obvious conclusion – the Court has no choice other than to make an unfavourable recommendation regarding the proposed project.
Given the inadequacy of the information provided by the Applicant and the serious risk, there is no reasonably way that conditions could be formulated to effectively take into account the unknown potential groundwater impacts.”
Mr and Mrs Anderson, who are also objectors, submitted as follows:[7]
[7]The Andersons’ overview submissions 18 October 2013.
“Overview of Submissison
1.The mine will leave a permanent, and irreversible impact on the quality and quantity of groundwater available to landholders around the project area. While there are conditions to make good affected bores, there is no requirement to remediate the affected aquifers.
2.There is a potential that this mine will have a devastating effect on the long-term livelihood of the agricultural industry in the region as the final impact on groundwater may potentially be much greater than predicted. This is due to inherent errors in modelling, and the use of assumptions in the current modelling that have not been tested.
3.Our integrated beef cattle business, comprising of three adjoining properties, is located between the four mines proposed in the area. Our groundwater will be impacted on a cumulative basis. No baselining or monitoring of our bores has been done and we are concerned it will be difficult for us to prove which mining company is accountable to make good water supplies. Given the limited amount of time we would be able to supply cattle with an alternate water supply, we are concerned for the welfare of our livestock. We are concerned our business could become unviable in this process.
4.We plan to increase the carrying capacity of our properties by bladeploughing to improve productivity, however we are concerned that the surplus of groundwater capacity we rely on to implement this may become impacted. In drought conditions we rely almost fully on bore water, and the potential to increase dam water supplies has been utilised.
5.We are concerned that there is insufficient data for experts to understand the complex structure of groundwater systems in the region, and this will lead to a much greater impact on groundwater than predicted. Landholders rely on this water for their business and without existing supplies their properties would become unsalable and unviable.
6.The Terms of Reference stated that a cumulative model of all the proposed mines in the area should be done, however the Applicant refused to do the model, even though it is reasonable for it to be done. This cumulative model is especially important for assessing what the potential impacts will be on Landholder’s so planning can be done to ascertain how the company will meet their make good commitments.
7. Drilling and testing has not been done outside the mining lease to know if drilling deeper bores will provide a reliable alternative water supply for affected landholders.
8. The permanent impact the mine will have on groundwater quality and quantity, and the assumptions that have been used in the modelling process give way for the precautionary principal to be applied. Comprehensive modelling should be done by DERM to assess the cumulative impact of all the mining proponents in the Galilee Basin.
9. Once a regional model and groundwater network is established, a regional scale monitoring and mitigation approach should be developed to assess and manage the impacts. A condition should be made that the assumptions that impacted bores can be made good needs to be thoroughly tested.
10. As part of the Applicant’s EA approval the precautionary principal should be applied that landholder’s bores around the mining project should be baselined and monitored prior to dewatering.
11. The precautionary principal should be applied in that the Applicant should be conditioned to undertake further investigations in respect to groundwater and enter into reasonable, binding make good agreements with landholders who are potentially affected by adverse cumulative impacts on the availability and quality of their groundwater as a result of mining operations, prior to the approval of the EA.
12. A condition should be made that alternate water supplies are put in place before supplies from landholder bores are affected and that the costs of these changes are paid by the Applicant both during and after the life of the mine.
13. I ask that a strengthening of those conditions, that the cumulative impacts that the proposed mines will have on our business and other landholder’s business’ will be delegated to one mining company, in all areas’of the Basin and that it will be the responsibility of the company to seek reimbursement from other mining companies involved.
14. The precautionary principal should be applied in such a way it protects the livelihoods of those in the agricultural industry and agriculture – dependant industries for the duration of the life of the mine and for the generations to come.”
Due to illness, Mr and Mrs Currie were unable to supply their own written submissions. They advised the Court that they agreed with and relied upon Mr and Mrs Anderson’s and Ms Cassoni’s written submissions. Mr and Mrs Currie did appear for oral submissions and also provided written submissions in reply.
The Statutory Party is only concerned with the objections under the EPA. Its executive summary is as follows:[8]
[8]Executive Summary of the submissions of the statutory party 18 October 2013.
“EXECUTIVE SUMMARY OF THE
SUBMISSIONS OF THE STATUTORY PARTY1.The Statutory Party respectfully submits that the Court should recommend to the Minister that the application for the Environmental Authority be granted on the basis of the draft Environmental Authority for the application. That should be the result because:
(a) the Applicant’s application for an Environmental Authority was detailed and was subject to a number of amendments/improvements which drew attention to the real issues for consideration;
(b) the Statutory Party subjected that application to a rigorous assessment, as did the Coordinator-General pursuant to the State Development and Public Works Organisation Act 19711;
(c) as a result of its own rigorous assessment, the Statutory Party gave the Applicant a draft Environmental Authority subject to conditions (including conditions mandated by the Coordinator-General);
(d) the conditions attached to the draft Environmental Authority provide satisfactory protection and mitigation measures to ameliorate the impacts of the Applicant’s mining proposal;
(e) the evidence before the Court has not revealed any rationale or reason warranting refusal of the application for the Environmental Authority; and
(f) the evidence before the Court has not revealed any risks or impacts from the Applicant’s mining proposal that are not adequately dealt with in the conditions of the draft Environmental Authority, or which will not be further dealt with in water licences required to be obtained by the Applicant under the Water Act 2000.”
It should be noted that there was a further objector, Mackay Conservation Group (MCG). However, as it chose to be a Level 1 objector and did not attend the hearing,[9] no submissions were received from them. Nonetheless, its objections remain as valid objections under the MRA and the EPA and will be considered where appropriate later in this decision.
[9]MCG’s Form 7, filed 5 March 2013.
Background
In compiling this background, I have relied heavily on the submissions supplied by Hancock on 18 October 2013 and, in particular, paragraphs 1 to 37 of those submissions. I have also relied upon the Mining Registrar’s report to the Land Court dated 27 February 2013 and the various materials attached to that report.
I note that much of the facts as set out in Hancock’s submissions used for the purposes of this background rely upon material contained within the affidavit of Mr Willis.[10] To spare the reader from an inordinate number of footnotes, it can be taken as read that, unless otherwise indicated, the background facts and circumstances which have been relied upon for the compilation of this background are sourced from either the affidavit of Mr Willis or from the Mining Registrar’s report.
[10]Exh 13.
The Alpha Mine proposed by Hancock is located approximately 130 km south-west of Clermont and approximately 50 km north of Alpha, and lies wholly within the area of the Barcaldine Regional Council. The predominant current land use in the general vicinity of the Alpha Mine is pastoral purposes, with an emphasis on grazing of cattle.
Hancock proposes a huge mining operation for the Alpha Mine. The proposed mine life is 30 years, with the term applied for of 40 years to allow for construction, decommissioning and rehabilitation. At its peak, it is proposed that the mine will produce 30 Mtpa of thermal coal.
The estimated capital cost of the Alpha Mine is $3.4 B.
The Alpha Mine is a component part of the broader Alpha Coal project which includes the mine, together with rail and port facilities. It is proposed that coal mined from the Alpha Mine will be processed on site and then transported 495 km by rail to the Abbot Point Coal Terminal just north of Bowen in Central Queensland, from where it will be exported to overseas markets, primarily in Asia.
As indicated in the overview, the mine and rail aspects of the Alpha Project were declared to be a significant project under s 26(1)(a) of the SDPWOA. This declaration occurred on 24 October 2008. As a result of the declaration, the mine and rail aspects of the project were made subject to the environmental impact assessment processes under the SDPWOA. These processes are administered by the Coordinator-General for the State of Queensland.
As well as the involvement of the Coordinator-General for Queensland, the mine and rail aspects of the Alpha Project also received Commonwealth attention, resulting, on 13 January 2009, in those aspects being determined to be a controlled action pursuant to s 75 of the Environmental Protection and Biodiversity Conservation Act 1999 (Cth) (the EPBCA). As a consequence of the EPBCA determination, the mine and rail aspects of the Alpha Project became subject to assessment by the Commonwealth Minister administering the EPBCA in relation to matters of national environmental significance.
The Coordinator-General proposed draft terms of reference for the environmental impact statement for the mine and rail aspects of the project and released same for public and advisory agency comment from 7 February to 9 March 2009. Twenty-two submissions were received on the draft terms of reference. Subsequently, on 1 June 2009, the Coordinator-General finalised the terms of reference for the environmental impact statement for the mine and rail aspects.
The next significant step in the approval process occurred on 18 December 2009 when Hancock lodged its formal application for a mining lease with the Mining Registrar, Emerald. The application was made Mining Lease Application 70426 (MLA 70426). It should be noted that the application documents provided to the Mining Registrar for MLA 70426 are large, containing some 193 pages of material.
MLA 70426 covers an extensive area. The diagram below[11] shows both the overall size of the MLA together with a helpful overview of the location of the MLA having regard to surrounding properties and the towns of Alpha and Jericho.
[11]Extracted from Exh 13, attachment 3.
The objectors’ properties are shaded blue on the below map. “Speculation” is located to the north-west of the Alpha Mine and is owned by the Curries. Ms Cassoni’s property “Glen Innes”, also known as “Bimblebox Nature Refuge”, is located to the south of the proposed Alpha Mine, while the Andersons’ property, “Eureka”, is located further to the south of Ms Cassoni’s property.
For completeness, it is noted that the map above also indicates in green those properties, both underlaying the Alpha Mine MLA area and surrounding it, over which Hancock has entered into compensation agreements with the landholders.
Hancock provided an Environmental Impact Statement (EIS) to the Coordinator-General on 5 November 2010. Following public comment and review which was open from 5 November to 20 December 2010, 63 submissions were received. In response to the submissions made to the EIS, on 5 September 2011 Hancock provided a Supplementary Environmental Impact Statement (SEIS) to the Coordinator-General.
As certain Government agencies had requested more detail on a number of aspects of the SEIS, an addendum to the SEIS was provided to the Coordinator-General on 21 November 2011.
The Mining Registrar at Emerald issued a Certificate of Application for MLA 70426 on 21 December 2011. The Certificate of Application was formally accepted by Hancock on 13 March 2012.
A further step in the process was taken by Hancock in March 2012 when it provided a further groundwater report, prepared by URS (URS 2012) to the Coordinator-General.
In May 2012 the Coordinator-General released the Evaluation Report on the Environmental Impact Statement (the Coordinator-General’s report). The Coordinator-General’s conditions for the Alpha Mine are contained within the Coordinator-General’s report.
On 23 August 2012 the Commonwealth Minister granted approval for the Alpha Mine under the EPBCA, subject to further conditions.
On 17 December 2012, in accordance with the EPA, draft Environmental Authority (Mining Lease) Non-Code Compliant Level 1 Mining Project Permit Number MIN 101017310-Alpha Coal Mine (the draft EA) was issued. Following this, on 19 December 2012, the Mining Registrar at Rockhampton issued the Certificate of Public Notice for MLA 70426. It was a requirement of the public notification that any objections be lodged during the objection period which closed on 20 February 2013.
Objections were lodged during the objection period by Ms Kelly, CCAQ, MCG, Ms Cassoni, the Curries, and the Andersons. It should be noted that, whilst these are the only objections which remain current, during the objection period objections were also lodged by Mr and Mrs Coyne and Mr and Mrs O’Dell, but these objections were not pursued.
As regards the current objections, all but the Curries make objection under both the MRA and the EPA. Although the Curries initially made objection under both Acts, by notice to the Land Court of 29 April 2013 the then solicitors for the Curries notified the Court that the MLA objection was withdrawn.
As well as the chronology of events which I have substantially included in the background above, Hancock also included in its introductory submissions reference to certain geological features of the land in the vicinity of the Alpha Mine. This was a sensible course for their submissions to take, as in my view it would be impossible to understand the submissions, particularly relating to groundwater, without an overview of the geological features of the area, and the names attributed to the various geological features.
The schematic below has been taken from Exhibit 106, page 17. It shows in general terms the underlying geology for not only the land lying directly under the area where the Alpha Mine is proposed, but also for the much broader Galilee Basin through to the Great Artesian Basin (GAB).
Further detail of the underlying geology can be understood by reference to a diagram set out in the joint expert report of the groundwater experts[12] and repeated in Hancock’s submissions of 18 October 2013.[13] The diagram is as follows:
[12]Exh 18.1.
[13]At paragraph 12.
Although the diagram immediately above assists greatly in the understanding of this case, care needs to be taken when viewing this diagram as only some aspects of the diagram are agreed as between the experts; in particular, the location of the inferred groundwater divide is not universally agreed, nor are certain aspects of underground water movement which will be examined in detail later in these reasons.
Thankfully, there are some aspects of the geology as shown by the above two diagrams which is uncontroversial. This has been detailed in Hancock’s submissions of 18 October 2013 at paragraph 13 and expressed as follows:
(a) the mine pits lie above the targeted C and D seams which are within the Colinlea Formation;
(b) the mining lease and pit are to the east of the Great Dividing Range (GDR) and the GAB;
(c) above and to the west of the Colinlea Formation are, inter-alia, the Bandana Formation, the Rewan Formation, and the Clematis Sandstone and the Moolayember Formation;
(d) below and to the east of the Colinlea Formation is, inter-alia, the Joe Joe Formation. The Rewan Formation is the basal formation of the GAB. The Clematis Sandstone is an aquifer for the GAB.
In concluding this background, it is also worth noting that there are presently seven potential projects within the Galilee Basin for which MLAs have been lodged. Immediately to the south of the Alpha Project is the Warratah Project, which is also known as Galilee or China First. To the south of the Warratah Project is the South Galilee Project. North of the Alpha Mine is the Kevin’s Corner Project, the Alpha North Project, the Carmichael Project and the Carmichael East Project.
It is uncontroversial that the Alpha Project is the most advanced, whilst the next most advanced project is Kevin’s Corner. It should be noted that the proponent of Kevin’s Corner is a related company of Hancock.
The Hearing
Both the MRA and EPA matters were heard together. The parties to both matters are identical, save for the Curries and the Statutory Party, who are only involved in the EPA proceedings.
Oral evidence was heard over a 13 day period from 16 September to 2 October 2013. After this, the parties exchanged written submissions, and oral submissions were heard on 25 October 2013.
Because of the volume of material, the hearing proceeded by way of etrial, which was very successful. I thank all those responsible for the smooth operation of the etrial.
Hancock was represented throughout the hearing by Mr Clotherier QC and Mr Pomerenke, instructed by Allens. CCAQ was represented by Mr Finanzio SC and Dr McGrath and Mr Watters, instructed by Environmental Defenders Office (Qld) Inc. Mr Loos represented the Statutory Party, instructed by the Department of Environment and Heritage Protection. Ms Kelly, the Andersons, Ms Cassoni, and the Curries all self represented.
Oral evidence was given during the hearing by the following:
·Ross David Willis, Chief Operating Officer, Alpha Coal Project, called by Hancock
·Mark Stewart, Principal Hydrologist, URS Australia Pty Ltd, called by Hancock
·Bruce Bede Currie, self represented objector
·Janeice Marie Anderson, self represented objector
·Martin Argente, Corporate Counsel, Hancock, called by Hancock
·Ian Donald Hair, Principal Hydro Geologist, Douglas Partners, called by Hancock
·Professor Roger Neville Jones, Professorial Research Fellow, Centre for Strategic Economic Studies, Victoria University, called by Ms Kelly
·Dr David Dique, Zoologist and Ecologist, Partner, EMR Australia Pty Ltd, called by Hancock
·Marcus Robert Brown, Economist, Economic Associates Pty Ltd, called by Hancock
·Christopher John Loveday, Environmental Scientist, Department of Environment and Heritage Protection, called by the Statutory Party
·Dr Chris Taylor, Environmental Scientist, URS, called by Hancock
·Andre Offen, Coal Marketing Expert, called by Hancock
·Jonathan Jeffrey Stanford, Economist and Climate Change Public Policy Expert, Inside Economics Pty Ltd, called by Hancock
·Eric Vanderduys, Zoologist, CSIRO, called by Ms Kelly
·Robert Harry Friend, Ecologist, called by Ms Cassoni
·Fiorella Paola Cassoni, self represented objector
·Dr Gavin Mudd, Environmental Engineer, Monash University, called by Ms Cassoni
·Professor David John Karoly, Environmental Scientist, Climate Change, University of Melbourne, called by CCAQ
·Dr John Allen Webb,[14] Hydrogeologist and Geologist, La Trobe University, called by CCAQ
·Dr Roderick Graham Duncan, Economist, Charles Sturt University, called by CCAQ
·Joanne Mary Salmond, property owner, Degulla Station, called by CCAQ
·Antoine Nsair, Energy Sector Statistical Expert, Marsden Jacob Associates, called by CCAQ
[14]I note that Dr Webb’s report of 27 June 2013, Exh 42, is signed off “Assoc Prof John Webb”, although the front of the report says “Dr John Webb” and the Joint Report of the groundwater experts, Exh 18, refers throughout to “Dr Webb”.
All parties expressed an interest in having the decision in these matters delivered quickly. There is no doubt that the various issues discussed in this matter are important, and that the Alpha Mine is a project of State and National significance.
At the conclusion of submissions, the parties were advised of my intention to deliver the decision by about the end of January 2014. Unfortunately, I was involved in a rather serious accident in December 2013 which of necessity meant that the decision had to be delayed. I apologise to all concerned regarding the delay, which was caused by circumstances beyond my control.
The statutory framework
As previously mentioned, these matters involve the hearing of objections under the MRA and the EPA. Pursuant to the MRA, it is also necessary for the Court to make recommendations to the relevant Minister regarding Hancock’s MLA 70426.
There is a rather complex statutory framework underpinning these matters, which involves the MRA, the EPA, the SDPWOA and the Water Act 2000 (Water Act).
As Hancock’s MLA is made pursuant to the MRA, it is appropriate to consider that legislation first.
MRA
Pursuant to s 268 of the MRA, the Court is required to conduct a hearing into the application for the grant of the mining lease and the MRA objections. Section 268 relevantly provides as follows:
“268 Hearing of application for grant of mining lease
(1) On the date fixed for the hearing of the application for the grant of the mining lease and objections thereto, the Land Court shall hear the application and objections thereto and all other matters that pursuant to this part are to be heard, considered or determined by the Land Court in respect of that application at the one hearing of the Land Court.
(2) At a hearing pursuant to subsection (1) the Land Court shall take such evidence, shall hear such persons and inform itself in such manner as it considers appropriate in order to determine the relative merits of the application, objections and other matters and shall not be bound by any rule or practice as to evidence.
(3) The Land Court shall not entertain an objection to an application or any ground thereof or any evidence in relation to any ground if the objection or ground is not contained in an objection that has been duly lodged in respect of the application. …”
Section 269 of the MRA then goes on to relevantly provide:
“269 Land Court’s recommendation on hearing
(1) Upon the hearing by the Land Court under this part of all matters in respect of an application for the grant of a mining lease, the Land Court shall forward to the Minister—
(a)any objections lodged in relation thereto; and
(b)the evidence adduced at the hearing; and
(c)any exhibits; and
(d)the Land Court’s recommendation.
Note—
For other relevant provisions about forwarding documents, see section 386O.
(2) For subsection (1)(d), the Land Court’s recommendation must consist of—
(a)a recommendation to the Minister that the application be granted or rejected in whole or in part; and
(b)if the application relates to land that is the surface of a reserve and the owner of the reserve has not consented to the grant of a mining lease over the surface area, the following—
(i) a recommendation to the Minister as to whether the Governor in Council should consent to the grant over the surface area;
(ii) any conditions to which the mining lease should be subject.
(3) A recommendation may include a recommendation that the mining lease be granted subject to such conditions as the Land Court considers appropriate, including a condition that mining shall not be carried on above a specified depth below specified surface area of the land.
(4) The Land Court, when making a recommendation to the Minister that an application for a mining lease be granted in whole or in part, shall take into account and consider whether—
(a) the provisions of this Act have been complied with; and
(b)the area of land applied for is mineralised or the other purposes for which the lease is sought are appropriate; and
(c)if the land applied for is mineralised, there will be an acceptable level of development and utilisation of the mineral resources within the area applied for; and
(d)the land and the surface area of the land in respect of which the mining lease is sought is of an appropriate size and shape in relation to—
(i) the matters mentioned in paragraphs (b) and (c); and
(ii) the type and location of the activities proposed to be carried out under the lease and their likely impact on the surface of the land; and
(e)the term sought is appropriate; and
(f)the applicant has the necessary financial and technical capabilities to carry on mining operations under the proposed mining lease; and
(g)the past performance of the applicant has been satisfactory; and
(h)any disadvantage may result to the rights of—
(i) holders of existing exploration permits or mineral development licences; or
(ii) existing applicants for exploration permits or mineral development licences; and
(i)the operations to be carried on under the authority of the proposed mining lease will conform with sound land use management; and
(j)there will be any adverse environmental impact caused by those operations and, if so, the extent thereof; and
(k)the public right and interest will be prejudiced; and
(l)any good reason has been shown for a refusal to grant the mining lease; and
(m)taking into consideration the current and prospective uses of that land, the proposed mining operation is an appropriate land use.
(5) Where the Land Court recommends to the Minister that an application for the grant of a mining lease be rejected in whole or in part the Land Court shall furnish the Minister with the Land Court’s reasons for that recommendation.”
The objects of the MRA are also relevant. They are set out in s 2 as follows:
“2 Objectives of Act
The principal objectives of this Act are to—
(a)encourage and facilitate prospecting and exploring for and mining of minerals;
(b)enhance knowledge of the mineral resources of the State;
(c)minimise land use conflict with respect to prospecting, exploring and mining;
(d)encourage environmental responsibility in prospecting, exploring and mining;
(e)ensure an appropriate financial return to the State from mining;
(f)provide an administrative framework to expedite and regulate prospecting and exploring for and mining of minerals;
(g)encourage responsible land care management in prospecting, exploring and mining.”
EPA
It should be noted at the outset that the EPA has undergone significant amendment subsequent to the lodging of objections, and that those amendments directly relate to the objection process under the EPA. The significant amendments commenced on 31 March 2013.[15] For the purposes of this decision, s 683 of the EPA (as currently enacted) provides that the previous provisions of the EPA, under former Chapter 5, apply. Accordingly, the provisions which relevantly commenced on 31 March 2013 are to be ignored. All further references in this decision to the EPA will be to those provisions from the former Chapter 5 of the EPA. As Mr Loos points out in his submissions, the relevant reprint of the EPA is Reprint 11B as in force as at 11 December 2012.[16]
[15]See Environmental Protection (Greentape Reduction) and Other Legislation Amendment Act 2012 No. 16.
[16]Statutory Party Submissions, 18 October 2013, para 24.
The object of the EPA is important. Section 3 of the EPA provides as follows:
“3 Object
The object of this Act is to protect Queensland’s environment while allowing for development that improves the total quality of life, both now and in the future, in a way that maintains the ecological processes on which life depends (ecologically sustainable development).
4How object of Act is to be achieved
(1) The protection of Queensland’s environment is to be achieved by an integrated management program that is consistent with ecologically sustainable development.
(2) The program is cyclical and involves the following phases—
(a)phase 1—establishing the state of the environment and defining environmental objectives;
(b)phase 2—developing effective environmental strategies;
(c)phase 3—implementing environmental strategies and integrating them into efficient resource management;
(d)phase 4—ensuring accountability of environmental strategies.
(3) The relationship between each of the phases is shown in the figure appearing at the end of this Act.
(4) Phase 1 is achieved by—
(a)researching the state of the environment, including essential ecological processes; and
(b)deciding environmental values to be protected or achieved by consulting industry, government departments and the community.
(5) Phase 2 is achieved by—
(a)developing environmental protection policies that, among other things—
(i) decide environmental indicators; and
(ii) establish ambient and emission standards for contaminants; and
(iii) require waste management, including waste prevention and minimisation; and
(iv) advise on management practices; and
(b)promoting environmental responsibility and involvement within the community.
(6) Phase 3 is achieved by—
(a)integrating environmental values into land use planning and management of natural resources; and
(b)ensuring all reasonable and practicable measures are taken to protect environmental values from all sources of environmental harm; and
(c)monitoring the impact of the release of contaminants into the environment; and
(d)requiring persons who cause environmental harm to pay costs and penalties for the harm.
(7) Phase 4 is achieved by—
(a)reviewing the results of human activities on the environment; and
(b)evaluating the efficiency and effectiveness of environmental strategies; and
(c)reporting publicly on the state of the environment.
5Obligations of persons to achieve object of Act
If, under this Act, a function or power is conferred on a person, the person must perform the function or exercise the power in the way that best achieves the object of this Act.
6Community involvement in administration of Act
This Act is to be administered, as far as practicable, in consultation with, and having regard to the views and interests of, industry, Aborigines and Torres Strait Islanders under Aboriginal tradition and Island custom, interested groups and persons and the community generally.”
As I said in the Land Court decision of Donovan v Struber & Ors:[17]
“[14]The objects of the EP Act are vastly different from the objects of the MRA. While the key object of the MRA is to facilitate the mining of the State’s resources, s.3 of the EP Act states that the object of that Act is to protect Queensland’s environment while allowing for development that improves the total quality of life, both now and in the future, in a way that maintains the ecological processes on which life depends (ecologically sustainable development).
[15]Section 4 of the EP Act provides for an integrated management program, which involves implementing environmental strategies and integrating them into efficient resource management. Accountability is an important element, while s.8 defines ‘environment’ and s.9 defines ‘environmental value’. Section 14 defines ‘environmental harm’ and how it may be caused by an activity. Section 15 defines ‘environmental nuisance’ as unreasonable interference or likely interference with an environmental value caused by:
(a) noise, dust, odour, light; or
(b) an unhealthy, offensive or unsightly condition because of contamination; or
(c)another way prescribed by regulation”
[17](2011) 32 QLCR 226.
Section 14 of the EPA refers to environmental harm:
“14 Environmental harm
(1) Environmental harm is any adverse effect, or potential adverse effect (whether temporary or permanent and of whatever magnitude, duration or frequency) on an environmental value, and includes environmental nuisance.
(2) Environmental harm may be caused by an activity—
(a)whether the harm is a direct or indirect result of the activity; or
(b)whether the harm results from the activity alone or from the combined effects of the activity and other activities or factors.”
The administering authority prepared the draft EA pursuant to s 208 of the EPA. The draft EA includes conditions which have been included in accordance with s 210 of the EPA. This section is important in light of the Coordinator-General’s Report and the conditions contained therein. Section 210 states as follows:
“210 Conditions that may and must be included in draft environmental authority
(1) The administering authority may include conditions in the draft environmental authority it considers necessary or desirable.
(2) However, if a relevant mining lease is, or is included in, a significant project—
(a)the administering authority must include in the draft any conditions for the draft stated in the Coordinator-General’s report for the project (Coordinator-General’s conditions); and
(b)any other condition included in the draft must not be inconsistent with a Coordinator-General’s condition.
(3) The administering authority may include in the draft a condition that requires or otherwise relates to an environmental offset (an environmental offset condition) if the administering authority is satisfied that all cost-effective on-site mitigation measures for the relevant mining activities have been, or will be, undertaken.
(4) An environmental offset condition may require works or activities to be undertaken on land on which a relevant mining activity is carried out or on other land in the State.
(5) An environmental offset condition may require a monetary payment to an environmental offset trust.
(6) If the applicant has entered into an agreement about an environmental offset for this section, an environmental offset condition may require the authority holder to comply with the agreement.
(7) In fixing proposed conditions for the draft, the administering authority must—
(a)comply with any relevant regulatory requirement; and
(b)subject to paragraph (a), consider—
(i) the application documents for the application; and
(ii) the standard criteria; and
(iii) to the extent the application relates to mining activities in a wild river area—the wild river declaration for the area.
(8) Subject to subsection (7), the proposed conditions must include conditions about rehabilitation objectives, indicators and completion criteria.
(9) The applicant may enter into an agreement with the administering authority or another entity to establish the obligations, or secure the performance, of a party to the agreement about a condition.
(10) In this section—
environmental offset means works or activities undertaken to counterbalance the impacts of a relevant mining activity on the natural environment.
on-site mitigation measure, for a relevant mining activity, means a measure, undertaken on land to which the activity relates, to avoid or minimise negative impacts of the activity on the natural environment.”The right to make an objection under the EPA is set out in s 216. The objection may be about the EA Application, the draft EA for the application, or a condition included in the draft.
Importantly, s 216(2) goes on to provide as follows:
“(2) Also, a Coordinator-General’s condition included in the draft under section 210 can not be objected to by anyone.”
The decision that this Court makes in hearing the EPA objection is governed by s 222, which relevantly provides as follows:
“222 Nature of objections decision
(1) The objections decision for the application must be a recommendation to the EPA Minister that—
(a)the application be granted on the basis of the draft environmental authority for the application; or
(b)the application be granted, but on stated conditions that are different to the conditions in the draft; or
(c)the application be refused.
(2) However, if a relevant mining lease is, or is included in, a significant project and, under section 210, Coordinator-General’s conditions were included in the draft, any stated conditions under subsection (1)(b)—
(a)must include the Coordinator-General’s conditions; and
(b)must not be inconsistent with a Coordinator-General’s condition.
…”
Another important section to be considered by this Court is s 223 of the EPA. That section provides:
“223 Matters to be considered for objections decision
In making the objections decision for the application, the Land Court must consider the following—
(a)the application documents for the application;
(b)any relevant regulatory requirement;
(c)the standard criteria;
(d)… ;
(e)each current objection;
(f)any suitability report obtained for the application;
(g)the status of any application under the Mineral Resources Act for each relevant mining tenement.”
It is via the mechanism of s 223 that the “precautionary principle” comes into play. As I stated in De Lacey & Anor v Kagara Pty Ltd:[18]
[18](2009) 30 QLCR 57. Note paragraphs incorrectly numbered in The Reports as [172] – [176].
“[174]‘Standard criteria’ (see s. 223(c) above) is defined in Schedule 3 of the EP Act in part as follows:
‘ “standard criteria” means–
the principles of ecologically sustainable development as set out in the ‘National Strategy for Ecologically Sustainable Development’; and . .. . .’
[175]Further in Schedule 3 of the EP Act, “National Strategy for Ecologically Sustainable Development” is defined as follows:
‘ “National Strategy for Ecologically Sustainable Development” means the ‘National Strategy for Ecologically Sustainable Development’ endorsed by the Council of Australian Governments on 7 December 1992.” ’
[176]The National Strategy for Ecologically Sustainable Development of December 1992 contains the following statement of Australia’s goal, core objectives and guiding principles for the Strategy:
‘The Goal is:
Development that improves the total quality of life, both now and in the future, in a way that maintains the ecological processes on which life depends.
The Core Objectives are:
• to enhance individual and community well-being and welfare by following a path of economic development that safeguards the welfare of future generations
• to provide for equity within and between generations
• to protect biological diversity and maintain essential ecological processes and life-support systems
The Guiding Principles are:
• decision making processes should effectively integrate both long and short-term economic, environmental, social and equity considerations
• where there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation
•the global dimension of environmental impacts of actions and policies should be recognised and considered
• the need to develop a strong, growing and diversified economy which can enhance the capacity for environmental protection should be recognised
•the need to maintain and enhance international competitiveness in an environmentally sound manner should be recognised
• cost effective and flexible policy instruments should be adopted, such as improved valuation, pricing and incentive mechanisms
•decisions and actions should provide for broad community involvement on issues which affect them
These guiding principles and core objectives need to be considered as a package. No objective or principle should predominate over the others. A balanced approach is required that takes into account all these objectives and principles to pursue the goal of ESD.’
[177]From the precautionary principle perspective, the key is the second bullet point to the guiding principles in the paragraph above, which sets out in a lengthened form what is currently referred to as the precautionary principle – that is, ‘where there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation.’”
Section 269(4)(g) – Has the past performance of the applicant been satisfactory?
With respect to this criterion, Mr Willis said that:[181]
[181]Exh 13 paras 67-71, pages 13-14.
“67Apart from being the Applicant for MLA 70426, Hancock Coal is the holder of Mineral Development License 285 (MDL 285).
68.Hancock Coal has:
(a) carried out exploration; and
(b) constructed and operated a bulk test pit,
on MDL 285.
69.In relation to the bulk test pit:
(a) the environmental authority for MDL 285 was varied on 30 June 2010, granting approving for bulk sample activities;
(b) MDA 285 was varied on 23 July 2010, granting approval for bulk sampling of up to 450,000 tonnes of run-of-mine (ROM or raw) coal;
(c) site works commenced in September 2010;
(d) coal was progressively transported from the site over the period from June to July 2011;
(e) a total of 123,000 tonnes of crushed coal was transported offsite for washing and transport to overseas customers in South Korea and China for combustion trials; and
(f) site remediation works were concluded in October 2011.
70.Hancock Coal has not bee issued with a show cause notice under the Act (or the Environmental Protection Act 1994) in relation to MDL 285, or had any mining tenement cancelled under the Act.
71.Accordingly, I believe the past performance of Hancock Coal is satisfactory.”
I am satisfied that the past performance of Hancock has been satisfactory.
Section 269(4)(h) – Will any disadvantage result to the holders of existing exploration permits or mineral development licences or existing applicants for exploration permits or mineral development licences?
As Mr Willis pointed out:[182]
[182]Exh 13 paras 72-77.
“72.When the MLA was lodged, the proposed ML area overlapped parts of the following mining tenements held by persons other than the Applicant:
(a)Exploration Permit for Coal (EPC) 1201; and
(b)Mineral Development Licence (MDL) for Coal 333.
73.At that time, EPC 1201 and MDL 333 were held by wholly-owned subsidiaries of HPPL.
74.Page 22 of Exhibit RDW-1 is a letter from HPPL acknowledging the MLA and consenting to its grant over EPC 1210 and MDL 333.
75.EPC 1210 is now held by Hancock Kevin’s Corner Pty Ltd. Page 23 of Exhibit RDW-1 is a letter from Hancock Kevin’s Corner Pty Ltd acknowledging the MLA and consenting to its grant over EPC 1210.
76.MDL 333 is now held by Hancock Galilee Pty Ltd. Page 24 of Exhibit RDW-1 is a letter from Hancock Galilee Pty Ltd acknowledging the MLA and consenting to its grant over MDL 333.
77.Accordingly, I do not believe any disadvantage will result to the rights of existing holders or applicants for exploration permits if the Mining Lease is granted.”
I agree with Mr Willis.
Section 269(4)(i) – Do the operations to be carried on under the authority of the mining lease conform with sound land use management?
I have no doubt that at least some of the objectors believe that no mining operations should be undertaken on the land. Other objectors are content for the mine to proceed only if it is specially conditioned so that make-good agreements are entered into as well as baseline bore monitoring.
On the other hand, it must be accepted, given the evidence in this matter, that the subject area contains a very significant amount of coal which Hancock believes it can economically mine.
Although the objects of the MRA can be said to favour the grant of a mining lease, I have already addressed my concerns regarding groundwater, as well as made-good agreements and baseline bore monitoring.
If following full statutory processes, Hancock is granted all necessary water licences to take and interfere with water, and on the basis that conditions as proposed by me relating to baseline bore monitoring and make good agreements are made, then and only then would I be satisfied that this criterion has been met.
Section 269(4)(j) – Will there be any adverse environmental impacts, and if so, the extent thereof:
There are clear environmental concerns regarding this mining project, which is why I am recommending a precautionary approach be undertaken.
If following full statutory processes, Hancock is granted all necessary water licences to take and interfere with water, and on the basis that conditions as proposed by me relating to baseline bore monitoring and make good agreements are made, then and only then would I be satisfied that this criterion has been met.
Section 269(4)(k) – Will the public right and interest be prejudiced?
Given the unsatisfactory nature of the evidence relating to groundwater, it is not in the public interest for MLA 70426 to be granted. However, if, following full statutory processes, Hancock is granted all necessary water licences to take and interfere with water, and on the basis that conditions as proposed by me relating to baseline bore monitoring and make good agreements are made, then and only then would I be satisfied that this criterion has been met.
Section 269(4)(l) – Has any good reason been shown for a refusal to grant the mining lease?
Given the unsatisfactory nature of the evidence relating to groundwater, good reason has been shown for a refusal to grant the mining lease.
However, as previously indicated, if, following full statutory process, Hancock is granted all necessary water licences to take and interfere with water, and on the basis that conditions as proposed by me relating to baseline bore monitoring and make good agreements are made, then and only then would I be satisfied that this criterion has been met.
Section 269(4)(m) – Is the proposed mining operation an appropriate land use taking into consideration the current and prospective uses of the land?
The materials show that the project is for the extraction of a very valuable resource in accordance with the environmental processes and Coordinator-General conditions.
My concerns relate to groundwater issues, make-good agreements, and baseline monitoring, all relevant not to the actual area of the MLA, but to the surrounding district.
I am satisfied that the proposed mining operation is an appropriate land use of the application land.
Conclusion
I am not afraid to admit that my findings and conclusions as already expressed leave me in somewhat of a conundrum as to the legal nature of the recommendations that I should properly make pursuant to the MRA and the EPA.
There is no difficulty as regards baseline bore monitoring and make-good agreements with respect to the landholders’ properties.
My concern relates principally to my lack of confidence, from a precautionary perspective, in the groundwater evidence and, because of that, my concerns regarding the knock-on effect to ecology should the predictive groundwater modelling relied on by Hancock not be correct.
CCAQ had this to say regarding my concern:[183]
“91.If the Court is concerned about recommending refusal on the basis of groundwater alone, it is respectfully submitted that it should still recommend refusal, but make a finding that the uncertainty may be able to be addressed by the Minister exercising his powers under s 271A of the MRA to refer the matter back to this Court for a further hearing on the groundwater issue.”
[183]CCAQ Submissions, 18 October 2013, para 91 page 59.
There is no doubt that s 271(A) MRA allows an MLA matter to be referred back to the Land Court. However, that step follows the Land Court first making its recommendations to the Minister and, as previously set out, that recommendation must be 1 of 3, vis
·the MLA be granted
·the MLA be rejected
·the MLA be granted on stated conditions
I do not believe that it would be a proper recommendation for me to recommend acceptance of the MLA subject to the matter being referred back to the Land Court for hearing of the groundwater and related ecology matters. Such a recommendation is not a condition.
I am of the opinion that, particularly after further research is undertaken by Hancock in light of the evidence of Dr Webb and Dr Mudd (and, for that matter, its own experts Mr Stewart and Mr Hair )the groundwater evidence and modelling may well be sufficient, following full Water Act processes, for Water Licences to be granted to Hancock to take and use water pursuant to s 206(1)(a) of the Water Act and to interfere with water pursuant to s 206(1)(b) of the Water Act, on such conditions, including but not limited to those recommended by the Coordinator-General, with the result that all my concerns that arise under the precautionary principle are satisfactorily answered for the purposes of my recommendations in this matter.
However, as matters currently stand, I cannot be so satisfied.
Given this state of affairs, I have decided to make recommendations to the Honourable the Minister responsible for the MRA in the alternative. Those recommendations are as follows:
EITHER
“That MLA 70426 be rejected”
OR“That MLA 70426 be granted, subject to the condition that approval be subject to Hancock first obtaining licences to take, use and interfere with water under s 206(1)(a) and (b) of the Water Act such that all concerns pursuant to the precautionary principle are resolved”
As regards the EPA, my reasoning is the same as that for the MRA.
I recommend to the Honourable the Minister responsible for the EPA in the alternative. Those recommendations are as follows:
EITHER
“That draft Environmental Authority (Mining Lease) Non-Code Compliant Level 1 Mining Project Permit Number MIN101017310 – Alpha Coal Mine be refused”
OR
“That draft Environmental Authority (Mining Lease) Non-Code Compliant Level 1 Mining Project Permit Number MIN101017310 – Alpha Coal Mine be granted, subject to the following conditions:
(a)that approval be subject to Hancock first obtaining licences to take, use and interfere with water under s 206(1)(a) and (b) of the Water Act such that all concerns pursuant to the precautionary principle are resolved;
(b)the draft Environmental Authority be amended by the insertion in table 15 of three additional monitoring points, one located on each of the Anderson’s Currie’s and Ms Cassoni’s properties, with each given the parameter of water level, with at least one reading every twelve hours by electronic data reader;
and
(c)that there be a condition in the draft Environmental Authority to the effect that Hancock enter into make-good agreements with the Curries, the Andersons, and Ms Cassoni, within either twelve months of the grant of ML 70426, or before commencement of mining activities, whichever is the sooner”.
Independence of the Land Court
I find it unfortunate that the question of the Land Court being a “rubber stamp” under the MRA and EPA processes first raised its head at the directions hearing on 13 March 2013, and concerns in that regard continued up until CCAQ’s submissions on 18 October 2013 (at least).
As CCAQ said in their submissions:[184]
[184]CCAQ Submissions, 18 October 2013, para 116.
“116.…
(b) This should be categorically rejected. As this Court has previously observed in this very matter, the Court is not a ‘rubber stamp’ and should not be viewed as such by anyone.
(c) It is unsurprising that governments, in the business of being popularly elected, may favour projects with the potential to deliver short-term economic benefits to their constituents, but the function of this Court, under both the EPA and the MRA, is to act independently, to provide a forum for the ventilation of argument and the rigorous testing of evidence and, after that, to make a full and frank report to the Minister regarding the likely impacts, positive and negative, of the proposals before it.
(d) The importance of this function, and proper approach to it, was recognised by Barwick CJ, with whom Murphy J agreed, in Sinclair v Maryborough Mining Warden. His Honour said:
It is to my mind very important that hearing of an application and of objections thereto by a mining warden take place according to law. The purpose of notifying the making of the applications, indicating the time for objections and of the date of hearing, is to afford the applicant on the one hand an opportunity to justify in a public hearing the grant of a mining lease, both in point of area and point of term, and also to give the public an opportunity of opposition supported by evidence to the grant of a mining lease. I cannot accept the proposition that the hearing of the application and of the objections is a mere formality…
(e) In particular, the Court serves a unique function in the assessment of EA and mining lease applications by providing for the public testing of evidence. While Alpha may have received a number of government approvals prior to the hearing, the reality is that these approvals were provided with little opportunity for interested parties to challenge the assertions made by Hancock. The importance of this testing is underlined by the fact that Hancock has made a number of significant concessions regarding its evidence that might well have been material to those earlier decisions, but were only exposed through this process.
(f) Ultimately, this Court has to discharge the vital functions conferred on it by statute. As Mr Stanford conceded, none of the policies he identified had the effect of changing the legislative regime to be applied by this Court and this Court should not shy away from fully and vigorously examining the evidence simply because of a perception of what ‘Governments’ want.”
In case anyone is in any doubt, I accept the observations of Barwick CJ from Sinclair.[185] I too cannot accept the proposition that the hearing of the application and of the objections is a mere formality.
[185]Sinclair v Maryborough Mining Warden (1975) 132 CLR 473 at 481.
Further, I must stress that I do not believe that there was ever any intent by Hancock or any of its legal advisors to suggest otherwise, and that any suggestion to the contrary was mere inadvertence.
I accept without reservation the assurance given by Mr Clothier QC as follows:[186]
“MR CLOTHIER: And I'm happy too-----
…
MR CLOTHIER: -----clarify that immediately. That's certainly not the intention, and in response to something that Ms Kelly had to say, for example, the applicant takes this objections process very seriously and recognises the rights of objectors to object under the statutory process and recognises that your Honour certainly isn't in a position of rubber stamping an application for a mining lease. Your Honour considers the objections together with the application and makes a decision according to your Honour's oath. So I don't assert - the applicant certainly doesn't assert that there is any disentitlement of the objectors to object, to go through a full process, which will have regard to your Honour's impartial consideration of the matter and recommendation.
HIS HONOUR: It just reads that way.
MR CLOTHIER: It shouldn't. But then, your Honour, I understand that. … We don't urge, for a moment that this is anything other than a proper and independent and transparent process, the result of which is that your Honour will make an honest recommendation according to your Honour's views, which may be in favour of granting the application and the recommendation, or maybe against it. There's no pre-emption of the outcome.”
[186]T 13 March 2013 p 8 line 35 – p 9 line 15.
To state what I hope is the obvious, I hold dear the principle of the independence of the judiciary from government. I also hold dear the Oath that I have sworn to decide all matters before me, without fear or favour, to the best of my ability.
In case it is of any interest to anyone, one side of my family includes proud work in the coal mines of Ipswich, while the other side of my family worked the land growing sugar cane. As for me, it was an honour and a privilege to serve the people and government of Queensland as a public servant for over 25 years.
I also do not suggest in any way that any element of government of this State or the Commonwealth has in any form whatsoever (save of course for the most proper submissions of the Statutory Party) sought to influence the outcome of this decision in any way. Nothing could be further from the truth.
Postscript and Clarification
Firstly, by way of clarification, I wish to express my understanding should any of the parties (if not all of the parties) be dissatisfied with my making of recommendation in the alternative.
I have not adopted this course without considerable thought, or taking into account the likely consequences.
In particular, I accept that it is at least arguable that the MRA and EPA do not contemplate the making of recommendations in the alternative. However, I have followed that course cognisant of the fact that in making recommendations, the Land Court is exercising administrative power and not a power of final determination.
Should it be considered, either by the Ministers, or on appeal,[187] that it was improper of me to make recommendations in the alternative, and I should instead make singular recommendations to each Minister, then my recommendations would of necessity be, in light of the precautionary principle, and however reluctantly, that MLA 70426 be rejected and the draft EA be refused.
[187]Should an appeal be open to any party in light of the Land Appeal Court decision of Dunn v Burtenshaw (2010) 31 QLCR 156.
I now turn to some final comments by way of postscript.
Firstly, I apologise that this decision is so long and contains so many quotes. As the parties are aware, I understand the urgency of the matter and have sought to do the decision as quickly as possible. However, that comes at a cost. As Mark Twain so eloquently put it:[188]
“I didn’t have time to write a short letter, so I wrote a long one instead.”
[188]Quote attributed to Mark Twain – see Similar quotes are attributed to George Bernard Shaw and Blaise Pascal.
Secondly, I apologise for the delay in completing this decision caused by the accident I suffered in December 2013 (as mentioned earlier in this decision). The parties can be assured that I profoundly wish that the accident had never occurred and I did not sustain injury.
Next, I would like to thank the officers of the Supreme Court who are responsible for the behind-the-scenes operation of the eTrial and the electronic database.
The fact that all material was available to me in electronic format was of immense assistance to me.
Finally, I must thank the staff of the Land Court, in particular my Deputy Registrars, Keren Astill (during the period leading up to the hearing and throughout the hearing) and Greg Grodecki (post hearing), and Executive Assistant, Margaret Christison, who has typed this entire decision.
Orders
1.I recommend to the Honourable the Minister responsible for the MRA in the alternative as follows:
EITHER
“That MLA 70426 be rejected”
OR“That MLA 70426 be granted, subject to the condition that approval be subject to Hancock first obtaining licences to take, use and interfere with water under s 206(1)(a) and (b) of the Water Act such that all concerns pursuant to the precautionary principle are resolved”
2.I recommend to the Honourable the Minister responsible for the EPA in the alternative as follows:
EITHER
“That draft Environmental Authority (Mining Lease) Non-Code Compliant Level 1 Mining Project Permit Number MIN101017310 – Alpha Coal Mine be refused”
OR
“That draft Environmental Authority (Mining Lease) Non-Code Compliant Level 1 Mining Project Permit Number MIN 101017310 – Alpah Coal Mine be granted, subject to the following conditions:
(a)that approval be subject to Hancock first obtaining licences to take, use and interfere with water under s 206(1)(a) and (b) of the Water Act such that all concerns pursuant to the precautionary principle are resolved;
(b)the draft Environmental Authority be amended by the insertion in table 15 of three additional monitoring points, one located on each of the Anderson’s Currie’s and Ms Cassoni’s properties, with each given the parameter of water level, with at least one reading every twelve hours by electronic data reader;
and
(c)that there be a condition in the draft Environmental Authority to the effect that Hancock enter into make-good agreements with the Curries, the Andersons, and Ms Cassoni, within either twelve months of the grant of ML 70426, or before commencement of mining activities, whichever is the sooner”.
PA SMITH
MEMBER OF THE LAND COURT
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