Hancock Galilee Pty Ltd v Currie
[2017] QLC 35
•4 July 2017
LAND COURT OF QUEENSLAND
CITATION: Hancock Galilee Pty Ltd v Currie & Ors [2017] QLC 35 PARTIES: Hancock Galilee Pty Ltd (applicant) v Bruce Bede Currie and Annette Helen Currie (first and second respondents) Coast and Country Association of Queensland Inc. (third respondent) Mackay Conservation Group (fourth respondent) North Queensland Conservation Council (fifth respondent) Paul Anthony Anderson, Janice Marie Anderson and
Peter Neil Anderson(objectors) Chief Executive Department of Environment and
Heritage Protection(statutory party) FILE NO/s: MRA713-13 EPA714-13 DIVISION: General division PROCEEDING: Application for a mining lease and objections to its grant, objections to environmental authority. DELIVERED ON: 4 July 2017 DELIVERED AT: Brisbane HEARD ON: 19, 20, 21, 22, 23, 26, 27, 30 October 2015 HEARD AT: Brisbane MEMBER: WL Cochrane ORDER/S:
1.
Pursuant to s 269(1) of the Mineral Resources Act 1989 I recommend to the Honourable Minister administering the Mineral Resources Act 1989 that mining lease MLA 70425 be granted over the application area for the period sought.
2. Pursuant to s 190(1)(a)(ii) of the Environmental Protection Act 1994 I recommend to the administering authority that the Environmental Authority be issued in the terms of the draft Environmental Authority issued on 5 July 2013.
CATCHWORDS: MINING – MINING LEASE – RECOMMENDATIONS – OBJECTIONS ENVIRONMENT – DRAFT – ENVIRONMENTAL
AUTHORITY – OBJECTIONSEnvironmental Protection Act 1994, s 3, s 5, s 8, s 125,
s 160, s 181, s 182, s 185, s 190, s 191, s 219, s 220, s 222,
s 223, s 334ZP, s 334ZREnvironment Protection Biodiversity Conservation Act 1999, s 191 s 269, s 422
Mineral Resources and Other Legislation Amendment
Regulation (No. 1) 2017
National Environmental Protection Council (Queensland)
Act 1994
Petroleum and Gas (Production and Safety) Regulation
2004
State Development and Public Works Organisation Act
1971
The Water Reform and Other Legislation Amendment Act
2014
Water Act 2000Adani Mining Pty Ltd v The Land Services of Coast and Country Inc & Ors [2015] QLC 48 Commercial Union Assurance Company of Australia Limited v Ferrcom Pty Ltd (1991) 22 NSWLR 389 Hancock Coal Pty Ltd v Kelly & Ors and Department of Environment and Heritage Protection (2014) 35 QLCR 56
Telstra Corporation v Hornsby Shire Council (2006) 146LGERA 10 APPEARANCES: DG Clothier QC, with Mr S Webster (instructed by Ashurst
Australia) for the applicant
BB Currie for the first and second respondents, in person
Dr CJ McGrath of Counsel (instructed by EnvironmentalDefender’s Office (Qld)) for the third respondent P Julien, research analyst for the fourth respondent, in person W Tubman, coordinator, and K Kelly for the fifth respondent,
in person SOLICITORS: AM Ireland, Lawyer, Litigation Unit, Department of Environment and Heritage Protection, for the statutory party
INDEX
| Background | ........................................................................................................................ [1] |
Legislative Requirements ................................................................................................. [17]
The Objections Pursuant to the Mineral Resources Act 1989 .......................................... [66]
Coast and Country Association of Queensland (CCAQ) Objection ............................ [66]
The Opening of Coast and Country Association of Queensland Inc ........................ [67]
Mackay Conservation Group Inc. Objection ................................................................ [77]
The Approach of NQCC – Ms Tubman .................................................................... [79]
Bruce Currie and Annette Currie Objection ................................................................. [91]
Paul, Janeice, Peter and Julia Anderson Objection ....................................................... [92]
The Evidence of Dr Adrian Zammit ................................................................................. [96]
The Evidence of Dr David Dique – Ecologist ................................................................ [100]
The Evidence of Andrew David Mifflin – Executive General Manager Development
| Projects | ........................................................................................................................... [134] |
Groundwater Evidence – Mr Mark Stewart and Dr John Webb .................................... [154]
The Water Reform and Other Legislation Amendment Act 2014 ................................... [248]
The Evidence of Robert Storrs – Environmental Scientis .............................................. [275] he Evidence of Christopher Loveday – Assessment Manager DEHP ............................ [290]
| Economics | ...................................................................................................................... [304] |
Section 269 of the MRA ................................................................................................. [335]
Section 269(4)(a) – Whether the provisions of the Act have been complied with? ... [339]
Section 269(4)(b) – Whether the land applied for is mineralised or the other purposes
for which the lease is sought are appropriate? ............................................................ [342]
Section 269(4)(c) – If the land applied for is mineralised, whether there be an acceptable
level of development and utilisation for the mineral resources within the area applied
for? ............................................................................................................................. [346]
Section 269(4)(d) – Whether the land and the surface area of that land are of an
appropriate size and shape? ........................................................................................ [348]
Section 269(4)(e) – Whether the term sought is appropriate? .................................... [350]
Section 269(4)(f) –Whether the applicant has the necessary financial and technical
capabilities to carry on mining operations under the proposed mining lease? .......... [352]
Section 269(4)(g) – Whether the past performance of the applicant has been
| satisfactory? | ................................................................................................................ [355] |
Section 269(4)(h) – Whether any disadvantage will result to the holders of existing
exploration permits or mineral development licences or to existing applicants for
exploration permits or mineral development licences? .............................................. [356]
Section 269(4)(i) –Whether the operations to be carried on under the authority of the
mining lease conform with sound land use management? ......................................... [361]
Section 269(4)(j) – Whether there will be any adverse environmental impact caused by
those operations and, if so, the extent thereof?...........................................................[362]
Section 269(4)(k) – Whether the public right and interest will be prejudiced?..........[364]
Section 269(4)(l) – Where there is any good reason shown for a refusal to grant the
mining lease?..............................................................................................................[371]
Section 269(4)(m) – Whether the proposed mining operation is an appropriate land use,
taking into consideration the current and prospective uses of that land? ................... [372]
Section 191 of the Environmental Protection Act 1994 ................................................ [374]
Conclusion ...................................................................................................................... [379]
Orders
Annexure A
Annexure B
Background
On the 12 December 2013 this Court received, pursuant to the provisions of the
Mineral Resources Act 1989 (‘the MRA’) and the Environmental Protection Act 1994
(‘the EPA’), a referral of both mining objections and environmental objections which
relate to an application made by Hancock Galilee Pty Ltd for a mining lease MLA
70425 and an environmental authority which related to a proposal to develop a
combined underground and open cut thermal coal mine in the Galilee basin in Central
Queensland.
The project is generally referred to as the Kevin’s Corner Mine.
The proposal intended to achieve an output of approximately 30,000,000 tonnes of
coal per annum.[1]
[1] See Attachment 3 to the referral (application for mining lease).
The relevant applications for both the mining lease and the Environmental Authority
were made in December 2009.
In documents accompanying the application for a mining lease the applicants
provided an overview description of the proposed mining program in the following
terms:[2]
[2] Ibid page 38.
“Hancock Galilee is investigating the opportunity to develop the Kevin’s
Corner Coal Project, a large scale thermal coal mine in the Galilee Basin of Queensland, Australia that will be supported by privately owned and operated rail and port infrastructure facilities.
Upon final development, the Project will produce 30mt pa of export quality thermal coal over a 30 year plus mine life. The coal will be transported more than 400km to its currently preferred port location at Abbott Point in Queensland. It is the current intention of Hancock Galilee to enter into an
agreement with a partner to develop the Kevin’s Corner Coal Project.
The project is located approximately 50km north of the township of Alpha, 130 km south-west of the township of Clermont and approximately 360km
south-west of Mackay in Central Queensland, Australia.”
The Kevin’s Corner Project was designated as a project of state significance by the
Coordinator-General pursuant to s 26(1)(a) of the State Development and Public
Works Organisation Act 1971 (‘the SDPWOA’). Because of that designation the
applicant was obliged to compile and deliver to the Coordinator-General a comprehensive environmental impact statement together with a supplementary
environmental impact statement and a number of other reports which were made
publicly available and which attracted comment.
The Coordinator-General considered the material contained in the environmental
impact statement and other materials and produced a report which was provided on
30 May 2013.
That report from the Coordinator-General recommended the Kevin’s Corner Project
proceed on the basis of certain imposed conditions and recommendations and as a
consequence of that recommendation the delegate of the Minister responsible for the
Environmental Protection Act issued a draft Environmental Authority which was
consistent with the requirements of the SDPWOA and the EPA subject to a number
of conditions.
The project also required the concurrence of the Commonwealth Government
pursuant to the Environmental Protection and Biodiversity Conservation Act 1999
(‘the EPBCA’) and on 1 November 2013 the Commonwealth Minister granted
environmental approval for the mine to proceed pursuant to the EPBCA. Again that
approval carried with it a number of conditions.[3]
[3] Ex 52.36.
As is pointed out in the Coordinator-General’s Evaluation Report, attachment 36 to
the environmental impact statement:[4]
[4] Ex 52.36, page 12.
“On 11 September 2009 the then Coordinator-General declared this project
to be a ‘significant project’ under section 26(1)(a) of the Queensland State
Development and Public Works Organisation Act 1971(SDPWO Act). This declaration initiated the statutory environmental impact evaluation procedure of Part 4 of the Act, which required the proponent to prepare an EIS for the project.
The SDPWO Act was amended in December 2012 (with the amendments taking effect on 21 December 2012). The amendments have renamed
‘significant project’ to ‘coordinated project.’ The project will be referred to
as a coordinated project throughout this evaluation report.”
In that Coordinator-General’s report the following components of the proposed
development were identified.[5]
[5] Ex 52.36, page 3.
“Two open-cut mine areas–with a combined area of 21 km2,
extending over an initial strike length of 6.5 km reducing to a steady
strike length of 4 km. Three underground mine areas–longwall panels would be approximately 400 metres (m) wide, between 3.5 km to 6 km long and an average extraction height of 4.5 m for the Central and Southern mines and 3.5 m for the northern mine. The width of coal left between longwall panels would be between 33.5 m and 46 m. Subsidence of up to a maximum of 2.9 m deep is expected at the surface.
Coal handling and preparation facilities–including sizing facilities for open-cut and underground operations, an overland conveyor system, automated stacking and reclaim facilities, a multi-module coal handling and preparation plant (CHPP), rail loop and spur. Mining infrastructure area–site operations control facilities, site vehicle parking, heavy vehicle tyre change facilities, vehicle wash facilities, servicing and maintenance workshops, small stores and first aid facilities.
Mine waste and water facilities–tailings storage facility, overburden emplacements and off-stream water dams. Light industrial area–workshop, warehouse, storage and welding facilities located along the mine access road adjacent to rail, power and water supplies and the airport. Other mine and support services located in this area would include security, administration, waste management and environmental management facilities.
Accommodation village–suitable for accommodating a workforce of approximately 2000 employees, situated approximately 10 km from
the mine. Airport–a 2.5 km runway to cater for aircraft up to and including an Airbus A230 or Boeing 737 located 8 km east of the project mine infrastructure area.
The following components would be located on the mining lease (refer to
Figure 2.3):
rail spur–2km (17.8 km including both on- and off-lease components) of rail infrastructure connecting to the proposed Alpha Coal project
railway mine access road–8km realignment of the Jericho-Degulla Road stock route–to be realigned where possible with the Jericho-Degulla
Road alignment.”
The proposed mining endeavour is not, in a sense, a standalone project. As the
Coordinator-General’s report pointed out, there are a number of dependencies on and
relationships with other projects. Those dependencies and relationships are set out in
the report as follows:[6]
[6] Ex 52.36, page 9.
“The project depends on the completion of the following projects, which are
currently at various stage of receiving environmental and other approvals
including the:
Alpha Coal project–an open cut coal mine adjoining the southern boundary of the Kevin’s Corner mine footprint and a rail line with a 60 mtpa capacity, which is proposed to be used but the Kevin’s Corner Project to transport product coal to Abbot Point. I determined that the Alpha Coal project could proceed subject to conditions on 24 May 2012. The project received the Commonwealth Environment Minister’s approval of the controlled action, subject to conditions on 23 August 2012. Galilee Basin Transmission Project – a higher voltage power transmission line proposed by Powerlink, which would provide power to the mine site and other Galilee Basin projects via a new 275-kilovolt transmission line from the existing Lilyvale Substation (near Emerald) to a new substation near Alpha.
Abbot Point Coal Terminal X110 Expansion Project (also known as Terminal 3 (T3)) – a new onshore coal terminal where coal from the Kevin’s Corner and Alpha coal projects for which Hancock Coal
Infrastructure Pty Ltd is the preferred developer. The project received the Federal Environment Minister’s approval of the controlled action, subject to conditions, on 10 October 2012. The impacts of the rail corridor, for transporting coal from both the Kevin’s
Corner and Alpha Coal mines, were considered as part of the Alpha Coal project.
The Kevin’s Corner project is also dependent on the ability of the proponent
to acquire access to 120 gigalitres of externally sourced water over the 30 year life of the mine (the subject of separate approvals) from the following two sources:
Purchase water allocation from the Emerald Fairbairn
Dam in association with a dedicated water pipeline Flood harvesting from the Belyando River.”
As indicated above, consequent upon review by the State Coordinator-General of the
environmental impact statement the Commonwealth Coordinator-General
recommended that the Kevin’s Corner project proceed on the basis on a number of
imposed conditions and recommendations.[7]
[7] Ex 36 Ex ADM-10 and Ex 52.36, pages 192 to 199.
The recommended conditions include:
(a) “Conditions which would require the proponent to detail the final offset sites proposed to satisfy matters of national environmental significance (and state-
significant biodiversity values offset requirements).(b)
A number of draft EA conditions to ensure effective rehabilitation of the project site. In particular all land disturbed by mining activities must be rehabilitated in accordance with rehabilitation completion criteria (as specified in the rehabilitation management plan and rehabilitation must commence progressively as areas become available.
(c)
A number of conditions and recommendations that apply to the construction and operation of the project in order to protect surface water and ground water values.
(d)
Recommendations to relevant state departments for the collation of monitoring data and the risk based assessment of regional cumulative impact from proposed mining activities to address potential cumulative impacts on regional water resources, including potential impacts on existing water users, aquatic habitat loss and impacts on ecological systems.
(e)
Conditions for inclusion as part of any Environment Protection Biodiversity Conservation Act (Cth) approval in order to address potential impacts on
matters of national environmental significance.”
A full copy of the Coordinator-General’s conditions is attached to this decision as
Annexure A.
Conditions Imposed by the Federal Minister for the Environment pursuant to s 130(1)
and 133 of the Environment Protection Biodiversity Conservation Act 1999 is
annexed hereto as Annexure B.
Legislative Requirements
Because this matter involves both objections pursuant to the provisions of the Mineral
Resources Act 1989 and objections made pursuant to the provisions of the
Environmental Protection Act 1994 it is necessary to identify the relevant
requirements of each of those acts.
The MRA sets out the processes to making objections to the grant of a mining lease.
Section 260 of that Act is the relevant section and provides that any objections are to
be made in writing, lodged with the chief executive in the approved form and set out
grounds of objection and the facts and circumstances relied upon by the objector in
support of those grounds.
Section 265 of the MRA applies and deals with the situation (as in the present case)
where there is a properly made objection for an application to a mining lease and the application for a mining lease relates to an application under s 125 of the EPA for an
environmental authority for a mining activity relating to a mining lease and where an
objection to that environmental authority has been made under the EPA or where the
applicant for an environmental authority has requested that the application for the
Environmental Authority should be referred to the Land Court.
Section 265 of the MRA then imposes an obligation upon the chief executive to refer:
(a) the application for the mining lease;
(b) all properly made objections for the application for the mining lease;
(c) all objection notices relating to the application for the environmental authority given under the Environmental Protection Act 1994, section 182(2); (d) if the applicant for the environmental authority has requested the EPA administering authority to refer the application to the Land Court under the Environmental Protection Act, section 183 —a copy of the request.
Once those matters are attended to the Land Court fixes a date for hearing.
The requirements imposed upon the Court for its making of a recommendation to the
Honourable the Minister are set out in s 269.
[24] Section 269(2) of the MRA provides that the Land Court must make a
recommendation to the Minister that the application be granted or rejected in whole
or in part.
Relevantly for this particular matter s 269(3) provides:
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 should not be carried on above a specified depth below specified surface area of the land.
Section 269(4) of the MRA sets out the criteria which the Court is required to take
into account and consider.
Those criteria are 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.
In this matter I confirm that I have taken into account and considered in detail each
of the s 269(4) criteria for the purpose of making my recommendation and have
included details of my consideration of each criterion under s 269(4) where an
objection has been made which has related to any of those relevant criteria.
The statutory requirements of the Environmental Protection Act 1994 are somewhat
different.
The object of the EPA is set out in s 3 which provides that:
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).
The obligations pursuant to the act which are imposed, inter alia, upon this Court are
set out in s 5 provides:
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.
Because issues relating to the environment are central to at least part of this decision
it is appropriate to give some consideration to how the Act defines “environment”
which it does in s 8, in the following terms:
Environment includes—
(a)
ecosystems and their constituent parts, including people and communities; and
(b) all natural and physical resources; and (c)
the qualities and characteristics of locations, places and areas, however large or small, that contribute to their biological diversity and integrity, intrinsic or attributed scientific value or interest, amenity, harmony and sense of community; and
(d)
the social, economic, aesthetic and cultural conditions that affect, or are affected by, things mentioned in paragraphs (a) to (c).
Section 160 of the EPA provides for the right of any entity, within the submission
period, to make a submission to the administering authority about the application.
Once the statutory party makes a decision on the application for the draft
Environmental Authority in accordance with Chapter 5, Part 5, Division 2,
Subdivision 2 of the EPA, the applicant and any submitters are notified of the decision
(see s 181) and a submitter may then, pursuant to s 182 of the EPA, give a written
notice to the statutory party that they request their submission to be taken to be an
objection to the application.
The statutory party then, pursuant to the obligations imposed upon it under s 185 of
the EPA, refers the matter(s) to the Land Court for the making of an objections
decision.
Pursuant to the EPA, the administering authority acted in accordance with the Act’s
requirements and referred to the objections to the Land Court.
The hearings under the MRA and EPA were conducted at the same time.
The EPA sets out in s 190 and s 191 the nature of the objection decisions and what
the Court must consider:
190 Nature of objections decision
(1) The objections decision for the application must be a recommendation to the administering authority that –
(a) if a draft environmental authority was given for the application—
(i) the application be approved on the basis of the draft environmental authority for the application; or
(ii) the application be approved, but on stated conditions that are different to the conditions in the draft environmental authority; or
(iii) the application be refused; or
(b) if a draft environmental authority was not given for the application—
(i) the application be approved subject to conditions; or (ii) the application be refused.
(2) However, if a relevant mining lease is, or is included in, a coordinated project, any stated conditions under subsection (1)(a)(ii) or (b)(i)—
(a) must include the Coordinator-General’s conditions; and (b) can not be inconsistent with a Coordinator-General’s condition.
191 Matters to be considered for objections decision
In making the objections decision for the application, the Land Court
must consider the following—
(a) the application; (b) any response given for an information request; (c) any standard conditions for the relevant activity or authority; (d) any draft environmental authority for the application; (e) any objection notice for the application; (f) any relevant regulatory requirement; (g) the standard criteria; (h) the status of any application under the Mineral Resources Act for each relevant mining tenure.
The term “standard criteria” referred to in s 191(g) is defined in Schedule 4 to the
EPA to mean:
standard criteria means—
(a) the following principles of environmental policy as set out in the Intergovernmental Agreement on the Environment—
(i) the precautionary principle; (ii) intergenerational equity; (iii) conservation of biological diversity and ecological integrity; and (b) any Commonwealth or State government plans, standards, agreements or requirements about environmental protection or ecologically sustainable development; and (d) any relevant environmental impact study, assessment or report; and (e) the character, resilience and values of the receiving environment; and (f) all submissions made by the applicant and submitters; and (g) the best practice environmental management for activities under any relevant instrument, or proposed instrument, as follows—
(i) an environmental authority; (ii) a transitional environmental program; (iii) an environmental protection order; (iv) a disposal permit; (v) a development approval; and (h) the financial implications of the requirements under an instrument, or proposed instrument, mentioned in paragraph (g) as they would relate to the type of activity or industry carried out, or proposed to be carried out, under the instrument; and (i) the public interest; and
(j) any relevant site management plan; and (k) any relevant integrated environmental management system or proposed integrated environmental management system; and (l) any other matter prescribed under a regulation.
The reference in that definition to the “Intergovernmental Agreement on the
Environment” is clarified further in Schedule 4 in the following terms:
Intergovernmental Agreement on the Environment means the agreement made on 1 May 1992 between the Commonwealth, the States, the Australian Capital Territory, the Northern Territory and the Australian Local Government Association.
Note—
A copy of the Intergovernmental Agreement on the Environment is in the National
Environment Protection Council (Queensland) Act 1994, schedule.That agreement appears as a schedule to National Environment Protection Council
(Queensland) Act 1994 and relevantly contains the following provisions:
3.5.1 Precautionary principle
Where there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation.
In the application of the precautionary principle, public and private decisions should be guided by:
(i) careful evaluation to avoid, wherever practicable, serious or irreversible damage to the environment; and
(ii) an assessment of the risk-weighted consequences of various options.
3.5.2 Intergenerational equity
The present generation should ensure that the health, diversity and productivity of the environment is maintained or enhanced for the benefit of future generations.
3.5.3 Conservation of biological diversity and ecological integrity
Conservation of biological diversity and ecological integrity should be a fundamental consideration.
The precautionary principle has been widely considered by this and by other Courts
in Australia.
Preston CJ said in Telstra Corporation v Hornsby Shire Council:[8]
“The application of the precautionary principle and the concomitant need to
take precautionary measures is triggered by the satisfaction of two conditions precedent or thresholds: a threat of serious or irreversible environmental damage and scientific uncertainty as to the environmental damage. These conditions or thresholds are cumulative. Once both of these conditions or thresholds are satisfied, a precautionary measure may be taken to avert the
anticipated threat of environmental damage, but it should be proportionate.”
[8] (2006) 146 LGERA 10 [128].
In his decision Preston CJ went on to observe that: [9]
“Determining the existence of a threat of serious or irreversible
environmental damage does not involve, at the stage of assessing the first condition precedent, any evaluation of the scientific uncertainty of the threat... If there is not a threat of serious or irreversible environmental damage, there is no basis upon which the precautionary principle can
operate.”
[9] (2006) 146 LGERA 10 [137] and [138].
Her Honour President MacDonald of this Court gave detailed consideration to the
observations of Preston CJ in the context of the precautionary principle in her decision
in Adani Mining Pty Ltd. [10]
[10] Adani Mining Pty Ltd v The Land Services of Coast and Country Inc & Ors [2015] QLC 48 (citations omitted).
In that case her Honour paraphrased the following sections from the decision of
Preston CJ:
“The second condition precedent required to trigger the application of the
principle is that there be a “lack of full scientific certainty”. The uncertainty
is as to the nature and scope of the threat of environmental damage. Full scientific certainty is not required. If there is no, or not considerable scientific uncertainty, the second condition precedent is not satisfied and even though there is a threat of serious or irreversible environmental damage (that is, the first condition precedent is satisfied) the precautionary principle will not apply. The threat of serious irreversible environmental damage can be classified as relatively certain because it is possible to establish a causal link between an action or event and environmental damage, to calculate the probability of their occurrence, and to insure against them. Measures will still need to be taken but these will be preventative measures to control or regulate the relatively certain threat of serious or irreversible environmental damage, rather than precautionary measures which are appropriate in relation to uncertain threats.
If each of the two conditions precedent is satisfied the precautionary principle will be activated. At this point the evidentiary burden of proof
shifts. A decision–maker must assume that the threat of serious or
irreversible environmental damage is no longer uncertain but is a reality. The burden of showing that the threat does not exist or is negligible reverts to the proponent of the development. The rationale for requiring this shift of the burden of proof is to ensure preventative anticipation; to act before scientific certainty of cause and effect is established. The preference is to prevent environmental damage rather than to remediate it.
The function of the precautionary principle is, therefore to require the decision-maker to assume that there is or there will be a serious or irreversible threat of environmental damage and to take this into account, notwithstanding that there is a degree of scientific uncertainty about whether the threat exists.
There is nothing in the formulation of the precautionary principle which requires the decision-maker to give the assumed factor (the serious or irreversible environmental damage) overriding weight compared to the other factors required to be considered, such as social and economic factors, when deciding how to proceed. The effect of the shift in the evidentiary burden of proof simply means that, in making the final decision, the decision-maker must assume that there will be serious or irreversible environmental damage. That factor must be taken into account in the calculus which decision-makers are instructed to apply under environmental legislation.
The precautionary principle should not be used to try to avoid all risks. Rationality also dictates that the precautionary principle and any preventative measure cannot be based on a purely hypothetical approach to the risk, founded on mere conjecture which has not been scientifically verified.
The type and level of precautionary measures that will be appropriate will depend on the combined effect of the degree of seriousness and the irreversibility of the threat and the degree of uncertainty. This involves assessment of risk, namely the probability of the event occurring and the seriousness of the consequences should it occur. The more significant and more uncertain the threat, the greater the degree of caution required.
Prudence also suggests that some margin for error should be retained until all the consequences of the decision to proceed with the development are known. One means of retaining a margin for error is to implement a step- wise or adaptive management approach, whereby uncertainties are acknowledged and the area affected by the development plan, program or project is expanded as the extent of uncertainty is reduced. An adaptive management approach might involve the following core elements:
monitoring impacts of management or decisions based on agreed
indicators;
promoting research, to reduce key uncertainties; ensuring periodic evaluation of the outcomes of implementation,
drawing lessons, and review or adjustment, as necessary, of the
measures or decisions adopted;
establishing an efficient and effective compliance system. The precautionary principle embraces the concept of proportionality, that is that measures should not go beyond what is appropriate and necessary in order to achieve the objectives in question. A reasonable balance must be struck between the stringency of the precautionary measures, which may have associated costs, such as financial, livelihood and opportunity costs and the seriousness and irreversibility of the potential threat.
The precautionary principle, where triggered, does not necessarily prohibit carrying out the development plan, program or project until full scientific certainty is attained. The solution is to assess the risk-weighted consequences of various options and select the option that affords the appropriate degree of precaution for the set of risks associated with the option.
The precautionary principle is but one of the sets of principles of ecologically sustainable development. It should not be viewed in isolation, but rather as part of the package. This means that the precautionary measures that should be selected must not only be appropriate having regard to the precautionary principle itself, but also in the context of the other principles of ecologically sustainable development, including inter-generational and intra-generational
equity and the conservation of biological diversity and ecological integrity.”
The standard criteria in the EPA identifies, at paragraph (i), the public interest as
another matter to which this Court must give consideration.
As the President MacDonald observed in Adani Mining Pty Ltd:[11]
“The public interest involves a discretionary balancing exercise of the widest
import confined only so far as the subject matter and the scope and purpose
of the statute may enable.”[12]
[11] Ibid [43].
[12] In making that observation her Honour drew attention to O’Sullivan v Farrer (1989) 168 CLR 210
It might be noted at this point that this proposal is a mining activity which is included
in a coordinated project so that any conditions recommended must include the
Coordinator-General’s conditions and cannot be inconsistent with the Coordinator-
General’s conditions.
Ms Ireland on behalf of the statutory party reminded the Court that the conditions
which are attached to the draft Environmental Authority, except for conditions from
H11 to H14 which conditions concern biosolids, are conditions imposed by the
Coordinator-General as per Appendix 1 of the Coordinator-General’s Evaluation
Report.[13]
[13] T 2-44, lines 21 to 25.
The consequence of that is that this Court’s recommendation with respect to the
conditions attached to the draft Environmental Authority can only consist of
recommendations for additions of or extensions to those Coordinator-General’s
conditions.
This is not a case in which some ancillary conditions have been imposed by the
Coordinator-General as a consequence of its assessment so consequently, with respect
to all of the conditions, nothing that I recommend can be inconsistent with those
conditions.
Further, no objections in respect of or submissions relating to conditions H11 to H14
have been raised in this case.
It has been commented on by other Members of this Court that there is some small
degree of tension between the objects of the EPA and those of the MRA.
The key objective of the MRA is to encourage and permit the mining of the State’s
mineral resources while, as outlined above, the EPA has the objective of protecting
Queensland’s environment while allowing for ecologically sustainable development.
Mineral resources are, by their nature, immovable and must be exploited where they
are located.
It is an inescapable fact that from time to time mineral resources are discovered in
areas which have already been developed for other purposes, most notably pastoral
and agricultural uses.
The exploitation of mineral resources in such circumstances inevitably results in the
disruption and, occasionally, the cessation of those other activities.
Such an outcome is sought to be accommodated by the compensation provisions of
the MRA.
Similarly it is an inevitability that mining activities will have some impact upon the
environment as they are by their nature generally permanently or temporarily
destructive of some element of the environment. Hence the acknowledgement in the
legislative articulation of the “precautionary principle” that there is a need to avoid
wherever practicable serious or irreversible damage to the environment.
That clearly recognises that sometimes environmental damage will be unavoidable
and irreversible.
As I think is generally widely known, mining projects of the magnitude of what is
proposed by Hancock Galilee Pty Ltd have to confront various levels of approval
including, relevantly, both Commonwealth and State Government scrutiny. This
Court has no jurisdiction with respect to Commonwealth matters but it is trite to
observe that this mining project cannot proceed without the approval of the Commonwealth Government, in particular, pursuant to the provisions of the
Environment Protection and Biodiversity Conversation Act 1999.
On 1 November 2013 the Minister for the Environment the Honourable Greg Hunt
MP signed an approval decision in respect of the project.[14]
[14] Ex 38, page 125.
That approval decision, effective until 30 October 2073 was subject to a number of
conditions.
Because of the way in which the hearing of this matter proceeded it is not necessary
nor appropriate for me to identify those conditions in particular detail save to observe
that, with respect to some of the matters raised by the objectors, the conditions
included:
(a) Identification of the project area; (b) The identification of disturbance limits for EPBC listed species; (c) The identification and articulation of a biodiversity offset strategy which needs to approved by the relevant Commonwealth Minister; (d) Provision for biodiversity offset funding and administration; (e) The creation of an offset management plan, again subject to ministerial approval; (f) A rehabilitation plan; (g) A Rewan Formation Connectivity Research Plan which focused upon the Rewan Formation within the area impacted by the mine, which included but was not limited to, an investigation into methods, including seismic surveys to determine the type, extent and location of faulting and fracturing and an examination of the hydraulic properties of the Rewan Formation, to better characterise the Rewan Formation and the contribution of fractures and faults to connectivity; (h) A water monitoring and management plan which included the identification of: I. Baseline monitoring network;
II. Numerical ground water model;
III. Numerical bore monitoring network;
IV. Numerical for the identification of threshold and exceedance limits;
V. Management and response actions.
(i) Final void water monitoring and management plan. (The conditions are annexed as Annexure B.)
The Objections Pursuant to the Mineral Resources Act 1989
Coast and Country Association of Queensland (CCAQ) Objection
By letter dated 5 September 2013, the Environmental Defenders Office (EDO), acting
as the lawyers for the Coast and Country Association of Queensland Incorporated,
lodged objections to each of the mining lease and the environmental authority.
Grounds of Objections
1. The application for the mining leave (the Lease Application) for the Kevin’s Corner Coal Mine Project (the Project) should be
refused under the Mineral Resources Act 1989 (Qld) (MR Act)
considering;
(a) Groundwater: It has not been adequately demonstrated that the Project will not have an unacceptable adverse impact on groundwater and related species and ecosystems considering s 269(4)(j), (l), (m) of the MR Act. In particular: i. It has not been adequately demonstrated that the Project will not have an unacceptable adverse impact on the environment by changes to the quality and quantity of groundwater considering s 269(4)(j) of the MR Act;
ii. The absence of adequate scientific information about a potential impact with severe and long term impacts is good reason to refuse Lease Application consider s 269(4)(l) of the MR Act; and
iii. The adverse environmental impacts and potentially severe adverse environmental impacts caused by these proposed mining operations on groundwater make it an inappropriate use of the land when current land use does not pose a similar threat considering s 269(4)(m) of the MR Act.
(b)
Surface water: It has not been adequately demonstrated that the Project will not have unacceptable adverse impacts and potentially severe and long term adverse impacts on the quantity, quality and ecology of surface water and related species that have not been adequately assessed considering s 269(4)(j), (l) and (m) of the MR Act. In particular:
i.
the Project will have an unacceptable adverse impact on the environment by adverse impacts on surface water quality, quantity and ecology (including related species) considering s 269(4)(j) of the MR Act;
ii.
The absence of adequate scientific information about potentially severe and long term impacts is good reason to refuse Lease Application considering s 269(4)(l) of the MR Act; and
iii.
The adverse environmental impacts and potentially severe adverse environmental impacts caused by these proposed mining operations on surface water by the creation of a permanent final void, alienating the land from current and future production use, make it an inappropriate use of the land when current land use does not pose a similar threat considering s 269(4)(m) of the MR Act.
(c)
Climate change: It has not been adequately demonstrated that the Project will not increase the likelihood, severity and longevity of the environmental harms that will result from climate change, considering the combined effect of s 269(4)(j) and (l) of the MR Act.
(d)
Biodiversity: It has to be adequately demonstrated that the Project will not have unacceptable adverse impacts on biodiversity considering s 269(4)(j), (l) and (m) of the MR Act. In particular:
i.
The Project will have adverse impacts on the environment by adverse impacts on biodiversity considering s 269(4)(j) of the MR Act;
ii.
The absence of adequate scientific information about potentially severe and long term adverse impacts on biodiversity is good reason to refuse the Lease Application considering s 269(4)(l) of the MR Act; and
iii.
The adverse environmental impacts and potentially severe adverse environmental impacts caused by these proposed mining operations on biodiversity is an inappropriate use of the land when current use does not pose a similar threat considering s 269(4)(m) of the MR Act.
(e)
Economic and social matters: It has not been adequately demonstrated that the Project will not have adverse economic impacts, considering s 269(4)(j) and (l) of the MR Act. In particular:
i.
The definition of environment in the MR Act is broad and includes, amongst other things, social and economic conditions consider s 8 of the EP Act.
ii.
The Project will have adverse economic impacts and potentially severe adverse economic impacts caused by these proposed mining operations on local, regional, state and global economies and communities considering s 269(4)(j) of the MR Act, including:
A.
Downward pressure on employment in other industries by directly competing for labour or economic pressure on other industries;
B.
Economic costs of impacts on the environment through the impacts which result from the contribution of the Project to climate change.
iii. The adverse economic impacts of the Project have not been adequately assessed.
iv. The failure to demonstrate a net economic benefit from the Project, through a total cost benefit analysis which includes assessment of the adverse economic impacts, is a good reason to refuse the Project considering s 269(4)(l) of the MR Act.
v. the adverse economic impacts and the potentially severe adverse economic impacts caused by these proposed mining operations make it an inappropriate use of the land when current land use does not pose a similar threat.
vi. There is not sufficient economic need for the project to justify the Impacts and risks set out in grounds 1(a)-1(d) above.
(f) Public interest: The adverse impacts and risks of the Project to groundwater, surface water, climate change and the economy described in 1(a) to 1(e) above collectively outweigh the purported benefits of the Project and justify refusal on the basis that it would prejudice the public right and interest considering s 269(4)(k) of the MR Act. 2. In the alternative to 1 above, if the application is not refused, conditions should be imposed to address grounds raised in 1 above.
The Opening of Coast and Country Association of Queensland Inc
In the course of his opening Dr McGrath told the Court that there were, effectively,
three limbs to the case being raised by Coast and Country Association of Queensland
Inc (CCAQ).
The first of those was, as Dr McGrath submitted, that there was no material difference
to the evidence presented to the Court in what is colloquially referred to as the Alpha
case[15] and that in the present case, and that accordingly the findings of fact in the
orders made in the present case should be identical to those in the Alpha case.
[15] Hancock Coal Pty Ltd v Kelly & Ors and Department of Environment and Heritage
He also opened what at that stage he said was his second point, namely that:[16]
“The applicant’s evidence on groundwater is deeply unsatisfactory and the
impacts on groundwater in the area surrounding Alpha and Kevin’s Corner
mines are likely to be far greater than the applicants suggests, particularly on
the farms to the north of the mines.”
[16] T 2-8, lines 42 to 45.
Dr McGrath’s third point was that the applicant’s EIS overstates the potential
economic benefits of the mine.
Obviously all of those matters depend upon the evidence which is adduced before me
and I am not obliged nor entitled to simply say, “Well the evidence is similar to the
Alpha case and therefore the outcome should be the same”.
With respect to the Alpha case I note that in that case the Court heard evidence from
22 witnesses, the vast majority of whom were experts in one area or another.
In the present case, where the issues were much more confined, the Court heard
evidence from only eight witnesses.
In attempting to articulate his client’s case in simplistic terms Dr McGrath, having
regard to what he said was the misapprehension by the applicant’s experts of the
patterns of water flow within the aquifer, said: [17]
“Dr Webb, my client’s expert on ground water, has proposed what he sees
as the only plausible mechanism to explain the observed ground water flow in the Colinlea Sandstone on the mine site, that there must be recharge occurring in the ranges to the west and southwest of the site. He proposed it,
your Honour, as a hypothesis and as scientific fashion, but it’s – I’ll put it in the unscientific terms, it’s the only plausible explanation that makes sense
based on what’s observed on site and that something must be driving it.
There must be recharge there for the simple reason that without recharge a hydraulic head could not be maintained that is driving the ground water
across the mine site.”
[17] T 2-10, lines 35 to 43.
Earlier in the course of his opening Dr McGrath propounded the following:[18]
[18] T 2-10, lines 18 to 26.
“Now, the problem with that is that the data collected from the Colinlea
Sandstone on the sites of the Alpha and Kevin’s Corner Mines shows that,
in fact, ground water in those strata – sorry, in the Colinlea Sandstone is flowing up the dip to the right of this diagram. That is, on the side it’s flowing
from the southwest to the northern and northeast corner of the site. So it’s moving up and across the site. So it’s flowing up-dip. Now, there must be an
explanation for the flow actually recorded on the site and the explanation
must be that the applicant’s conceptualisation of the geology and
hydrogeological – I’ll reword that. The explanation must be that the applicant’s geological and hydrogeological conceptualisation of the region
is wrong.
The applicant, understandably, has very good data for the mine site because
that’s the place where it’s proposing to mine and things like ground water
flow and faulting are major issues for mine planning. It has to deal with them and it also wants to find out, you know, how much resource is there. So it
does a lot of drilling on the mine site. So it’s got really good data there. But
outside of the mining lease areas the data is far more sketchy.
He had previously explained that, so far as his client was concerned, their main focus
was on groundwater issues but that it raised economics “to make the case that
economics do not trump other issues like groundwater in the precautionary
principle.”[19]
[19] T 2-9, lines 11 to 12.
Mackay Conservation Group Inc. Objection
By letter dated 6 September 2013, the Mackay Conservation Group Inc. lodged
objections to each of the mining lease and environmental authority:
“Considering sections 269(4)(j), (k), (l) and (m) of the Minerals Resources
Act 1989, the application for mining lease 70425 for the Kevin’s Corner Coal
Mine should be refused for the following good reasons:
1) there is not adequate information to demonstrate that the mine and its operations will not cause unacceptable and significant adverse environmental impacts regarding biodiversity, particularly threatened species, in comparison to the current use of the land;
2) there is not adequate information to demonstrate that the mine and its operations will not cause unacceptable adverse economic impacts; and
3) as proposed, the mine will prejudice the public interest.
Otherwise, if the application is not refused, conditions should be imposed
that address the above issues.”
The Mackay Conservation Group did not actively participate in the hearing itself but
did make written submissions.
The approach of NQCC – Ms Tubman
By letter dated 5 September 2013, the North Queensland Conservation Council
lodged objections to each of the mining lease and environmental authority.
Regarding: Mining Lease (application) 70425
On land described as: Lot 1007 on NPW828 Resources Reserve, Lot 1788
on PH886 Pastoral Holding 1211788, Lot 3533 on SP247396 Pastoral
Holding 12/3533, Lot 649 on SP232649 Pastoral Holdings 12/649, Lot 681
on PH406 Pastoral Holding 12/681, Lot4994 on SP233100 Pastoral Holding
12/4994 and Degulla Road Reserve, located approx. 50 Km north west of
Alpha township.
Grounds of objection:
1. Assessment of the adverse cumulative impacts of the mine, including but
not limited to associated infrastructure and the impacts or anticipated impacts
of other existing and proposed mines in the central Queensland region, is
inadequate.
2. The cumulative impact of the mine and other existing and proposed mines
needs further examination, including the spatial, temporal and interactive or
synergistic impacts across the full range of issues and sectors subject to
impact.
3. The project, along with other existing and proposed projects, will make an
unacceptably large contribution to depleting the global carbon budget that
must be met if there is to be a good chance of remaining under 2 degrees
Celsius warming, as detailed in the 2013 report The Critical Decade.
4. Given the uncertainty of the global greenhouse emissions management
regime, the term of the lease is not acceptable. If global emissions continue
at the current rate, the carbon budget will be exhausted by around 2028, early
in the life of this mine. New global agreements scheduled for 2015 may make
the mine uneconomic. In such a situation, major damage to the environment
would be done for limited, largely private, economic gain.
5. The conditions imposed are inadequate to ameliorate cumulative impacts
and do not require outstanding 6. Cumulative impact assessment work to be
completed.
6. The conduct of the mine would contravene part (d) of the Objectives ofthe Mineral Resources Act (MRA) 1989, as well as sections 269 (4) €, and
(i) to (m) of the Act.
In the course of the opening of the case Ms Tubman on behalf of NQCC was able to
succinctly articulate the approach of the organisation she represented.
She said: [20]
[20] T 1-92, line 25 to 40.
“The first Kevin’s Corner mine in the Galilee Basin represents a significant
challenge for governance in Queensland. This court, as part of that governance, will decide whether or not the objections to the State
Government’s approval of the mine have merit. North Queensland
Conversation Council, NQCC, argues that a robust and dispassionate
assessment of the proposal would have resulted in its rejection. Kevin’s
Corner – the name suggest something small, something diminutive, but the proposed Kevin’s Corner mine will be huge.
As we’ve heard, with two open-cut pits and three underground longwall
operations it will extract 30 million tonnes of coal every year for 30 or more years. It will be one of the largest coal mines in Australia, and indeed one of the largest in the world. For that reason alone it is imperative that the full impacts of the mine must be known and assessed before it can go ahead. Without a good cumulative impact assessment the full impact of this massive project on the environment, on the community and on the economy cannot
be properly determined.”
Ms Tubman went on to clarify that by asserting that, on her reading of the MRA and
the EPA, their provisions necessarily require this Court to consider the cumulative
impacts of not only this mine but all other mines in the area. She said: [21]
[21] T 1-94, line 40 to T 1-95, line 28.
“Obviously cumulative impact assessment is an essential – a fundamental
part of the process by which the regulators and the courts decide on behalf of the people which development proposals they will allow and which they
will not. Kevin’s Corner project has been assessed by the coordinator general
and by the delegate of the Department of Environment and Heritage. Is it possible that they have not given sufficient weight to the fact that such an essential component of the assessment process is lacking? The evidence, we contend, points to that being the case.
The importance of cumulative impact assessment is also apparent in the Environment Protection Act. Section 14, which refers to environmental harm, states:
Environmental harm may be caused by an activity whether the harm is a direct or indirect result of the activity or whether the harm results from the activity alone or from the combined effects of the activity and other activities or factors.
The Act is, in essence, pointing to the nature of the assessment required under the EIS, which demands consideration of the direct, indirect and combined or cumulative impacts.
In a period of rapid development, the critical nature of cumulative impact assessment is increasingly recognised. Much of that recognition has been generated not by legislation but by an appreciation of two simple facts, substantiated over and over again by incontrovertible evidence. The first is that activities do not occur in isolation. They occur, and must be assessed, in context. The second is that the whole is greater than the sum of the parts. The synergistic interaction of the parts, or the impacts, as well as the sum of the impacts themselves, must be considered if the whole impact is to be identified. Cumulative impact assessments or CIA amongst laypeople are seen as a means of avoiding the phenomenon of death by a thousand cuts or
creeping normality.”
It became clear that Ms Tubman’s main point in her submissions to the Court was
that she and the organisation she represents seek a requirement that an environmental
impact assessment ought to be done on the basis of cumulative impact assessment
that goes beyond even partial consideration of two immediately adjacent mines.
She said: [22]
“NQCC contends that information that would enable decision-makers to
properly assess whether or not this project could be the straw that breaks the
camel’s back has not been provided. At some point in the decision making
process, a judgment needs to be made as to whether the cumulative impacts begin to outweigh the purported benefits. Until some proper semblance of a cumulative impact assessment has been done to inform that decision,
approval of the project should not be given.”
[22] T 1-96, lines 41 to 46.
Ms Tubman pointed to a document entitled Cumulative Impacts: A Good Practice
Guide for the Australian Coal Mining Industry published by the Centre for Social
Responsibility in Mining at the Sustainable Minerals Institute of the University of
Queensland.[23]
[23] T 1-100, lines 23 to 27.
Upon being invited by me to identify any particular social impacts that she said should
have been more particularly assessed, she said: [24]
“I would suggest there are a number, but at this stage we would like just to
refer to the fly-in, fly-out, the impacts on communities, the impacts on how
families and communities relate. I’ll leave it at that. There are lots of others.”
[24] T 1-102, lines 8 to 10.
In a later dialogue she succinctly summarised her views in the following terms: [25]
“The expert witness reports provided by the applicant failed to acknowledge
these deficiencies. Impacts arising from the use of the rail infrastructure to
carry coal from the Kevin’s Corner mine to Abbott Point, and from the
shipping of the coal from Kevin’s Corner through the Great Barrier Reef
have not been considered in the cumulative impact assessment for the
Kevin’s Corner project, despite the fact that they are essential to the mine
itself. They would have been considered under the Good Practice Guide and they are just as relevant as the impacts of other mines. To exclude them suggests either a failure to understand the nature of cumulative impact assessments, or worse, an intention to exclude them. Either way the failing is unacceptable and contributes to making the decision to approve the mine
insupportable.”
[25] T 1-102, lines 35 to 45.
Ms Tubman concluded her opening by informing the Court of the following: [26]
[26] T 1-105, lines 12 to 39.
“And I conclude – and it is clear from the examination of the cumulative
impact assessment information provided in the EIS, in the supplementary EIS and in later documentation, the process has, we contend, been massively deficient. It does not provide the information needed by decision makers. As a result, informed decisions have not been made and because of the paucity of the approach taken, it will be impossible to make such decisions, even if the forward work plan reports were to be provided as scheduled. How can
informed decisions be made in the essential – in the absence of essential
information? How can it be said that conditions which may be placed in the project will be adequate when the extent of environmental harm has not been established? How can it be assumed that adequate conditions would even exist?
Cumulative impact assessment is not some new, trendy addition to the project assessment process. The requirements for the information to be provided in order to contribute to decision-making have been around for some time. Guidance on how to undertake cumulative impact assessments has been around for a similar period. It is a critical component of decision- making. It is an awareness of the fact that projects must be assessed in context rather than in isolation because the whole is very often greater than the sum of the parts. What has sufficed in the past can no longer be accepted.
It is acknowledged that cumulative impact assessment is a significant body of work but is now recognised as essential information, especially in the case
of massive, irreversible developments such as Kevin’s Corner. And in
relation to that, robust information must be provided to decision makers in order for them to make a scientifically-based and incontrovertible assessment. The harm which could result from the project may well be too great to allow for its approval. And I thank you on behalf of NQC for the
opportunity to present to the court our objection.”
In response to those observations, Mr Clothier of Queens Counsel reminded the Court
that firstly, NQCC was not proposing to produce any evidence in respect of the
matters that were opened and secondly, to the extent that specific mention was made
of greenhouse gas and climate change issues in relation to cumulative impact
assessment, those matters did not form any part of the current objection and in fact
had been expressly abandoned.
I am also bound to observe that, as compelling as some of the logic of the good
practice guide for Australian Coal Mining Industry may be, it is not received any
legislative endorsement from either the Queensland and or the Commonwealth
governments.
Bruce Currie and Annette Currie Objection
By letter dated 2 September 2013, Bruce Bede Currie and Annette Helen Currie
lodged objections to each of the mining lease and environmental authority:
“We, Bruce Bede Currie and Annette Helen Currie of “Speculation”,
Jericho in the state of Queensland do hereby give notice that we object to draft environmental authority no. MIN101016810 on the following grounds:
1. The applicant has not adequately investigated the importance of our bores or the impact of proposed mining on them.
a. Our two bores on “Speculation” are absolutely indispensable to our grazing business. They underpin our productivity and the value of our
property. We are close to both the Kevin’s Corner project and the Alpha
Coal project, so direct and cumulative impact must be considered and precautionary principle should be applied.
b. While the bore water supply is supplemented by some dams, these are often dry due to lack of rain – they are not a reliable source.
c. Currently the water from the two bores supports between 1,300 and 1,800 cattle, depending on our trading activities. d. Without the bores ‘Speculation” would carry only a fraction of its present herd and would lose most of its present market value.
e.
Hancock Galilee Pty Ltd, in its bore survey, did not identify our bores and did not adequately investigate the potential drawdown from its proposed mining activities or the cumulative effect with the other proposed mines nearby. No predictive contours have been provided showing where there is no drawdown so it is not possible for our bores to be classified not as risk.
f.
By contrast, the EIS of Waratah Coal just south of MLA 70425 did include bores west of its lease including monitoring bores in its assessment. It found that mining drawdown may affect bores in the shallow Tertiary and Permian aquifers within 11km to 30km of the mine. Our bores are well within that drawdown range from the Hancock lease, and the private bores of various other owners are also at risk.
g. Hancock Galilee Pty Ltd, Kevin’s Corner project, SEIS – Groundwater Report indicates predicted direct impact and cumulative drawdown
contours for both Kevin’s Corner project and Alpha Mine project do not
support Hancock Galilee’s claim that our groundwater and bores will not
be impacted, in fact they will be at considerable risk.
h. As Hancock Galilee Pty Ltd is of the belief that they will not impact on our bores, they have failed to adequately develop strategies for alternative water supplies and management of groundwater impacts if their predictive modelling is incorrect and fails. i. Despite Currie’s efforts, desire, and need to get an agreement on our
properties long and short term groundwater management, Hancock Galilee Pty Ltd has deliberately prevented discussions from proceeding so parties could negotiate and bring about the consensus required for a signed agreement.
2. Environmental authority should only be granted to Hancock Galilee Pty Ltd after it has entered into make-good agreements with all potentially-affected bore owners.
a. The former DERM’s conditions – now recommended by the Coordinator General in his Report for a Hancock Galilee Pty Ltd water licence –
would not protect our water supply. It is a scheme designed by, and to be administered by, the same organisation and possibly the same individuals that have condoned and defended the miners breaching environmental conditions and damaging our bores be leaving their drill holes unplugged.
b. Even if a departmentally administered make-good scheme could be effective in practice, the administering authority’s sustained negligence
in allowing the law to be blatantly breached and aquifers to be damaged should disqualify it and its personnel from any role requiring impartial and thorough enforcement of make-good obligations.
c. The onus of proof of impaired capacity of a bore rests on us as the bore owner – the State has an obligation to ensure that, as a prerequisite to
approval, Hancock Galilee Pty Ltd enters into an agreement which will
ensure the necessary evidence is gathered and is accessible to us.d. Data to be produced under the Coordinator General’s scheme is too remote – i.e. limited to water levels (not sustainable yield) and water quality in designated monitoring bores. The scheme’s criteria for
impaired capacity of the private bore (based on the number of stock watered) are subjective, nebulous, imprecise and open to endless
argument – those criteria would fall far short of the required standard of
proof of damage to our private bore.
e. If the Chief Executive did direct the miner to make good as provided in the Coordinator General’s scheme, it would be unlikely to survive a legal
challenge because the evidence require to justify it (proper baseline testing, appropriate trigger values and regular monitoring of the individual bore) would not have been gathered.
f. An agreement between miner and landholder is the appropriate basis for a make-good scheme – i.e. an agreement such as is in place at the Callide
mine. Hancock Galilee Pty Ltd has committed itself to make-good agreements, but there is no evidence that it has a working knowledge of and is committed to the provisions required for such an agreement to be effective, nor that it intends to settle these agreements before mining commences, nor that it would fairly and objectively decide which landholders should be offered its agreement.
g. To be effective and enforceable an agreement must establish a fully transparent scheme which, through independent expert assessment at the miner’s expense and with dispute resolution procedures available if
needed, provides:
(i) baseline testing of each individual bore to determine, in particular, the pre-mining sustainable yield and water quality (ii) trigger values for declining yield, quality etc (iii) regular monitoring of each individual bore
(iv) process for investigation and response if adverse effects are identified
(v) make-good and/or compensation provisions
(vi) ongoing protection after mining ceases.
The facts and circumstances relied upon in support of the grounds of
objection are as stated above.”
Paul, Janeice, Peter and Julia Anderson Objection
By letter dated 4 December 2013, Paul, Janeice, Peter and Julia Anderson lodged
objections to each of the mining lease and environmental authority:
“Grounds of Objection.
1. The application for the grant of the mining lease for the Kevin’s Corner
Project should be declined on the basis that the provisions set out in the Mineral Resources Act 1989(QLD)(MRA) have not been fully complied with in regards to Groundwater.
(a)
In reference to MRA section 269 (4)(g): Our previous experiences in attempting to negotiate on an effective make good agreement to protect our groundwater with the Applicant have been less than satisfactory.
(b) In reference to MRA section 269 (4)(h): The mining lease should not be granted until Landholders in regions who’s [sic]
groundwater may potentially be impacted by the mine individually or cumulatively have entered into Make Good Agreements to protect their businesses.
(c)
In reference to MRA section 269 (4)(j): The cumulative impacts that mine dewatering will have on the quality and quantity of groundwater has not been sufficiently investigated therefore the extent thereof the mine will impact the environmental values of agriculture (stock and domestic watering) is unknown.
(d)
In reference to MRA section 269 (4)(k): A regional cumulative model of the impacts mine dewatering will potentially have on the quality and quantity of groundwater has not been done. This clearly prejudices the rights and interests of landholders and dependent businesses in the region to know what the likely extent the impacts will have on their livelihoods.
(e)
In reference to MRA section 269 (4)(l): There is insufficient evidence to demonstrate how the Applicant will be able to provide alternate water supplies on a permanent basis during and after the life of the mine to landholders. The Mining Lease should not be granted until cumulative impacts in the region are modelled and evidence is provided how the impacts on groundwater will be mitigated.
(f)
In reference to MRA section 269 (4)(m0: The current use of the land in the Mining lease and surrounding regions is agriculture. The Mining lease should not be granted until the cumulative impact mine dewatering will have on surrounding region is modelled to know if the proposed mining operation is an appropriate land use in consideration of its impacts on the agricultural industry.
2. In the event the mining lease is granted, conditions should be imposed that will adequately meet the provisions above that have been
neglected.”
Notwithstanding the apparent breadth of the grounds of objection of all objectors in
respect to each of the mining lease and Environmental Authority, at the hearing of the
matter the issues became much more focused and common, in particular the evidence
focused on:
(a) Ground water (b) Economics (c) Cumulative impacts (d) Biodiversity
Notwithstanding the focus on those narrow issues in the hearing of this referral the
applicant engaged a number of experts to prepare reports within their areas of
expertise.
Not all experts were cross examined by every party entitled to do so.
The Evidence of Dr Adrian Zammit – Water Quality Scientist
Dr Zammit, a water quality scientist with over twenty years’ experience,[27] was asked
[27] Ex 47, page 35.
17 questions expressed in the following terms: [28]
[28] Ex 47, pages 1 to 7.
“Question 1
Describe the existing surface water quality environment in the area
potentially impacted by the proposed Kevin’s corner project (Project).
Question 2
What were the assessment requirements of the EIS Terms of Reference in
relation to the Project’s potential impacts on surface water quality?
Question 3
What work was performed to address the assessment requirements of the EIS Term of Reference and to undertake the surface water quality impact assessment?
Question 4
In your opinion, was the work performed to address the assessment requirement of the EIS Terms of Reference and to undertake the surface water quality impact assessment in accordance with standard professional practice for this type of proposed project?
Question 5
In your opinion, was the work performed to address the assessment requirements of the EIS Terms of Reference and to undertake the surface water quality impact assessment inadequate because the regional cumulative impacts covering surface water impacts were not adequately addressed?
Question 6
In your opinion, have all potential adverse impacts on surface water quality been adequately described in the EIS, SEIS and supplementary material?
Question 7
What conclusions were reached regarding the potential impacts of the Project on surface water quality?
In answering this question, identify the extent to which the Project is likely
to impact on the region’s water quality through:
a) Releases of coal dust to waterways; b) Long-term effects of accidental and controlled released of contaminants to waters, including whether such impacts are likely to be “significant”;
c)
Contamination of surface water by flooding from tailings dam overflow;
Question 8
In your opinion:
a)
What is the likelihood of interconnectivity between groundwater and surface water, including surface water features (e.g. springs)?
b)
What is the likelihood and significance of direct and indirect impacts of Project drawdown of groundwater on surface water, including surface water features (e.g. springs);
Question 9
In your opinion to what extent will the final void:
a) Impact on or cause any surface water contamination? b) Impact on surface water quality? Question 10
In your opinion, will the Project have a significant impact on surface water quality?
Question 11
Identify any condition in the Coordinator-General’s Report, the draft
Environmental Authority and/or EPBC Act Approval relevant to the potential impacts of the project on surface water quality.
Question 12
In your opinion, is there sufficient, adequate and accurate information to provide a reasonable level of scientific certainty to support your conclusions in relation to the above?
Question 13
To the extent your opinion is that there is a degree of scientific uncertainty regarding the potential impacts of the Project on surface water quality, to
what extent (if any) do the conditions in the Coordinator-General’s Report,
draft Environmental Authority and/or EPBC Act Approval address that
uncertainty?
Question 14
Provide your opinion as to whether:
a) The assessment of the cumulative impacts to surface water: (i) is “inadequate information”;
(ii) is based on “inadequate information”
b) The methods used for assessing the cumulative impacts on surface water are “manifestly inadequate” , including whether reference was
made to relevant guidelines, an if so, which guidelines;
c) The cumulative impact of the Project on surface water “needs further examination, including the spatial, temporal and interactive or
synergistic impacts”;
d)
Appendix O of the SEIS considers surface water “to a minimal extent only”;
e) The ‘China First/Waratah or Alpha South mines” are in the same catchment, and if so, whether they should have been included in the
flood model in Appendix O;Question 15
We have attached updated versions of Tables X-3 to X-6, which originally appeared in Appendix X of the EIS. Could you please consider these updated tables and indicate:
a)
Whether any further additional information is available in respect of the projects listed in the updated tables; and
b)
Whether any projects (identified using the methodology and selection criteria specified in Appendix X of the EIS) should be added to, or removed from, the updated tables.
Question 16
In your opinion, is the new information identified in the updated tables –
taking account of any changes to that information made pursuant to question
15 – likely to:
I accept that Mr Campbell holds reservations about the utility of input output analysis
(some of which are shared by Mr Brown) and that he seems to be something of an
evangelist for cost benefit analysis as a tool for decision making.
Notwithstanding that, I am satisfied that the analysis done by Mr Brown demonstrates
economic benefits accruing to the Queensland economy including, but not limited to,
the potential generation of substantial revenue in the form of royalties.
Accordingly, so far as the matter of economics is concerned, I am of the view that on
balance the evidence justified recommending granting of the lease and I am further
satisfied that no proper basis has been demonstrated for refusing to grant the lease
premised upon a demonstrable lack of economic benefit.
Section 269 of the MRA
[335] Section 269(4) of the MRA provides that the Land Court, in making a
recommendation to the Minister that an application for a mining lease shall be granted either in whole or in part, must take into account and consider a number of specified
matters.
Each of the matters required to be considered pursuant to s 269(4) of the MRA are
discussed below.
In considering each of those matters I have, of course, had regard to the material filed
by the applicant miner, by the statutory party and by the various objectors.
It should be noted that the majority of the matters set out in s 269 of the MRA have
not been the subject of any criticism by any of the objectors and the initial report of
the Mining Registrar took no exception to them as well.
Section 269(4)(a) – Whether the provisions of the Act have been complied with?
The application for a mining lease was accepted by the Mining Registrar at Emerald
and in the material delivered to me by the Mining Registrar there has been no
suggestion that any of the requirements of the MRA had not been complied with; in
addition, the material was accompanied by a certificate of application for mining lease
ML 70425 together with a copy of the certificate of public notice.
The application by the miner attracted a number of objections and accordingly I am
satisfied that, in particular, the public notice requirements have all been complied
with.
In all of the circumstances I am satisfied that s 269(4)(a) has been complied with.
Section 269(4)(b) – Whether the land applied for is mineralised or the other purposes for
which the lease is sought are appropriate?
In its application the applicant describes the intention of the application being to make
economic recovery of coal resources at Kevin’s Corner Coal Mine and, as observed
above, the proposed mine is in close proximity to a number of other operating coal
mines.
The evidence placed before the Court satisfies me that the land applied for is
mineralised as that term is used in the MRA.
All the investigations which lie in the background to the lease application identify the
existence of coal seams and indeed in the accompaniment – proposed mining program
– the proponents identified 1.5 billion tonnes of coal as being available on the site.
Accordingly I am satisfied that the area of the lease is likely to be mineralised and
thus the requirements for s 269(4)(b) have been satisfied.
Section 269(4)(c) – If the land applied for is mineralised, whether there be an acceptable
level of development and utilisation for the mineral resources within the area applied for?
Having heard all the evidence and having had an opportunity to read the material
accompanying both the application for a mining lease and for an environmental
authority, the EIS and its supplements, I am left in no doubt that Hancock proposes a
very large scale development and utilisation of the coal resources in the area applied
for.
This is a large scale development and the associated infrastructure necessary to
facilitate extraction and utilisation of the mineral resources is of an appropriate level.
Section 269(4)(d) – Whether the land and the surface area of that land are of an
appropriate size and shape?
None of the objectors raised any issue with respect to the size and shape of the land
which is sought to be utilised for extraction of the mineral resource save that, as
discussed in the section on groundwater in this decision, there were concerns about
the extent to which there might be drawdown of groundwater extending outside the
area of the mining lease.
The size and shape of the proposed mine area is appropriate to enable exploitation of
the identified coal seams and accordingly I am satisfied that the land sought to be
utilised and the surface area of that land are of an appropriate size and shape.
Section 269(4)(e) – Whether the term sought is appropriate?
The application for a mining lease at s 3 identifies the term applied for as being 40
years. The Coordinator-General has declared the project a project of state significance
pursuant to the State Development and Public Works Organisation Act.
[351] Given that the proposed investment involves an estimated capital cost of
approximately $4 billion.[136] I am satisfied that the term of 40 years sought by the
[136] Ex 52.36, page 4237.
applicant is an appropriate term given the magnitude of the proposed development.
Section 269(4)(f) –Whether the applicant has the necessary financial and technical
capabilities to carry on mining operations under the proposed mining lease?
The applicant included with its application a concise summary of Hancock
Prospecting Pty Limited financial statements relating to previous operating years.
Its financial and technical resource material included the following observation:[137]
[137] See Attachment 3 to the referral (application for mining lease).
“Hancock Prospecting Pty Limited (Hancock Prospecting) is a leading
privately owned, Australian mining company with interests in iron, coal, manganese, uranium, diamonds and copper/gold. The company was established by Lang Hancock who discovered and drove the initial
development of the Pilbara region of Western Australia into the world’s
premier iron ore mining region. Hancock Prospecting, which is chaired by Mrs. Gina Rinehart, has interests in a number of operating iron ore mines, a manganese mine and is currently reviewing development options for Roy
Hill iron ore, Alpha Coal and Kevin’s Corner coal projects.”
The extracts from the company accounting records provided with the mining lease
showed total assets of $1,151,924,000 in 2008 and liabilities of $120,297,000. The
summary shows a total equity of the company in the sum of $410,855,000. I am
satisfied that s 269(4)(f) of the MRA has been satisfied.
Section 269(4)(g) – Whether the past performance of the applicant has been satisfactory?
The DNRM reports supplied to the Court indicates that there was no suggestion that
either the company or its directors have ever had a notice to rectify non-compliance
or damage, notice to show cause, tenure cancelled, penalty imposed, or conviction.
Accordingly there is no evidence before me of any unsatisfactory past performance
by the applicant and accordingly I am satisfied that the past performance of the
applicant has been satisfactory.
Section 269(4)(h) – Whether any disadvantage will result to the holders of existing
exploration permits or mineral development licences or to existing applicants for
exploration permits or mineral development licences?
In its application the applicant identified itself as holding a prospecting permit No.
73569 over the area as well as a mineral development license No. 333 over the subject
area.
The application also identified that the land applied for was within an area of an
exploration permit for coal of which they were not the holder. They identified that
exploration permit as 1210 with an expiry date of the 17 December 2014.
Attached to the application was correspondence from Hancock Prospecting Pty
Limited to the Mining Registrar which said, inter alia:[138]
[138] See Attachment 3 to the referral (application for mining lease).
“Hancock Prospecting Pty Limited (Hancock Prospecting) is the 100%
owner and consolidating parent entity of Hancock Galilee Pty Limited,
Hancock Coal Pty Limited and Hancock Kevin’s corner Pty Limited.
Hancock Kevin’s Corner Pty Limited (Hancock Kevin’s Corner) is the
holder of EPC 1210, Hancock Galilee Pty Limited, (Hancock Galilee) is the holder of MDL 333 and Hancock Coal Pty Limited (Hancock Coal) is the holder of MDL 285.
Hancock Kevin’s Corner understands that Hancock Coal is seeking to apply
for a mining lease that will cover the southern part of EPC 1210 whilst Hancock Galilee is seeking to apply for a mining lease that will cover the northern part of EPC 1210.
Hancock Galilee Pty Limited understands that Hancock Coal is seeking to apply for a mining lease that will cover the south eastern part of MDL333.
Hancock Kevin’s Corner consents to the proposed mining lease from
Hancock Coal covering the couther par of EPC 1210, as contemplated by the accompanying mining lease application.
Hancock Kevin’s Corner consents to the proposed mining lease from
Hancock Galilee covering the northern part of EPC 1210, as contemplated by the accompanying mining lease application.
Hancock Galilee consents to the proposed mining lease from Hancock Coal covering the south east part of MDL333, as contemplated by the
accompanying mining lease application.”
On the evidence before me there are no holders or applicants for any tenures nor
applicants for any tenures who would be disadvantaged by the grant.
In all of the circumstances I am satisfied that no disadvantage will result to the holders
of any existing exploration permits or mineral development licences or any existing
applicants for exploration permits or mineral development licences.
Section 269(4)(i) –Whether the operations to be carried on under the authority of the
mining lease conform with sound land use management?
The only issues before me in the hearing of this application were objections about
groundwater and environmental issues as well as economics. For the reasons
explained earlier in this decision I have concluded that there is no basis upon which I
should recommend refusal of the grant of the mining lease, notwithstanding that it
will convert otherwise useful grazing land into a coal mine.
Section 269(4)(j) – Whether there will be any adverse environmental impact caused by
those operations and, if so, the extent thereof?
The potential environmental impacts which have been in issue in this hearing have
been subject of detailed evidence referred to above.
While it is clear, as with any mineral resource project, that there will be some
inevitable environmental impacts I have reached the conclusion that the conditions
imposed under both the EPA by the relevant State Government Department and the
Commonwealth approval pursuant to the EPBC are adequate to deal with the
environmental impacts caused by the proposed mining operations.
Section 269(4)(k) – Whether the public right and interest will be prejudiced?
There are two particular aspects of the public right and interest which have been
ventilated in this case.
The first of those is the interest landholders hold in the properties in which they are
the registered proprietors and or lessees and the appurtenant rights they enjoy with
respect to things such as access to groundwater.
The second area of public interest is clearly the environment.
As indicated above I am satisfied that the environmental considerations are addressed
by the relevant permits.
With respect to private interests those matters have to be balanced against the public
interest in resource development and the advantages which that brings to the
community at large.
The MRA contains provisions for compensation to land owners and in the instant case
requirements to enter into make good agreements with affected landholders.
The conclusion with respect to this section of the MRA requires a balancing of
advantages and disadvantages and I have come to the view that the disadvantages are
not sufficient to outweigh the advantages of developing this mineral resource and
accordingly, while I am bound to come to the view that public rights and interests
will be affected I do not reach the conclusion that the public interest will be
unreasonably prejudiced by the proposed mining operation.
Section 269(4)(l) – Where there is any good reason shown for a refusal to grant the
mining lease?
My conclusions set out above including an assessment of the objections which have
been raised lead me to form the opinion that subject to the anticipated compliance
with the conditions of the environmental permit there is no good reason to refuse the
grant of the mining lease.
Section 269(4)(m) – Whether the proposed mining operation is an appropriate land use,
taking into consideration the current and prospective uses of that land?
Having regard to my finding in respect of criteria (i), (j), (k) and (l) as set out above,
I come to the view that the proposed activity is an appropriate land use taking into
consideration the current and prospective uses of the land and, in particular, the extent
of the resource which lies beneath it.
For the reasons which I have set out above my decision in this matter is to recommend
to the Honourable the Minister for Mines and Energy that Mining Lease No. 704425
be granted over the application area.
Section 191 of the Environmental Protection Act 1994
As indicated earlier in this decision s 191 of the EPA requires this Court to give
consideration to certain matters in making an objections decision.
I have, in my view, considered those matters where relevant in the course of analysing
the evidence adduced in this case. (See, in particular, my observations regarding the
evidence of Dr Dique).
I have set out in the body of this decision my conclusions particularly with respect to
the matters of groundwater and economic impact. I do not propose to repeat those
conclusions in detail, save to observe that I have concluded that concerns with respect
to impact on the groundwater are appropriately dealt with and managed by the
conditions imposed by both the State Department of Environment and Heritage
Protection in the draft Environmental Authority and by the Federal Government
approval granted pursuant to the EPBCA.
I think it unnecessary to recommend insertion of any additional conditions into the
draft EA in order to protect the groundwater resources as I believe the requirements
for ongoing study and reporting imposed by both the State and Federal Governments
are adequate.
Inevitably, as other members of this Court have pointed out, mining projects of this
magnitude will have negative impacts and undesired consequences on the
environment, particularly in the immediate vicinity of the mine. However I have come
to the view that those consequences are outweighed by the benefits that will flow
from the development of the mine.
Conclusion
Having considered the evidence in this case in considerable detail and, having,
hopefully, set out my view with respect to the relevant parts of the evidence, I have
come to the conclusion that:
(a) I should recommend that the mining lease application be granted; and (b) the Environmental Authority application be approved subject to the conditions set out in the draft Environmental Authority.
Orders
1. Pursuant to s 269(1) of the Mineral Resources Act 1989 I recommend to the
Honourable Minister administering the Mineral Resources Act 1989 that mining lease MLA 70425 be granted over the application area for the period
sought.
2. Pursuant to s 190(1)(a)(ii) of the Environmental Protection Act 1994 I
recommend to the administering authority that the Environmental
Authority be issued in the terms of the draft Environmental Authority issues
on 5 July 2013.
WL COCHRANE
MEMBER OF THE LAND COURT
Annexure A
Annexure B
Rewan Formation Connectivity Research Plan
41. The approval holder must submit for the approval of the Minister a Rewan Formation Connectivity Research Plan ('Research Plan') that characterises the Rewan Formation within the area impacted by the mine, for the Minister's approval. The Research Plan must include but is not limited to the following:
a) research aims;
b) personnel responsible for conducting research and their qualifications; c) timeframes for research and reporting; d) methods, including seismic surveys to determine the type, extent and location of faulting and fracturing and an examination of the hydraulic properties of the Rewan Formation, to better characterise the Rewan Formation and the contribution of fractures and faults to connectivity; e) research to inform the future Bioregional Assessment for the Galilee Basin sub- region and the Lake Eyre Basin; and f) outputs to inform the Water Monitoring and Management Plan. 42. The Research Plan must be peer reviewed by a suitably qualified expert approved by the Minister in writing. The peer review and the Research Plan must be submitted together to the Minister for approval.·
The findings of the research outputs of the Rewan Formation Connectivity Research Plan must be published on the approval holder's website and submitted to the department in accordance with the timeframes approved by the Minister for reporting.
Project Stage 2 cannot commence until the Rewan Formation Connectivity Research Plan has been approved by the Minister in writing.
The approved Rewan Formation Connectivity Research Plan must be implemented.
Water Monitoring and Management Plan
Baseline monitoring network
The approval holder must submit a Water Monitoring and Management Plan (WMMP) for the Minister's approval.
47. The WMMP must:
a) include details of a best practice baseline monitoring network that will enable the identification of spatial and temporal changes, as a result of project activities, to: i. surface water;
ii. groundwater;
iii. cumulative impacts; andiv. subsidence.
b) include a rationale for the suitability of the proposed monitoring network; and c) use the findings of the conceptual and numerical groundwater model for the project where relevant.
Note 5: To ensure efficiency the approval holder may prepare and align the WMMP with the requirements of the Queensland Government, as long as the relevant matters under the conditions of this approval are clearly and adequately addressed.
Note 6: Information about cumulative impacts must include publicly available. Information and other related project information available to the proponent.
The WMMP must include parameters and a sampling regime to establish baseline data for:
a) water quality and quantity for surface water; b) water quality, water levels and/or pressures for groundwater; c) connectivity between surface and groundwater; and d)
connectivity between the following formations: Alluvial deposits; Tertiary deposits; Bandanna Formation; Colinlea Sandstone; Joe Joe Formation; and the Clematis Sandstone and Rewan Formation of the Great Artesian Basin.
49. The WMMP must include timeframes for construction of the monitoring network.
50. The WMMP must be peer reviewed by a suitably qualified expert approved by the Minister in writing. The peer review must be submitted to the Minister at the same time the WMMP is submitted to the Minister for approval.
51. Project Stage 2 cannot commence until the WMMP has been approved by the Minister in writing.
52. The approved WMMP must be implemented.
Numerical Groundwater Model
To predict impacts to water resources so they can be avoided or minimised, the approval holder must develop a numerical groundwater model. The approval holder must:
a) Review and update the numerical groundwater model over the life of the project within timeframes specified by the Minister in writing. The Minister may consider the requirements to update the numerical groundwater model under Queensland Government regulations in specifying timeframes; and b) use the outcomes of the numerical groundwater model in reviewing and revising the WMMP in accordance with these conditions.
Note 6: To ensure efficiency the approval holder may prepare and align the numerical model required under these conditions with the requirements of the Queensland Government, as long as the relevant matters under the conditions of this approval are clearly and adequately addressed.
Monitoring Network
54. The WMMP must:
a) review and update the monitoring network described in the WMMP to reflect changes in understanding of impacts to water resources from: i. the results of baseline monitoring;
ii. the research from the Rewan Formation Connectivity Research Plan; and
iii. changes to the conceptual groundwater model and numerical groundwater model and outputs; and
b)
provide details of an ongoing monitoring program that addresses potential surface water impacts, groundwater impacts, cumulative impacts and subsidence, spanning all project activities including construction, operation and decommissioning/closure of the mine; and also including monitoring of downstream impacts resulting from the release of mine affected water and pit/void water, The WMMP must include a rationale for the suitability of the proposed ongoing monitoring network.
Threshold and exceedance limits
The WMMP must identify, provide a rationale for, and implement, thresholds and limits in respect of the project's impact on surface water and groundwater. This includes but is not limited to:
i. in relation to impacts on surface water - thresholds and limits for water quantity arid availability; stressors and contaminants; annual loads of salinity; and sediment; and
ii. in relation to impacts on groundwater - thresholds and limits for water quality and drawdown.
Note 8: Threshold values identified in the plan and during the life of the approval and related conditions may be varied by the Minister on advice from an expert panel to reflect the best available data and scientific information.
Limits in the approved WMMP must not be exceeded.
Management and response actions
57. The approval holder must develop a risk based exceedance response that details the actions the approval holder will take and the timeframes in which those actions will be undertaken if:
a) threshold values contained in the WMMP are exceeded; b)
subsidence or surface deformation occurs which substantially impacts on surface or groundwater hydrology; and / or
c) there are any unforeseen emergency discharges.
58. The approval holder must:
a) report exceedances to the department within 10 business days of the monitored exceedance; and b) provide written advice to the department, within 90 calendar days of the occurrence of the monitored exceedance, stating the direct cause of, and the actions taken in response to, the exceedance and management responses.
The Minister may by written request, require the WMMP be reviewed by a suitably qualified expert. Within 6 months of the review, the approval holder must revise and update the WWMP for the
Minister's approval.
Final Void Water Monitoring and Management Plan
The approval holder must develop a Final Void Water Monitoring and Management Plan, which must include:
a) an environmental risk assessment of both open final void and backfilling options; and b)
justification for the preferred option that demonstrates there will be no unacceptable impacts on MNES.
The Final Void Water Monitoring and Management Plan must be peer reviewed by a suitably qualified expert. The peer review must be submitted the Minister for approval at the same time the Final Void Water Monitoring and Management Plan is submitted to the Minister for approval. ·
62. The approval holder must not commence Project Stage 4 until the Minister has approved the Final Void Water Monitoring and Management Plan in writing.
The approved Final Void Water Monitoring and Management Plan must be implemented.
Note 9: The Minister may throughout the project life seek advice from experts, or an expert panel. As a consequence specific matters identified through such advice may need to be addressed in the Plan. Where such advice is sought the approval holder would be provided with opportunity to submit information and respond to the specific matters identified, in order to ensure the Plan is based on the best available information. Review requirements will facilitate adaptive management, alignment with Queensland Government approval requirements, and account for potential cumulative impacts as new scientific information becomes available over the life of the project.
Date of commencement
Within 30 calendar days after the commencement of the action, the approval holder must advise the department in writing of the actual date of commencement.
General
The approval holder must notify the department in writing of non-compliance with any condition of this approval as soon.as practical and within no later than two business days of becoming . aware of the non-compliance.
The notice provided to the Department under this condition must specify:
i. the condition which the approval holder has potentially breached;
ii. the nature of the non-compliance;
iii. when and how the approval holder became aware of the non- compliance;
iv. how the non-compliance will affect the approved action;
[216]; Water Conservation & Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 [504] and [505]; McKinnon v Secretary, Department of Treasury [2006] HCA 45; (2006) 228 CLR 423.
Protection (2014) 35 QLCR 56.
(2014) 35 QLCR 56.
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