QCoal Sonoma Pty Ltd (Principal Holder) v Reed (No. 3)
[2012] QLC 50
•19 September 2012
LAND COURT OF QUEENSLAND
CITATION:QCoal Sonoma Pty Ltd (Principal Holder) & Ors v Garry Reed & Ors (No. 3) [2012] QLC 0050
PARTIES:QCoal Sonoma Pty Ltd, Cliffs Australia Coal Pty Ltd, CSC Sonoma Pty Ltd, JS Sonoma Pty Ltd and Watami (Qld) Pty Ltd
(applicants)
v.
Garry Reed, Greg James, Brett Murphy, Michael Lucas, Cynthia Jean Winston, Carol Cosentino, Carole Denise Wyper, Bill Wyper, Patricia Julien and Whitsunday Regional Council
(respondents)
and
Chief Executive, Department of Environment and Heritage Protection
(statutory party)
FILE NO:EPA1002-11
DIVISION:General Division
PROCEEDING: Amendment Application for environmental authority
DELIVERED ON: 19 September 2012
DELIVERED AT: Brisbane
HEARD ON: 23 August 2012
HEARD AT:Brisbane
MEMBER:Mr WA Isdale
ORDERS:1. I recommend to the Honourable the Minister for Environment and Heritage Protection that Environmental Authority (Mining Activities) Draft Permit Number MIN100385405-Sonoma Coal Mine be issued with the following variations to the conditions in the draft:
That condition F28 be amended from:
F28Progressive rehabilitation must commence within 2 years when areas become available within the operational land.
to
F28Progressive rehabilitation must commence within two years when areas become available within the operational land except in the case of areas affected by stream diversion where it must commence as soon as practicable and not later than within two years of when areas become available for rehabilitation.
That condition F30 be amended from:
F30Complete an investigation into the rehabilitation of disturbed areas and submit a report to the administering authority proposing acceptance criteria to meet the outcomes in Table 19: Final land use and rehabilitation approval schedule and Table 20: Landform Design - unconsolidated material by 30 June 2015.
to
F30Complete an investigation into the rehabilitation of disturbed areas and submit a report to the administering authority proposing acceptance criteria and rehabilitation methods to meet the outcomes in Table 19: Final land use and rehabilitation approval schedule and Table 20: Landform Design - unconsolidated material by 30 June 2015.”
2. I direct that the Registrar of the Land Court send a copy of these reasons to the Honourable Andrew Powell MP, Minister for Environment and Heritage Protection.
CATCHWORDS: OBJECTIONS DECISION ― DRAFT ENVIRONMENTAL AUTHORITY ― VARIATIONS TO CONDITIONS
Environmental Protection Act 1994, ss 216, 219, 222, 223, 251(4)
Water Act 2000Xstrata Coal Queensland Pty Ltd & Ors v Friends of the Earth-Brisbane Co-Op Ltd & Ors [2012] QLC 013
APPEARANCES: Mr D Kelly SC and Mr M Johnson instructed by McCullough Robertson solicitors for the applicants
Ms P J Hay and Mr D Stevenson instructed by Environmental Defender’s Office of North Queensland Inc for the respondent, Garry Reed
Mr P Brown, instructed by Ms LJ Hoult, for the Department of Environment and Heritage Protection, the statutory party
Background
By a Notice dated 19 December 2011 and filed on 20 December 2011 the statutory party, the Department of Environment and Heritage Protection referred an environmental authority (mining lease) amendment application to this Court. The statutory party took this step in accordance with s.219 of the Environmental Protection Act 1994 (the Act). The Court is required by the Act to make an objections decision under Subdivision 1 of Division 7 of Part 6 of Chapter 5 of the Act. The decision is made after an objections decision hearing. The Act requires that the objections decision for the application must be a recommendation to the “EPA Minister”, the Minister for the time being administering the Act, the Minister for Environment and Heritage Protection, the Honourable Andrew Powell MP (the Minister). Section 222 of the Act provides that the objections decision for the application must be that:
“(a) the application be granted on the basis of the draft environmental authority for the application; or
(b) the application be granted, but on stated conditions that are different to the conditions in the draft; or
(c) the application be refused.”
Section 223 is in the following form:
“223 Matters to be considered for objections decision
In making the objections decision for the application, the Land Court must consider the following—
(a) the application documents for the application;
(b) any relevant regulatory requirement;
(c) the standard criteria;
(d) to the extent the application relates to mining activities in a wild river area—the wild river declaration for the area;
(e) each current objection;
(f) any suitability report obtained for the application;
(g) the status of any application under the Mineral Resources Act for each relevant mining tenement.”
The “standard criteria” referred to in (c) are defined in the dictionary of the Act:
“standard criteria means—
(a) the principles of ecologically sustainable development as set out in the ‘National Strategy for Ecologically Sustainable Development’; and
(b) any applicable environmental protection policy; and
(c) any applicable Commonwealth, State or local government plans, standards, agreements or requirements; and
(d) any applicable 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 applicable 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 nature of a Court is that it must consider the material which the parties put before it in order to make the determinations which the Act requires. The Court has recognised that not all objectors desire to participate in the hearing process and by Practice Direction, presently Practice Direction 1 of 2012, allows objectors to choose their level of participation. Level 1 objectors reply upon their notice of objection only and do not attend the hearing. In the present case all but one of the objectors has chosen to be a level 1 objector. Level 2 objectors, in addition to relying on their notice of objection, attend the hearing, do not call evidence or cross-examine witnesses and make submissions at the end of the hearing. Level 3 objectors also call evidence and cross-examine witnesses. In the present case Garry Reed was a level 3 objector but, effective on and from 24 July 2012 changed to being a level 2 objector. At the same time he withdrew any reliance on any material he had filed in the proceeding, apart from his original objection, and any material that the applicants had filed in response to his material. This represents a significant change to the evidence before the Court, made by a party represented by solicitors and two counsel and therefore with advice available on the consequences of this action. The result for the Court is that it is left to make its determination within the constraint of the new circumstance, that the evidence filed on behalf of the applicants is uncontradicted. In addition as a level 2 objector is one who does not cross-examine witnesses, none of the witnesses for the applicants were required to be present in Court for their evidence to be tested by cross-examination by counsel for Mr Reed. Mr Reed’s decision to withdraw reliance on expert and other material which he has filed has made this material inaccessible to the Court when making its determination. The Court proceeds to make its determination with only the benefit of the material provided by the applicants and the original objections filed in this Court on 20 December 2011. The Court did have the benefit of assistance from senior counsel for the applicants, counsel for Mr Reed, the level 2 objector, and counsel for the statutory party.
The application
The Sonoma coal mine, about 6 km south of Collinsville operates with an existing Environmental Authority (EA), MIN 100385405. QCoal Sonoma Pty Ltd has applied, as the principal applicant, to amend the EA which prevents mining activities within 30 m of the top of the high bank of Coral Creek. The applicants propose to divert 1280 m of the creek in order to extract coal from beneath where the creek presently runs, hence the application to amend the EA. After public notice of the proposal, the statutory party received the present objections and referred them to the Court. The parties have provided written submissions to assist the Court and the applicants and level 2 objector provided oral submissions in addition. The applicants no longer rely on the material that was filed in response to Mr Reed’s material, so the Court can have no regard to that.
The draft amended EA
The draft amended EA does not authorise the diversion of Coral Creek or any other watercourse. That will be a separate matter for an application under the Water Act 2000 and is not relevant for present purposes.[1] The draft amended EA would regulate the environmental impacts of mining activities in the area where the creek is proposed to be diverted, if that diversion is authorised under the Water Act 2000.
[1] Xstrata Coal Queensland Pty Ltd & Ors v Friends of the Earth-Brisbane Co-Op Ltd & Ors [2012] QLC 013, [79].
The lawful scope of objections
Section 216 of the Act limits the right to make objections to the application, the draft EA, or a condition of it. Section 251(4) of the Act provides that an objection may be made about an existing provision in an EA only to the extent that the provision is sought to be amended. An objection cannot be made about mining activities carried out under the EA before the deciding of the application.
Mr Reed’s objections
Mr Reed owns rural land downstream of the mine at the junction of Pelican Creek and Coral Creek. In his submissions he points out that the proposed diversion of Coral Creek is worth $80.5M to the applicants and will extend the life of the mine by only seven months. He is concerned that a previous assurance that Coral Creek would not be touched is not being honoured. As he is a downstream landowner it is obvious that what may happen upstream is of major concern to him. The Court, in the present proceeding, does not have jurisdiction to investigate such a matter as the assurance to which Mr Reed refers. He states that the rock bars across Coral Creek appear to act like terraces and may be why the Eucalyptus Raveretiana tree (Black Ironbox) does well in the area. Diversion of the creek may adversely impact on those trees. Mr Reed’s other objections are summarised as:
·There should be monitoring of particulates, PM 2.5 monitoring, as well as the PM 10 monitoring proposed.
·Monitoring the receiving waterways within 10 km is insufficient and there should be monitoring further afield.
·Stronger laws and greater security are needed to reduce the risk of failure of the plan to manage contaminated water.
·Residual voids should be filled in or the quality of water in them monitored.
·There is inadequate weed control. The use of buffel grass on spoil heaps is not compatible with native trees as intense fire occurs in its presence.
·The legislation and guidelines used to determine hazard categories should be reviewed.
·Ecosystem monitoring should be applied downstream of the mining activities.
Mr Reed submits that the precautionary principle is particularly relevant to the Black Ironbox and that insufficient data collection and modelling has occurred for there to be an adequate assessment of the impacts arising from the proposed amendments to the EA. The core concept of the precautionary principle is that where there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason not to take measures arrived at preventing environmental degradation.
The applicants’ response to Mr Reed’s objections
Mr Simon Welchman, an environmental engineer specialising in air quality and odour impacts provided a report dated 20 April 2010. That report was exhibited to his affidavit of the same date. Mr Welchman states that since PM 10 monitoring is required, PM 2.5 monitoring is unnecessary as any control measure to reduce PM 10 emissions from major sources will be equally effective in reducing PM 2.5 emissions.[2] In view of this unchallenged evidence this objection does not have merit.
[2] Affidavit of Simon Welchman dated 20 April 2012, pages 14, 18.
Mr Reed’s concern about the receiving environment of water leaving the mine site and suggested monitoring further afield is addressed by condition F25 of the draft EA which requires the implementation of all reasonable and practicable measures to prevent hazardous leachate being directly or indirectly released or likely to be released as a result of the activity to any groundwater or water course. This requirement is at once brief and comprehensive. It appears to very fully address this concern raised by Mr Reed and the Court is satisfied that no amendment of the condition is necessary in order to fully take it into account. The Court does not have jurisdiction to consider the adequacy of existing laws. Condition F25 is a new condition and Mr Reed’s reference to a breach of the mine’s levies in September 2010 is not helpful in suggesting that the proposed new condition would be ineffective, particularly as no evidence was led about a failure of the levee and in view of the requirement that measures be reasonable and practicable. It is not safe to conclude that a failure of a levee establishes that there has been a failure to take all reasonable and practicable measures as the draft condition requires.
Issues concerning creek diversion, including the effect of rock bars across the creek are matters which may well be relevant to the application under the Water Act 2000 but are not relevant to the present matter before the Court. The suggestion that noise impacts should be tested under certain wind conditions is not helpful in the absence of evidence from the objector of noise levels in those conditions. The Court must consider evidence which the parties put before it.
Mr Reed’s objection concerning residual voids
The present application and the proposed EA do not concern residual voids so the objection made in respect of them is not one which this Court has jurisdiction to consider.
Objection alleging inadequate environmental weed control
This objection also concerns an existing EA provision not sought to be amended. It is accordingly not a valid matter of objection.
Objection that there should be a review of legislation and guidelines to determine the hazard category
This relates to dams. This Court does not have jurisdiction in this proceeding to consider these aspects.
Objection concerning the definition of “acceptance criteria” in the draft EA
Mr Reed’s submissions are that the monitoring of ecosystem processes should be applied to areas affected by, and downstream of, mining activities during the mine operation. The proposal is not supported by any evidence of why this should be so, what precisely ought to be monitored or for what distance downstream the monitoring should occur. In view of this, the Court does not have sufficient material upon which to base any amendment of the draft EA.
The Precautionary Principle
Mr Reed refers to this principle and states that it is particularly relevant to the Black Ironbox trees. Unfortunately, beyond the assertion of concern that insufficient data collection and modelling have been undertaken to provide an adequate assessment of the impacts arising from the proposed amendments to the EA there is no evidence of what is said would be sufficient. The Court is without any evidentiary basis upon which such a conclusion might be able to be drawn so is unable to accept this submission.
Level 2 objections upon which Mr Reed did not make submissions
An objection made by but not pursued with submissions from the level 2 objector was to the effect that environmental impacts had been incorrectly categorised at levels below what would be correct. As there was no evidence led it is not possible for the Court to come to such a conclusion.
Mr Reed’s objection to the effect that the applicants are not proposing any further financial assistance is not supported by the existence of any relevant proposed amendment to the EA. It is therefore invalid due to the operation of s.251(4) of the Act. Additionally, there is no evidence provided for any need for specific financial assistance that could potentially allow the Court to make such a recommendation.
The level 1 objections
To bring these into focus, I will consider them by subject rather that individual objector, which will also avoid the possibility of duplication of consideration.
Objections relating to diverting Coral Creek
The 30 metre buffer zone
Leaving aside, as this Court must, considerations which would be relevant to an application to divert a watercourse and come within the scope of the Water Act 2000, there is no evidence that the 30 m buffer between mining activities and the high bank of Coral Creek at the material time would not be adequate. The Court cannot, on the material before it, support any other conclusion.
Water quality and monitoring
Concerns about the adequacy of the draft EA in those respects are not accompanied by any evidence in support of such a conclusion. The applicants rely on the evidence of Professor Campbell[3] who states that in his expert opinion the release limits are appropriate. He is also of the view that the list of parameters is comprehensive and that as the monitoring is proposed to be conducted at the only release site, the place for monitoring is suitable. Professor Campbell also expresses the opinion that trigger levels during water release events and in the context of groundwater investigations are appropriate. There being no contrary evidence, the Court cannot support any variations to the EA in those matters.
[3] Affidavit of Professor IC Campbell dated 20 April 2012.
The frequency of review of the Water Management Plan is suggested by an objector to be both before and after the wet season. Professor Campbell supports a review after each wet season. As his is the only expert opinion on the point, there is no evidence which could support a different review regime.
The possible effect in water quality measurements of rock walls such as exist near the confluence of Pelican and Coral Creeks is a matter of objection. There is no evidence of what the impact could be so it is not possible for the Court to make any recommendation for a variation to the draft EA on account of the presence of rock walls.
Concerns expressed about the appropriate locations of monitoring sites for water coming from the mine are equally unsupported by any evidence upon which a recommendation to vary the draft EA could be based.
Water re-use
There are no relevant changes to the existing EA that are proposed in the draft so the objections in this regard are beyond the scope of objections permitted by the Act. In any event, the evidence of the relevant expert, Mr Lait, is that the environmental impact of the water re-use will be “negligible”.[4]
[4] Mr RW Lait, affidavit 20 April 2012 and his report, exhibited thereto, at pages 12 to 16.
Effects on flora and fauna
The objections of this nature do not contain any particularity beyond the level 2 objector’s identification of the Black Ironbox. Significantly, there is no evidence of harm which the existing draft EA does not adequately deal with so no conclusion could be reached in support of some variation in the draft EA.
Dams
Objections about dams and their storage capacity and ability to withstand a 1 in 1,000 year event are dealt with in the evidence of the expert Mr Ogle.[5] The expert states that none of the proposed structures will be a water storage facility so storage capacity is not a relevant consideration. Mr Ogle points out that the structures, which are associated with diversion of the creek, have been designed to keep a 1 in 1,000 year flood in Coral Creek away from the proposed mining area. In view of this, there is no basis for any variation of those conditions in the draft EA.
Waste disposal
[5] Mr DG Ogle’s affidavit dated 19 April 2012 exhibiting his report dated 19 April 2012.
The objection to the effect that scrap tyres should be recycled does not relate to a matter where there is any proposed change to existing environmental conditions and is therefore not a matter within the scope of an objection in the present proceeding.
Bunded waste
The objection to the effect that wastes should be bunded to protect against floods has not been accompanied by any evidence of what level of bunding ought to be seen as adequate so the Court is not able to support, on any evidence, any condition which might be more appropriate for inclusion in the draft EA.
The effect of flooding on waste
Objection is made to the effect that consideration should be given to flooding impacting on waste. Mr Ogle’s evidence is that the existing and proposed levee and sediment drains have been designed to contain a 1 in 1,000 year flow without overtopping to the areas where waste may be. Mr Ogle is of the view that the amended conditions in the draft EA are adequate.
Noise monitoring
The objection that the noise and vibration monitoring stations must be in appropriate areas is not accompanied by any evidence of where these facilities should be. It is accordingly not possible to arrive at any recommended alterations to the draft EA which provides for the use of the administering authority’s noise management manual.
Post-mining rehabilitation
These objections relate to matters not changed in the proposed amendment and which are therefore outside the scope of objections which the Court has jurisdiction to consider.
Risks from the residual void
These objections are likewise beyond the scope of the objections able to be made in the present proceeding.
Completion of the rehabilitation management plan
Mr MC Evans, environmental consultant, has prepared a report dated 19 April 2012.[6] Mr Evans has considered the objection made by Mr G Crawford of Whitsunday Municipal Council to the effect that a Rehabilitation Management Plan should also be completed by 30 June 2015. This relates to condition F30 of the draft EA, which is currently in the following form:
[6] It is exhibited to his affidavit dated 20 April 2012. See 6.4 of the report at pages 1318-1319 of Trial Bundle volume 3 of 5.
“F30 Complete an investigation into the rehabilitation of disturbed areas and submit a report to the administering authority proposing acceptance criteria to meet the outcomes in Table 19: Final land use and rehabilitation approval schedule and Table 20: Landform Design - unconsolidated material by 30 June 2015.”
In his report, Mr Evans states:
“6.4.3 Discussion
33. I would expect sufficient information to be customarily supplied within the Environmental Management Plan required under the Environmental Protection Act 1994 by a proponent of a mine to assure the administering authority that there is a reasonable expectation of successful rehabilitation given the circumstances of the proposed mining activities. Condition F30 of the draft Environmental Authority requires that an investigation into rehabilitation success criteria be undertaken and submitted by 30 June 2015. It is possible that any agreed success criteria resulting from this study may require a change in rehabilitation methods currently described within the Sonoma Mine Management Environmental Management Plan (Montgomery 2011) and current rehabilitation management plan (SMM 2007). Consequently, the submission of supporting rehabilitation methods at the same time as the acceptance criteria in (sic) not unreasonable to confirm that the proposed success criteria can be reasonably expected to be met.
34. The condition F30 could be amended to read ‘Complete an investigation into rehabilitation of disturbed areas and submit a report to the administering authority proposing acceptance criteria and rehabilitation methods to meet the outcomes …’.”
The Court accepts this unchallenged expert evidence and accordingly recommends to the Honourable the Minister that condition F30 of the draft EA be amended to read as follows:
“ ‘Complete an investigation into the rehabilitation of disturbed areas and submit a report to the administering authority proposing acceptance criteria and rehabilitation methods to meet the outcomes in Table 19: Final land use and rehabilitation approval schedule and Table 20: Landform Design - unconsolidated material by 30 June 2015.’ (underlining added to show the proposed change)”
In the written submissions made on behalf of the applicants and filed on 24 August 2012, at paragraph 199 thereof, the applicants state that they are content that this is an appropriate amendment.
Rehabilitation landform criteria
An objection was made to the effect that revegetation should match the previously existing ecosystem. Mr Evans restates in his report that existing proposed EA conditions should in fact require vegetation to be re-established similar to the previous ecosystem. On that evidence the Court is satisfied that there is no need to recommend any variance to the existing draft EA in this regard.
The use of buffel grass in rehabilitation
The use of buffel grass, which is not a native grass, is objected to on the basis that it out-competes native grasses and is a higher fire hazard. In his report, Mr Evans has considered this. His report relevantly states:
“27. Currently, condition F27 can be read to require the presence of introduced grasses including buffel grass. I believe however that the species list of condition F27, Table 20 was not intended to nor should apply to the diversions. Condition F27 could be amended for example as ‘Self-sustaining vegetation cover, in accordance with condition F26 for disturbance types of Table 16 other than Diversions must comply with the standards identified in Table 20 …’.”
The evident intention is to remove buffel grass from potentially being used in the area of the proposed diversion. I am not satisfied that the example of drafting in paragraph 27 of Mr Evans’ report will necessarily achieve this. I note that condition F27 of the draft EA refers to Table 22 “Self-Sustaining Vegetation” and that buffel grass (Cenchrus ciliaris) has been deleted from the draft filed on 24 August 2012. As buffel grass has been deleted from this table it will not be necessary to further amend the draft EA in order to address this objection.
The time in which rehabilitation must be commenced
Condition F28 of the draft EA provides that:
“F28 Progressive rehabilitation must commence within 2 years when areas become available within the operational land.”
The potential two year delay is the subject of objection. In his report, Mr Evans writes:
“30. Although condition F28 may be considered appropriate for routine rehabilitation, I consider application of condition F28 to the disturbance type ‘Diversions’ as inappropriate. The condition could be amended to read ‘Progressive rehabilitation for disturbance types other than Diversions must commence within 2 years when areas …’.”
I am not satisfied that the suggested amendment would best meet the circumstances and instead recommend that condition F28 be amended so that it reads:
F28Progressive rehabilitation must commence within two years when areas become available within the operational land except in the case of areas affected by stream diversion where it must commence as soon as practicable and not later than within two years of when areas become available for rehabilitation.
Objections concerning allegations of past non-compliance with conditions
These are beyond the scope of matters which are able to be considered within the jurisdiction granted to this Court by the Act in the present proceedings.
Recommendations
I recommend to the Honourable the Minister for Environment and Heritage Protection that Environmental Authority (Mining Activities) Draft Permit Number MIN100385405-Sonoma Coal Mine be issued with the following variations to the conditions in the draft:
That condition F28 be amended from:
F28Progressive rehabilitation must commence within 2 years when areas become available within the operational land.”
to
F28Progressive rehabilitation must commence within two years when areas become available within the operational land except in the case of areas affected by stream diversion where it must commence as soon as practicable and not later than within two years of when areas become available for rehabilitation.
That condition F30 be amended from:
F30Complete an investigation into the rehabilitation of disturbed areas and submit a report to the administering authority proposing acceptance criteria to meet the outcomes in Table 19: Final land use and rehabilitation approval schedule and Table 20: Landform Design - unconsolidated material by 30 June 2015.
to
F30Complete an investigation into the rehabilitation of disturbed areas and submit a report to the administering authority proposing acceptance criteria and rehabilitation methods to meet the outcomes in Table 19: Final land use and rehabilitation approval schedule and Table 20: Landform Design - unconsolidated material by 30 June 2015.”
Direction
I direct that the Registrar of the Land Court send a copy of these reasons to the Honourable Andrew Powell MP, Minister for Environment and Heritage Protection.
WA ISDALE
MEMBER OF THE LAND COURT
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