Re Bowen River Coal Pty Ltd
[2012] QLC 18
•4 May 2012
LAND COURT OF QUEENSLAND
CITATION:Re Bowen River Coal Pty Ltd [2012] QLC 0018
PARTIES:Bowen River Coal Pty Ltd
ACN 133 356 779
(Applicant)
v.
Carol Cosentino
Greg James
William Patrick O’Loughlin
Whitsunday Regional Council
(Objectors)
and
Chief Executive, Department of Environment and Heritage Protection
(Statutory Party)
FILE NO:MRA898-11
EPA977-11
DIVISION:General Division
PROCEEDING: Application for Mining Lease No. 10345 and objections; objections to application for environmental authority
DELIVERED ON: 4 May 2012
DELIVERED AT: Brisbane
HEARD ON: 17 April 2012
HEARD AT:Brisbane
MEMBER:Mr WA Isdale
ORDER/S:A. I recommend to the Honourable the Minister for Natural Resources and Mines that:
1.Pursuant to s.269 of the Mineral Resources Act 1989, Mining Lease No. 10345 be granted over the whole of the application area for a term of 15 years.
2.As the area of Mining Lease No. 10345 is currently gazetted as a road reserve although not a formed road and in fact used for grazing cattle under a Permit to Occupy the road must either be closed or the mining activity on the road must be expressly authorised under Mining Lease No. 10345. This is so in view of s.404E of the Mineral Resources Act 1989 which makes it an offence to perform mining activity in a way that obstructs a road unless it is expressly authorised under a mining tenement. I recommend that the road be closed or the authorisation given.
3.In accordance with s.269(2)(b) of the Mineral Resources Act 1989, the Governor in Council should consent to the grant of Mining Lease No. 10345 over the whole of the surface area of the road reserve if it is to remain a road reserve and recommend that no additional conditions be added to Mining Lease No. 10345 in respect of this aspect.
B.I recommend to the Honourable the Minister for Environment and Heritage Protection that:
1.Draft Environmental Authority No. MIN100942709 dated 14 October 2011 be issued for Mining Lease No. 10345 with the following additional condition:-
C18A. In addition to the characteristics defined in Table 6, the water storages described in Table 5 which are associated with the release points must be monitored for the water quality characteristics specified in Table 6A at the monitoring locations and at the monitoring frequency specified in Table 5.
Table 6A - Onsite Water Storage Additional Monitoring
Quality Characteristic Ammonia (µg/L) Nitrate (µg /L)
C.I direct that the Registrar of the Land Court send a copy of these reasons to the Honourable the Minister for Natural Resources and Mines and to the Honourable the Minister for Environment and Heritage Protection.
CATCHWORDS: Mining lease, Mineral Resources Act 1989 ss 268, 269
Environmental Protection Act 1994 ss 216, 222(1)(b)
APPEARANCES: Mr DB Fooks, solicitor, Clayton Utz, for the Applicant
Ms A Ireland, lawyer, Legal Section, Department of Environment and Heritage Protection, for the Statutory Party
The application
This is an application made under s.245 of the Mineral Resources Act 1989 (the Act) for Mining Lease (ML) 10345. It was lodged on 4 November 2009 and in accordance with the Act the Mining Registrar at Charters Towers referred it to the Land Court on 24 November 2011. The proposed lease is for the purpose of mining coal within an area of 210.5 ha referred to as “Cows”, apparently reflecting its traditional use as a cow paddock. As its shape indicates, the area is dedicated as a road although not used as such and not a formed road, at least not yet. The lease is sought for a period of 15 years.
The purpose
The applicant proposes to mine, by the open-cut method, a coal resource of approximately 2.5 million tons located within the Moranbah B and Q seams. The 15 year period is sought so as to allow adequate time for the preparation, extraction of coal and for progressive rehabilitation of disturbed areas. It is planned to extract the coal in conjunction with progressive mining in the adjoining Sonoma mine and the 15 year period is being sought so as to allow for this.
The location
The lease is located approximately 8 km south of Collinsville and its situation next to the existing Sonoma mine will allow the use of road and rail infrastructure already in place for the purpose of that mine.
The surface area
In addition to extracting the coal from beneath the ground, the whole surface area is required for the open-cut mining process, fences, roads, water management, storage of overburden and coal and for site rehabilitation purposes.
Objections
Objections were received from Ms Carol Cosentino, Mr Greg James, Mr William Patrick O’Loughlin and from the Whitsunday Regional Council. All of the objectors chose to rely on their notices of objection only and not to attend the hearing, having declined the opportunity to attend, to call evidence and cross-examine witnesses and to make submissions at the end of the hearing. As the objectors did not attend and participate in the hearing they made no requirement for any witnesses to be present for cross-examination. The hearing was conducted by the introduction, without objection, and reliance upon the unchallenged written evidence of witnesses for the parties who did attend. None of the objectors filed any evidentiary material or anything in addition to their objections.
The hearing
The Court conducted a hearing at which the evidence was the written material tendered by the parties who did attend and which was neither objected to, tested by cross-examination by or on behalf of the objectors or contradicted by any evidence put forward by them.
The Court considered the evidence put before it at the hearing and the objections previously made. The Court specifically required that the objections be addressed. In that regard both the applicant and the statutory party responded in detail to the objections in their written submissions. The objections themselves are a helpful input and were addressed in a positive manner by the applicant and the statutory party. Indeed, when water quality was raised by the Court during the hearing, the issue having been highlighted by the objections, the applicant and the statutory party willingly co-operated in further considering the matter. This resulted in the proposal for monitoring ammonia and nitrate which the Court has recommended be included as a condition of the draft environmental authority.
The Court was greatly assisted in its task by the legal representatives at the hearing, by their prompt and effective attention to the aspect of further water quality monitoring and in providing written submissions.
The objections
Ms Cosentino’s objection
This objection centres around the potential for flooding to cause pollution from the mine site to enter the local waterway system and from there to progress downstream into the Bowen and Burdekin Rivers. In addition, the levels of salinity proposed to be permitted in water able to be released from the mine site is said to be too high.
The evidence includes a flood assessment of the site and in order to manage the risk in this regard a protective embankment is proposed to be built. This structure is to be capable of withstanding a 1 in 10,000 year flood event. There is no evidence that such a protective structure would be other than adequate so accordingly, I accept that it will be, since the evidence is uncontradicted on the point.
Concerning the salinity of discharge water, by conditions C9 and C10 of the draft Environmental Authority (EA), the electrical conductivity of the water released, which is a measure of its salinity, must be less than 1,500 µS/cm (micro Siemens per centimetre). In accordance with condition C10 it may only be released when the waterway is flowing so it will be diluted to lower levels. The objection that a water salinity level indicated by conductivity of 1,500 µS/cm is only suitable for stock and not for human consumption is addressed by the dilution. It is noted that there is no suggestion in the evidence that stock or humans would be expected to drink the water ready to be released. It is to be released into a creek when the creek is flowing. In submissions, the statutory party asserted that releases of this water as permitted would result in a downstream salinity of approximately 458 µS/cm, which is well within drinking water guidelines.
Reference is made by the objector to a conductivity level of 5,000 µS/cm as a threat to the ecosystem, excessive and “obsene” (sic). However water with such a high level of salinity is not permitted to be released into a stream. Under condition C25 of the EA such water may, for instance, be piped or trucked into water storage for purposes such as use at mines, for construction or road maintenance and for stock and irrigation. Condition C27 of the EA requires that responsibility for this water must only be transferred by a written agreement signed by both parties and that the person using it must prevent environmental harm or public health incidents. The person using the water is required to be specifically made aware of relevant requirements of the Environmental Protection Act 1994.
The objections of Mr James and Mr O’Loughlin
These objections are broadly stated and encompass environmental harm and the residing of mine workers in local communities and in purpose-built encampments. The applicant and the statutory party directed the Court’s attention to, respectively, the potential community impact analysis and to the environmental management plan where these aspects have been considered.
A more particular aspect of objection is the matter of residual voids left after mining. Condition F6 of the draft EA requires that a report be provided to the administering authority by 30 June 2014 in relation to this so that rehabilitation of the site can occur in accordance with acceptance criteria yet to be developed. It is understandable that the precise locations and dimensions of the voids will be likely to be better known then and that such knowledge would be an essential input into rehabilitation planning.
In relation to heavy metals, the draft EA requires the applicant to monitor both water on the site and any water released from the site. It is submitted on behalf of the statutory party that the trigger levels for heavy metals in the draft EA are low enough to protect aquatic ecosystems and drinking water supplies downstream of the mine. This is uncontradicted.
Loss of vegetation is a concern of these objectors. In that regard condition F10 of the draft EA requires that a complete rehabilitation management plan be provided to the administering authority by 30 June 2014. The minimum content of the plan is comprehensively detailed in F10 and there is no evidence that this requirement is in any way inadequate or unsatisfactory.
The objection by the Whitsunday Regional Council
This objector has, in its objection, requested further details of the proposed rehabilitation. This is not an objection but can perhaps usefully be interpreted as expressing a concern that insufficient information has been provided. Similar concern is expressed about how the mine will be operated and about water management and release.
Mr Christopher Ian Wallin, managing director of the applicant, and Mr Hayden Paul Leary, environment and risk manager of QCoal, describe in their affidavits the proposed mining operation and the environmental management plan which led to the draft EA which in turn requires the development of specific plans over the life of the mine. The draft EA contemplates planning for all relevant aspects of the operation and it is not a deficiency that all possible plans are not in place before mining commences. It can be readily appreciated that rehabilitation, for instance, will be best able to be planned in detail in view of the actual excavations undertaken.
The objector refers to electrical conductivity release limits of 5,000 µS/cm and pH release limits of 6.5 to 8 as too high. It is unnecessary to repeat my earlier consideration of the conductivity limits as it is clear that water at that salinity level is not permitted to be released into a stream but dealt with in accordance with a strict regime within which its salinity and pH are able to be closely managed in respect of the uses to which the water may be put.
As has already been considered, rehabilitation planning is provided for in the draft EA and it will require consideration of the size and contour of any remaining voids, which is also a matter of concern to the objector.
The objector refers to the loss of 30 ha of grazing land and 5 ha of Regional Ecosystem and suggests that the remaining viable grazing land be rehabilitated to a higher standard. Condition F10 in the draft EA, referred to earlier, requires a report to the administering authority by 30 June 2014 which, inter alia, must itemise revegetation criteria so that the authority may ensure that suitable goals and standards are set for the rehabilitation process. The detailed requirements of condition F10 describe what the rehabilitation management plan must deal with at a minimum and as such it appears to the Court that this concern is planned to be satisfactorily dealt with.
The Cows coal project has been assessed as a stand-alone project and not included within the Sonoma mine, which it adjoins, and from which extraction of coal will progress onto the lease area if it is approved. It is described in the submissions provided on behalf of the applicant as “a stand alone operation” and has its own draft EA. It is clear however that it will be worked together with that other mine and that some advantages will accrue from this. For example there being no need for additional roads external to the lease area or for additional rail infrastructure, as the rail loop on the Sonoma mine can be used for the transport of coal extracted from the Cows mine.
Surface water flow on the lease area is dealt with in detail in the draft EA, with mine affected water release limits being set and release containment trigger investigation levels specified in condition C5 of the draft EA. As previously discussed, the Court does recommend additional regulation in relation to ammonia and nitrate and that this be achieved by the imposition of an additional condition, condition C18A and Table 6A, which are included in the Court’s recommendations for the draft EA.
A summary of the objections
Within the limitations introduced by the fact that none of the objectors was present in Court, the consideration of their objections led to the useful outcome that the Court’s consideration of aspects raised in the objections has led to a recommended tightening of the environmental monitoring. Although the applicant is of the view that this is unnecessary, it was most willing to engage with the statutory party to propose a suitable condition to address the concern and readily expressed a willingness to comply with the proposed condition.
I will now turn to a consideration of those matters specified in s.269(4) of the Act.
The criteria in s.269(4) of the Act
Section 269(4)(a) — Have the provisions of the Act been complied with?
Examination of the Mining Registrar’s Report for the Land Court dated 24 November 2011, the affidavit of Christopher Ian Wallin sworn on 21 March 2012 and all of the other material provided to the Court in this matter demonstrates that all of the required provisions of the Act have been complied with.
The surface area of the proposed lease is a gazetted road reserve so s.269(2)(b) of the Act applies. The Court recommends to the Honourable the Minister for Natural Resources and Mines that the Governor in Council should consent to the grant of the mining lease over that surface area. The Court does not recommend that there be any additional conditions to which the mining lease should be subject on account of this.
Section 269(4)(b) — Is the area of land applied for mineralised or are the other purposes for which the lease is sought appropriate?
The lease area contains, according to the evidence, the Moranbah B and Q coal seams and is expected to yield about 2.5 million tons of coal. The lease is sought for extraction of this coal and for the purposes incidental thereto. I am satisfied that the area is mineralised and that the lease purposes are appropriate.
Section 269(4)(c) — If the land applied for is mineralised, will there be an acceptable level of development and utilisation of the mineral resources within the area applied for?
It is proposed to extract approximately 2.5 million tons of coal from the 210.5 ha lease area. In view of this, and there being no evidence to the contrary, I am satisfied that this will be an acceptable level of development and utilisation of the mineral resources in the area applied for. Mr Wallin’s affidavit states that mining activities are proposed to occur on a seven days a week, 24 hours per day basis.
Section 269(4)(d) — Is the land and the surface area of that land in respect of which the mining lease is sought of an appropriate size and shape in relation to the matters mentioned in paragraphs (b) and (c) and 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?
The land the subject of the proposed mining lease is a road reserve and mining on an adjoining lease is moving towards it as the coal seams are followed. As it will be worked in co-operation with the existing Sonoma mine its shape and size does not present a difficulty. Restricted land within the lease area has been the subject of written consent filed with the Mining Registrar. The local council has not yet consented to the proposed lease, neither has it refused its consent and I have already referred to the Court’s power under s.269(2)(b) of the Act to recommend that the Governor in Council should consent notwithstanding this.
The land and surface area of the land on which the mining activities are proposed to be carried out are appropriate in view of the mining activities which are intended. The likely impact of those activities on the surface of the land has been planned for and may be carefully managed under the rehabilitation arrangements.
Section 269(4)(e) — Is the term sought appropriate?
In his affidavit, Mr Wallin states that the period sought will allow the construction, extraction and rehabilitation to be carried out economically. There was no challenge to this evidence and no evidence to the contrary so there is no basis on which a different conclusion could be drawn. I therefore am satisfied that the 15 year term is appropriate.
Section 269(4)(f) — Does the applicant have the necessary financial and technical capabilities to carry on mining operations under the proposed mining lease?
Mr Wallin swears this to be so in his affidavit, making reference to the supporting statements annexed to the application for Mining Lease No. 10345. There being no challenge to this evidence and no evidence to the contrary, I am therefore satisfied that the applicant meets this requirement.
Section 269(4)(g) — Has the past performance of the applicant been satisfactory?
In his affidavit Mr Wallin swears that the applicant has never been called on to show cause for any alleged failure to comply with a condition of a mining tenement or the Act or any other Act relating to mining. Neither has it had a mining lease or claim forfeited for any reason. In addition, it has never had a security deposited by it in relation to mining increased, used to rectify a breach or to pay a penalty or reviewed other than in accordance with yearly reviews.
It was submitted on behalf of the applicant that a legal infringement relating to the Sonoma mine was related to a different corporate entity, not to the present applicant. It was not challenged that this was so. It must therefore be concluded that there is no evidence that the past performance of the applicant is other than satisfactory and, from Mr Wallin’s evidence, that it has been satisfactory.
Section 269(4)(h) — Will any disadvantage result to the holders of existing exploration permits or mineral development licences or to existing applicants for exploration permits or mineral development licences?
At the time when the present application was made it was overlapped by Exploration Permit for Coal (EPC) 586 and by EPC 639. It was also overlapped by Authority to Prospect (ATP) 688. Mr Wallin swears in his affidavit that all of the holders of these tenements have provided their consent to the present application. I am accordingly satisfied that there will not be any disadvantage within the meaning of s.269(4)(h) of the Act.
Section 269(4)(i) — Do the operations to be carried on under the authority of the proposed mining lease conform with sound land use management?
A Plan of Operations must be approved before mining operations commence. The EA will influence this plan and provides detailed regulation of environmental aspects of the proposed mining. The presence of the EA and its provisions for rehabilitation planning provides a basis for an expectation that the operations will in all respects conform with sound land use management.
Section 269(4)(j) — Will there be any adverse environmental impact caused by the operations and, if so, the extent thereof?
It would have to be realistically expected that some adverse environmental impact will be likely. The draft EA however provides a comprehensive regime for managing possible environmental impacts so as to minimise them and so that the risks of harm are actively controlled. In relation to this aspect the Court has recommended the imposition of an additional condition in the draft EA so that the risks relating to emissions of ammonia and nitrate may be further reduced.
Section 269(4)(k) — Will the public right and interest be prejudiced?
The lease will not affect the current use of a public road as, although gazetted as such, the lease area is not a formed road or used as a road. Mr Wallin states in his affidavit that the access to the Bowen Development Road will be designed to Main Roads’ guidelines for providing adequate visibility and safe turning locations. He has also sworn that native title has been extinguished over the proposed lease area so that the lease will have no impact on any native title rights or interests in the area.
Section 269(4)(l) — Has any good reason been shown for a refusal to grant the mining lease?
In view of the draft EA and this Court’s recommended amendments to it, the Court is satisfied that no good reason has been shown for a refusal to grant the lease.
Section 269(4)(m) — Is the proposed mining operation an appropriate land use taking into consideration the current and prospective uses of the land?
The land the subject of the proposed lease is a road reserve which is currently used for grazing pursuant to a Permit to Occupy. There is no evidence of any higher prospective use of the land after the expiry of the proposed lease. The extensive rehabilitation planning provided for in the draft EA should allow the achievement of the post-mine land use aim which is to return the area to low-intensity grazing use land as referred to in paragraph 78 of Mr Wallin’s affidavit. The Court is satisfied that the proposed mining operation is an appropriate use of this land in view of its current and prospective uses.
Native Title
As referred to in [38], native title has been extinguished over the area of this proposed lease.
Recommendations
A. I recommend to the Honourable the Minister for Natural Resources and Mines that:
1.Pursuant to s.269 of the Mineral Resources Act 1989, Mining Lease No. 10345 be granted over the whole of the application area for a term of 15 years.
2.As the area of Mining Lease No. 10345 is currently gazetted as a road reserve although not a formed road and in fact used for grazing cattle under a Permit to Occupy the road must either be closed or the mining activity on the road must be expressly authorised under Mining Lease No. 10345. This is so in view of section 404E of the Mineral Resources Act 1989 which makes it an offence to perform mining activity that obstructs a road unless it is expressly authorised under a mining tenement. I recommend that the road be closed or the authorisation given.
3.In accordance with s.269(2)(b) of the Mineral Resources Act 1989, the Governor in Council should consent to the grant of Mining Lease No. 10345 over the whole of the surface area of the road reserve if it is to remain a road reserve and recommend that no additional conditions be added to Mining Lease No. 10345 in respect of this aspect.
B. I recommend to the Honourable the Minister for Environment and Heritage Protection that:
1.Draft Environmental Authority No. MIN100942709 dated 14 October 2011 be issued for Mining Lease No. 10345 with the following additional condition:-
C18A. In addition to the characteristics defined in Table 6, the water storages described in Table 5 which are associated with the release points must be monitored for the water quality characteristics specified in Table 6A at the monitoring locations and at the monitoring frequency specified in Table 5.
Table 6A - Onsite Water Storage Additional Monitoring
Quality Characteristic Ammonia (µg /L) Nitrate (µg /L)
Direction
I direct that the Registrar of the Land Court send a copy of these reasons to the Honourable the Minister for Natural Resources and Mines and to the Honourable the Minister for Environment and Heritage Protection.
WA ISDALE
MEMBER OF THE LAND COURT
0
0
0