RTA Weipa Pty Ltd v The Wilderness Society (Qld) and Department of Environment and Heritage Protection - [2014] QLC 2

LAND COURT OF QUEENSLAND

CITATION: RTA Weipa Pty Ltd v The Wilderness Society (Qld) and Department of Environment and Heritage Protection [2014] QLC 2

PARTIES:
RTA Weipa Pty Ltd

(Applicant)

v

The Wilderness Society (Qld)
(Respondent)

and

Chief Executive, Department of Environment and Heritage Protection
(Statutory Party)

FILE NOS: EPA875-12

DIVISION: General Division

PROCEEDING: Application to Amend Environmental Authority. Objections to Draft Environmental Authority.

DATE OF HEARING: March 2013

DELIVERED ON: 3 February 2014

DELIVERED AT: Brisbane

HEARD AT: Brisbane

MEMBER:: His Honour, Mr WL Cochrane

ORDERS:
[1]   As to preliminary matters:

        (a)   I find that the application was properly made by the Applicant.

        (b)   The application as made properly complied with the requirements of the Environmental Protection Act 1994.

        (c)    The objector Wilderness Society (Qld) made proper objection to the application.

[2]   I recommend to the Honourable the Minister for Environment and Heritage Protection pursuant to the Environmental Protection Act 1994 that the Draft Environmental Authority issued on 3 October 2012 be issued without amendment.

[3]   I direct that the Registrar of the Land Court send a copy of these reasons to the Honourable the Minister for Environment and Heritage Protection.

CATCHWORDS:
Environment – draft Environmental Authority – objections – Environmental Protection Act1994 – ss 219, 220, 222, 223

McBain & Others v Clifton Shire Council & Others (1995) QPLR 363.

Ulan Coal Mines v Minister for Planning and Anor (2008) 160 LGERA 20.

Barrington-Gloucester-Stroud Preservation Alliance Inc v Minister for Planning and Infrastructure (2012) NSW LEC 197.

Jax Coal Pty Ltd v Garry Reed and Mackay Conservation Group and Whitsunday Regional Council and Chief Executive, Department of Environment and Heritage Protection [2013] QLC 39.

APPEARANCES:
Mr O'Donnell QC instructed by Allens for the Applicant.

Dr Tim Seelig for The Wilderness Society.

Mr S Barclay legal officer with the Department of Environment and Heritage Protection for the Statutory Party.

On 20 November 2012 the Department of Environment and Heritage Protection (hereafter DEHP) referred an amendment application for a Level 1 Environmental Authority (Mining Lease) MIN 100939109 (ML 6024 and ML 7024) made by RTA Weipa Pty Ltd to this Court.
That referral was in accordance with s 219 of the Environmental Protection Act 1994 (EPA).
The application for an amendment of the Level 1 Environmental Authority MIN 100939109 had been received by DEHP on 16 July 2012 and was in respect of a mining project which can conveniently be referred to as the South of Embley Project.
RTA Weipa Pty Ltd (RTA Weipa) was notified by DEHP on 3 October 2012 of their obligation to carry out public notification under ss 254 and 255 of the EPA.
The advice from DEHP referencing ss 254 and 255 was incorrect and should have referred to s 211 of the same Act as it then existed[1].
[1] See Reprint 11B as at 7 December 2012.
That was not the fault of RTA Weipa. They did, however, act on that advice and carry out the advertising with the consequence that the advertising requirements were not precisely in compliance with the EPA.
The Applicant became aware of that error following correspondence from DEHP dated 10 October 2012 which corrected its mistake.
The Applicant had responded promptly to the 3 October 2012 notice and had begun the public notification process but, understandably, pursuant to the wrong provisions of the Act. It becomes clear from a statutory declaration with respect to the public notification requirements that the mistake caused the public notification process to be carried out some days later than was required.
RTA Weipa made application to the Statutory Party seeking to have their efforts at public notification treated as being substantially compliant, and by notice granted on 15 November 2012, the Statutory Party recommended that the application be allowed to proceed on the basis of substantial compliance with the public notice requirements of the EPA pursuant to s 215 of that Act and that an objection by the Wilderness Society (Qld) be accepted as a properly made objection under s 217 of the EPA.
All of that occurred prior to the referral of the matter to this Court.
The Wilderness Society (Qld) had lodged an objection in the requisite form on 12 November 2012 setting out 16 areas of objection and summarising the grounds of objection in the following terms:[2]
[2] See objection form page 4 of 7, 12 November 2012.
"Grounds of the objection:
(1)The application for an environmental authority (mining lease) for the mine should be refused and the draft environmental authority (mining lease) should not be granted under the Environmental Protection Act 1994 ("EPA") on the grounds that either or both the application and the draft environmental authority (EA):
(a)provide insufficient analysis of potential key environmental impacts; and
(b)are inadequate in terms of specifying how key environmental impacts will actually be managed, beyond requiring the future development of subsidiary plans to manage particular issues; and
(c)provide inadequate conditions in relation to the management of particular activities.
In addition to being inconsistent with the precautionary principle, the proponent's and administering authority's failure to demonstrate the adequacy of the environmental strategies that are to be put in place to manage the environmental impacts of the project is inconsistent with:
(i) the object of the EPA;
(ii)the principles of ecologically sustainable development as set out in the National Strategy for Ecologically Sustainable Development;
(iii)the character, resilience and values of the receiving environment; and
(iv)the public interest.
The particulars of the objections are stated as follows:
Facts and circumstances relied on in support of the grounds of objection
Ground 1(a) – Insufficient analysis of environmental impacts
Sea snake
1.A new distinctive species of sea snake was discovered in the project area and reported in scientific journals in January 2012. It is likely that the habitat of the species, commonly called the rough-scaled sea snake, includes seagrass beds less than 10 metres in depth, in the vicinity of the estuary of Mission River and Hey Rivers. While the species is not, at this stage, listed for State and Commonwealth protection further investigation is required into the habitat and distribution of the snake, including consideration of its conservation status. These matters are not currently dealt with in either the application or the draft EA.
Impact on key species from habitat loss
2.The application and the draft EA need to account for – and expressly document – potential changes to ecosystems (flora and fauna) that are likely to result from the project, irrespective of any rehabilitation program. In a recent study 1 of 30 rehabilitated former Rio Tinto mine sites near Weipa it was found that nearly one third of the bird species that had lived in the eucalyptus forests before mining started, including the Palm Cockatoo had not returned to the rehabilitated areas because of habitat loss. In addition to Palm Cockatoos, pied imperial pigeons, brown treecreepers, varied sittellas, grey-crowned babblers and emus are some of the species likely to be affected by the removal of the original eucalyptus forest.
3.These impacts are not adequately addressed in the current application or draft EA. Any approval for the project should include a specific requirement for the proponent to identify potential ecosystem changes, and resultant impacts on species having regard to recent research (Gould 2010) and technical limitations to any proposed rehabilitation program. The proponent should also be required to identify what it intends to do to overcome and/or minimise habitat loss of vegetation types (specifically Eucalyptus tetrodonta) existing prior to the commencement of mining.
4.In support of this recommendation we note the statement from the application that "about 98 species or approximately 36% of the total compliment of species from the Project area have been identified from Darwin Stringybark open woodland, which is the habitat that occurs almost exclusively on the bauxite plateau." This habitat – Darwin Stringybark (Eucalyptus tetrodonta) – cannot be replaced, with significant flow on effects for species (Gould 2010).
Shipping between Weipa and Gladstone
5.Neither the application nor the draft EA addresses the potential environmental impacts of ship movements between Weipa and Gladstone, presumably because the Coordinator-General, in his May 2012 report on the project, relied on an approval from 1999 for the Yarwun Alumina Refinery in Gladstone to process up to 4 million tonnes per annum of alumina, involving domestic shipping of bauxite from the Weipa mines of approximately 155 ships per annum.
6.The Coordinator-General found that shipping from the South of Embley project would not exceed environmental approvals granted to the Yarwun Alumina Refinery in 1999 by the then Coordinator-General and went on to state that "further environmental assessment of shipping movements is not required, provided the refinery capacity in Gladstone remains within current authorisations."
7.This failure to assess the current environmental impacts of shipping movements – purely on the basis of an approval given in 1999 – is inadequate and fails to take into account the most recent findings in relation to the environmental impacts of shipping movements and port development on the Great Barrier Reef, including but not limited to the March 2012 UNESCO report (UNESCO Mission Report, Reactive Monitoring Mission to Great Barrier Reef (Australia), 6^th to 14^th March 2012 (Douvere and Badman), which raised significant concerns about the health of the reef, including but not limited to port and shipping activities to and from Gladstone).
8.The application and draft EA should be required to consider the most up to date findings about the health of the Great Barrier Reef in assessing the environmental impacts of ship movements between Weipa and Gladstone, instead of seemingly relying on approvals provided in 1999 as a rationale for not assessing the issue.
Ground 1(b) – Inadequate specification of key environmental management strategies
9.The application and draft EA are inadequate in terms of specifying how key environmental impacts will actually be managed and, instead, defer resolution of issues to the development of subsidiary plans on particular matters. These include development of:
a.Land Use Management Plan (C6), which is to deal with, inter alia, plans and procedures for managing vegetation (including buffer systems) and the presence of endangered, vulnerable or near threatened species under the Nature Conservation Act 1992 (NCA); procedures for managing acid sulphate soils; and the development of a survey plan for two new species referred to in Ground 1(c) below;
b.Species Management Plan (C12), the scope of which will be critical in determining the adequacy of proposed management actions in relation to fauna species listed under the NCA;
c.Foreshore Access Management Plan (C16), the scope of which will be critical in determining the adequacy of proposed management actions in relation to turtle and shorebird nesting sites;
d.Rehabilitation Management Plan (C23), including Rehabilitation Objectives (C17) and key measures of rehabilitation success (C20);
e.Location of Regulated Dams are, in some instances, still to be determined (Table D1), including the precise location of the Boyd and Norman Creek storage facilities – both of which are in the significant hazard category;
f.Receiving Environmental Monitoring Program(s) for both landfill and the release of contaminants (F47 and H16);
g.Water Management Plan (H31), the scope of which will be central to fully understanding potential impacts on hydro-ecology in the project area. The Wilderness Society has previously raised its concerns about the proposed dam (Dam C) on Norman Creek, which will likely have devastating impacts on this river system. The periodic flushing of the river system, and the deposition of woody debris and other vital food and habitat, will be severely hampered by the impoundment. The very high changes in flow – up to 50% - downstream of the impoundment will also affect the timing and duration of water available to downstream ecosystems and aquatic species. The water extraction plan from Ward Creek is another area of major concern. The delivery of freshwater to downstream ecosystems, including wetlands, will be severed by the proposed direct extraction of water from this stream. It remains unclear how the mine will impact on groundwater capacity of the Great Artesian Basin in the region, which is a significant issue that needs to be understood and addressed in any amended EA;
h.Dredge Management Plan (J10 to 20), the scope of which and associated modelling will be vital to understanding potential impacts on marine ecosystems, including seagrass beds and turtle and dugong. The draft EA currently contains no clear water quality triggers or monitoring proposals for this vital aspect of the project, including what will be done to minimise turbidity and turbulence; and
i.Marine Works Environment Management Plan (J44), which will include amongst other things the exclusion zones to apply in relation to pile driving and impacts on marine mammals and turtles (J62c). Unless and until these details are known it is impossible to assess the adequacy – or otherwise – of safeguards that will be put in place to minimise environmental impacts on marine species.
Ground 1(c) – Inadequate conditions in relation to particular activities
10.The application and draft EA propose that potential habitat for the unidentified species of freshwater crab and stygofauna species that have been found in the project area will be protected by a 200 metre environmental buffer system in relation to mining activities. This provision is inadequate in four respects:
a.The habitat and distribution of both species has still to be determined, making the practical implementation and effect of the buffer proposal extremely limited;
b.The effectiveness and appropriateness of a 200m buffer over, say, a 500m buffer has not been demonstrated. Given these are both brand new species some rationale for the effectiveness of a 200m buffer needs to be provided. Until further investigations into the habitat and range of these species are concluded – and consideration given to whether or not they should be listed as endangered, vulnerable, near threatened or least concern under Queensland legislation – the highest level of protection should be given;
c.The proposed environmental buffer only appears to apply in relation to mining activities, not ancillary activities, such as road construction (C5). This is likely to provide inadequate protection as outlined at (10d) below;
d.The Wilderness Society has previously called for mining to be precluded from the Winda Winda catchment to ensure adequate protection of the new species of freshwater crab (which was first found in Winda Winda Creek). At a minimum, the EA should include specific provisions for the mine access road from the Hey River ferry terminal to the mine site, which will be constructed early in the development schedule and will traverse Winda Winda Creek. Development and use of this road will be essential from early mine development activities and will continue throughout the life of the mine. As noted by the Coordinator-General's May 2012 report on the Environmental Impacts Statement "Special consideration must be given to managing the potential for disturbance when planning, constructing and using the access road, and in particular in relation to earthworks and clearing associated with the Winda Winda Creek crossing." This issue is not adequately addressed in the application and draft EA.
11.The footprint of Dam C will flood eight hectares of evergreen notophyll vine forest – the largest patch in the project area, where numerous species of conservation significance are recorded (including nesting sites for Palm Cockatoo (near threatened), foraging and nesting sites for the estuarine crocodile (vulnerable) and the Rufous Owl (near threatened).
12.This patch is linked to other vine patches with species moving between the areas (akin to stepping stones). The protection of this vital ecological function in the landscape is largely ignored in the application and the draft EA, with the proponent focusing, primarily, on the status of evergreen notophyll vine forest under the Vegetation Management Act (a 'least concern' regional ecosystem), rather than the ecological function performed by the forest as a riparian corridor.
13.While the proponent has indicated that it will put in place a 200-metre environmental buffer from the full supply level of Dam C, the adequacy of that buffer in terms of providing continuity of ecological function has not been demonstrated and, in the absence of the proponent's Species Management Plan (see 9)(b) above) the impacts on species remains unknown.
14.As regards dredging in the Hay River, the draft EA should prescribe the actions to be taken by the proponent to minimise turbidity impacts on known seagrass beds (J32 to J38).
15.In relation to Marine Fauna Management, the draft EA provides that dredging should cease if more than two turtles are killed in a 24 hour period (J38). A more appropriate condition would be the cessation of dredging or the relocation of operations if five or more turtles are killed in a week by the dredging operation, which was the original suggestion made by the (then) Department of Environment and Resource Management.
16.The current provisions relating to sediment dams are inadequate – ie that they be built only to withstand a 1 in 10 year Annual Exceedence Probability (AEP) 24-hour storm event. Statistical theory suggests that if a dam is designed to cope with a 10% AEP (10-year ARI) rainfall event there is a 10% chance of it being overtopped next year, a 39% chance in the next 5 years, and 63% chance in the next 10 years. Given the potential environmental impacts of a sediment dam overtopping, a more rigorous standard than a 1 in 10 (AEP) should be applied."

In the Act as it existed at the time of the application for the amendment of the Environmental Authority by RTA Weipa, s 240 of the Act provided as follows:[3]
[3]            See, for example Reprint 11B.
"240 Requirements for application
An amendment application must be –
(a)   made in the approved form; and
(b)supported by enough information to allow the administering authority to decide the application; and
(c)   accompanied by the fee prescribed under a regulation."
It might be noted, relevantly to the reservations I expressed when the matter first came before me in Court, that the application requirements appear to be focused on enabling the administering authority to carry out a detailed examination of the application. There is nothing in the legislative requirements which leads to any focus on the interests of interested parties and, more importantly, potential objectors.
Subsequently the Environmental Protection (Green Tape Reduction) and Other Legislation Amendment Act 2012 amended the descriptor of the requirements for an application to amend an authority. Those requirements are now located in s 226 of the EPA and provide as follows:
"226 Requirements for amendment application generally
(1) An amendment application must—
(a)   be made to the administering authority; and
(b)   be made in the approved form; and
(c)   be accompanied by the fee prescribed under a regulation; and
(d)   describe the proposed amendment; and
(e)describe the land that will be affected by the proposed amendment; and
(f)describe any development permits in effect under the Planning Act for the carrying out of the relevant activity for the authority; and
(g)state whether each relevant activity will, if the amendment is made, comply with any eligibility criteria for the activity; and
(h)if the application states that each relevant activity will, if the amendment is made, comply with any eligibility criteria for the activity—include a declaration that the statement is correct; and
(i)state whether the application seeks to change a condition identified in the authority as a standard condition; and
(j)if the application relates to a new relevant resource tenure for the authority that is an exploration permit or GHG permit—state whether the applicant seeks an amended environmental authority that is subject to the standard conditions for the relevant activity or authority, to the extent it relates to the permit; and
(k)include an assessment of the likely impact of the proposed amendment on the environmental values, including—
(i)a description of the environmental values likely to be affected by the proposed amendment; and
(ii)details of any emissions or releases likely to be generated by the proposed amendment; and
(iii)a description of the risk and likely magnitude of impacts on the environmental values; and
(iv)details of the management practices proposed to be implemented to prevent or minimise adverse impacts; and
(v)details of how the land the subject of the application will be rehabilitated after each relevant activity ceases; and
(l)include a description of the proposed measures for minimising and managing waste generated by any amendments to the relevant activity; and
(m)include details of any site management plan or environmental protection order that relates to the land the subject of the application; and
(n)include any other document relating to the application prescribed under a regulation.
(2)         Subsection (1)(k) does not apply for an application if—
(a)the process under chapter 3 for an EIS for the proposed amendment has been completed; and
(b)an assessment of the environmental risk of the proposed amendment would be the same as the assessment in the EIS."

The original application to amend the Environmental Authority was made on the appropriate form issued by DEHP.[4] There was no issue that that was the appropriate form.
[4]See form (Mining – Application to Amend an Environmental Authority) (Mining Activities) for a Level 1 Mining Project (EM 774. v2).
When the matter first came before me for directions, having had some opportunity to read that application in detail, I raised an issue with the parties as to whether the application in the form in which it was made really satisfied the requirements and intent of the EPA.
The form contained, at questions 9 through to 13, the following questions and answers:[5]
[5]            See Exhibit 3, pages 5 and 6.
"9.     Do you intend to carry out additional activities and/or change the scale or type of activities that make up the project?
ý         Yes       →         Please provide details below

PLEASE SPECIFY:
Please see attached EM Plan, which provides detailed description and assessment.

LIST ADDITIONAL TENEMENT(S):

10.Do you wish to amend one or more conditions of your EA?
ý Yes → Go to Question 11

11.Identify the EA condition(s) to be amended

CONDITION NUMBER(S):

Please see attached EM Plan, which provides detailed description and assessment.

12.Explain why the conditions listed in Question 11 cannot be met

EXPLANATION:

The amended conditions are required to authorise and manage the proposed new activities, as set out in the attached EM Plan.

13.Proposed replacement condition(s)

NEW CONDITION(S):

Please see attached EM Plan, which provides detailed proposed conditions.

The Environmental Management Plan dated July 2012 which was attached to the application to amend comprise of 144 pages of detailed description.
My initial concerns were that the questions which were posed on the official application form were intended to generate a detailed description of "additional activities" or changes (to) the scale or type of activities that make up the project and also to identify the Environmental Authority conditions which are proposed to be amended.
I was also concerned to establish whether or not s 247A of the EPA, as it then stood, applied to the application to amend the authority.
One of the consequences may have been that an Environmental Impact Statement (EIS) may have been required to be prepared and placed on display for public comment.
In response to my concerns and consequent directions made by me the Applicant filed a detailed set of submissions addressing those preliminary questions.
In those submissions[6] the Applicant set out the relevant background to the application pointing out that the existing Weipa Environmental Authority MIN 100939109 regulates mining which was being carried out on mining lease 7024 and 6024 situated at and around the town of Weipa on the Queensland Gulf of Carpentaria.
[6]            Exhibit 1 page 1 and 2.
Learned Queens Counsel appearing for the Applicant RTA Weipa Pty Ltd in his written submissions with respect to preliminary issues has succinctly set out the background to the application and I can do little better than simply repeat what he has set out in his submissions.[7]
The background was described as follows:
[7]            Exhibit 1 paragraphs 4 – 11.
"4.The Weipa EA regulates mining on Mining Leases 7024 and 6024 (Weipa Leases), which are situated at and around the township of Weipa, on the Gulf of Carpentaria. (Affidavit of Fiona Margaret Talbot, sworn on 12 December 2012, "FMT-1", "FMT-2", "FMT-3" and "FMT-4."
5.The Applicant (and its parent company Rio Tinto Aluminium Limited and predecessors Comalco Aluminium Limited and Commonwealth Aluminium Corporation Pty Limited) has mined and shipped bauxite from the Weipa Mine since about 1963.
6.The Weipa Mine was established under an agreement between Commonwealth Aluminium Corporation Pty. Limited and the State of Queensland dated 16 December 1957, which is given the force of law by the Commonwealth Aluminium Corporation Pty Limited Agreement Act 1957 (Qld) (Comalco Act).
7.Mining Lease 7024 was granted on 1 January 1958 under the Comalco Act for a broad range of purposes, including bauxite mining. Mining Lease 6024, granted on 25 July 1985 under the Comalco Act, is for transport and access related purpose only.
8.The Applicant is currently mining the East Weipa and Andoom bauxite deposits on Mining Lease 7024, situated north of the Embley River. The Embley River transects the lease area, south of the Weipa township.
9.The purpose of the Applicant's amendment application is to facilitate the construction and operation of a bauxite mine and associated infrastructure south of the Embley River, within Mining Lease 7024. The proposal is known as the "South of Embley Project" (Project).
10.The Weipa EA, the subject of the Applicant's amendment application, was granted to the Applicant on 30 August 2011, following a period of regulatory transition. (Affidavit of Fiona Margaret Talbot, sworn on 12 December 2012, Exhibit "FMT-3". The Environmental Protection and Other Legislation Amendment Act 2008 amended the EP Act on 21 May 2008 to provide a process for the transition of environmental regulation of special agreement Act mines to regulation under Chapter 5 of the EP Act. The Weipa EA (which was subsequently amended on 28 August 2012) authorises mining activities on the whole of the surface area of the Weipa Leases. (Affidavit of Fiona Margaret Talbot, sworn on 12 December 2012, Exhibit "FMT-3" and "FMT-4".)
11.The Applicant proposes amendments to the Weipa EA to:
(a)amend some existing conditions to address certain activities south of the Embley River, where appropriate; and
(b)   include new conditions which relate to certain activities and infrastructure south of the Embley River requiring authorisation. . (Affidavit of Fiona Margaret Talbot, sworn on 12 December 2012, Exhibit "FMT-5".)"
The Applicant's submissions were accompanied by an affidavit of Fiona Margaret Talbot sworn 12 December 2012. That affidavit of Ms Talbot consisted of eight lever arch files containing some 29 different exhibits some of which are, obviously, extremely large amounting to 3615 pages in length.
In particular, Ms Talbot's affidavit exhibited:
(a) copies of each of the mining leases 6024 and 7024 (Exhibits FMT-1 and FMT-2).
(b) a copy of the original Weipa Environmental Authority dated 30 August 2011 and subsequently amended (Exhibit FMT-3).
(c) a copy of the proposed Environmental Authority issued by the DEHP on 28 August 2012.
(d) a copy of a request to the Coordinator-General to declare the South of Embley Project a "significant" project under the State Development and Public Works Organisation Act 1971 (Queensland) (State Development Act) (FMT-6)
(e) an Initial Advice Statement dated June 2008 issued by the Coordinator-General evincing an intention to Declare the South Embley Project to be a significant project for which an EIS was required pursuant to s 26(1)(a) of the State Development Act.
(f) a copy of submissions made by the Wilderness Society (Qld), the Respondent in the current proceedings, in relation to the Draft Terms of Reference for the EIS required pursuant to the State Development Act (Exhibit FMT-9).
(g) a copy of the EIS dated July 2011 which was available for viewing and for the making of submissions (Exhibit FMT16).
(h) a submission made by the Wilderness Society (Qld) in relation to the EIS (Exhibit FMT-17).
(i) A letter from the Deputy Coordinator-General confirming that a supplementary EIS prepared by RTA Weipa in response to a request from the Coordinator-General of 18 November 2011 had substantially addressed the issues raised during public notification of the EIS and the project changes since the EIS had been lodged and indicating that EIS would be released to State Agents for consideration.
(j) an evaluation report for the South of Embley Project carried out at the direction of the Coordinator-General and finalised on 23 May 2012 (Exhibit FMT-22).
(k) Draft Environmental Authority for the Amendment Application and a Notice said to be pursuant to s 255 of the EPA to advise of the objection period for the amendment application (Exhibit FMT-24).
The fact that on 21 October 2008 the South of Embley Project was declared by the Coordinator-General to be a "significant project" for which an EIS was required pursuant to s 26(1)(a) of the State Development Act is a highly relevant consideration.
That is because s 216 of the Act in its form at the relevant time in subsection 2provided:
"Also, a Coordinator-General's included in the Draft under s 210 cannot be objected to by anyone."
Section 210 contains a provision that an administering authority (in this case (DEHP)) is obliged to include in any Draft Environmental Authority issued by it:
"Any conditions for the Draft stated in the Coordinator General's report for the project (Coordinator General's conditions)."
The consequence of those two sections read together is that any condition contained within a Draft Environmental Authority which is a condition required to be inserted by the Coordinator-General's report is immune from objection.
Reference to Appendix 1 to the Coordinator-General's report reveals that the Coordinator-General saw fit to impose 15 conditions which it required to be included in any Draft Environmental Authority issued by the Statutory Party.
The notice – Assessment level and EIS decision for application to amend an Environmental Authority (Mining Activities) Non-Code Compliant Level 1 Mining Project issued by the Department of Environment and Heritage Protection on 2 August 2012 observed as follows:[8]
"The Department of Environment and Heritage Protection (EHP) has assessed the application received on 16 July 2012 to amend environmental authority MIN 100939109 and wishes to advise you that the assessment level decision for the amendment application is that the level of environmental harm is likely to be significantly increased.
The application is to be assessed as a Non-code Compliant Level 1 mining project and an Environmental Impact Statement (EIS) is required. However, as this project has been declared a significant project for which an EIS is required under the State Development and Public Works Organisation Act 1971, an EIS is not required under the Environmental Protection Act 1994 (EP Act).
[8] Exhibit FMT-23 to the affidavit of Ms Talbot.
As mentioned earlier in this judgement there were a number of procedural defects in the responses of the statutory authority.
One of those which appears to have caused confusion arises from the fact that not one but two applications had been made by the Applicant herein for amendments to an Environmental Authority.
The first of those was made on 27 June 2012 and was referred to by Ms Ingrid Helenne Fomiatti Minnesma in her affidavit of 19 December 2012 as the "Minor Amendment Application". A second amendment application identified by Ms Minnesma as the “Major Amendment Application” was made on 13 July 2012 and it is that application which is the subject to these proceedings.
As Ms Minnesma makes clear in her affidavit, the determination of the department, which has gone unchallenged, was that their assessments of the application led to a decision that a significant environmental harm increase was unlikely consequent upon the changes sought in the Minor Amendment Application and accordingly that did not require any public notifications.
The confusion seems to have been compounded because in respect of the Major Amendment Application a Ms Karen Margaret Tuchie, a campaigner employed by the Wilderness Society (Qld), on 5 November 2012 requested a Mr Maver, a Senior Environmental Officer for the Northern Region of the Department of Environment and Heritage Protection, to provide copies of the Environmental Authority application and any supporting documentation.[9]
[9] See affidavit of Ms Tuchie paragraphs 6 and 7.
The information was provided by Mr Maver to Ms Tuchie, it appears, on a USB stick.
She deposes in her affidavit to having had no opportunity to review the contents of that USB stick until such time that she returned to Brisbane when she noted that the USB stick contained electronic copies of the Draft Environmental Authority and a copy of the Environmental Management Plan.
The USB stick did not contain a copy of the application to amend the Environmental Authority.
Accordingly, the objections lodged by the Wilderness Society (Qld) were on the basis only of the two documents contained on the USB stick and without reference to the actual application to amend the Environmental Authority.
Ms Tuchie says in her affidavit that it was not until 22 November 2012, on the occasion of the directions hearing, that she became aware of the existence of a separate Environmental Authority Amendment Application document which had not been provided to her.
But for the information contained in the affidavit of Ms Minnesma of 19 December 2012, it might have been thought that the absence of the actual application form may have inhibited a party's capacity to make a sensible submission in respect of the application.
However, I am satisfied from the affidavit of Ms Minnesma that that is not the case.
Ms Minnesma says, and there was no attempt made to contradict this, that:
"With respect to paragraph 23, Mr Maver omitted to provide Ms Tuchie with the original application form for the Major Amendment Application. The application form does not include any information that would enable the reader to identify omissions in the Applicant's Environmental Management Plan as it merely refers to the submitted Environmental Management Plan as identifying the matters to be amended."[10]
[10] Affidavit of Ms Minnesma of 19 December 2012 paragraph 14.
I have reviewed the actual application form itself and I agree with the observations made by Ms Minnesma. The form does not contain any information which would assist in formulating a submission or objection to the application. Accordingly, I am satisfied that the failure to provide a copy of the actual application form itself did not in any way inhibit the capacity of the Wilderness Society (Qld) to make an informed submission in respect of the application.
It also appeared in the proceedings before me that no party, other than the Wilderness Society (Qld), had sought copies of any of the application documents.[11]
[11] Transcript 20 December 2012 page 1-13 L 45.
It is clear when proper attention is paid to the relevant legislation that no environmental impact study or statement was required in respect of this application because it had previously been considered by the Coordinator-General who had declared the project a "significant project" under the State Development and Public Works Organisation Act 1971.
Section 60 of the EPA provides that the EIS process is taken to have been completed for a coordinated project if the Coordinator-General’s report for the project has been given to the project’s proponent.[12]
[12]The Coordinator-General's report on the Environmental Impact Statement of May 2012 appears as Exhibit FMT-22 to the affidavit of Ms Talbot sworn 12 December 2012.
The Coordinator-General's conclusion is set out in Exhibit FMT-22 to the affidavit of Ms Talbot[13] in the following terms:
"Coordinator-General's conclusion
I consider that the environmental impact assessment requirements of the SDPWO Act for the South of the Embley Project have been satisfactorily fulfilled and that sufficient information has been provided to enable a proper evaluation of the potential impacts of the project.
I conclude that there are significant local, regional, state and national economic benefits to be derived from the project, and that any negative environmental or social impacts can be acceptably managed by implementation of the measures and commitments outlined in the EIS documentation. Conditions and recommendations in this report have been formulated in order to further manage impacts to social, environmental and economic values through environmental authorities, development permits and Coordinator-General imposed conditions or other policy, regulatory and licence arrangements.
Pursuant to section 35 of the SDPWO Act, I find that the South of the Embley Project, as described in the EIS, SEIS and summarised in Section 2 of this report can proceed, subject to the conditions and recommendations contained herein and subject to RTAW obtaining subsequent statutory approvals and meeting its commitments listed in this report."
[13] Affidavit of Ms Talbot Exhibit FMT22 page 328.
A "coordinated project" is defined in Schedule 4 of the EPA as:
"means a project declared under the State Development Act, section 26, to be a coordinated project."
I was also concerned as to whether the responses which are set out above in paragraph [16] properly address the requirements of the official application form.
Paragraph 9, for example, inquires as to whether the Applicant proposes to carry out additional activities and/or change the scale or type of activities that make up the project and the response to that question is to acknowledge that there is an intention to carry out additional activities and/or to change the scale or type of activities that make up the project but the only specification of that is a referral to the Environmental Management Plan. Similarly questions 10, 11, 12 and 13 all refer a reader to the Environmental Management Plan rather than identifying with any degree of specificity conditions that need to be amended, why conditions could not be met, or what the proposed replacement conditions were.
The authorised form, as with many such forms, is necessarily of a generic character and is meant to meet the basic requirements of all manner of applications. I am satisfied, having heard from Mr O'Donnell of Queens Counsel for the Applicant, that in the circumstances of this particular proposal, far from seeking to avoid providing clarity as to what changes were in fact proposed, the proponent has attempted to provide a full picture of all of the activities to be carried out south of the Embley River.
In a very real sense the totality of the changes which are proposed is that mining is to shift from north of Embley to south of Embley subject to all of the conditions and constraints identified in the Environmental Management Plan.
In my view it is appropriate to recite in its entirety the 8 or 9 paragraphs of submission which Mr O'Donnell made to the Court clarifying the situation.[14]
"One of the problems, I think, is the question - the questions are directed to a different sort of situation. If you look at question 12, for example, "Explain why the conditions listed in question 11 can't be met." It's contemplating a situation where there's an existing environmental authority. The Applicant is carrying on activities on that land under the terms of that environmental authority. The Applicant finds it can't meet some condition, and therefore it applies to change that condition. So the form says, "Tell us what condition it is you can't meet, why you can't meet it, and what proposed change you contemplate."
That's not quite the situation with this application because here Rio Tinto has been mining in the north of Embley that part of the mining lease for many years under the existing environmental authority. It's now proposing to start mining in the south of Embley a portion of the existing mining lease. But the environmental authority doesn't really regulate the mining south of Embley River in this new area. The existing authority extends to the whole of the mining lease, it's true, but it doesn't regulate doing things that are part of the mining activity south of the Embley River.
So when the Applicant applied for the - to change the environmental authority, the course that was taking in the application was to set out all the conditions that would govern the new activity of mining south of the Embley River. So then, if you're a reader, an interested person, and you look at the Environment Management Plan, you would see the full suite of conditions that would apply to the new mining activity. And it was thought that that would be more informative to a member of the public.
If you only had just the changes, then a member of the public would only see the changes to the EA, but the changes to the EA wouldn't tell a member of the public, well, what will be the full scope of regulation of the mining activity south of the Embley River, and in particular what will be the full scope of environmental protection.
In order to see the full scope of environmental protection, you need to have all the conditions that will govern the new mining activity, hence the idea was in the application to better inform both the Statutory Party and the public. The Applicant would set out all the conditions it would govern.
So we've excluded any conditions that are only relevant to the north of Embley mining, but we've included all the conditions that would govern the South of Embley mining, so that someone like the Wilderness Society can look at all those conditions and say, "Well, do I accept this is a proper environmental management for South of Embley or not?"
So, yes, strictly speaking, the form contemplates a sort of comparison before and after, and why you need to change, but the situation that's arisen here is a bit different because it's not changing the EA to accommodate existing conditions which can't be met."
[14] T1-15 L20 to T1-16 L35.

That's not quite the situation with this application because here Rio Tinto has been mining in the north of Embley that part of the mining lease for many years under the existing environmental authority. It's now proposing to start mining in the south of Embley a portion of the existing mining lease. But the environmental authority doesn't really regulate the mining south of Embley River in this new area. The existing authority extends to the whole of the mining lease, it's true, but it doesn't regulate doing things that are part of the mining activity south of the Embley River.
As Mr O'Donnell of Queens Counsel, pointed out the necessity to move south of the Embley River is because:
"these reserves are gradually depleting (i.e. the reserves north of the Embley River) and with continued demand for bauxite RTA Weipa has identified significant bauxite reserves on the portion of Mining Lease 7024 that lies south of the Embley River."[15]
[15] T1-17 L 20 and Exhibit FMT-5 to the affidavit of Talbot of 12 December 2012.
Mr O'Donnell was also able to clarify, to my satisfaction, that the existing Environmental Authority applied to the whole of the mining lease both north and south of the Embley River but additional facilities are to be constructed on the site south of the Embley River so that an amendment to the existing Environmental Management Plan was necessary.
In particular Mr O'Donnell drew the Court's attention to the Exhibit FMT-2 as revealing that the south of Embley project involved a bauxite mine, processing facilities, barge/ferry terminal or a port all south of the Embley River which facilities were identified in a Plan contained within the Environmental Management Plan.[16]
[16] T1-18 L 1-10.
The draft Environmental Management Plan[17] also informs any interested reader that "note that the schedule and condition numbering in this document is not sequential as it designed to facilitate consolidation with the schedules and conditions of the existing Environmental Authority (MIN 100939109) for ML 7024 and ML 6024.
[17] Exhibit FMT-5.
A consequence of that is that while, ultimately the Environmental Authority will be a compiled document from the existing Environmental Authority and the Draft of the Proposed Environmental Authority the document on display contains all of the conditions which were necessary to regulate the south of Embley Project.
The document does not contain conditions which are relevant only to the north of Embley existing project.[18]
[18] T1-20 L42.
In summary Mr O'Donnell agreed with this proposition put to him by me:[19]
"So, you - your proposition, Mr O’Donnell, seems to be that - come back to what’s in the pro forma itself but to understand the thrust of this application for amendment, it’s not a question of searching through the whole document. One needs to actually read the whole document because everything in the document is a change. Everything in the document is in addition to the requirements or conditions that apply North of the Embley."
[19] T1-20 L 48-55.
In all of the circumstances I am now satisfied that the application, because of the particular circumstances of and the nature of the proposal, meets the requirements of the EPA with respect to what is required to make a proper application for an Amendment of an Environmental Authority.
It remains then to consider the specific objections raised by the Wilderness Society (Qld) and whether those have been adequately addressed in the responses of the Applicant in this matter.
In accordance with Practice Direction 1 of 2012, Dr Seelig for the objector Wilderness Society (Qld) confirmed early in the proceedings that his clients proposed to participate in the hearing of the objections matter as a Level 1 Objector. That is to say they proposed to rely upon their Notice of Objection only and did not intend to attend any hearing or make other submissions.
Because of my concerns about the preliminary matters dealt with above I had declined to hold Dr Seelig to that intimation until such time as those preliminary matters had been dealt with.
Consequent upon my intimation in Court that I had been satisfied by the submissions both oral and written of Mr O'Donnell of Queens Counsel, Dr Seelig confirmed to me that his organisation continued only to want to rely upon the written submissions by way of objection that they had earlier made.[20]
[20] T1-36 L 50.
I made orders requiring the Applicant to file any further submissions by the beginning of March 2013 and those submissions were received.
I have on a previous occasion commented on the difficulties confronted by well meaning objectors who, because of various circumstances generally relating to the unavailability of funds and/or experts, are disinclined to participate in the hearing of an objections matter and rely only upon their submissions.[21]
[21]See my observations in Jax Coal Pty Ltd v Garry Reed and Mackay Conservation Group and Whitsunday Regional Council and Chief Executive, Department of Environment and Heritage Protection [2013] QLC 39 at paragraphs 28 to 36.
In the Jax Coal decision I highlighted the fact that by electing to become a Level 1 Objector an Objector calls no evidence and does not make submissions at the end of the hearing.
Adopting such a course has the consequence that the objector:
(a) calls no further evidence;
(b) abandons the prospect of cross-examining witnesses called by other parties;
(c)deprives the Court of any opportunity to hear forensic cross-examination of evidence by the objectors and so leaves it with a series of bald assertions made against the application unsupported by evidence;
(d)deprives the Court of any opportunity to hear what the objectors may have to say about the evidence which is placed before the Court.
I acknowledged in the Jax Coal decision that becoming a Level 1 Objector does not doom an objection to being irrelevant and disregarded but it does often have the effect of rendering earlier made and thoughtfully constructed objections somewhat sterile.
I also pointed out that generally a prudent Applicant in proceedings before this Court, having had the opportunity to consider what is contained within objections will generally frame its evidence so as to respond to those objections. Where that evidence is not challenged the response will generally be accepted by the Court.
Section 220 of the EPA[22] provides as follows:
“220 Objections decision hearing
(1) The Land Court may, of its own initiative, make orders or directions it considers appropriate for a hearing for the objections decision (the objections decision hearing).
(2) The orders or directions must, as much as practicable, ensure the objections decision hearing happens as closely as possible to hearings under the Mineral Resources Act for each relevant mining tenement.”
[22]Throughout this decision reference is made to the EPA Reprint 11 effective 5 April 2012 in effect at the beginning of the hearing of this matter. Since then the Act has been amended on many occasions and the relevant sections now appear in EPA Chapter 5, Part 5, Sub-division 3 Sections 184-192.
Section 222 of the EPA identifies the nature of the decision which I am entitled to make in respect of the Environmental Authority namely 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 of the EPA identifies the matters to be considered for the objections decision and specifically provides that I 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 s 223(c) above are defined in the Dictionary of the Act as follows:
"Environmental Protection Act 1994 - Schedule 4
- Dictionary
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
(c) any relevant wild river declaration; 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."
In the present case the consequence of the adoption of a Level 1 stance by the Objector has the result the Court is left to make its determination on the uncontradicted evidence which has been filed by the Applicant's.
The Statutory Party having issued an Environmental Authority was obviously satisfied that the proposed Environmental Management Plan produced by the Applicant satisfactorily addresses environmental concerns.
That this is so is unsurprising when regard is had to the fact that the determination pursuant to the State Development Act was based upon an environmental impact study prepared by the Applicant in order to secure its status as a "significant" project under the State Development Act.

The Application

The details of the South of Embley Project have been fully set out above in paragraph 25 in the extract from the written submissions of Queens Counsel appearing for the Applicant. Simply put the proposal involves moving to bauxite deposits south of the Embley River, the deposits to the north of the Embley River being close to exhaustion. I have found that the application was properly advertised and after public notice the Statutory Party received the submissions lodged by the Wilderness Society (Qld) which party has elected to be a Level 1 Objector.

Any Relevant Regulatory Requirements

As indicated above the Applicant made application to the Coordinator-General pursuant to the provisions of the State Government Act seeking to have the project declared a "significant" project pursuant to the provisions of that Act.
The other relevant regulatory requirements are those set out in the Mineral Resources Act and the EPA including any sub-ordinate legislation.

The Standard Criteria

The standard criteria are set out above and to the extent necessary include the environmental impact studies which were done to secure the "significant" project status and the Environmental Management Plan (ML 7024 and ML 6024) dated July 2012 which were lodged with the application.

Applications under the Mineral Resources Act

There is no requirement in the current proceedings to revisit the leases ML 6024 and ML 7024 which were granted on 26 August 2002 and 3 June 1965.[23] The application to amend the Environmental Authority is to permit an extension of mining activity into the lease area which has long been in existence.
[23] Exhibit FMT-1 and Exhibit FMT-2 to the affidavit of Ms Talbot.

The Current Objections

The current objections are subject of this hearing are set out in paragraph 11 above.
The first ground of objection is that there was allegedly insufficient analysis of environmental impacts including concerns about an alleged new distinctive species of sea snake (the rough-scaled sea snake) that is said to possibly habitat in the estuaries of the Mission and Hey Rivers. There is also concern raised about impact on key species from habitat loss but in my view the objection as it is currently stated is speculative and seeks to visit evidence from sites remote to the subject site on the proposal.
The Applicant in its affidavit material[24] addresses concerns about the rough-scaled sea snake by referring to a paper entitled Hydrophis Donaldi (Elipidae Hydrophiinaw), a highly distinctive new species of sea snake from Northern Australia authored by KDB Ukuweala, Kale Sanders, and BG Fry.
[24] Affidavit of Fiona Margaret Talbot sworn 28 February 2013.
The Applicant in its submissions acknowledges that the findings of the Ukuweala et al report were not specifically addressed by the Applicant in its Environmental Impact Statements for the project (which statements were finalised under the State Development Act) as set out above, but points to assessment which was carried out of the potential impact on sea snake populations and seagrass habitat.
Those matters are set out in Exhibit FMT-16 to the affidavit of Ms Talbot of 12 December 2012. A Supplementary EIS for the South of Embley Project contained a detailed assessment of the existing physical and biological marine environment in the vicinity of the project area including the Hey River and the Embley River estuaries.[25]
[25] See Exhibit FMT-21 to the affidavit of Ms Talbot of 12 December 2012.
As the objector has not adduced any evidence relating to the rough-scaled sea snake there is no basis upon which the Court can sensibly reject the conclusions reached in the Environmental Impact Studies which had been carried out and nor is there any basis for rejecting the conclusions of the Coordinator General whose report, so far as it related to the impacts on marine species and habitat concluded:
"I have considered the potential impacts of the project on marine species and their habitat and am satisfied that they can managed by the measures outlined in the EM Plan, Draft Dredge Management Plans, commitments and conditions in this report."[26]
[26] Exhibit FMT-22 to the affidavit of Ms Talbot of 12 December 2012.
I should note in passing that some of the marine areas referred to by the objectors are strictly outside the area of either of the relevant mining leases.
I agree with the conclusions expressed by the Applicant in its submissions to the Court where it says as follows:
"Conclusion
3.2.27In response to Ground 1(a) of the Respondent's Objection, as particularised in Paragraph 1 of Attachment 1, the Applicant says that:
(a)the impact of the Project on sea snakes and seagrass assessed by the Applicant in the environmental impact assessment undertaken under the State Development Act and this assessment is reflected in the amendment application and draft environmental authority for the amendment application;
(b)the environmental authority for the Project will regulate mining activities undertaken on the mining lease, and will not regulate off-lease activities or infrastructure including, for example, dredging and construction of the Hornibrook and Humbug terminals and the Lorim Point tug berths;
(c)the potential impact of the on-lease activities on sea snakes and seagrass (including potential impacts on the rough-scaled sea snake) will be managed through conditions imposed on and stated for the Project by the Coordinator-General under the State Development Act and by additional conditions imposed by the Statutory Party on the draft environmental authority; and
(d)in any event;
(i)surveys for the port, temporary barge landing and Hey River terminal sites did not reveal the presence of seagrass beds, which is the identified habitat for the rough scaled sea snake;
(ii)monitoring by DAFF between 2000 and 2009 for the Hey River terminal site occasionally revealed only a very thin patch of isolated seagrass, however, drop camera surveys undertaken by RTAW in 2007, 2008 and 2009 did not identify any seagrass; and
(iii)disturbance for the passenger jetty options in Boyd Bay (which is infrastructure outside the scope of the Respondent's Objection) would be limited to 20.35m² , in an area identified as containing low density, isolated patches of seagrass and would be constrained by Condition (J56) of the draft environmental authority."
With respect to the objection relating to the impact on key species from habitat loss the full objection is set out above.
The affidavit material filed by the Applicant demonstrates that those concerns have previously been raised by the Wilderness Society (Qld) in its submission in relation to the EIS lodged with the Coordinator-General.[27]
[27] See Exhibit FMT-17 to the affidavit of Ms Talbot of 12 December 2012.
That apparently generated a Supplementary EIS[28].
[28] Exhibit FMT-21 to the affidavit of Ms Talbot of 12 December 2012.
The response of the Applicant to those submissions in its Supplementary Statement was to observe as follows:
"The lowering of the landscape due to mining means that pre-existing land units, comprising ecosystems developing on specific soil and sub-soil conditions, cannot be readily replicated. The objective for the rehabilitation of areas disturbed by mining activities is to establish a self-sustaining vegetation community using appropriate local native tree, shrub and grass species (refer Section 3.10.1 of the EIS). The aim to establish a sustainable native ecosystems, that are similar to those existing in the regional landscape, while acknowledging the nature of the altered post-mining environment means that these ecosystems would not be replicas.
It has been found at Weipa (and other sites) that the current rehabilitation technique results in successful densities and proportions of target species including the dominant local overstorey tree species."

That response and the accompanying Environmental Statement material apparently satisfied the Coordinator-General and no evidence has been placed before me which would cause me to move away from concluding that that issue has, to the satisfaction of the various statutory authorities been adequately addressed.
It is correct to say, as the Applicant in this case has acknowledged, that rehabilitation cannot restore an identical eucalyptus tetradonta woodland system because of the impact of the mining process on the ground profile.[29]
[29] Exhibit FMT-5 to the affidavit of Ms Talbot of 28 February 2013.
Notwithstanding this concession the Applicant says that:
"95% of post-mining landscapes and project area are expected to be able to be support a native dry woodland community which includes eucalyptus tetradonta and other framework species."[30]
[30] See Exhibit FMT-22 (section 3.1.2) to the affidavit of Ms Talbot of 12 December 2012.
The Supplementary EIS says:
"As stated in Section 3.10.1 of the EIS, the overall goal of the rehabilitation program for the South of Embley Project would be to return the land to a post-mining land use that will be safe, stable, protects downstream water quality, and is self-sustaining. This is consistent with the current objectives for rehabilitation of East Weipa and Andoom.
The proposed rehabilitation objectives for each mine domain are proposed in Table 3-A. Generally, the objectives for the rehabilitation of areas disturbed by mining would be:
·to establish a self-sustaining vegetation community using appropriate local native tree, shrub and grass species; and
·to ensure land is made stable – in both geotechnical and erosion terms – to ensure post-mine land use is not compromised by site instability.
Unlike the current East Weipa post-mining areas, only a small proportion (less than 5%) of the post-mining areas in the South of Embley area are expected to be affected by groundwater to the degree that they would be suitable support a native wetland community dominated by Melaleuca and/or Lophostemon species. Therefore most post-mining landscapes in the South of Embley area are expected to be suitable to support native dry woodland vegetation dominated by Eucalypts, Corymbias, Erythrophleum and other framework species."

The objectors also expressed general concern (paragraphs 2, 3 and 4) about the impact on various key species (particularly bird life) resulting from potential habitat loss.
In particular they allege inadequacy in the current application and draft Environmental Authority with respect to impact on habitat loss and suggest that there should be some specific requirement (unidentified) for the proponent to research potential eco-system changes and resultant impacts on species having regard to research identified by Gould.
As indicated above the objectors had raised similar concerns in the context of the EIS lodged with the Coordinator-General.
Counsel for the Applicant drew the Court's attention to a particular section of the Supplementary EIS in which the Applicant described historical post-mining rehabilitation on other parts of the Weipa site and the outcome of monitoring.
In the Supplementary EIS[31] the Applicant said as follows:
[31] Exhibit FMT-21 (section 3.1.1 page 2471) of the affidavit of Ms Talbot of 12 December 2012.
"Describing post-mining rehabilitation at Weipa:
3.1.1. Rehabilitation at Existing Operations
A number of submissions recommended that forestry or other commercial plantations be established post-mining. Environmental Authority MIN100939109, which applies to ML7024 and ML6024, requires all land subject to mining activities to be rehabilitated to meet the requirements of the Queensland Department of Environment and Resource Management (DERM) Guideline Rehabilitation requirements for mining projects. These guidelines state that the administering authority will have regard to a hierarchy that considers "natural ecosystems" above developing alternative, higher economic value land uses. It is understood that DERM and DSEWPaC favour the establishment of a native species ecosystem over commercial forestry plantations.
RTA's existing East Weipa and Andoom operations have implemented a variety of post-mining rehabilitation objectives since mining commenced in the 1960's, including pasture, horticulture, native and non-native forestry and native vegetation. Now wholly dedicated to returning a native rehabilitated ecosystem to the post mining landscape, RTA continues to use trials and monitoring outcomes to improve the establishment and maintenance techniques required to routinely achieve this. Specific completion criteria for the various post-mining domains at East Weipa and Andoom are being developed in accordance with the requirements of the recently issued Environmental Authority.
Monitoring undertaken in rehabilitation areas in the existing operations at East Weipa, indicates successful establishment of framework species in both wet (Melaleuca and/or Lophostemon species) and dry (Eucalypts, Corymbias, Erythrophleum, etc species) post-mining landscapes. Monitoring of site establishment (8-10 months after seeding) over three years between 2008 and 2010 demonstrated that in areas where the objective was to a establish a 'dry woodland' community, the average stems per hectare of framework species was between 1000 and 1400 and between 43.5%-73.4% of sites had more than 500 stems per hectare of the framework species. An average of 12-18 species were present in each 500m² plot, with a total of between 75 and 117 species being recorded per annum. In seasonally inundated areas, where the objective was to establish a wetland community, monitoring in 2008/09 and 2010/11 demonstrated between 80% and 100% of sites had more than 500 stems per hectare of the framework species. Rehabilitated areas are monitored for their establishment and ongoing development. Areas that are not performing are included in our maintenance (remediation) program; for example an area where weeds may have intruded will be added to our weed control program, and an area where the establishment rates of framework species has been low may be retreated in the following rehabilitation season with additional seed and fertiliser and/or remediated with supplementary planting of seedlings of the framework species."
In the Coordinator-General's report the Coordinator-General specifically acknowledges the impacts on vegetation communities and on eco-systems generally.
It appears from a reading of that report that in accepting the findings of the EIS the Coordinator-General was moved to regard the impacts as being relatively short-term and are likely to be protected by, amongst other things, a vegetation buffer system and measures requiring rehabilitation of mined areas in an attempt to restore the native vegetation landscape.
The Coordinator-General's report said as follows:
"The nature and scale of the project means there will be some impacts to vegetation communities in the short-term. In general, impacts will be confined to the Darwin Stringybark vegetation community on the bauxite plateau which is a 'least concern' RE. Other relatively minor impacts will occur to other communities from infrastructure placement but in the main, these higher value ecocsystems will be protected by the proposed vegetation buffer system. Given RTAW's commitment to progressive rehabilitation of mined areas to a native vegetation landscape, the mitigation measures outlined in the EIS, the EM plan and RTAW's offset proposal, I consider that impacts to vegetation communities can be effectively managed. I have stated a condition at Appendix 3, Part B, Schedule 2, requiring RTAW to prepare a land use management plan that addresses plans and procedures for managing vegetation including buffer systems, pre-clearance surveys of Category A, B and C environmentally sensitive areas and for listed species under the NC Act for the approval of DEHP. The plan must be approved by DEHP prior to commencing clearing work."[32]
[32] Exhibit FMT-22 to the affidavit of Ms Talbot of 12 December 2012 page 30.
The Coordinator-General's conclusion is as follows:
"I consider that the EIS adequately identified likely impacts on native fauna. I accept that there will be some impacts on native fauna but consider that these will be largely of a transitory nature as domains are progressively mined and rehabilitated back to natural landscapes. I believe that impacts can be managed by the measures outlined in the EIS, SEIS, EM plan and commitments given by RTAW. I have stated a condition in Appendix 3, Part B, Schedule 1, Condition 3, requiring RTAW to prepare a species management plan for listed fauna species that may be impacted by the SOE project, for the approval of DEHP, prior to significant construction."[33]
[33] Ibid page 49.
Again, there is no evidence placed before me by the objectors which would lead me to reject the conclusions of the Coordinator-General in its assessment of the EIS and the Supplementary Statement.
I am satisfied that the various studies which have been carried out have properly assessed any potential impacts on eco-systems in the south of Embley project area and that the rehabilitation program set out in the Environmental Management Plan is adequate to address the demonstrated and accepted environmental concerns.

Impacts from Shipping between Weipa and Gladstone

Paragraph 8 of the objection of the Wilderness Society (Qld) seems to me to summarise their concerns. They say:
"That the application and Draft EA should be required to consider the most up to date findings about the health of the Great Barrier Reef in assessing the environmental impacts of ship movements between Weipa and Gladstone, instead of seemingly relying on approvals provided in 1999 as a rationale for not assessing the issues."
The reference to a 1999 approval was that for the Yarwun Aluminae Refinery in Gladstone to process alumina from the Weipa mines.
The Applicant in its submissions submits that the Respondent has misconceived the purpose of the Applicant's amendment application and the function and jurisdiction of the Statutory Party in undertaking an assessment of the application and preparing the Draft Environmental Authority under the EPA.[34]
[34] Applicant's submissions paragraph 3.4.2. page 33.
The Applicant draws a distinction between activities carried out for the Coordinator-General's department in the form of the EIS and the Supplementary EIS and the provision of a Environmental Management Plan in respect of activities to be carried out on the two relevant mining leases.
In their submissions they say this:
"3.4.8In contrast with the environmental impact assessments under the State Development Act and the EPBC Act (which relate to the Project as a whole), the Applicant's amendment application under the EP Act relates specifically to the aspects of the Project which constitute "mining activities" under the EP Act. The amendment application does not address components of Project infrastructure situated outside the boundaries of the Weipa mining leases, including, for example, the proposed ferry terminal and barge terminals at Hornibrook and Humbug Points. (Affidavit of Talbot, 12 December 2012, Ex FMT-5 (Volume 1 of 8), EM Plan, Section 1.1, Page 329) Nor does the Applicant's amendment application address activities to be undertaken off-lease, including ship movements from the proposed Port to Gladstone."[35]
[35] Applicant's submissions paragraph 3.4.8 page 35.
I accept and agree with those submissions.
The Wilderness Society (Qld) also criticises the Draft Environmental Authority because it says:
"If fails to provide sufficient specification as to how key environmental impacts will actually be managed and instead permits RTA Weipa to defer identifying how to resolve issues which arise to the development of subsidiary plans to later times and without tying those plans specifically into the environmental authority."
In particular, as can be seen above in the full iteration of the objection the Wilderness Society (Qld) criticises:
(a) Land Use Management Plan;
(b) Species Management Plan;
(c) Foreshore Access Management Plan;
(d) Rehabilitation Management Plan;
(e) The location of regulated dams;
(f) Receiving Environmental Monitoring Programs;
(g) Water Management Plan;
(h) Dredge Management Plan;
(i) Marine Works Environmental Management Plan.
Unfortunately, in the articulation of the objection contained in paragraph 9 and its various sub-paragraphs all the Court is provided with is observations about the importance of those plans but no real articulation of the manner in which it is said deferral of the resolution issues arising in each of those areas will necessarily result in adverse outcomes.
On that ground alone it is difficult to see how the Court can move away from the considered decisions of both the Coordinator-General and the Statutory Party.
However in responding to the criticisms of the Wilderness Society (Qld) the Applicant in its submissions to the Court has drawn the Courts attention to a large number of relatively well-known decisions in which Courts have upheld approvals and permits which defer until a later time a formulation of plans to deal with particular issues.
The Applicant in its submissions[36] says:
"The Applicant says in response to paragraph 9 of Attachment 1 that Environmental Authorities typically include conditions which require the prospective preparation and implementation of management plans. In the context of large scale, long-term and complex projects, these types of conditions appropriately allow for practical flexibility and adaptive management over time as further information becomes available."
[36] Applicant's submissions page 37 paragraph 4.2.1.
In support of that contention the Applicant identifies, as I indicate above, a large number of cases where such conditions have been upheld by Court's as appropriate.
I do not propose, because there was no effective attempt to contradict the relevance of those authorities, to traverse each and all of them in any detail. At a later time, a party may seem fit to challenge some of those outcomes on the basis that circumstances have changed or are different or the capacity to acquire useful information in a pro-active way has emerged but in the present case that has not happened.
The cases referred to were:
·    McBain & Others v Clifton Shire Council[37];
·    Ulan Coal Mines v Minister for Planning and Anor[38];
·    Barrington-Gloucester-Stroud Preservation Alliance Inc v Minister for Planning and Infrastructure[39].
[37]          McBain & Others v Clifton Shire Council & Others (1995) QPLR 363.
[38]          Ulan Coal Mines v Minister for Planning and Moolarben Coal Mines Pty Ltd (2008) 160 LGERA 20.
[39]Barrington-Gloucester-Stroud Preservation Alliance Inc v Minister for Planning and Infrastructure (2012) NSW LEC 197.
In considering the whole of the objection contained in paragraph 1(b) I agree with and adopt the submission of the Applicant when it says[40]:
"In the present matter, the Applicant submits that to the extent that the Respondent objects to the deferral, through the development and implementation of management plans, of matters of 'detail' for later determination by the proponent and approval by the Statutory Party, the objection cannot be sustained. Such conditions are permissible having regard to the broad power under s 210 of the EP Act, and the principle of 'finality' or 'certainty' applicable to planning approvals is of no relevance. In any event, the Applicant says that the conditions impugned by the Respondent do not give rise to issue of certainty, as they define, with sufficient specificity, the matters to be addressed by the Applicant and furthermore, the 'outer limits' of the project to be authorised by the Environmental Authority is clear."
[40] Applicant's submissions page 40 paragraph 4.2.17.
For completeness I should note that, with respect to each of the nine areas in which subsidiary plans remain to be developed, the Applicant in its submissions provided a detailed analysis of the cogency and utility of imposing requirements in each of those nine areas which will result in on-going obligations on the part of the Applicant to address issues as and when they arise.
In the normal course of events in a matter such as this where there has been an agitation of evidence by proper contradictors it would be appropriate to provide a detailed analysis of the pros and cons of each argument and to come to a view favouring one side or the other.
In the present case however there has been no such agitation and the only evidence before the Court is that advanced in the studies for the EIS and the Management Plan and submissions by the Applicant.
I do not propose, therefore, to traverse each and every response of the Applicant because it would result only in the iteration of arguments for which there has been no contradictor. There was no attempt to call for any of the authors of any of the elements of the Environmental Impact Studies or of the Environmental Management Plan to be subjected to cross-examination Nor was there any attempt to subject to cross-examination the departmental officer or officers who produced the Draft Environmental Management Plan.
The third area of objection relates to, in an umbrella way, inadequate conditions which are alleged to have been imposed in respect of particular activities (i.e. Paras 10 to 16 of the Objection).
Dealing with those objections is beset by the same difficulty as addressing those set out in the first two areas of objection. That is to say that the criticisms of the conditions of particular activities are broadly expressed, generally fail to identify why the conditions are inadequate and do not, with any degree of specificity, promulgate an alternative suitable condition which would meet the concerns of the Wilderness Society (Qld).
I can provide a number of examples of this. For example, in paragraph 10 an issue was raised with respect to a potential habitat for an unidentified species of freshwater crab and stygofauna species that had been found in the project area, the Environmental Authority proposes a 200 metre environmental buffer.
The objector says this buffer is inadequate. The objection goes on assert that the effectiveness and appropriateness of a 200 metre over say a 500 metre buffer has not been demonstrated.
I am bound to observe, axiomatically the ineffectiveness and inappropriateness of a 200 metre buffer compared to a 500 metre buffer has similarly not been demonstrated.
The objection goes on to say that with respect to providing adequate protection for that new species of freshwater crab
"At a minimum, the EA should include specific provision for the mine access road from the Hey River ferry terminal to the mine site, which will be constructed early in the development schedule and will traverse Winda Winda Creek. Development and use of this road will be essential from early mine development activities and will continue throughout the life of the mine."
Even if that proposition were to be accepted there is no evidence before the Court as to what those "specific provisions for the mine access road" should be. Such conditions cannot be constructed by this Court in a vacuum.
In any event when one reads the submission of the Statutory Party in respect of the EIS which was lodged with the Coordinator-General it appears that some mature consideration has been given to the issue of buffer distances and specifically some consideration given to the issue surrounding the unidentified species of freshwater crab found in Winda Winda Creek.[41]
[41] Exhibit FMT-21 to the affidavit of Ms Talbot of 12 December 2012 at page 2744.
In their submission they said:
"The EIS report proposes wetland buffers that are based on DERM Guideline which is for clearing and agricultural use not complete removal of the regolith. It is noted that apparently undescribed species of crab and shrimp have been found in the freshwater streams on the mining lease. Proposed buffer widths should also be sufficient to protect the in stream environment, particularly water quality (if mining activity will affect groundwater and surface flows to streams and creeks) and water quality (particularly sediment load). DERM is interested in ensuring that the habitat for these and other in stream species is not significantly impacted by the mining activity."[42]
[42] Exhibit FMT-21 to the affidavit of Ms Talbot of 12 December 2012 at page 2743.
The Statutory Authority went to recommend that consideration should be given to increase buffers by 100% for all categories to minimise the risk of groundwater and sediment impacts on riparian areas and in-stream eco-systems.
The response of the Applicant RTA Weipa was to acknowledge that based on the results of the pre-mining surveys, the minimum environmental buffer distance may be increased above the 50, 100 or 200 metre categories outlined in the Regional Vegetation Management Code for Western Bio-Regions (Version 2 DERM 2009). They go on to assert:
"The measures proposed are considered sufficient to protect stream water quality and quantity, and in stream biota (including the undescribed species of freshwater crab found in Winda Winda Creek). Note, the undescribed species of shrimp is a groundwater dwelling stygofauna species found in the lower Ward River catchment."[43]
[43] Exhibit FMT-21 to the affidavit of Ms Talbot of 12 December 2012 at page 2744.
It is to be noted that the 200 metre required by the Draft Environmental Authority is twice that called up by the Code.
The imposition of that buffer distance, it would seem, reflected the Coordinator-General taking account of the objection raised by the Wilderness Society (Qld) and accepting the response which had been provided by RTA Weipa.
In the Coordinator-General's report it observed as follows[44]:
"In regard to the unidentified species of freshwater crab and stygofauna, I acknowledge the commitment by RTAW to undertake additional surveys to confirm the wider distribution of the species at the end of the 2012 wet season. I support this planned survey work. However, until this work is completed and the protection status of these species established, I consider it prudent that a precautionary approach be followed. A conservative buffer setback of at least 200 metres should apply in areas where potential new species of aquatic fauna are identified until there is some confidence in the distribution of the species and a decision taken on protection status. Accordingly, I have stated a condition at Appendix 3, Part B, Schedule 1, Condition 5, requiring a minimum setback of 200 metres in areas where the possible new species have been found until its distribution and conservation status are determined."
[44] Exhibit FMT-22 to the affidavit of Ms Talbot of 12 December 2012 Evaluation Report s 5.3 page 3277.

In all of the circumstances I see no reason to amend the conditions of the Environmental Authority in response to the objection contained in paragraph 10 of the Wilderness Society (Qld) objections. There being no evidence as to the inadequacy of the buffer distances imposed in the Draft Environmental Authority.
I note the submissions of the Applicant that, in any event that component of the objection relates to a condition which is a "Coordinator General's condition" which, pursuant to s 216(2) of the EPA is invalid.
That appears to be correct but in light of my other conclusions it is not necessary to decide that.

The Significance of Notophyll Vine Forest

Paragraphs 11, 12 and 13 of the objection of the Respondent raise issues with respect to the consequences of the construction of the dam identified as Dam C which it is acknowledged will flood approximately eight hectares of evergreen notophyll vine forest. It is clear from a perusal of the material that a significant amount of investigation and consideration of the ecological function of evergreen notophyll vine forest was given by the Applicant in its investigations.
The EIS both acknowledge the loss of habitat landscape which would be inevitable in a mining project of this magnitude. Similar acknowledgment was given by the Coordinator-General in its assessment of the EIS.
In the EIS the Applicant, in the section dealing with flora and fauna (section 7) said:
"Disturbance of sensitive environmental areas by mining would be avoided by the development of an environmental buffer system. The system would comprise a methodology for determining setback distances from sensitive vegetation types and the preclusion from mining from within the designated buffers.
The sensitive vegetation to be buffered by Darwin Stringybark Woodland would comprise the following vegetation types; riparian, wetland, estuarine, vine forest and coastal vegetation on sand.…
The buffer system would exceed the minimum requirements of the Queensland Government's Regional Vegetation Management Code as they relate to clearing setback distances from water courses and wetlands."[45]
[45] Exhibit FMT-16 to the affidavit of Ms Talbot of 16 December 2012 page 1160.
Later in the EIS the Applicant continued:
"Minimising disturbance to vine forests, riparian gallery forest and wetland habitats would be achieved via the environmental buffer system as proposed in section 7.9.2 for Mitigation of Impacts on Sensitive Vegetation Types. The Environmental Buffer System is discussed in detail in section 7.9.2 and in summary comprises a system of spatial buffers from sensitive vegetation types in which mining is excluded."
In its report on that EIS the Coordinator General responded to the assertions of the Applicant and the objections of the Wilderness Society (Qld) and said this[46]:
"The Wilderness Society raised concerns over the flooding of eight hectares of evergreen notophyll vine forest by Dam C-the largest patch in the project area-and which may be linked to other vine patches with fauna species moving between. RTAW responded in the SEIS that RE3.3.5 (evergreen notophyll vine forest) is a 'least concern' regional ecosystem under the VM Act and that the clearing represents less than 0.04 per cent of the Weipa Plateau Subregion and 0.015 per cent of the Cape York Bioregion. It responded further that habitat continuity around the dam impoundment is to be provided by a minimum 200-metre environmental buffer from the full supply level of the impoundment. RTAW further advised that, while the main gallery forest on the Dam C reach of the creek will be displaced by the impounded water, observations of a similar water supply dam in the Weipa area by RTAW indicates some re-establishment of a riparian gallery can be expected around the full supply level, which will reinstate, to some extent, the displaced riparian corridor. The Coordinator-General accepts this position.
[46] Exhibit FMT-22 to the affidavit of Ms Talbot of 12 December 2012 page 3269.
The Coordinator-General concluded[47]:
I consider that the EIS adequately identified likely impacts on native fauna. I accept that there will be some impacts on native fauna but consider that these will be largely of a transitory nature as domains are progressively mined and rehabilitated back to natural landscapes. I believe that impacts can be managed by the measures outlined in the EIS, SEIS, EM plan and commitments given by RTAW. I have stated a condition in Appendix 3, Part B, Schedule 1, Condition 3, requiring RTAW to prepare a species management plan for listed fauna species that may be impacted by the SOE project, for the approval of DEHP, prior to significant construction."
[47] Ibid.
Both the Supplementary Impact Statement and the Report of the Coordinator-General considered offset requirements that might be relevant in the context of the Queensland and the Policy for Vegetation Management Offset which had been introduced on 30 September 2011 and the Bio-Diversity Offset Policy (Version 1) which had been introduced 3 October 2011.
Both of those policies were introduced after the original EIS had been published.
I do not propose to examine in detail those proposals with respect to terrestrial offsets save to say that they were considered by the Coordinator-General in its evaluation report which concluded:
"I am satisfied with the assessment undertaken by RTAW to determine offset obligations under the BOP (ie Biodiversity Offset Policy) and with the offset proposal put forward and commitments made to acquit those obligations. I am also satisfied that suitable land base offset areas are available for RTAW to acquit these obligations either on or off ML 7024.
I have stated a condition at Appendix 3, Part B, Schedule 1, Condition 1, requiring RTAW to submit a final terrestrial biodiversity offset plan, based on the proposal as submitted on 5 April 2012 and generally consistent with the requirements of the BOP in Queensland Government Environmental Offset Policy (QGEOP) for the approval of DEHP within 12 months of the final investment decision for the project."[48]
[48] Exhibit FMT-22 to the affidavit of Ms Talbot of 12 December 2012 page 3271.
Arguably, those conditions would constitute a Coordinator-General's condition as that term is used within s 216 of the EPA and thereby preclude objections being made about it. Be that as it may, I am satisfied, absent any evidence to the contrary, that the ecological function of evergreen notophyll vine forest as part of the habitat corridor will be protected by the conditions set out in the Draft Environmental Authority.
In paragraph 14 of its objection the Wilderness Society (Qld) criticises the Draft Environmental Authority as not being sufficiently prescriptive with respect to the actions to be taken by the proponent to minimise turbidity impacts on known seagrass beds.
As might be anticipated given a proposal for dredging a terminal site there was consideration given to the presence of seagrass beds in the Hey River terminal dredging footprint. The investigations concluded that there were no seagrass beds in the Hey River terminal dredge footprint.[49]
[49] See Exhibit FMT-16 to the affidavit of Ms Talbot of 12 December 2012 section 6.3.4.
Because that material was contained within the EIS it was considered by the Coordinator-General and as a consequence a set of conditions on the project relating to marine habitat loss and dredging operations were imposed. In particular conditions J-32 to J-38 are conditions stated for the authority by the Coordinator-General in its evaluation report and accordingly are "Coordinator-General's Conditions" as that term is used in s 216(2) of the EPA and accordingly I am unable to take objections in that regard into account.
Were I required to do so I would find that conditions included in the Draft Environmental Authority were adequate to achieve proper management of potential turbidity impacts on seagrass beds.
At paragraph 15 of the objections the Wilderness Society (Qld) criticises the Draft Environmental Authority for failing to embrace the condition which had earlier been suggested by DERM.
As with some of the other objections the objector fails to properly articulate why the condition contended for by it would be "a more appropriate condition".
At paragraph 16 of the objection the objector alleges that:
"The construction standard required for sediment dams necessary as part of the project proposal are inadequate. The conditions require that sediment dams must be designed and constructed with a minimum volume equivalent to a 1 in 10 year Annual Exceedence Probability (AEP) 24 hour storm event and must be maintained above the maximum sediment deposition levels. And also that sediment dams constructed in the area south of the Embley River as part of erosion and sediment control measures that treat releases of water from extraction areas to surface waters or to a place that is reasonably expected to reach surface water are to be built at a minimum with a volume equivalent to a 1 in 10 year Annual Exceedence Probability (AEP) 24 hour storm event and must be maintained above the minimum sediment deposition levels.[50]
[50] Environmental Authority MIN100939109 pages 63 and 64 of 107 (Conditions H29 and H30).
Appendix 3 Part B Schedule 9 to the Report of the Coordinator-General contains the Coordinator-General's required conditions and in particular, in Schedule 9 which deals with water, the conditions which are imposed require that sediment dams of the sort referred to in Conditions H29 and H30 of the Environmental Authority be constructed to the standard therein referred to namely at a minimum volume equivalent to a 1 in 10 year Annual Exceedence Probability (AEP) 24 hour storm event.
Those conditions H29 and H30 are Coordinator-General's conditions is inescapable.
Notwithstanding that as a Coordinator-General's condition the conditions are "unimpeachable" the Applicant has elected, in its submissions, to address the issue.
In their submissions they point out that all the dams within the project area have been assessed against a document entitled Manual for Assessing Hazard Categories and Hydraulic Performance of Dams 2012 which is referred to as the Dam Manual and which is administered by the Statutory Party.[51]
[51]See the affidavit of Ms Talbot of 28 February 2013 and in particular Exhibits FMT-5 to the affidavit of Ms Talbot of 12 December 2012 and Exhibit FMT-8 to the affidavit of Ms Talbot of 28 February 2013.
That Dam Manual sets out particular hydrological design criteria but only for significant or high-hazard dams.
That needs to be contemplated in the context of the identification of the sediment ponds proposed to be constructed by the Applicant as falling within the "low" dam hazard categories.[52]
[52] Exhibit FMT-5 to the affidavit of Ms Talbot of 12 September 2012 Table 3-11 page 93.
The relevant part of the Environmental Management Plan observes as follows:
"The mine industrial area drainage slots and stock pile sediment ponds receive storm water runoff and will be sized to a volume equivalent to the runoff volume from a 1:10 ARI 24 hour rainfall event and will be maintained above the maximum sediment deposition levels. The water from these ponds will be either recycled for use in the beneficiation plants, dust suppression, and other industrial uses or may be released from these ponds in accordance with the Environmental Authority conditions."[53]
[53] Exhibit FMT-5 to the affidavit of Ms Talbot of 12 September 2012 Table 3-11 page 33.
There is nothing before the Court which would cause sufficient concern to alter the relevant conditions even if the Court were entitled to do so (which I have found it is not because of the impact of Coordinator-General's conditions).
Further I should note, for completeness, that nothing in the material which was placed before me and upon which I can act leads me to the view that there is a threat of serious or irreversible environmental damage and a lack of full scientific certainty concerning the nature and scope of the threat of damage such as would warrant applying the precautionary principle.
As the Applicant submits in its written submissions the Respondent has not identified any particular aspects of the project which it says would warrant the application of the precautionary principles.[54]
[54] Applicant's submissions para 6.2.3.
The objectors in their grounds of objection specifically raise the precautionary principle but, as I say there is nothing before the Court which warrants intervention in the conditions and reliance upon that principle.
The objectors also call up the adequacies of the environmental strategies which are implicit in the approvals as being inconsistent with the general objects of the EPA, the principles of ecologically sustainable development as set out in the National Strategy for Ecologically Sustainable Development and also inconsistent with the character, resilience and values of the receiving environment and with the general public interest.
Unfortunately raising those matters is insufficient to warrant the Court's intervention in reliance upon those principles and objects.
The National Strategy for Ecologically Sustainable Development is set out as part of the standard criteria contained within the EPA and are accordingly a relevant consideration for this Court.
The National Strategy for Ecologically Sustainable Development was prepared by a Steering Committee and endorsed by a Council of Australian Governments in December 1992.
It is germane to consider the Guiding Principles of that Strategy. They are as follows:
·    decision making processes should effectively integrate both long and short-term economic, environmental, social and equity considerations.
·    where there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation.
·    the global dimension of environmental impacts of actions and policies should be recognised and considered.
·    the need to develop a strong, growing and diversified economy which can enhance the capacity for environmental protection should be recognised.
·    the need to maintain and enhance international competitiveness in an environmentally sound manner should be recognised.
·    cost effective and flexible policy instruments should be adopted, such as improved valuation, pricing and incentive mechanisms.
·    decisions and actions should provide for broad community involvement on issues which affect them.
Arguably it is the first two principles which may be of relevance in the present instance.
On the material before me there is no basis for my concluding that the decision making processes which are implicit in the stage that this application has reached have failed to effectively integrate both long and short term economic, environmental, social and equity considerations.
Nor is there any information which would leave this Court to conclude that there are threats of serious or irreversible environmental damage having regard to the conditions set out in the Environmental Authority.
Further I am comfortable that the various investigations which have underpinned the EIS and the Supplementary EIS are sufficiently scientifically rigorous to have identified appropriate measures to address any environmental concerns.
To the extent that the standard criteria calls up the necessity for a consideration of the character, resilience and values of the receiving environment regard must be had to the definition of "receiving environment" within the EPA.
"Receiving environment" is defined as meaning
"In relation to an activity that causes or may cause environmental harm, means the part of the environment to which the harm is, or may be, caused."
I am satisfied, having regard to the content of the EIS, the Supplementary EIS, the Report of the Coordinator-General and the Contents of the Draft Environmental Management Plan and the Environmental Authority, that all aspects of the receiving environment have been considered and that the conditions proposed to be imposed are appropriate in all the circumstances.
Further, given the dual opportunities of the community at large to make submissions both in respect of the EIS and the Supplementary EIS at the stage when status as a "significant project" pursuant to the State Development Act was being sought by the Applicant and then subsequently in the context of the application for an amendment to the Environmental Authority I am satisfied that the public interest has been served by the opportunities provided to make submissions and objections in respect of those processes.
Again as with the other issues raised by the objector there is no particular identification of any aspect of the public interest which it is said has been ignored or has been the subject of a failure to take it into account in assessing the appropriate conditions which ought to be imposed upon the Applicant with respect to environmental matters.
Accordingly, I recommend to the Honourable the Minister for Environment and Heritage Protection pursuant to the EPA that the Draft Environmental Authority issued on 3 October 2012 be issued without amendment.[55]
[55] Exhibit IFM-002 and Exhibit IFM-003 to the affidavit of Minnesma of 14 December 2012.

Orders

1.As to preliminary matters:

(a) I find that the application was properly made by the Applicant.

(b)The application as made properly complied with the requirements of the Environmental Protection Act 1994.

(c)The objector Wilderness Society (Qld) made proper objection to the application.

2.I recommend to the Honourable the Minister for Environment and Heritage Protection pursuant to the Environmental Protection Act 1994 that the Draft Environmental Authority issued on 3 October 2012 be issued without amendment.
3.I direct that the Registrar of the Land Court send a copy of these reasons to the Honourable the Minister for Environment and Heritage Protection.

HIS HONOUR, MR WL COCHRANE
MEMBER OF THE LAND COURT

CITATION:	RTA Weipa Pty Ltd v The Wilderness Society (Qld) and Department of Environment and Heritage Protection [2014] QLC 2
PARTIES:	RTA Weipa Pty Ltd (Applicant)
v
The Wilderness Society (Qld) (Respondent) and Chief Executive, Department of Environment and Heritage Protection (Statutory Party)
FILE NOS:	EPA875-12
DIVISION:	General Division
PROCEEDING:	Application to Amend Environmental Authority. Objections to Draft Environmental Authority.
DATE OF HEARING:	March 2013
DELIVERED ON:	3 February 2014
DELIVERED AT:	Brisbane
HEARD AT:	Brisbane
MEMBER::	His Honour, Mr WL Cochrane
ORDERS:	[1] As to preliminary matters: (a) I find that the application was properly made by the Applicant. *(b) The application as made properly complied with the requirements of the Environmental Protection Act* 1994. (c) The objector Wilderness Society (Qld) made proper objection to the application.** [2] I recommend to the Honourable the Minister for Environment and Heritage Protection pursuant to the Environmental Protection Act 1994 that the Draft Environmental Authority issued on 3 October 2012 be issued without amendment. [3] I direct that the Registrar of the Land Court send a copy of these reasons to the Honourable the Minister for Environment and Heritage Protection.
CATCHWORDS:	Environment – draft Environmental Authority – objections – Environmental Protection Act1994 – ss 219, 220, 222, 223 McBain & Others v Clifton Shire Council & Others (1995) QPLR 363. Ulan Coal Mines v Minister for Planning and Anor (2008) 160 LGERA 20. Barrington-Gloucester-Stroud Preservation Alliance Inc v Minister for Planning and Infrastructure (2012) NSW LEC 197. Jax Coal Pty Ltd v Garry Reed and Mackay Conservation Group and Whitsunday Regional Council and Chief Executive, Department of Environment and Heritage Protection [2013] QLC 39.
APPEARANCES:	Mr O'Donnell QC instructed by Allens for the Applicant. Dr Tim Seelig for The Wilderness Society. Mr S Barclay legal officer with the Department of Environment and Heritage Protection for the Statutory Party.