Xstrata Coal Queensland Pty Ltd v Friends of the Earth - Brisbane Co-Op Ltd
[2012] QLC 13
•27 March 2012
LAND COURT OF QUEENSLAND
CITATION: Xstrata Coal Queensland Pty Ltd & Ors v. Friends of the Earth - Brisbane Co-Op Ltd & Ors, and Department of Environment and Resource Management [2012] QLC 013 PARTIES: Xstrata Coal Queensland Pty Ltd, ICRA Wandoan Pty Ltd and Sumisho Coal Australia Pty Ltd
(applicants)
v. Friends of the Earth - Brisbane Co-Op Ltd
and
Barry Raymond Rich and Helen Maxine Rich
and
Roy Anderson, Bimbadeen Water Group, Herbert Bruggemann, Patrick Michael Devlin and Helen Joyce Devlin, Thomas Edmonds and Janice Edmonds, John Gerard Erbacher, Juandah Water Board, Cowan Keys and Helen Keys, Laurence Henry Peake and Gwenyth Alison Peake
and
Sally Maud Philp
(objectors)and
Department of Environment and Resource Management (statutory party)
FILE NOS: MRA092-11 and EPA093-11
MRA098-11 and EPA099-11
MRA105-11 and EPA106-11DIVISION: General Division PROCEEDING: Applications for mining leases and objections; objections to application for environmental authority, the draft environmental authority and conditions included in the draft environmental authority. DELIVERED ON: 27 March 2012 DELIVERED AT: Brisbane HEARD AT: Brisbane, Dalby PRESIDENT: CAC MacDonald ORDER: 1. I make the following recommendations, pursuant to s.269(1) of the Mineral Resources Act, to the Honourable the Minister administering the Mineral Resources Act 1989 -
(a) Subject to the following recommendations in relation to the mining leases and the draft environmental authority being adopted, I recommend that the mining leases 50229, 50230 and 50231 be granted over the application area, other than over the land identified in Recommendation 1(b) below, for the term and purpose sought by the applicants, with the exception of the areas occupied by the proposed Woleebee South and Glen Haven Pits.
(b) In accordance with s.238(2) of the Mineral Resources Act 1989, the following areas of restricted land be excised from the lease areas -
(i) The land shown as restricted land on Drawing No. 921703 attached to the mining lease application, and the following land to the extent that it is not included in that drawing -
a. Mr and Mrs Edmonds' land: land within 100m laterally of the two residences and five sheds; land within 50m laterally of each of the two stockyards, two turkeys nests, the bore, those stock water troughs connected to a water supply and seven dams;
b. Mr Erbacher's land: land within 100m laterally of the residences, sheds and the piggery; land within 50m laterally of the stockyards, turkeys nest, water storages, bore, those stock water troughs connected to a water supply, tanks and dams;
c. Mr and Mrs Keys' land: land within 50m laterally of the stock water facilities connected to a water supply.
(ii) The land occupied by the water pipelines providing water supply to the water storage facilities identified in a., b., and c. above and within 50m laterally of those water pipelines be excluded from the grants.
(c) I recommend that any leases granted over the areas of land occupied by the proposed Woleebee South and Glen Haven Pits be limited to infrastructure purposes associated with the mining activities on the balance of the lease areas.
(d) I recommend that the applicants must provide continuing access via public roads to the same standard as currently exists to the Edmonds and Erbacher properties, while those properties remain in the ownership of persons and entities other than the applicants.
2. I make the following recommendations, pursuant to s.222(2)(b) of the Environmental Protection Act 1994, to the Honourable the Minister administering the Environmental Protection Act 1994 -
(a) Subject to the following recommendations in relation to the mining leases and the draft environmental authority being adopted, I recommend that the environmental authority be issued in the terms of the draft environmental authority issued on 10 December 2010.
(b) I recommend that the draft environmental authority be amended to include a condition that a monitoring program for the Hutton and Precipice Sandstone Aquifers, using the existing deep bores, be designed and implemented in consultation with DERM for the following purposes -
(i) to establish the base line yield and water quality of the supply from those bores; and
(ii) to regularly monitor the bores to identify any change in the yield and quality of the water supply from aquifers in accordance with parameters to be set by DERM.
(c) I recommend that, as a pre-requisite to the grant of the environmental authority, the applicants are to reach mutually suitable make-good agreements with landowners potentially affected by adverse impacts on the availability and quality of groundwater as a result of the mining operations.
3. I direct the Registrar of the Land Court to provide a copy of these reasons to the Honourable the Ministers administering the Mineral Resources Act 1989 and Environmental Protection Act 1994 and to direct the Ministers' attention specifically to my observations in [606] - [610].
CATCHWORDS: Mining - applications for mining leases - objections - functions and powers of the Land Court - Mineral Resources Act 1989, ss.268, 269
Mining - application for environmental authority - objections - functions and powers of the Land Court - Environmental Protection Act 1994, ss.216, 219, 222, 223
Mining - significant project - effect of Coordinator-General's conditions - statutory limits on the powers of the Land Court - State Development and Public Works Organisation Act 1971, ss.45(1), 46, 49(1) - Environmental Protection Act 1994, s.222(2) - extent Court can recommend conditions that are inconsistent with Coordinator-General's conditions - meaning of "inconsistency" - principles of statutory interpretation - ordinary and natural meaning
Mining - objections to draft environmental authority - limitations under the Environmental Protection Act 1994 - Coordinator-General's conditions can not be objected to by anyone - power of the Land Court to hear "new" objections - Environmental Protection Act 1994, ss.216(2), 222(2)
Mining - inclusion of environmental buffers and exclusion zones in lease areas - inclusion of mining pit areas not intended to be mined during the life of the leases - whether acceptable level of development and utilisation of the mineral resources within areas applied for - whether leases sought an appropriate size and shape - whether leases sought for appropriate purposes - public interest - whether the proposed mining operation an appropriate land use - Mineral Resources Act 1989, ss.234(1), 269(4)(b), (c), (d), (i), (k), (l), (m)
Mining - whether improvements properly identified in mining lease applications - restricted land (category B) - "artificial water storage" - water troughs - water pipelines - Mineral Resources Act 1989, ss.238(2), 245(1)(g), Schedule 2 (Dictionary)
Jurisdiction of the Land Court – statutory limits on Court's powers to make recommendations under the Mineral Resources Act 1989 and the Environmental Protection Act 1994 - "environmental authorities" - "mining activities" - activities authorised under the Mineral Resources Act 1989 - extent Court can make recommendations for activities regulated by the Water Act 2000 - Mineral Resources Act 1989, s.235(3) - Environmental Protection Act 1994, ss.146, 147
Jurisdiction of the Land Court - groundwater impacts - whether impacts of "mining activities" or activities regulated by the Water Act 2000 - insufficient investigations - conflicting expert opinions - precautionary principle - adequacy of draft conditions for the draft environmental authority - effect of Coordinator-General's conditions – Environmental Protection Act 1994, ss.146, 147, 222(2)
Jurisdiction of the Land Court - groundwater impacts - make-good agreements - jurisdiction and powers of the Court limited to activities authorised under the Mineral Resources Act 1989 - Court unable to make recommendations to Minister administering the Water Act 2000 - Mineral Resources Act 1989, ss.235(3), 269 - Environmental Protection Act 1994, ss.146, 147, 222
Evidence - expert opinion - impact of coal dust on cattle - conflicting opinions of different experts - lack of research - scientific uncertainty - precautionary principle - lack of evidence as to appropriate precautionary remedy - Environmental Protection Act 1994, ss.223(c), Schedule 4 (Dictionary)
Mining - dust and noise emissions - application of environmental protection policies - effect of Coordinator-General's conditions imposing relevant emission limits - limits on Court's power to recommend conditions for the draft environmental authority - State Development and Public Works Organisation Act 1971, s.49 - Environmental Protection Act 1994, s.222(2) - Environmental Protection (Air) Policy 2008 - Environmental Protection (Noise) Policy 2008
Climate Change - whether "any adverse environmental impact" - whether the MRA permits consideration of downstream indirect environmental impacts - scope of "operations" limited to physical mining activities - test of causation - whether evidence required of specific environmental impact - public interest - whether "a good reason" to refuse proposed mining lease applications - Mineral Resources Act, ss.2, 6A, 234(1), 269(4)(i), (j), (k), (l)
Climate Change - consideration of the "standard criteria" - public interest - principles of ecologically sustainable development (ESD) - limits on the jurisdiction of the Land Court - "environmental authorities" - "mining activities" - objects of the Environmental Protection Act1994 limited to protection of Queensland's environment - extent Court can consider "global impacts" under the ESD principles - evidence of scope 3 greenhouse gas emissions irrelevant - Environmental Protection Act 1994, ss.3, 5, 8, 223, 146, 147, Schedule 4 (Dictionary)
APPEARANCES: Mr DJS Jackson QC with Mr D Clothier for the applicants.
Mr BG Cronin with Dr C McGrath for the objector Friends of the Earth - Brisbane Co-Op Ltd.
Mr P Ambrose SC with Ms K McIntyre for objectors BR and HM Rich.
Mr G Houen, agent, for objectors R Anderson, Bimbadeen Water Group, H Bruggemann, PM and HJ Devlin, T and J Edmonds, JG Erbacher, Juandah Water Board, C and H Keys, and LH and GA Peake.
Mr IR Pepper, Senior Lawyer, Department of Environment and Resource Management, for the statutory party.SOLICITORS: Allens Arthur Robinson for the applicants.
Environmental Defenders Office Qld Inc for the objector Friends of the Earth - Brisbane Co-Op Ltd.
Shannon Donaldson for the objectors BR and HM Rich.
INDEX
Subject Paragraphs
Background [1] – [14]
The mining lease application process [15]
The draft environmental authority process [16] – [17]
Functions of the Land Court [18] – [51]
Mineral Resources Act 1989[19] – [20]
Environmental Protection Act 1994 [21] – [23]
Effect of Coordinator-General's conditions [24] – [25]
Mining Lease Conditioning Powers [26] – [28]
Environmental Authority Conditioning Powers [29] – [31]Inconsistency Test [32] – [51]
The Objectors and objections – in general [52] – [69]
The Landowners and their interests
Mr Anderson [54]
Bimbadeen Water Group [55]
Mr Bruggemann [56]
Mr and Mrs Devlin [57]
Mr and Mrs Edmonds [58]
Mr Erbacher/Juandah Water Board [59] – [60]
Mr and Mrs Keys [61]
Mr and Mrs Peake [62]
Ms Philp [63] – [64]
Mr and Mrs Rich [65] – [69]Consideration of Landowners' objections [70] – [487]
Premature issue of draft EA [70] – [76]
Conclusions as to whether the draft EA was issued prematurely [77] – [80]
Size and shape of the MLA areas [81] – [84]
Environmental buffers [85] – [91]
Loss of pastoral land [92] – [93]
Exclusion zones [94] – [101]
Conclusions as to proposed environmental buffers, loss of
pastoral land and exclusion zones [102] – [106]
Purpose of grant is to run cattle [107] – [110]
Conclusions about proposal to run cattle [111] – [113]
The Woleebee South, Glen Haven and Wubagul Pits [114] – [127]
Conclusions about the Woleebee South Pit and the Glen Haven Pit [128] – [131]
Conclusions about the Wubagul Pit [132] – [134]
Restricted land and sensitive places
Restricted land [135] – [139]
Sensitive places [140] – [146]
Conclusions about restricted land [147] – [157]
Conclusions about sensitive places [158] – [159]Past Breaches of Code and Statutory Requirements [160] – [180]
Alleged Breaches of Codes[160] – [167]
Conclusions about Breaches of Codes [168] – [169]
Failure to Serve Notice of Abandonment [170] – [176]
Failure to Serve Certificate of Application [177] – [180]Water [181] – [296]
Introduction [181] – [183]
The EIS and SEIS [184] – [185]
The Coordinator-General's report [186] – [188]
Details of water supply to the objectors' properties [189] – [199]
Objections [200] – [204]
Land Court jurisdiction concerning water issues [205] – [215]
Groundwater monitoring [216] – [222]
Potential impact of mining operations on the Hutton Sandstone and
Precipice Sandstone Aquifers [223] – [235]
Potential impact of mining operations on the shallow and
alluvium aquifers [236] – [248]
Conclusions as to adequacy of groundwater monitoring
Hutton Sandstone and Precipice Sandstone Aquifers [249] – [261]
The shallow and alluvium aquifers [262] – [266]
Water extraction and diversion
Potential impact of extraction of water for construction purposes
from the Precipice Sandstone Aquifer [267] – [268]
Woleebee Creek alluvium [269] – [275]
Conclusions about water extraction and diversion [276]
Make-good agreements [277] – [285]
Conclusions about make-good agreements [286] – [293]
Mr and Mrs Peake's Trelinga Bore [294] – [296]Floodwater management[297] – [302]
Conclusions about flood water management [301] – [302]Use of coal seam gas water on roads[303] – [307]
Deprivation of beneficial flooding [308] – [310]
Dust [311] - [377]
The EIS and SEIS [311]
The Coordinator-General's report [312] – [314]
Impact of corrosive fallout [315] – [322]
Conclusions about corrosive fallout [323]
Impact of dust on grazing and feedlot [324] – [342]
Conclusions about the impact of dust on grazing and feedlot [343] – [350]
Compliance with the limits set by the draft EA [351] – [362]
Conclusions about compliance with the draft EA limits [363] – [369]
PM2.5 Monitoring at Amber Downs [370] – [377]Noise [378] – [435]
The EIS [379] – [383]
The SEIS [384] – [396]
The Coordinator-General’s report [397] – [398]Whether the background noise level of 30 dB(A) is artificially
high and unreasonable [399] – [418]
Conclusions about the background noise level [419] – [426]
Whether noise from mine will exceed the limits in Condition D2 [427] – [429]
Feedlot Impacts [430] – [435]Section 269(4)(l) MRA – Other good reason – the Richs' Submissions[436] – [444]
Additional objection – 'At Risk' agreement [440] – [444]Blasting [445] – [448]
Loss of or restricted access to property by closure of bridge
and roads [449] – [479]
Inside MLA areas
Road closures to the Edmonds and Erbacher properties [450] – [454]
Conclusions about access to the Edmonds and Erbacher properties [455] – [456]
Outside MLA areas [457]
Mr and Mrs Devlin [458] – [462]
Conclusions about access to Mr and Mrs Devlin's property [463] – [464]
Mr Anderson [465] – [468]
Mr Bruggemann [469] – [471]
Mr and Mrs Peake [472] – [479]Failure to agree on compensation for loss of business and property
devaluation [480] – [483]Weed management plan [484] – [487]
Climate Change [488] – [605]
The EIS [488] – [503]
The SEIS [504] – [505]
The Coordinator-General's report and the draft EA [506] – [508]
The Objection [509] – [514]
The Applicants' Submissions [515] – [516]
The Statutory Context [517] – [519]
Mineral Resources Act 1989 [520] – [521]
Section 269(4)(j): Any adverse environmental impact caused
by those operations and the extent thereof [522] – [563]
Conclusions about s.269(4)(j) of the MRA [564] – [570]
Section 269(4)(k): The public right and interest will be prejudiced [571] – [581]
Section 269(4)(l): Any good reason has been shown for a refusal [582] – [585]
Environmental Protection Act 1994 [586] – [605]Observations to the Honourable the Minister administering the
Mineral Resources Act 1989 and the Honourable the Minister
administering the Environmental Protection Act 1994 [606] – [610]MRA Section 269(4) criteria [611]
Section 269(4)(a) [612]
Section 269(4)(b) [613] - [615]
Section 269(4)(c) [616]
Section 269(4)(d) [617] – [618]
Section 269(4)(e) [619] – [620]
Section 269(4)(f) [621] – [622]
Section 269(4)(g) [623]
Section 269(4)(h) [624] – [626]
Section 269(4)(i) [627] – [628]
Section 269(4)(j) [629]
Section 269(4)(k) [630] – [632]
Section 269(4)(l) [633] – [637]
Section 269(4)(m) [638] – [639]ORDERS
Background
[1]Xstrata Coal Queensland Pty Ltd, ICRA Wandoan Pty Ltd and Sumisho Coal Australia Pty Ltd (the applicants) have applied for three mining leases and an associated environmental authority in respect of a proposed open cut coal mine immediately to the west of the Wandoan township, approximately 350 kms north-west of Brisbane in the Surat Basin. The applications were made under the Mineral Resources Act 1989 (MRA) and the Environmental Protection Act 1994 (EPA) respectively.
[2]The key features of the project were described by the applicants as follows -
·Open-cut mining of thermal coal on mining lease applications (MLAs 50229, 50230 and 50231) at a rate of 30 million tonnes/annum (Mt/a) ROM Coal, with first coal export expected in early 2012. The in-situ coal resource identified within the Juandah Coal Measures of these MLAs is estimated to be in excess of 1.2 billion tonnes of thermal coal, of which approximately 500 Mt has a ROM strip ratio of less than 3:1 with the remainder of the coal typically being in the range of 3:1 to 5:1 strip ratio.
·Coal washing by a coal handling and preparation plant.
·Mine Infrastructure Area including administration and bath house facilities, vehicle parking, fuel storage and handling, lube and oil storage facility, heavy and light vehicle wash down facilities, services reticulation, workshop and stores and lay down areas.
·Export of coal from the site by a rail spur from the proposed Surat Basin Rail Project.
·Raw water supply for coal washing and other requirements by one of three potential options:
-Coal Seam Methane (CSM) by-product water from south of the MLA areas
-CSM by-product water from west of the MLA areas
-Surface water from the raising of Glebe Weir.
·Site water management.
·Proposed upgrading of the existing Wandoan town potable water treatment facilities and a pipeline to the MLA areas to provide water for the construction stage and potable water for mining operations, including a new cooling tower and possibly an extra town bore.
·Proposed upgrading of the existing Wandoan town waste water treatment facilities to allow for discharge of municipal waste water from the mine.
·Security building at the mine site entrance and exit points.
·Dragline construction facilities, including workshop, store and maintenance facilities to service dragline erections and maintenance.
·Power supply for the mine by one of four potential options:
- Total site supply by a 275 kV electricity transmission line including substation; or
- Total site supply by a 132 kV electricity transmission line including substation; or
- A base load total-site supply on site gas fired power generation of 80 MWe gross electric output, including gas supply pipe line from the peat Scotia lateral gas pipe line; or
- A partial-site-supply, on site gas fired power generation of 30 MWe gross electric output, including gas supplied pipe line from the peat Scotia lateral gas pipe line. Remaining power would be supplied by a 132 kV electricity transmission line.
[3]The project targets the Juandah Coal Measures which are shallow lying coal measures within the MLA areas. Within the Juandah Coal Measures there are several coal seams, the Kogan, Macalister Upper, Macalister Lower and Wambo seams, which will be targeted. The applicants say that the shallow lying nature of these coal seams makes them eminently suitable for open cut mining. It also has the consequence, say the applicants, that they will not be mining deep into the underlying aquifers. The mining pits will extend to an estimated maximum depth of 75m.
[4]Mining Lease application (MLA) 50229 was lodged on 24 May 2007 for a term of 35 years over an area of 17,211 ha for the purpose of mining coal and bearing the name Wandoan No. 1.
[5]MLA 50230 was lodged on 24 May 2007 for a term of 35 years over an area of 11,101 ha for the purpose of mining coal and bearing the name Wandoan No. 2.
[6]MLA 50231 was lodged on 24 May 2007 for a term of 35 years over an area of 3,795 ha for the purpose of mining coal and bearing the name Wandoan No. 3.
[7]On 21 December 2007, the project was declared to be a significant project for which an Environmental Impact Statement (EIS) was required pursuant to s.26 of the State Development and Public Works Organisation Act 1971 (State Development Act).[1]
[1]The project is an updated and refined version of the Wandoan project, which was declared a 'significant project for which an EIS is required' on 12 March 2007. The Wandoan project was withdrawn by the proponent on 20 December 2007, owing to changes in the size of the project, the number of activities considered part of the project and changes in the scope of the project: Coordinator-General's report, p.1.
[8]On 21 July 2008, aspects of the project were determined to be a "controlled action" by the relevant Commonwealth Minister under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBCA). The trigger for this was the project's potential environmental impacts to listed threatened species and ecological communities, being matters of national environmental significance. None of the objections filed in this matter relate to those triggers.
[9]An EIS was submitted by the applicants on 6 December 2008. The EIS was released for public and advisory agency comment. 62 submissions were received by the Coordinator-General from members of the public and advisory agencies.
[10]On 28 August 2009, the Coordinator-General requested a supplementary EIS (SEIS) under the State Development Act. The applicants provided the SEIS on 16 November 2009. The SEIS -
· identified that the applicants no longer proposed to mine the Woleebee South Pit in the first 30 years of operation;
· included the Glen Haven Pit as a potential mining area but noted that it would not form part of the project;
· provided updated information on ambient air quality impacts, mitigation and management measures;
· updated the assessment and information on noise impacts;
· specifically dealt with the economic impacts of the mine on agricultural production.
[11]The Coordinator-General invited comments from advisory agencies and submitters on the SEIS. 34 submissions were made.
[12]Under s.35 of the State Development Act, the Coordinator-General was required to consider the EIS and SEIS, the submissions and any other material the Coordinator-General considered relevant and prepare a report evaluating the EIS and SEIS. Section 45(1) of that Act provides that the Coordinator-General may state conditions for a proposed mining lease in the report; s.49(1) provides that the Coordinator-General may state conditions for any draft environmental authority (mining lease); s.52(1) provides that the Coordinator-General may recommend conditions for any other approvals process and s.54B provides that the Coordinator-General may impose conditions for the project to take effect under the Sustainable Planning Act 2009 and the EPA.
[13]The Coordinator-General's report, released on 12 November 2010, recommended that the project proceed, subject to conditions including conditions for the environmental authority. The Coordinator-General also recommended conditions for other approvals including, relevantly, recommendations to the Minister administering the Water Act 2000. Conditions were also imposed under s.54B of the State Development Act.
[14]On 14 March 2011, the Commonwealth Minister approved the controlled action under the EPBCA.
The mining lease application process
[15]On 14 October 2010, the Mining Registrar prepared and endorsed Certificates of Application for the mining lease applications under s.252 of the MRA. On 8 and 10 December 2010, the applicants abandoned some parts of the land applied for in the MLAs, including the properties owned by objectors, Mr and Mrs Devlin, and by the son and daughter-in-law of objector, Mr Bruggemann. On 13 January 2011, the Mining Registrar re-issued Certificates of Public Notice for the MLAs under s.252A of the MRA. The objectors in these proceedings lodged objections to the MLAs under s.260 of the MRA on 25 February 2011 and the objections were referred to the Land Court under s.265 of that Act on 16 March 2011.
The draft environmental authority process
[16]On 10 December 2010, a draft environmental authority (EA) was issued under the EPA. Pursuant to s.210(2) of the EPA the draft EA incorporated conditions from the Coordinator-General's report. Following public notice of the application under s.211 of the EPA, the objectors objected to the application for the EA, the draft EA, and conditions included in the draft EA under s.216. Those objections were referred to the Court pursuant to s.219 of the EPA also on 16 March 2011.
[17]The Department of Environment and Resource Management (DERM) is a party to the proceedings by virtue of s.219(4)(a) of the EPA.
Functions of the Land Court
[18]The Court is required to conduct a hearing into the applications for the grant of the mining leases and objections under s.268 of the MRA and, under s.269, to make recommendations to the relevant Minister about whether to grant the mining leases and, if so, to recommend any relevant conditions to which the mining leases should be subject. Pursuant to s.219(1) of the EPA, the Land Court must make an objections decision in relation to any objections made under that Act to the application for an EA, the draft EA and the conditions included in the draft EA.
Mineral Resources Act 1989
[19]Section 268 of the MRA relevantly provides -
"268 Hearing of application for grant of mining lease
(1)On the date fixed for the hearing of the application for the grant of the mining lease and objections thereto, the Land Court shall hear the application and objections thereto and all other matters that pursuant to this part are to be heard, considered or determined by the Land Court in respect of that application at the one hearing of the Land Court.
(2)At a hearing pursuant to subsection (1) the Land Court shall take such evidence, shall hear such persons and inform itself in such manner as it considers appropriate in order to determine the relative merits of the application, objections and other matters and shall not be bound by any rule or practice as to evidence.
(3)The Land Court shall not entertain an objection to an application or any ground thereof or any evidence in relation to any ground if the objection or ground is not contained in an objection that has been duly lodged in respect of the application.
…".
[20]Relevantly, s.269 provides -
"269 Land Court’s recommendation on hearing
(1)Upon the hearing by the Land Court under this part of all matters in respect of an application for the grant of a mining lease, the Land Court shall forward to the Minister -
(a) any objections lodged in relation thereto; and
(b) the evidence adduced at the hearing; and
(c) any exhibits; and
(d) the Land Court’s recommendation.
(2) The recommendation of the Land Court upon an application for the grant of a mining lease shall consist of -
(a) a recommendation to the Minister that the application should be granted or rejected in whole or in part; and
(b) in the case of an application that relates to land that is the surface of a reserve and the owner of that reserve does not consent to the grant of a mining lease over that surface area, a recommendation to the Minister as to whether the Governor in Council should consent to the grant of the mining lease over that surface area and, if so, recommend the conditions (if any) to which the mining lease should be subject.
(3)A recommendation may include a recommendation that the mining lease be granted subject to such conditions as the Land Court considers appropriate, including a condition that mining shall not be carried on above a specified depth below specified surface area of the land.
(4)The Land Court, when making a recommendation to the Minister that an application for a mining lease be granted in whole or in part, shall take into account and consider whether -
(a) the provisions of this Act have been complied with; and
(b) the area of land applied for is mineralised or the other purposes for which the lease is sought are appropriate; and
(c) if the land applied for is mineralised, there will be an acceptable level of development and utilisation of the mineral resources within the area applied for; and
(d) the land and the surface area of the land in respect of which the mining lease is sought is of an appropriate size and shape in relation to -
(i)the matters mentioned in paragraphs (b) and (c); and
(ii)the type and location of the activities proposed to be carried out under the lease and their likely impact on the surface of the land; and
(e) the term sought is appropriate; and
(f) the applicant has the necessary financial and technical capabilities to carry on mining operations under the proposed mining lease; and
(g) the past performance of the applicant has been satisfactory; and
(h) any disadvantage may result to the rights of -
(i)holders of existing exploration permits or mineral development licences; or
(ii)existing applicants for exploration permits or mineral development licences; and
(i) the operations to be carried on under the authority of the proposed mining lease will conform with sound land use management; and
(j) there will be any adverse environmental impact caused by those operations and, if so, the extent thereof; and
(k) the public right and interest will be prejudiced; and
(l) any good reason has been shown for a refusal to grant the mining lease; and
(m) taking into consideration the current and prospective uses of that land, the proposed mining operation is an appropriate land use.
(5)Where the Land Court recommends to the Minister that an application for the grant of a mining lease be rejected in whole or in part the Land Court shall furnish the Minister with the Land Court’s reasons for that recommendation.
…"
Environmental Protection Act 1994
[21]Section 216 of the EPA provides that -
"216 Right to make objection
(1) An entity may make an objection about -
(a) the application; or
(b) the draft environmental authority for the application; or
(c) a condition included in the draft.
(2)Also, a Coordinator-General’s condition included in the draft under section 210 can not be objected to by anyone.
(3) An objection may be made only by giving it to the administering authority.
(4)To remove any doubt, it is declared that the reference to the application in subsection (1) does not include a reference to any other application document."
[22]Section 222 of the EPA provides -
"222 Nature of objections decision
(1)The objections decisions for the application must be a recommendation to the EPA Minister that -
(a)the application be granted on the basis of the draft environmental authority for the application; or
(b)the application be granted, but on stated conditions that are different to the conditions in the draft; or
(c)the application be refused.
(2)However, if a relevant mining lease is, or is included in, a significant project and, under section 210, Coordinator-General's conditions were included in the draft, any stated conditions under subsection (1)(b) -
(a)must include the Coordinator-General's conditions; and
(b)must not be inconsistent with a Coordinator-General's condition.
… "
[23]Section 223 of the EPA relevantly provides -
"223 Matters to be considered for objections decision
In making the objections decision for the application, the Land Court must consider the following -
(a)the application documents for the application;
(b)any relevant regulatory requirement;
(c)the standard criteria;
(d)…
(e) each current objection;
(f)any suitability report obtained for the application;
(g) the status of any application under the Mineral Resources Act for each relevant mining tenement."
Effect of Coordinator-General's conditions
[24]An underlying issue which arises by virtue of the content of some of the objections is the extent to which the Court may consider objections and make recommendations about proposed conditions that relate to the same general subject matter as the Coordinator-General's conditions.
[25]The general principles to be applied in determining whether the Court has power to deal with such objections and make such recommendations are considered here. The application of those principles to particular objections will be discussed throughout the remainder of the decision.
Mining Lease Conditioning Powers
[26]Section 45(1) of the State Development Act provides that the Coordinator-General's report may state conditions for the proposed mining lease.
[27]Section 46 then goes on to state –
"46 Coordinator-General's conditions override other conditions
(1) This section applies if -
(a) the proposed mining lease is granted; and
(b) the conditions of the mining lease include a Coordinator-General's condition; and
(c) there is any inconsistency between the Coordinator-General's condition and another condition of the mining lease.
(2)Subject to section 47, the Coordinator-General's condition prevails to the extent of the inconsistency.
(3)In this section—
Coordinator-General's condition means -
(a) a Coordinator-General's condition that, under section 45, is taken to have been included in the proposed mining lease; or
(b) a condition that is substantially the same as a condition mentioned in paragraph (a)."
[28]The Coordinator-General did not state any conditions for the proposed mining leases pursuant to s.45(1) of the State Development Act. However, an issue arises as to whether the Court can recommend the inclusion of conditions in the proposed mining leases which are inconsistent with conditions stated by the Coordinator-General for the draft EA. I will address this issue further below.
Environmental Authority Conditioning Powers
[29]Section 49(1) of the State Development Act provides that the Coordinator-General's report may state conditions for any draft EA under the EPA for the proposed EA (mining lease).
[30]Section 222(2) of the EPA limits the Court's conditioning powers insofar as any conditions recommended by the Court must include the Coordinator-General's conditions and must not be inconsistent with a Coordinator-General's condition.
[31]Further, s.216(2) of the EPA provides that a Coordinator-General's condition included in the draft EA can not be objected to by anyone.
Inconsistency Test
[32]Some of the objections relating to particular subject matters were made under both the MRA and the EPA. Where the objections have some merit, an issue arises as to whether conditions can be recommended in relation to the proposed mining leases which would be inconsistent with the Coordinator-General's stated conditions for the draft EA. On a strict reading of s.46 of the State Development Act, it would appear there is no prohibition on recommending such conditions. However, it is my opinion that it would defeat the intent of both the State Development Act and the EPA to recommend conditions for the proposed mining leases that would be inconsistent with the draft EA. Accordingly I am not prepared to adopt that course in this case.
[33]It is clear that the Court's conditioning powers under the EPA are constrained by the operation of the State Development Act. The question is to what extent. The applicants have submitted that the effect of ss.222(2) and 216(2) of the EPA is that neither an objector nor the Court can go behind the Coordinator-General's stated conditions for the draft EA. The reason for that, the applicants submitted, was that the conditions are the result of an extensive EIS process which provide the opportunity for persons to make submissions about particular matters. It would make a nonsense of that process to enable the Coordinator-General's conditions to be re-examined a second time. Further, the applicants submitted, several of the objections concern alleged inadequacies in the Coordinator-General's conditions. Objections in relation to groundwater, dust and noise are in that category.
[34]It is submitted for the Richs that the Coordinator-General's conditions can be improved and made more strict by analogy with the process adopted by Mr Spalding, as set out in paragraph 10 of his affidavit. In the alternative, they submit that if the Court finds the Coordinator-General's conditions to be unreasonable or not as strong or as strict as they might be, and the Coordinator-General's conditions cannot be changed because to do so would be recommending inconsistent conditions then, while the Coordinator-General's conditions remain, the Court should make an unfavourable recommendation.[2] The other objectors did not address this issue in their submissions.
[2] Transcript 8-11.30 to 8-11.49.
[35]The issue of what the Court can and cannot do when faced with Coordinator-General's conditions does not appear to have been examined before by this Court or the previous Land and Resources Tribunal.
[36]The applicants' submissions raise two distinct issues:
(1) To what extent can objectors raise issues with the Coordinator-General's conditions included in the draft EA?
(2)In what circumstances will a condition recommended by the Court be inconsistent with a Coordinator-General's condition?
[37]It is convenient to deal with the second issue first.
[38]Although there is no direct authority on point, there is a large body of case law derived from federal constitutional law dealing with s.109 of the Australian Constitution and inconsistency between Commonwealth and State laws. The test of "indirect inconsistency", developed by the High Court in Clyde Engineering Co Ltd v Cowburn (1926) 37 CLR 466, has been adopted by Courts when considering the operation of s.109 of the Australian Constitution. The test was explained by Kirby P (as he then was) in Majik Markets Pty Ltd v Brake and Service Centre Drummoyne Pty Ltd[3] where the New South Wales Court of Appeal was concerned with the operation of s.109 of the Australian Constitution and whether particular State legislation was inconsistent with Federal legislation. Kirby P said –
[3](1991) 102 ALR 621 at 625.
"The class of 'indirect inconsistency' so recognised was usually expressed in terms of the metaphor of 'covering the field'.
This was a test first developed by Isaacs J in Clyde Engineering Co Ltd v Cowburn (1926) 37 CLR 466 at 489(f); see also Ex parte McLean (1930) 43 CLR 472 at 490. Explaining this form of 'indirect' inconsistency in McLean, Dixon said of it (at 483):
'The inconsistency does not lie in the mere coexistence of two laws which are susceptible of simultaneous obedience. It depends upon the intention of the paramount Legislature to express by its enactment, completely, exhaustively, or exclusively, what shall be the law governing the particular conduct or matter to which its attention is directed. When a Federal statute discloses such an intention, it is inconsistent with it for the law of a State to govern the same conduct or matter.'"
[39]Thus "indirect inconsistency" occurs when legislative provisions "cover the field" so that there is no room left for the inclusion of any other legislative provisions dealing with the same subject matter. In contrast, "direct inconsistency" would occur when it is impossible to obey both legislative provisions. This type of inconsistency has also been held to offend s.109 of the Australian Constitution[4], although in the Majik case it was said that the acceptance of two approaches to the determination of "inconsistency" for the purposes of s.109 of the Constitution did not imply that two different concepts were contained within the single word of the Constitution.
[4]See Miller v Miller (1978) 141 CLR 269 at 275; 22 ALR 119; see also Blackley v Devondale Cream (Vic) Pty Ltd (1968) 117 CLR 253 at 258.
[40]Where statutes of the same Parliament are under consideration, however, courts appear to be reluctant to apply the "indirect inconsistency" test and instead favour the approach of "direct inconsistency".
[41]In Tricare Australia Ltd v Gold Coast City Council,[5] Skoien SJDC distinguished the constitutional cases on the basis that they were concerned with cases of overlap between Acts of superior and inferior legislative bodies. In the Tricare case, the Queensland Planning and Environment Court was concerned with whether conditions imposed by a local government on a proposed development under the Mixed Use Development Act 1993 were inconsistent with conditions imposed on an earlier rezoning approval under the Local Government Act 1936. Skoien SJDC held that the indirect inconsistency test had no application as he was examining two Acts of the same Parliament and adopted the approach of "direct inconsistency".[6]
[5] [1998] QPELR 224 at 229-230.
[6]Tricare Australia Ltd v Gold Coast City Council [1998] QPELR 224 at 229. On appeal, the Court of Appeal affirmed the decision of Skoien SJDC on different grounds - Tricare Australia Ltd v Gold Coast City Council [2001] 1 Qd R 663. Because of the different approach taken by the Court of Appeal, the discussion by Skoien SJDC of the concepts of direct and indirect inconsistency was not reviewed by the Court of Appeal.
[42]In Coffs Harbour Environment Centre Inc v Minister for Planning,[7] the New South Wales Court of Appeal construed s.36 of the Environmental Planning and Assessment Act1979 (NSW) which dealt with the resolution of inconsistency between environmental planning instruments. Kirby P held that the term "inconsistency" in s.36 was to be construed having regard to the ordinary meaning of the word. He said that it was inappropriate to apply the law governing the operation of s.109 of the Australian Constitution to s.36 saying that -
"In general terms, s.109 of the Australian Constitution concerns, to the extent of any inconsistency, which law prevails and which law is made invalid as between the laws of at least two organs of the Federation purporting to make laws dealing with the same subject matter. Here the dispute concerns, to the extent of any inconsistency, which of at least two laws enacted by or made under the same Legislature is to prevail."[8]
[7] (1994) 84 LGERA 324.
[8] At 331.
[43]His Honour continued -
"The resolution of this dispute requires only that the word 'inconsistency' be given its ordinary and natural meaning without the gloss which has necessarily developed around the meaning of the word in a constitutional setting. Upon that basis there will be an inconsistency if, in the provisions of one environmental planning instrument, there is 'want of consistency or congruity'; 'lack of accordance or harmony' or 'incompatibility, contrariety or opposition' with another environmental planning instrument."[9]
[9] At 331.
[44]This is not a case where I am required to determine whether one statute is inconsistent with another. The primary question to be determined is the intention of Parliament as expressed in s.222(2)(b) of the EPA. No assistance can be derived from the explanatory memorandum to the section.[10] Parliament's intention is to be ascertained by construing the words used in s.222(2)(b) of the EPA within the context of the statute as a whole.[11] In those circumstances, the approach adopted by Kirby P in the Coffs Harbour Environment Centre case appears, with respect, to be the appropriate approach here. That is, the word "inconsistent" as it is used in s.222(2)(b) of the EPA should be given its ordinary and natural meaning. The Macquarie Dictionary[12] defines 'inconsistent' as:
[10]The substantive content of s.222(2)(b) was introduced into the Environmental Protection Act 1994 by s.19 of the State Development and Other Legislation Amendment Act 2001 as s.222(1A)(b). The explanatory memorandum is silent as to the basis for what is now s.222(2)(b) of the Environmental Protection Act 1994.
[11]CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408; K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309 at 315.
[12] Second edition, 1991.
1.lacking in harmony between different parts or elements; self contradictory.
2. lacking agreement, as one thing with another, or two or more things in relation to each other; at variance.
3. not consistent in principle, conduct etc.
4. acting at variance with professed principles.
5. logic: incompatible.
[45]These definitions contemplate that, as a pre-requisite for determining inconsistency, there must be two or more "parts" or "elements" under consideration. The question is whether those elements lack harmony or are self-contradictory or are at variance, etc. In other words, under this definition, the issue of inconsistency does not and can not arise if there is only one condition dealing with a particular topic. If one is asked to examine whether there is an inconsistency, there must necessarily be two or more conditions for examination. Thus, in my view, the ordinary meaning of "inconsistent" indicates that it was not the intention of Parliament, as expressed in s.222(2)(b) of the EPA, that any Coordinator-General's condition would prevent the Court from recommending any conditions dealing with the same subject matter, for the draft EA.
[46]Further, if the Legislature had intended that the Court could not impose a condition dealing with the same subject matter as a Coordinator-General's condition, the Legislature could have said so using clear words to that effect. There are no such clear words in the EPA, or indeed the MRA or the State Development Act.
[47]I consider therefore that the Court has power under the EPA to recommend conditions for the draft EA dealing with the same subject matter as conditions imposed by the Coordinator-General, provided that the Court's recommended conditions do not contradict or lack harmony with the Coordinator-General's conditions.
[48]I turn now to the first question identified above - to what extent can objectors raise issues with the Coordinator-General's conditions in the draft EA? Section 216(2) of the EPA provides that a Coordinator-General's condition included in the draft EA can not be objected to by anyone. The applicants say the effect is that the Court cannot entertain the subject matter of an objection to a Coordinator-General's condition.
[49]Some guidance as to the extent of the prohibition in s.216(2) of the EPA may be obtained from reading that subsection in conjunction with s.222(2) of that Act. If an objection is not valid because of s.216(2), the Court would not be able to receive evidence as to anything related to the same subject matter as a Coordinator-General's condition and there would be no opportunity for the Court to recommend conditions dealing with the same subject matter as a Coordinator-General's condition. I do not consider that this is correct. If s.216(2) is given that meaning, s.222(2) would be rendered nugatory. Such a result would be contrary to the basic principle of statutory interpretation that different sections should be read so that they operate comfortably together.[13]
[13]Ross v R (1979) 141 CLR 432 at 440; Commissioner of Stamps (SA) v Telegraph Investment Co Pty Ltd (1995) 184 CLR 453 at 479; Lee v Minister for Immigration and Citizenship [2007] FCAFC 62 at 569 [39].
[50]The applicants further submitted that it would be contrary to ss.216(2) and 222(2) of the EPA for the Court to recommend against the draft EA or to take some other course such as recommending different lease boundaries, in response to a Coordinator-General's condition. The applicants say that if a person is not able to object to a Coordinator-General's condition, then nor is an objector able to do so by challenging the appropriateness of the condition and inviting a particular course of action to deal with the alleged criticisms of it. To do that is to object to the condition. There does not cease to be an objection to the condition merely because the invited method of dealing with the objection does not involve an alteration of the condition.
[51]As will become apparent in this decision, it is unnecessary for me to deal with those submissions.
The Objectors and objections - in general
[52]The objectors fall into two broad categories - landowners and the Friends of the Earth (FoE). The landowners hold land either within the proposed ML areas or in close proximity to them. In very broad terms, the landowners' objections are based on their concerns as to the size of the proposed mine, and the impact of the proposed mine on their general amenity and the productive use of their land. The FoE object to the MLAs and the draft EA on climate change grounds.
[53]In this decision, the landowners' objections are considered initially and the FoE objections will be considered separately, thereafter.
The Landowners and their interests
Mr Anderson[54]Mr Anderson owns Elimatta which has an area of 1,982 ha. The property is to the west of and outside the MLA areas and is used for grazing.
Bimbadeen Water Group
[55]The Bimbadeen Water Group owns and operates the Bimbadeen Bore which draws water from the Precipice Sandstone Aquifer to a depth of 1,206m.
Mr Bruggemann
[56]Mr Bruggemann's family operate two properties in the Wandoan District used for beef production. One of them is Alcheringa which has an area of about 496 ha. The proposed MLA areas border the southern part of Alcheringa.
Mr and Mrs Devlin
[57]Mr and Mrs Devlin own Carmody Downs which has an area of 662.1 ha and is outside the MLA areas. The property is used for grazing. Mr and Mrs Devlin also operate a fuel agency business, Wandoan Rural Supplies, from their property.
Mr and Mrs Edmonds
[58]Mr and Mrs Edmonds own Turraden which has an area of 766 ha and is used for grazing. The property is towards the west of and within the MLA areas.
Mr Erbacher/Juandah Water Board
[59]Mr Erbacher owns two adjacent properties - East Lynne (Lot 34 on FT 490) and Tamarra (Lot 35 on FT 987) which have a total area of approximately 982 ha. The two properties are located within and towards the centre of the MLA areas and are used for the production of cattle, pigs and grain crops.
[60]The Juandah Bore is under the control of the Juandah Water Board. Mr Erbacher is the secretary of the Board. The Bore is located on its own land (Lot 56 on FT 987) immediately to the south of Tamarra. That land was removed from the MLA areas as a result of the EIS process.
Mr and Mrs Keys
[61]Mr and Mrs Keys and their family trust own Langowan and Avonview which have a total area of 1,182 ha. The two properties are separated by Grosmont Road, and are located within and towards the centre of the MLA areas, the northern area of Langowan and Avonview being within the proposed Mud Creek Pit. The properties are used for grazing but are suitable for cropping.
Mr and Mrs Peake
[62]Mr and Mrs Peake own Cherwondah with an area of 1,039 ha. The property is to the south of and outside the MLA areas and is used for grazing.
Ms Philp
[63]Ms Philp owns Yeovil (Lot 37 on FT 803582). The property is some distance north of and outside the MLA areas.
[64]Pursuant to Land Court Practice Direction No 7 of 2009, Ms Philp elected to be a Level 1 Objector which had the consequence that she did not file any evidence or participate in the hearing. Her objection relates to the effect of the project on artesian bore 18178, which is located on a neighbouring property and provides water to Yeovil.
Mr and Mrs Rich
[65]Mr and Mrs Rich own two properties, Amber Downs and Paradise Downs. Paradise Downs adjoins Amber Downs to the south and has an area of 2,021.809 ha. Paradise Downs does not share a boundary with the MLA areas.
[66]Amber Downs consists of two adjoining blocks which have a total area of 2,016.245 ha. Amber Downs adjoins the southern boundary of MLA 50230. A feedlot and homestead are located on Amber Downs. The feedlot is in the north west of the site approximately 400m from the proposed Woleebee South Pit. The homestead is in the north east portion of the property, approximately 500m from the Woleebee South Pit.
[67]Amber Downs and Paradise Downs are used for cropping and grazing cattle. In 1996 the grazing enterprise received an environmental authority to create a 500 standard cattle unit (scu) intensive cattle feedlot. On 3 February 2000, it received an environmental authority to increase operations to a 3,500 scu intensive feedlot on Amber Downs. Mr and Mrs Rich submitted an application for further expansion to 9,999 scu in July 2008 which was approved and an environmental authority was granted in 2010.
[68]Mr and Mrs Rich also operate a feed milling operation on Amber Downs which prepares feed for its cattle and for sale to other properties. In this regard Mr and Mrs Rich have approximately 750 ha of active dry land cultivation over Amber Downs and Paradise Downs where they primarily grow grain and forage crops which are used in the feedlot enterprises. Two of the cultivation paddocks are within metres of the MLA boundary.
[69]As an adjunct to the feedlot, Mr and Mrs Rich also lease a silo complex on the Warrego Highway in the vicinity of the proposed Wubagul Pit.
Consideration of Landowners' objections
Premature issue of draft EA[70]Mr Bruggemann, Mr and Mrs Devlin, Mr and Mrs Edmonds, Mr Erbacher, the Juandah Water Board, Mr and Mrs Keys, Mr and Mrs Peake and Mr Anderson objected to the draft EA on the ground that -
The draft EA was issued prematurely without waiting for the Commonwealth Minister's decision on the controlled action.
[71]In essence, the objectors say that because the Commonwealth declared the project to be a "controlled action" under the EPBCA, the EIS process was conducted jointly by the State and the Commonwealth under the relevant bilateral agreement. The Commonwealth Minister gave notice, on 24 November 2010, extending the period for a decision whether to approve the controlled action (and if so any conditions that were to be imposed) to 22 February 2011. The State issued the draft EA on 10 December 2010 without waiting for the Commonwealth's decision. That triggered the public notice process under the MRA, say the objectors, because under s.252A(2) of that Act, the mining registrar is obliged to issue the certificate of public notice for the lease application within five business days of being given the draft EA.
[72]The objectors say that they have been prejudiced because they were required to make their objections before they knew whether the controlled action would be approved by the Commonwealth and, if it were allowed to proceed, what, if any, conditions the Commonwealth would impose. If the controlled action were not approved under the EPBCA, the objectors submitted, their efforts and costs would be wasted. Any Commonwealth conditions may substantially alter the issues about which the objectors were concerned. Their grounds of objection may be rendered redundant or partially so, or there may be new grounds on which they have not been heard. The objectors therefore gave notice that in the event that the Commonwealth Minister imposed conditions on the controlled action, they may make application to amend their grounds of objection.
[73]There has been no application for amendment of the grounds of objection since the Commonwealth Minister approved the controlled action under the EPBCA on 14 March 2011.
[74]Mr RJ Spalding, a principal environmental officer employed by DERM, gave evidence at the hearing. Mr Spalding was the delegate of the administering authority for the decision made, pursuant to s.207 of the EPA, to allow the application for the EA to proceed under Chapter 5, Part 6, Divisions 4 to 7 of that Act. He was also the delegate for the issue of the draft EA pursuant to s.210 of the Act. Mr Spalding's evidence was that pursuant to s.207(2) he had decided within the prescribed period to allow the application to proceed, because the application documents included a determination by the Coordinator-General about the mining activity which was sufficient for assessment of the application in relation to the standard criteria.
[75]In accordance with s.210(2)(a) of the EPA, Mr Spalding included in the draft EA the conditions in the Coordinator-General's report, except conditions W2, W4, W38, W39 and G5. Mr Spalding also included conditions, other than the Coordinator-General's conditions, pursuant to s.210(2)(b) of the Act. In fixing the proposed conditions for the draft EA, he considered the suite of conditions imposed or recommended by the Coordinator-General other than for the draft EA for the mining activity which conditions addressed, amongst other matters, greenhouse gas emissions, groundwater and surface water connectivity and potential groundwater impacts.
[76]In Mr Spalding's opinion, there was no requirement that the State receive the approval for the mining activity under the EPBCA prior to the issue of the draft EA. Accordingly, he proceeded to make the decision to grant the draft EA in accordance with the relevant statutory requirements, including the timeframes under the EPA. Mr Spalding did not consider that the Commonwealth approval was relevant to the decision-making process he was engaged in under the EPA because the decisions under the EPBCA related to rare and threatened species and vegetation management. He said that there will be other decision-making processes under the State Vegetation Management Act 1999 and the Nature ConservationAct 1992 that the Commonwealth decisions will have a bearing on. The EPA was concerned with limiting the release of or potential for the release of contaminants from the mining activity rather than a decision-making process about rare and threatened species.
(a)Subject to the following recommendations in relation to the mining leases and the draft environmental authority being adopted, I recommend that the environmental authority be issued in the terms of the draft environmental authority issued on 10 December 2010.
(b)I recommend that the draft environmental authority be amended to include a condition that a monitoring program for the Hutton and Precipice Sandstone Aquifers, using the existing deep bores, be designed and implemented in consultation with DERM for the following purposes -
(i)to establish the base line yield and water quality of the supply from those bores; and
(ii)to regularly monitor the bores to identify any change in the yield and quality of the water supply from aquifers in accordance with parameters to be set by DERM.
(c)I recommend that, as a pre-requisite to the grant of the environmental authority, the applicants are to reach mutually suitable make-good agreements with landowners potentially affected by adverse impacts on the availability and quality of groundwater as a result of the mining operations.
3.I direct the Registrar of the Land Court to provide a copy of these reasons to the Honourable the Ministers administering the Mineral Resources Act 1989 and Environmental Protection Act 1994 and to direct the Ministers' attention specifically to my observations in [606] - [610].
CAC MacDONALD
PRESIDENT OF THE LAND COURT
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