Queensland Land Court recommends refusal of Stage 3 expansion of New Acland coal mine - Water

Land Court recommends refusal of Stage 3 expansion of New Hope's New Acland coal mine: New Acland Coal Pty Ltd v Ashman & Ors and Chief Executive, Department of Environment and Heritage Protection (No. 4) [2017] QLC 24

INTRODUCTION

On 31 May 2017, the Land Court recommended refusal of stage 3 of the New Acland (NAC) coal mine at Oakey, publishing 459 pages of reasons for judgment. The case has been extraordinarily lengthy and involved a large number of parties – both local residents and an environmental group with broader interests in mind. It involved complex layers of legislation and literally "metres" and "truck loads" of evidence for the Court to consider.

Before the Court were both the application for two mining leases (MLAs) under the Mineral Resources Act 1989 (Qld) (MR Act), (with the relevant factors being those in section 269(4) of the MRA) and the application for the amendment of an environmental authority (EA) (the relevant factors being those section 191 of the Environmental Protection Act 1994 (Qld) (EP Act).

Following public notification of these MLAs, the Minister for Natural Resources and Mines received numerous objections and was obliged to refer these to the Land Court for hearing. NAC's proposed amendment to its environmental authority for stage 3 was decided as a major amendment under section 228 of the EP Act, which triggered the need for assessment of the expansion as if it were a site specific application. Submissions made about the proposed amendments to the EA were referred to the Land Court for hearing when submitters requested their submission be taken as an objection to the EA (see section 185 of the EP Act). The Land Court opted to hear both the MR Act and EP Act matters together pursuant to section 188 of the EP Act.

The proposed stage 3 expansion was first declared a "significant project" (now a "coordinated project") under the State Development and Public Works Organization Act 1979 (Qld) (SDPWOA). That triggered the need to go through an Environmental Impact Statement (EIS) with associated conditions of approval potentially being issued by the Coordinator-General (CG), the responsibility entity for the SDPWOA. The CG did approve the stage 3 expansion (in its revised, reduced form put forward by NAC after the Queensland Government announced it would not approve the original form of the stage 3 proposal), subject to conditions for the EA. The Court noted, with some frustration, that as the expansion was declared a coordinated project and involved a mining lease application, it was limited in its recommendation powers when considering the proposed MLAs and EA amendment. Section 190(2) of the EP Act had the effect that any conditions recommended by the Land Court could not be inconsistent with the CG conditions.

The Court also considered, albeit briefly, the current regime regarding groundwater extraction, which now allows a mining lease holder to take or interfere with underground water if it occurs during the course of or results from the carrying out of an authorized activity for the mining lease. However, as the legislative changes for those provisions occurred after the relevant MLAs were applied for here, NAC does not have the benefit of those provisions and must obtain a water licence for its dealings with groundwater.

It is important to recall that for this case, the Court was exercising an administrative rather than judicial function. The decision is not akin to an ordinary Court decision – that is, it is not final. The decision is a recommendation to the Minister for Natural Resources and Mines and the Minister for Environment and Heritage Protection. These Ministers must have regard to the Land Court's recommendation but they can elect not to follow the recommendation and, in fact, act contrary to it. The unsuccessful applicant does not have a right of appeal (although it does have a right to seek judicial review of the recommendation decision in the Supreme Court, on grounds of an error of law).

ISSUES

A great many issues were raised and litigated. The key issues included:

Air quality and dust;
Noise;
Lighting;
Visual amenity;
Traffic, transport and roads;
Economics;
Agricultural economics;
Climate change;
Biodiversity and flora and fauna;
Health;
Land values;
Livestock and rehabilitation;
Land use and soils;
Intergenerational equity;
Community and social environment;
Heritage values/cultural heritage;
Groundwater; and
Surface water.

The Court's recommendation for refusal was based on only two issues – noise and groundwater. For all other issues, the Court concluded that conditions could ameliorate or deal with the concerns raised.

NOISE

The Court agreed with the objector's noise expert, Mr John Savery, who was of the view that the proper reading of the relevant noise standard (Environmental Protection Policy (Noise) 2008) meant that the maximum noise of the mining activity itself was under section 10 of that policy. That was a maximum of 35 dB for evening and night time (which was held to be consistent with the President of the Land Court's ruling in the Xstrata Coal Queensland Pty Ltd & Ors v Friends of the Earth Co-Op Ltd & Ors (2012) 33 QLCR about noise levels). That was not the standard contended for by NAC nor was it the standard approved by the CG.

While that may be difficult for the NAC to resolve, noise amelioration is ultimately a matter of practicality – it could be capable of being resolved with enough resources focused on it.

GROUNDWATER

As to groundwater – the issues related to drawdown of existing groundwater – not to any suggestion of potential contamination of the water table. The local resident parties contended that approval would have the effect of drawing down the water table at their bores, such as to inhibit or restrict their supply. There was detailed hydrogeological evidence given before the Court by five different experts, with a total of ten expert reports. The expert evidence was extremely complicated, not least by the reopening of the hearing with respect to groundwater (and surface water) and the production of a further four expert reports.

The Court examined the evidence from the original hearing and the rehearing and found deficiencies in both. It is difficult to summarise those deficiencies briefly, save to note they included:

agreement from even NAC's own experts of shortcomings in the groundwater model;
a general tendency by NAC to rely on post approval (to be done) modeling and conditions prior to mining (and in some cases, after mining commenced) and, also, make good agreements;
reliance on enforcement options for landholders that could be difficult, such as challenging the implementation of a make-good agreement;
deficiencies in groundwater conceptualization, including an absence of updating the conceptual model throughout the revised EIS and AEIS process and issues around the role of faulting, vertical and horizontal connectivity of aquifer and the quality of the data used generally;
issues around faulting; and
a general conclusion that the groundwater evidence was a "muddle", with too many unresolved questions and too many issues raised by the experts which made the current groundwater model inadequate.

The Court concluded that NAC needed to "take a deep corporate breath" but noted that ultimately, NAC should "have the expert modeling and other scientific data that it is now promising to prepare properly undertaken, prepared and submitted".

It is apparent the groundwater issues were extremely complicated and disputed. However, should NAC be able to undertake the necessary additional modeling, with regard to the deficiencies raised by the experts and the Court, it is foreseeable it may be able to overcome this issue. That is a definite 'may' rather than a 'will', as it remains to be seen what additional work NAC is able and willing to do.

The Court also held that the proposed stage 3 expansion breached the principle of intergenerational equity because of the potential for groundwater impacts to adversely impact landholders in the vicinity of the mine for hundreds of years to come.

INCONSISTENCY WITH CG CONDITIONS

With respect to noise, the Court considered in detail its powers to issue conditions and the limits of those powers that, as noted above, did not allow inconsistency with the CG conditions. To recommend a condition with a different noise limit to that as required by the CG would be directly inconsistent with the CG conditions and therefore beyond the Court's power. That was contrasted with the Court requiring, by way of example, a more detailed monitoring regime. Had the Court considered more detailed monitoring would satisfy its concerns, it would have been comfortable issuing conditions to that effect. That was not the case as it held a different maximum noise level should be applied. The Court was, on the issue of noise alone, compelled to recommend that the MLs and amended EA not be granted because of that inconsistency with the CG conditions.

The application was submitted before the late 2016 amendments to the Environmental Protection Act 1994. Those amendments would, today, have provided the proponent with an alternative path to approval – by separating out the groundwater related approvals from the environmental authority applications.

CONCLUSIONS

Instances of the Minister acting contrary to a recommendation of the Land Court are exceedingly rare. Based on that history, it could not be said to be likely that the relevant Ministers will approve the stage 3 expansion in this instance, despite the Court's recommendation.

It will ultimately be a political decision, which makes it difficult to predict. But based on the Court's reasons, it might be that the two issues that were enough to sway the Court, might be capable of resolution with further ameliorative resources committed to them by a proponent.

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