Australia: Groundwater extraction in mining: Government puts a plug on unlimited right to take water

Last Updated: 19 September 2016
Article by Martin Klapper

The Queensland Government has introduced legislation into Parliament which, if passed, will tighten environmental laws regulating the taking of groundwater for mining activities by resource proponents.

In this alert, Partner Martin Klapper and Law Graduate Ruby Rayner consider what the Environmental Protection (Underground Water Management) and Other Legislation Amendment Bill 2016 (the Bill) means for resource companies.

Key Points

  • Proponents must carefully consider the water requirements for their resources projects, and identify whether or not the project requires a water licence under existing legislation. If a resources project requires a water licence, but one has not been obtained before the commencement of the new laws (expected December of this year), the project will be required to obtain an additional "associated water licence", or submit to significant new environmental assessments. These new requirements may have significant impacts on project delivery.
  • New mining and petroleum projects will be required to include specific information about environmental impacts of the exercise of underground water rights in an underground water impact report (UWI Report) as a component of site-specific Environmental Authority (EA) applications lodged or amended after the commencement of the new law. An EA may be amended in response to the content of an UWI Report.
  • Mining projects that have completed, or partially completed, the EA application process will need to apply for a separate "associated water licence", which will involve an environmental impact test and a public submission process, before "underground water rights" introduced by section 334ZP of the Water Reform and Other Legislation Amendment Act 2014 (Qld) (WROL Act) can be exercised.
  • The Bill will amend the "make good" provisions of the Water Act 2000, requiring resource proponents to pay the landholder's reasonable costs in engaging a hydrogeologist for the purposes of negotiating a make good agreement.

Ultimately, we expect that the new laws will add an additional approval process for all projects, not only for major projects.1 Except in limited circumstances, the amendments will affect all projects that have applied for, or obtained, an environmental authority, but that have not yet secured a water licence for the project as at the date of commencement of the new Act.

The new legislation will also empower the Department of Environment and Heritage Protection to amend environmental authorities of all mining projects. These changes mean that medium and small scale mining projects will also be affected.

Water entitlements in Queensland

In Queensland, all rights to the use, flow and control of water is vested in the State.2 Resource proponents may only use, control or interfere with the flow of certain water in a regulated area if it has a water entitlement, such as a licence, under legislation. Where water allocations for a particular area are exhausted, resource proponents may apply for a water entitlement from a state water reserve.

In 2014, a new water right for resource projects under the Mineral Resources Act 1989 (the MR Act) was introduced by the WROL Act. These provisions have not commenced, but are expected to do so later this year.

The new water entitlement allows the holder of a mining lease to take or interfere with underground water if the taking of interference occurs in the course of, or as a result of, the carrying out of an authorised activity under the resource authority. Water taken for these activities is "associated water".

The two examples of permitted use of "associated water" are:

  • mine dewatering of underground water to the extent necessary to achieve safe operating conditions in the mine; or
  • taking underground water as a result of evaporation from an open mine pit.

The Queensland Government has asserted that introduction of entitlements to use "associated water" in 2014 has resulted in "widespread concern" that resource companies will be given an "unlimited right to take"3 groundwater for mining.

Accordingly, the Government has introduced a raft of amendments to the Environmental Protection Act 1994 (EP Act), the MR Act and the Water Act 2000. The amendments are targeted at introducing more stringent environmental assessments to water use and impacts by resources projects.

If passed by the Queensland Parliament, these changes are expected to commence in December 2016.

Implications for new environmental authority applications

The Bill proposes amendments to the EP Act which will introduce new requirements for site-specific environmental authority applications for projects that seek to exercise underground water rights for a "resource project" or "resource activity" under a mineral development licence, a mining lease, or a petroleum licence.

Under the new law, site-specific environmental authority applications must include detailed hydrogeological information, including:

  • identification of each aquifer affected, or likely to be affected by the project;
  • details of the hydrology of the underground water; and
  • an assessment of the impacts on environmental values and water quality that may be affected by the exercise of underground water rights.

The lodgement of amendment application for a site-specific EA application after the commencement of the new laws will also trigger the new requirements, regardless of when the application was lodged.

Transitional provisions – associated water licences

Resource proponents will only be able to exercise the entitlement to use "associated water" under the MR Act once they have obtained an "associated water licence".

The application process for an associated water licence will involve significant additional assessment of environmental impacts during the EA application process. This information will be notified to the public and subject to submissions, third party objections, review and appeal rights. The chief executive may decide to refuse or grant the application, and impose conditions relating to the exercise of underground water rights, such as the requirement to carry out a management strategy or undertake a baseline assessment.

In certain circumstances, the new requirement will also apply to projects notified as co-ordinated projects under the State Development and Public Works Organisation Act 1971.

The new Bill proposes to amend a raft of legislation including the Environmental Protection Act 1994, the Mineral Resources Act 1989, the Water Act 2000, and the Heritage Protection Act 1992.

If passed by the Queensland Parliament, these changes are expected to commence in December 2016.

Conclusion

The Bill was tabled in parliament yesterday and has been referred to the Agriculture and Environment Committee for detailed consideration. The Agriculture and Environment Committee will commence an enquiry into the Bill which will likely involve a call for public submissions. Interested stakeholders should monitor these developments and consider preparing a submission to the Committee.

Footnotes

1 Michael McKenna, ' Tougher water test looms for Adani' The Australian (Australia), 14 September 2016
2 Water Act 2000 (Qld) s 19
3 Queensland Government Media Release – " Government proposes tougher environmental laws for groundwater extraction" (12 September 2016)

© HopgoodGanim Lawyers

Award-winning law firm HopgoodGanim offers commercially-focused advice, coupled with reliable and responsive service, to clients throughout Australia and across international borders.

2015 AFR Beaton Client Choice Awards:
Best Law Firm (revenue $50m - $200m)
Best Professional Services Firm (revenue $50m - $200m)

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions