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Adani fast-track powers must be revoked; critical infrastructure status should not be misused

3 November 2016

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Summary: new legal analysis of ‘prescribed project’ and ‘critical infrastructure’ provisions

The Environmental Defenders Office (EDO) Qld is recommending that the Queensland Government revoke the broad ‘prescribed project’ and ‘critical infrastructure’ powers granted to the Coordinator-General for Adani’s proposed Carmichael mine and associated infrastructure.

This is because EDO Qld’s new legal analysis, released today, reveals those powers have never been used before on a private commercial development, and could fast-track water assessments and potentially strip most review and appeal rights.

The ‘prescribed project’ and ‘critical infrastructure’ declarations were made by Minister Lynham on 7 October for Adani’s proposed Carmichael mine and associated infrastructure, known as the Adani Carmichael Combined Project. The laws enabling such declarations were introduced into the State Development and Public Works Organisation Act 1971 (Qld) in 2006, following record-breaking drought and an election promise to improve the delivery of key infrastructure in Queensland.

In the past decade, ‘critical infrastructure’ declarations have only been made on four other occasions, three of which related to water supplies. For example, parts of the South East Queensland Water Grid were declared ‘critical infrastructure’ in 2007 and 2009 as a result of our water supplies being at very low levels.

However, the broad nature of the legislation leaves it unclear exactly what can trigger the usage of these fast-track powers.

“It is deeply inappropriate that a declaration power largely designed to protect Queensland from the worsening effects of drought, could now be used to aid an international mining corporation to potentially short-circuit legal protection for vital ground water resources,” said EDO Queensland’s CEO and Solicitor Jo-Anne Bragg.

“We believe the provision has been wrongly used in its application to the Adani project, and believe this could open the floodgates to all manner of major private developments demanding to be fast-tracked through the assessment process.

“The Queensland Government should revoke the ‘prescribed project’ and ‘critical infrastructure’ declarations for the Adani Carmichael Combined Project to assure Queenslanders that proper procedure will be followed, particularly with regard to ground water licences,” said Bragg.

According to the EDO Qld analysis, the broad nature of ‘prescribed project’ powers could allow the Coordinator-General, with Ministerial consent, to intervene in the remaining assessment procedures for the Adani Carmichael Combined Project – particularly with regard to required water licences – and the ‘critical infrastructure’ declaration that strips away most of the normal powers of the Queensland Courts to review and determine the lawfulness of decisions.

The EDO analysis comes amid false claims that legitimate judicial oversight has been responsible for delays to the assessment of the Adani proposals.

“Our table compares timelines for Commonwealth and State assessment and shows Court proceedings take a comparatively short time compared to those assessments. Further, as far as we can tell, over the last 6 years Adani has not bothered to apply for essential groundwater licences, despite the continuous legal obligation under the Queensland Water Act,” said Bragg.

A review of the Queensland Government’s ‘coordinated projects’ website shows that the average time between the lodgment of an Initial Advice Statement by a proponent, and the delivery of a Coordinator-General report, is 4-5 years.

In the case of Adani’s mine – which could produce 2 billion tonnes of coal over 60 years and extract 355 billion litres of groundwater- only 3.5 years passed between Adani lodging the Initial Advice Statement for the project and the delivery of the Coordinator-General Report.

“Despite the size and impact the Adani mine, the proposal has passed through the process in less time than an average comparable project.

“The Government needs to stop bowing to industry pressure and instead ensure that the impacts on our precious and irreplaceable groundwater resources are thoroughly scrutinized,” said Bragg.

Report recommendations:

  1. That the Minister revoke both the ‘prescribed project’ and ‘critical infrastructure’ declarations for the Adani Combined Project to ensure firstly that the Coordinator-General may not ‘step in’ with Ministerial consent and make decisions on applications for approvals, and secondly, in order to reinstate the usual statutory right of all citizens to question, in an independent Court of law, the lawfulness of government decisions surrounding a project whose damaging impacts could affect us all.
  2. That the State Government propose to insert a provision into the Environmental Protection (Underground Water Management) and Other Legislation Amendment Bill 2016 (Qld) which ensures that the ‘prescribed project’ and ‘critical infrastructure’ powers under the State Development and Public Works Organisation Act 1971 (Qld) would not be able to be used to interfere with, or affect in any way the decisions or processes applicable to an associated water licence.
  3. That the Minister amend the State Development Act to constrain the broad powers of the Coordinator General in relation to ‘prescribed projects’ and ‘critical infrastructure’, and to remove the Coordinator General’s power to impose approval conditions that prevail to the extent of any inconsistency with conditions proposed by State departments, the Land Court or later decision-makers.

Media Contact: Andrew Bradley 0403 777 137

Appendix: timeline of Adani Carmichael project assessment process – click on picture to enlarge

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Timeline of Adani Carmichael project assessment process (click to enlarge)