Last Updated: December 1, 2016

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Help make sure Qld mines do not get free, unlimited access to groundwater – Submissions due 7 Oct

1 October 2016

UPDATE: Thank you to everyone who made a submission!

The Committee have now published their report (available here).

Positively, the Committee recommend that the Bill be passed, which introduces a requirement :

  1. a) for advanced mining projects, like Carmichael and Alpha coal mines, to obtain associated water licences for dewatering their pits; and
  2. b) for stronger assessment of groundwater impacts under the environmental authority assessment process.

Regrettably, the Committee did not recommend that the principles of ESD be required to be considered in the assessment of associated water licences.

But it’s not too late! Parliament still have to vote on the Bill. Find out what you can do now to protect our precious groundwater, here.

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Before Friday 7 October, have your say on the Environmental Protection (Underground Water Management) and Other Legislation Amendment Bill 2016.

Download EDO Qld’s submission template here.

Send your submissions to: aec@parliament.qld.gov.au (or send via mail/fax to the details below).

Let the Parliamentary Committee know:

1)       No resource company should get free, unlimited access to groundwater, it is risky to the environment and unfair to other water users. So the proposal to create a ‘statutory right to take groundwater’ for mining companies is opposed. A licence should always be required prior to water being taken or interfered with, with public submission and appeal rights to a Court with powers of final determination.

2)      The improvements proposed in the Bill to the groundwater impact assessment for projects at the environmental authority stage are good, necessary and supported. Functional, clean groundwater resources are essential to many farmers, businesses and ecosystems in Queensland.

3)    The proposal that mines obtain an ‘associated water licence’ if they have not gone through the improved groundwater impact assessment introduced by the Bill is good and necessary. This would apply to coal mines like Adani Carmichael and Alpha.

4)      The Bill does not require the ‘associated water licence’ to be assessed against principles of ecologically sustainable development (ESD), such as the precautionary principle. There is too much uncertainty around how impacts affect our groundwater basins to not assess impacts posed against the principles of ESD, so we say the Bill needs to be amended so that the ‘associated water licence’ is assessed against ESD principles.

The Queensland Parliament is currently considering new laws introduced on 13 September which change the way impacts by resource companies to our groundwater basins are to be assessed, being the  Environmental Protection (Underground Water Management) and Other Legislation Amendment Bill 2016.

Background

What is the law around resource water use currently?

Currently most mines are required to obtain a water licence under the Water Act 2000 (Qld) (Water Act) for taking or interfering with groundwater required to be taken or interfered to access the resource (associated’ groundwater), as well as other groundwater and surface water needed for their project.

The current water licence framework is not perfect, but it does provide community submission rights on the water licence application, and the right to appeal the decision to the Land Court for merits review and a final decision by the Court.

Public submission rights and appeal rights to a Court with the powers of final judicial determination are essential to ensure proper scrutiny and quality, informed decision making around environmental and social impacts posed to our water resources.

Further, these water licences are assessed against the principles of ESD, which include concepts of intergenerational equity, and the precautionary principle – that if we do not understand the likely results of the proposed impacts sufficiently, we should not allow the activity to be undertaken.

The ‘precautionary principle’ is an essential element of environmental impact regulation. The effects of groundwater impacts from resource companies are some of the least understood impacts posed by any proponents.

How did the LNP Government seek to change this law?

The LNP Government introduced the Water Reform and Other Legislation Amendment Act 2014 (WROLAA).

WROLAA intended to provide mining companies with a statutory right to take, or interfere with associated groundwater. That is, free groundwater without any licensing process as required under the law today.

This has not yet commenced, it has been on hold while the current government considers what parts of WROLAA it will commence and which are to be repealed.

If the statutory right to associated groundwater is commenced, this would mean that:

–         miners get free, unlimited access to associated water, while other landholders and farmers still have to go through the water licence assessment process;

–         farmers, conservation groups and all those concerned with the impacts to groundwater of mines will lose their right to put in submissions and appeal any decision around the water licence to a Court with final determination.

This law is contrary to the Galilee Alpha coal mine Land Court decision, where the Court recommended refusal of the mine unless the mine obtained necessary water licences under the current law, with consideration of the ‘precautionary principle’.

Under the  LNP’s proposed law, the Alpha mine, along with other large Galilee mines such as Carmichael and Kevin’s Corner, would instead have a statutory right to associated groundwater and would no longer need a water licence, and no community submission or Court appeal rights would therefore exist that are provided through the water licence process under the Water Act.

What is the current government proposing around resource water use?

The current Queensland Government has unfortunately decided to allow mining companies to have a statutory right to associated groundwater. They intend to commence this statutory right by 6 December 2016.

However, the current government has realised that the statutory right, which is already held by the petroleum and gas industry, takes away a level of scrutiny of groundwater impacts posed by resource companies and the legal rights held by those concerned about groundwater impacts of existing projects that already advanced in the assessment process.

In an attempt to address these issues, the government has introduced the Environmental Protection (Underground Water Management) and Other Legislation Amendment Bill 2016.

This new Bill proposes to:

–         strengthen the groundwater impact assessment at the EIS stage for an application for an environmental authority, since this will now be the key pre-mining assessment of groundwater impacts posed by a resource project; and

–         introduces a new ‘associated water licence’ which will apply to those mining projects that have already applied for their environmental authority or notified their coordinated project EIS, such as Adani Carmichael and Alpha and which would always have required water licences under the current law.

While the strengthening of the groundwater impact assessment and introduction of an associated water licence are valuable, they do not protect community rights and our environment.

The associated water licence will provide those concerned with the ability to still provide submissions and appeal a decision on the associated water licence – so these people will not have lost the legal rights that they thought they held around the many mines that have been applied for but not yet obtained water licences, like Carmichael and Alpha..

The licence is, however, not assessed against principles of ESD, including the ‘precautionary principle’ –  that if they do not understand the likely results of the proposed impacts sufficiently, they should not allow the activity to be undertaken.

This is therefore a weaker assessment then is currently required for mine related water licences, which must be assessed against principles of ESD.

In fact, for any other operators requiring a water licence under our laws (including our farmers and other businesses), they will still be required to be assessed against the ‘precautionary principle’.

It is very disappointing that the current state government in this Bill is proposing to switch off the application of the ‘precautionary principle’ for the very impacts that require its application most.

Get your submissions in on the Parliamentary Committee Inquiry into the Environmental Protection (Underground Water Management) and Other Legislation Amendment Bill 2016 by Friday, 7 October, to have your voice heard to protect our groundwater resources!

Download EDO Qld’s submission template here.

Written submissions should be sent by post to:

Research Director
Agriculture and Environment Committee
Parliament House
BRISBANE QLD 4000

or by facsimile to: 07 3553 6699

or by email to: aec@parliament.qld.gov.au

Examples:

How do groundwater impacts by mines get assessed under the current law?

Under the current Water Act, where a mine is in a groundwater regulated area, the mining proponents must obtain a water licence before any take or interference can affect the groundwater basin. All impacts posed by the groundwater take or interference are assessed at this stage, with assessment being undertaken with consideration of the principles of ESD, including the precautionary principle.

The community have the right to put in submissions to the water licence application.

After the government has decided the application, community submitters have the right to apply for internal review and appeal the final decision to the Land Court for merits review. The Land Court here has the power to make a final determination after hearing the concerns and evidence raised before it with respect to the water impacts posed, and decides whether to approve or refuse the application.

These rights are essential, as many farmers, businesses and conservation groups have grave concerns around the impacts of resource industry activities on groundwater basins, particularly with respect to the large coal mines being proposed for the Galilee Basin, such as Carmichael coal mine. Often the decisions around resource projects can be highly politicised, it is therefore essential that the Court has the power of final determination, as an independent arbiter free from politics.

How will the Carmichael mine get assessed under the current government’s planned groundwater laws?

Under the current law, Adani, as the proponent for the Carmichael coal mine, would normally be required to obtain water licences prior to taking or interfering with groundwater, as described above. This would be assessed against principles of ESD.

If the current government’s proposed laws are put into force, Adani, will be required to obtain an ‘associated water licence’ before it can take or interfere with groundwater needed to access the coal on its mining lease.

This ‘associated water licence’ will not be assessed against principles of ESD – therefore the decision makers in government and in the Court are not able to take account of the precautionary principle.

The community will have the right to put in submissions on Adani’s application to take or interfere with associated groundwater. The government will then decide whether to approve or refuse the application.

Those who have put in a submission can then apply for internal review of the decision, and then appeal the decision to the Land Court if they still have concerns.

The Land Court will then consider the communities concerns and the evidence, and will make a final determination as to whether Adani should be granted the water licence or not. This assessment will be under weaker criteria than is currently considered for the existing water licence process.

If the ‘associated water licence’ is granted, Adani will be subject to obligations such as make good obligations under chapter 3 of the Water Act.

How will new mines be assessed under the current government’s planned groundwater laws?

Mines that are applied for after the statutory right to associated groundwater commences will not require a water licence or an ‘associated water licence’.

The likely groundwater impacts from the mine will be assessed under the environmental authority application process, normally involving an Environmental Impact Statement (EIS).

The public will have the right to put in submissions on the EIS for the environmental authority, and to refer their submissions to the Land Court.

The Land Court can consider the concerns raised in the submissions, however it is only empowered to make a recommendation to the final decision maker – the Director General of the Department of Environment and Heritage Protection. The Director General then decides whether to follow the recommendation of the Land Court. This process takes away one of the fundamental benefits of having an independent arbiter involved in decision making – that the final decision is made free from any possible political influence.

Once the mine has obtained an environmental authority and mining lease, it can access its statutory right to take or interfere with groundwater needed to access the resource.

There are some obligations that the mine will need to comply with to utilise this statutory right. One requirement is to make an Underground Water Impact Report, which is available for public comment, however there are no appeal rights around this Report. The proponent simply lodges this Report with the Department of Natural Resources and Mines and then they can begin taking or interfering with necessary associated groundwater, prior to the report having been approved. There are make good obligations upon the mine as well.