Supreme Court backs farmers again in New Acland freeze refusal
23 June 2017
The following statement is from our client Oakey Coal Action Alliance:
Supreme Court backs farmers again in New Acland freeze refusal
In another win for farmers, Queensland’s Supreme Court has rejected New Acland’s bid to freeze a legal recommendation to outright refuse their controversial Stage 3 mine expansion on the best agricultural land in Queensland.
Following an unprecedented win in the Land Court last month, recommending the outright refusal of the New Acland Stage 3 expansion, the mining company applied for both an application for stay and a judicial review of the recommendation.
The stay would have prevented the state government making any decisions in relation to mining applications for Stage 3 until New Acland’s ’challenge of the Land Court recommendation concluded.
Paul King, President of Land Court objector Oakey Coal Action Alliance and local resident said: “The Court has rightly rejected New Acland’s attempt to gag state government decisions in relation to this unwanted project.
“We expect the Supreme Court to find no problems with the Land Court’s recommendation to refuse Stage 3 should New Acland’s appeal go ahead. We have the facts on our side.
“It’s time for New Acland to pack up and let us keep farming the best agricultural land in state – like we have for the past century.
“Our community needs the state government to make a swift amendment to Stage 3 approvals based on the recommendation of the Land Court.
“Let us get on with our lives and restore our community without continued fear of attack on our health, livelihoods and futures.”
CEO and Solicitor Jo Bragg of EDO Qld, lawyers for OCAA in the Land Court case, said: “This is a win for our client and the Acland community who have been suffering from the impacts of this mine for the best part of a decade.
“New Acland has applied for judicial review to ultimately have the Land Court’s recommendations struck out and have its case reconsidered. Today we asked to be included in those proceedings so the communities voice does not go unheard. The Court agreed.
“New Acland had every opportunity over 18 months in the Land Court to put forward its case. The Land Court gave a clear and unequivocal recommendation that this mine should not proceed due to impacts on groundwater and good quality Darling Downs agricultural land. We fully expect the Supreme Court will find no legal fault in this recommendation.”
The directions hearing for the judicial review is scheduled for 17 July 2017.
We need your support to continue to take on these David-and-Goliath legal battles.
CLICK HERE to make a donation to EDO Qld today to help get Acland farmers across the finish line.
WRAD MEDIA RELEASE: Blow to Reef as Adani’s Abbot Point Terminal expansion approval ruled lawful
15 June 2017
The following statement is from our client Whitsunday Residents Against Dumping (WRAD):
15 June 2017
Court judgment: Blow to Reef as Adani’s Abbot Point Terminal expansion approval ruled lawful
Brisbane, Queensland: Local community group Whitsunday Residents Against Dumping (WRAD) have vowed to continue their fight to protect the Great Barrier Reef and the local tourism jobs that depend on it following a Supreme Court judgment on their court action challenging the Queensland Environment Department’s approval of Adani’s Abbot Point coal port expansion.
While the Supreme Court found that the Department’s approval of Adani’s Abbot Point expansion was technically legal, WRAD say that any expansion of Adani’s coal port will put the Great Barrier Reef in peril as the Reef battles unprecedented and consecutive coral bleaching events.
Sandra Williams local grandmother, former tourism worker and spokesperson for WRAD said: “This court decision is a blow for our Reef but WRAD and the local Whitsunday community will not give up. We will keep up the fight to protect this natural wonder and the tourism jobs it supports, especially after shocking new surveys show that the Great Barrier Reef is under threat like never before from coral bleaching.
“The Great Barrier Reef Marine Park Authority has found significant coral decline and habitat loss on the Reef over the past two years, as back-to-back bleaching events have hit the corals hard. An estimated 70% of shallow water corals have died on the Reef north of Port Douglas. If Adani opens up the Galilee coal basin, coral bleaching events will become more intense and devastating.
“We have a critical window in which to act to protect our coral reefs. Instead the Queensland and Federal Governments are doing all they can to support Adani with free water, royalties reductions and pushing for a $1 billion taxpayer-funded loan to help get their dangerous project off the ground. Politicians should align themselves with the 70,000 workers who depend on the health of the Reef for their livelihoods and look to a future without polluting mining.
“The Labor Government, elected on a strong ‘Save the Reef’ platform, has failed miserably to do so. The best thing the Premier can do for the Reef now is to oppose the $1 billion loan that Adani are depending on to get their coal mine off the ground.
“Adani’s record of environmental destruction overseas is dismal and already here they’ve been found to have breached their Abbot Point pollution license during Cyclone Debbie.
“As a grandmother and a former tourism operator, the death of the Reef is heartbreaking, but I know there is not yet reason to give up hope. We know the community shares our vision of a healthy and thriving Reef that supports local tourism jobs and industries,” Ms Williams concluded.
Whitsunday Residents Against Dumping (WRAD) challenged the lawfulness of the Queensland Government’s decision to approve Adani’s controversial Abbot Point coal terminal expansion in Queensland’s Supreme Court on 7 October 2016.
WRAD, an Airlie Beach community group which aims to protect the Great Barrier Reef from damage, was represented by EDO Qld at the one-day judicial review of the Queensland Department of Environment’s decision to grant the environmental authority for Adani’s controversial Abbot Point Terminal Zero port expansion.
The case was about whether the Department properly assessed the project, as required by law, before it granted a green light for the controversial billion dollar project that would sit in the backyard of local residents and in the middle of the precious Great Barrier Reef.
The application was filed 3 June 2016, followed by a directions hearing on 24 June 2016 and the one-day judicial review on 7 October 2016. The Court’s decision was handed down on 15 June 2017.
Update: Adani Carmichael mine and rail project
12 June 2017
Adani was granted their associated water licence and surface water licence for the Carmichael Mine on 29 March 2017. Read more here….
Northern Australia Infrastructure Fund
The Northern Australian Infrastructure Facility (NAIF) is considering an application for a $1 billion dollar loan of public money to an Adani subsidiary for the North Galilee Basin Rail Project. Read more here about the approvals process…
Does the Northern Australia Infrastructure Facility Act 2016 (The NAIF Act) or relevant policy provide any measures to address conflicts of interest? Read more here…
Adani still lack a number of essential approvals, and to satisfy conditions of other approvals, before they can begin construction.
According to the Australian Financial Review on 7 April 2014 the outstanding approvals include those needed for the mine camp, airstrip and telecommunications operations. There are also approvals still needed for the railway at the state level, including for a quarry, vegetation clearing and a camp.
The challenge to Adani’s Federal environmental approval was heard in March and we are awaiting a decision. Read more here about Australian Conservation Foundation v the Minister for the Environment.
Abbot Point Coal Terminal
The Department of Environment and Heritage Protection is continuing its investigations into stormwater discharges from Terminal 1 at Abbot Point Port during Cyclone Debbie. Adani is the operator of that port terminal, from which some of the coal from the Carmichael mine is intended to be exported.
Adani was granted a temporary emissions licence to help manage stormwater during the cyclone, but it subsequently reported an exceedance of the licence. Potential impacts to the nearby wetlands were noticed in satellite imagery after the cyclone. Read more here….
Abbot Point, coal & Caley Valley Wetlands: what’s the legal situation?
9 June 2017
UPDATE: EHP beach sediment testing results
On 31 May, EHP issued a media release about sediment samples taken from Dingo Beach, below the discharge point that recorded significant exceedance of the temporary emissions licence sediment limits. While EHP stated that “trace amounts of coal of between one and two percent were found”, it concluded that naturally occurring minerals and magnetite were “the most likely reason for the dark colouration observed at Dingo Beach” after the cyclone, and that those trace amounts “would be unlikely to cause environmental harm to the surrounding area”.
EHP took the sediment samples on 20 April, some 21 days after Adani returned to site after the cyclone on 30 March and discovered the discharge exceedance. In the release, EHP does not address the effect of this delay in its sampling, in what is likely to be in an area affected by tidal processes.
EHP stated that its investigation into the discharge of stormwater and assessment of any impacts into the Caley Valley wetlands is ongoing.
8 MAY 2017
UPDATE: Adani reports exceedance to EHP
Last week, EHP published a media statement that Adani Abbot Point Bulkcoal had advised it that:
- an exceedance of the water discharge limits in the temporary emissions licence occurred on 30 March 2017;
- the discharge contained 806 mg/L of sediment;
- the non-compliant discharge did not enter the Caley Valley wetland, but was from a licenced discharge point on the northern side of the terminal; and
- further investigations by ‘port management’ indicated that ‘no coal-laden water entered any marine environment’.
EHP stated that it will prepare an investigation report to inform what compliance action it will take, if any, in accordance with its enforcement guidelines. On 20 April, EHP took sand samples on the beach to check for coal in the discharge, with results “expected to be available by the week beginning 8 May 2017.” There is no explanation offered as to what contaminants caused the high sediment levels, or what total volume of water over the 100mg/L limit was discharged.
It also stated that “There are serious penalties for corporations whose non-compliance with their environmental authorities or temporary emissions licences causes environmental harm…”. While this is true, causing environmental harm (which includes potential adverse effects) is not strictly required for serious penalties for contravening a licence condition. However, any harm or potential harm is one factor that EHP will consider under section 3 of its enforcement guidelines in choosing any compliance action. It is not a certainty that EHP will elect to prosecute Adani and seek penalties, given the range of enforcement tools available to it.
Since EHP’s statement, Adani posted on its Facebook site a refute to assertions that it had discharged contaminated water, and that it had advised EHP of “a high sediment level in a sump pond inside the Abbot Point designated area”. Adani has also been reported in the media as stating that “no water was discharged or released into any marine environment” (ABC News). This reply is somewhat perplexing given that the TEL (and EA) limits relate to discharge, and required Adani to monitor discharge during a release from site. Those requirements did not require Adani to notify EHP of contaminant levels in stormwater simply being held onsite, such as in a sump pond. Instead, condition A9 of Adani’s EA requires Adani to notify EHP within 24 hours of a spill or release that, amongst other things, ‘may result in any observable environmental impact’.
EHP’s statement does not address any discharge that occurred to the Caley Valley Wetlands. As such, there is not yet any departmental explanation of the apparent contamination in the aerial photographs initially published in the media, and whether environmental harm was caused by a discharge there.
11 APRIL 2017
Environmental regulation of T1 coal terminal
You may have seen news reports of what looks like spillage from the Abbot Point coal terminal into the Caley Valley Wetlands in the aftermath of Cyclone Debbie. What Environmental regulation applies to the T1 coal terminal?
- Abbot Point Bulk Coal Pty Ltd (APBC) were required to obtain an environmental authority (EA) under the under the Environmental Protection Act 1994 (Qld) (EP Act) to conduct the environmentally relevant activities (ERAs) of bulk material handling (ERA 50-(1a)) and sewage treatment (ERA 63(1)(b)(i)) on land adjacent to the Caley Valley Wetlands at Abbot Point. Abbot Point Bulk Coal Pty Ltd (APBC) currently holds an environmental authority for the T1 coal terminal at Abbot Point.
- Under the EP Act it is an offence to unlawfully cause serious or material environmental harm.However, an act causing environmental harm won’t be ‘unlawful’ if it is authorised under an environmental authority (EA).
- APBC’s EA for coal stockpiling only permits discharges to waters at two locations if it meets certain water quality criteria including, for example, that suspended solids are below 30mg/L.
- It is an offence to contravene a condition of an environmental authority.
- APBC obtained a temporary emissions licence (TEL) to increase the release limits for total suspended solids from 30 mg/L to 100 mg/L during a 4 day period from 27 March 2017 to 30 March 2017 at two locations.
- It is an offence to contravene a condition of a TEL.
- It is also an offence to place a contaminant where serious or material environmental harm may be caused.
Want to know more? Click here for more detailed information with footnotes and links.
Ensure miners clean up after themselves + abandoned mines get rehabilitated, Subs due 15 June!
8 June 2017
The Queensland Government is taking strong action to reduce the risk of taxpayers footing the bill to clean up mine sites, and to ensure that mine sites are properly rehabilitated to community expectations.
Two reports are out for public comment at the moment:
1) Review of Queensland’s Financial Assurance Framework, by the Queensland Treasury Corporation – which provides a considered review of the current flaws in the financial assurance framework – the framework intended to require miners to provide a monetary guarantee to the government to protect against the company going broke, and suggests a new ‘tiered’ model going forward; and
2) Discussion Paper on Better Mine Rehabilitation for Queensland, by the Department of Environment and Heritage Protection – which seeks to bring more clarity and certainty to the requirements on mines to rehabilitate their site.
The significant impact and liability left by the mining industry across Queensland has had substantial attention in recent years. The Queensland Government has recognised the significant risk posed by this existing and future possible liability and commenced a broad review of the financial assurance framework.
This review of the financial assurance framework has been led by the Queensland Treasury Corporation, a corporation sole which provides advice to the Queensland Government on finance matters, and has a mandate to manage and minimise financial risk in the public sector, amongst other things, reporting through the Under Treasurer to the Treasurer and Queensland Parliament. The Department of Environment and Heritage Protection has produced the discussion paper on Better Mine Rehabilitation policy as a part of the governments interdepartmental work in reviewing and improving the financial assurance framework.
Our suggested points for submissions on each of these reports are provided below:
- We support the findings of the review which note the ineffectiveness of the financial assurance framework today in protecting the government, taxpayers and communities against the financial and environmental liabilities left by financially insecure mining companies.
- We support the recommendations in the review that the Queensland Government:
- Removes the discount rate applied to financial assurances – which has consistently left Queensland without sufficient financial assurance;
- Remove the use of proponent calculators to calculate financial assurance, and replace with a consistent, verified government calculator – to ensure more consistency and accuracy in calculating financial assurance required of proponents;
- Develop a range of policy reforms to address the holes and uncertainties in the rehabilitation and financial assurance framework. This includes the ‘Better Mine Rehabilitation for Queensland’ policy, more certain abandoned mines policy, and implementing residual risk into financial assurance calculations and other policy reforms. These policy reforms are essential to improve the rehabilitation and financial assurance framework as a whole.
- Interest on pooled funds should be used to address liability of 15,000 abandoned mines in Qld. We support the suggested use of the interest obtained on the pooled financial assurance funds being used to rehabilitate the 15,000 abandoned mines the Queensland Government has been left to manage due to poor operators. This legacy has existed for too long without sufficient resourcing and attention by previous governments. Let this be the turning point, where sufficient resources are guaranteed for reducing the risks to the environment and communities posed by the many abandoned mines around our state.
- Pooled fund must provide sufficient funds to address abandoned mines – current rate too low and needs review. Overall we support the risk-based, cash generating reform proposal. However, we do not support the low contribution rates for Significant Resource Entities and representative resource entities. This low contribution represents a gift for these companies which are in the best position to leverage financial assurance given their size and low risk status. This gift comes at the cost of the government ensuring it reaps sufficient interest on the pooled funds to address the significant liability left by the 15,000 abandoned mines currently awaiting rehabilitation in Queensland, some posing significant environmental and community health risks. This rate must be reviewed with a view to the government providing sufficient funds to rehabilitate the abandoned mines in Queensland left by this industry, while still ensuring the pooled funds can provide protection against defaulting operators.
- Support the annual, transparent, independent review of companies and their financial assurance. The financial risk status of all companies needs to under regular, independent and transparent review. Given the global commitments to reduce climate change emissions, and that coal is the largest mining industry in Queensland, the structural decline of this industry poses significant risk of financial instability. This risk must be managed to ensure that it is accounted for in the financial assurance framework.
- We support the following policy reforms proposed to improve rehabilitation requirements in Queensland:
- the principle policy that “all mined land should be rehabilitated so that it able to sustain another use such as grazing, agriculture, ecosystem services or infrastructure.” This should include clarification that final landforms with open pit voids, out of pit waste dumps and above ground tailings storage dams are not classified as rehabilitated land. We further support the inclusion in the definition of rehabilitated land that it be ‘able to sustain a future post-mining land use’ as this sets a higher expectation on mining operators of the usability of post-mining land;
- that the rehabilitation policy reforms will apply to existing mines progressively, without exception;
- the move to clarify the Department’s policy on care and maintenance, to prevent mines entering undefined ‘care and maintenance’ periods without any review or requirement to account for their progressive rehabilitation of the site in this time;
- the mandating of life of mine plans as a separate part of the approval process, required at the same time as approval of the environmental authority. This will ensure the government, community and proponent have considered the end of life of the mine at the time of approval in more detail. It may also ensure that progressive rehabilitation is more likely to be enforceable than under the current plans of operations;
- the condition that the community should be consulted in regards to the life of mine plan as part of the environmental authority application process. However we believe the affected community should agree to the final land use and landform as a condition of the environmental authority approval;
- rehabilitation performance being made available to the public annually. This should include both quantitative and qualitative assessments.
- The rehabilitation of surface and groundwater resources must be referenced specifically in the rehabilitation policy. Rehabilitation of surface and groundwater impacts is not currently provided for in rehabilitation requirements and poses a significant, long term risk and undervaluing of our water resources. Long-term, post mine impacts to water resources must be considered at the time of assessment of the environmental authority and life of mine plan, and mine applications must be able to be refused if this long-term impact is seen to be unacceptable.