We get asked this a lot at EDO Qld - does the Queensland Government have power to revoke or cancel major approvals for large coal mines under existing law? Our experts prepped a handy explainer - using Adani’s Carmichael coal mine as an example - to bring you the legal answer.
Many people from the community have contacted us and expressed concerned about the impacts the Carmichael coal mine will have on our precious groundwater resources - and the traditional owners and landholders likely to be directly impacted.
As you might be aware, the mine threatens:
- To dry up the ancient springs that have been a significant part of the culture and lives of local traditional owners for time immemorial.
- The groundwater that local farmers would otherwise pass on to their future generations to continue farming in their footsteps.
- Our precious Great Artesian Basin, along with wetlands that provide permanent water during drought for so many species.
These are just some of the reasons many people have good reason to be concerned with the impacts of the Carmichael coal mine on our water resources.
Back to the question - what if a mine, like Carmichael, already has some or all of its’ approvals. Can they be revoked? The simple, legal answer is yes; the Queensland Government has the power to cancel or revoke the major licences or authorities for a coal mine.
What’s the legal process to revoke or cancel major mining authorities and licences in Queensland?
There are three major authorities the Queensland Government may consider cancelling or revoking in relation to the Carmichael coal mine:
- Mining lease under the Mineral Resources Act 1989 (Qld) (MRA);
- Environmental authority under the Environmental Protection Act 1994 (Qld) (EPA); and
- Water licence, including an associated water licence, under the Water Act 2000 (Qld) (Water Act).
- Cancelling or revoking a mining lease (ML)
Adani Mining Pty Ltd (Adani) holds mining leases ML 70441 Carmichael, ML 70505 Carmichael East and ML 70506 Carmichael North – all leases commenced on 1 May 2016.
The Minister administering the MRA (currently Minister for Natural Resources, Mines and Energy) has the power to cancel an ML, or impose a penalty under MRA section 308. The Minister can use this power to cancel Adani’s MLs if the Minister considers that Adani has:
- carried out activities that are not bona fide for the purposes for which the lease was granted (for example mining a completely different mineral)(*1); or
- has failed to pay the royalty or any other moneys payable by the due date (*2);or
- has failed to comply with any condition of the lease (*3); or
- has failed to pay rent payable under the lease (*4).
The Minister cannot cancel the ML until the Minister has (*5):
- provided written notice to the mining lease holder notifying the miner of the decision to cancel the ML and allowing the holder to show cause why the mining lease should not be cancelled;
- served the notice on any other interest holder in the ML; and
- decided that any cause shown by the holder was insufficient to prevent the cancellation of the ML.
- The cancellation takes effect on the day following the Minister’s determination to cancel the mining lease (*6).
- Cancelling or revoking an environmental authority (EA)
Adani holds EA: EMPL01470513 – effective 5 June 2017.
The Department of Environment and Science (DES) has power to cancel or suspend an EA under EPA Chapter 5 Part 11. The most relevant powers to Adani are if (*11):
- Adani is convicted of an environmental offence after receiving the EA; or
- financial assurance requirements under the EA have not been met; or
- Adani’s registration as a suitable operator is, or is proposed to be, cancelled or suspended;
- the environmental authority was issued because of a materially false or misleading certificate, declaration or representation, made either orally or in writing;
- the holder has been given an annual notice, audit notice or surrender notice and the notice has not been complied with.
DES must first give Adani a notice of the intention to cancel the EA, and request that Adani show cause as to why the EA should not be cancelled (*12). Adani will then have 20 business days to make written representation to show why the action should not be taken (*13).
If DES is not satisfied with the representations made by Adani and believes a ground exists to cancel the EA, it may cancel the EA or suspend it for a fixed period (*14). DES must give Adani notice of the proposed cancellation within 10 business days (*15), and must also notify the Director General of DNRME as chief executive of the MRA (*16).
- Cancelling or revoking water licences, including associated water licences
Adani was granted an associated water licence on 29 March 2017 under the Water Act. This licence permits Adani to take or interfere with groundwater in the area of the mining lease for the purpose of dewatering the pit.
The chief executive of DNRME, being the Director-General, has a broad power to cancel a water licence, including an associated water licence, under the Water Act s 132(1)(c). The Director-General must simply be ‘satisfied the licence should be cancelled’, and must follow the process of:
- issuing a notice to the water licence holder of the intention to repeal the licence;
- inviting submissions from the holder to show cause as to why the licence should not be cancelled; and considering those submissions (*27).
The Director-General could therefore cancel Adani’s associated water licence by following this process.
If the chief executive is satisfied the licence should be cancelled, they must give the licensee an information notice about the decision within 30 business days. As recipient of an information notice the licensee becomes an ‘interested person’ who has a right to internal review and external review in the Land Court (*28).
The cancellation takes effect from the day the cancellation notice is given (*29).
*1 Mineral Resources Act 1989 (Qld) s 308(1)(a). 2 Mineral Resources Act 1989 (Qld) s 308(1)(b). 3 Mineral Resources Act 1989 (Qld) s 308 (1)(c). 4 Mineral Resources Act 1989 (Qld) s 308(2)(a). 5 Mineral Resources Act 1989 (Qld) s 308(2). 6 Mineral Resources Act 1989 (Qld) s 308(5). 7 Mineral Resources Act 1989 (Qld) s314(3) & (4). 8 Mineral Resources Act 1989 (Qld) s 277(11). 9 Mineral Resources Act 1989 (Qld) s 332AA. 10 Mineral Resources Act 1989 (Qld) s 332AA(3). 11 Environmental Protection Act 1994 (Qld) s 278. 12 Environmental Protection Act 1994 (Qld) s 280(1). 13 Environmental Protection Act 1994 (Qld) ss 280(1)(e), 280(2) 14 Environmental Protection Act 1994 (Qld) S 282 (1). 15 Environmental Protection Act 1994 (Qld) S 283(1)