On 12 June 2019, the Federal Minister for the Environment agreed to court orders conceding the case against her by our client Australian Conservation Foundation over Adani’s controversial North Galilee Water Scheme project.
The result is a massive win for ACF and the result of more than 1000 hours of painstaking legal work by the EDO Qld team.
ACF successfully challenged the Federal Minister for the Environment’s referral decision on Adani’s North Galilee Water Scheme under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act).
The Minister and Adani both ultimately agreed with ACF that the Minister’s delegate’s failure to properly consider thousands of public comments when making the decision was an error of law. This error was only uncovered as the case progressed.
Remarkably, the Minister also admitted that her Department lost an unknown number of public comments on the referral that were unable to be accounted for, or recovered.
With the consent of all the parties, Justice Perry set aside the decision, ordering the Minister to pay ACF’s costs.
The Minister is now forced to go back to the drawing board, again invite public comments on referral of the NGWS and then consider them in making a new decision.
EDO Qld had the assistance of barristers Neil Williams SC, Angus Scott, and Kate Gover in acting for ACF.
Last year Adani Infrastructure Pty Ltd referred its proposed offsite water infrastructure for the Carmichael Coal mine – the North Galilee Water Scheme (NGWS) – to the Minister to decide if it required assessment for impacts on matters on national environmental significance (MNES) under the EPBC Act.
The referral material provided by Adani stated that the NGWS was required for the construction and operation of the Carmichael Coal Mine and Rail Project, and other neighbouring coal mines .
The NGWS proposes the construction and operation of a large water reservoir, a 61 km pipeline and extraction of up to 12.5 million litres of water every year from the Suttor River for raw water supply to the mine and rail project, and potentially other coal mines in the Galilee Basin.
The Minister invited public comments on the referral as required under s 74(3) EPBC Act. By s 75(1A) EPBC Act, any such comments received must be considered in deciding whether an action is a ‘controlled action’ and therefore subject to federal assessment.
During the comment period, ACF and over 2,200 concerned Australians and non-government organisations commented that Adani’s NGWS should be assessed as a controlled action under the EPBC Act, and the water trigger applied as a controlling provision in the assessment.
On 17 September 2018, the Minister’s delegate, James Barker, Assistant Secretary, Assessments and Governance Branch decided under ss 75(1) and 87 of the EPBC Act that:
- the NGWS is a “controlled action” requiring approval;
- the relevant controlling provisions are ss 18 and 18A of the EPBC Act (those provisions proscribe actions affecting listed threatened species and communities) (the listed threatened species and communities controlling provisions); and
- the assessment approach would be on “preliminary documentation”.
In making the decisions above, the delegate was required to consider the referral material and the public comments made on the referral during the public comment period. 
The delegate did not consider the project to be a “coal mining activity” and thereby not needing assessment for its impacts on water resources related to large coal mining development under ss 24D and 24E of the EPBC Act (the water trigger).
This was despite the fact that Adani had stated in referral documents that:
- the majority of the water from the Suttor River was required for the operation of the mine, including earthworks conditioning, dust suppression and mining activities;
- the operational mining activities requiring water included tailing cell management, coal washing and processing, vehicle and equipment wash down and longwall mining equipment cooling water; and
- it was not feasible to source water for the mine other than from the NGWS.
In December 2018, ACF applied to the Federal Court under the Administrative Decisions (Judicial Review) Act 1977 (Cth) for judicial review of the delegate’s decisions, arguing that the Minister made an error of law in failing to apply the water trigger. 
Early in the proceedings, the Minister filed a “decision record” alleging it to be a record of the material that was before the delegate when he made his decision.
During the course of the case, the decision record was revised four times by the Minister in attempts to identify the material considered by the delegate.
One revision involved the addition of over a thousand pages of public comments. The final version of the ‘decision record’ clearly demonstrated the high degree of public concern over the project’s impacts to MNES, including over 2,200 public comments.
Despite ACF’s request, the Minister declined to provide any sworn or affirmed affidavit evidence from the decision-maker, or any computer log data, that stated or indicated what he in fact read and personally considered when he made his decisions.
As a result, the ACF amended its grounds of review in its application, alleging that the delegate failed to consider the public comments.
MINISTER ADMITS TO LOSING SOME OF THE PUBLIC COMMENTS
Significantly, the Minister also informed ACF that there was an unknown number of public comments received but which could not be located, stating in correspondence:
“It has come to our attention that a number of public comments were emailed directly to the delegate’s personal email address.
Unfortunately, apart from the four attached emails, the balance of those comments cannot now be located.
Accordingly, the [Minister] is now unable to confirm the total number of comments which were emailed directly to the delegate, the extent to which their content differ from the relevant ‘campaign’ format or how many were received within the period for public comment.
These emails were not annexed to the briefing note at pages 1 to 17A of the Decision Record, and nor was the delegate otherwise briefed with those emails either electronically or in hard copy.”
THE PUBLIC COMMENTS THAT WERE NOT CONSIDERED
As a result of the painstaking work undertaken by the EDO Qld legal team, 2955 public comments were identified as having been received by the Department on the referral of the NGWS.
An overwhelming majority of these public comments were sent in by concerned members of the community, and the EDO Qld legal team read every one.
Strikingly, a large cross-section of the community was represented, including scientists and environmentalists, and farmers and landholders reliant on the same river as the proposed water harvesting scheme.
The delegate’s error deprived ACF, and the other members of the public who made comments, of having their comments and concerns lawfully considered that:
- the water trigger controlling provision applied;
- the controlling provisions relating to World Heritage Areas applied because of the potential affect on the Great Barrier Reef World Heritage Area; and
- the Ramsar controlling provisions applied.
A number of public comments raised the separate referral of the NGWS and the Carmichael Mine as artificial and contrary to reality, one stating:
“…the NGWS is part of the activity of the Carmichael coal mine and the mine cannot operate without it. The need to supply the water was identified in the original coal mine proposal, and therefore it undoubtedly forms part of the activity and is not merely ‘associated with it’. This is supported by the fact that the NGWS has been formally identified as part of the Adani Combined Project by the Queensland Government.”
Another raised a range of concerns including the precautionary principle:
“Indeed water is so crucial to Australia’s economy (and the remnants of our natural heritage that we have left) that the use of an extremely strong precautionary principle should apply to any and all water applications and grants being considered.
Such a full and major federal environmental assessment must include the range of potential and actual impacts on any and all potentially groundwater-dependent biodiverse ecosystems, as well as surface water and groundwater.”
A significant number of comments raised issues about appropriate use of the water resource and conflict with farming:
“I come from a farming background. Currently friends of mine are struggling with drought conditions and are having truck water in to ensure their livestock have water to drink. This is not the first time and it won't be the last. Water is extraordinarily precious in Australia. It is wrong that a coal mine should have free access to underground water and seek to retain surface water as well. The issues facing the Murray Darling system have shown that flood water is not ‘excess’ water but an important ecological resource.”
“This is water that is needed for agricultural and pastoral activities, and for environmental flows. Interruption of flood flows would adversely affect the downstream environment, and reduce essential recharge of the aquifers.”
Experts in the field of river science also provided professional views of the proposed impact of the water extraction:
“As an environmental scientist who specialises in river health, I am greatly concerned by this proposal. The detrimental impacts of water over-extraction to the river and surrounding environment should deserve consideration. In order to protect these fragile and important ecosystems from degradation precaution should be taken before allowing any project to proceed.”
Another such comment from an expert raised concerns about impacts to Ramsar wetlands, which are a MNES under the EPBC Act:
“In broad terms the issue is whether Adani can siphon water from the Suttor River without going through the full approvals process... The Suttor contributes water to one Australia's declared wetlands of national importance, which in turn form part of the system supporting the RAMSAR wetlands.
Wetlands store carbon that is released if they are destroyed. Adani's plan needs to be examined in terms of its flow-on consequences, specifically (1) conversion of a carbon sink to a carbon source, (2) loss of habitat, (3) loss of amenity for other users.”
The law explicitly required the delegate to personally consider any public comments received on this referral, applying his own mind to the issues raised in them. 
In these circumstances, courts will hold the decision maker to a high standard, requiring them to have regard to what is said in the public comments, to bring their mind to bear upon the facts stated in them and the arguments or opinions put forward and to appreciate who is making them. 
In this instance, and despite being part of a highly controversial mining project, the Minister’s delegate failed to discharge this legal duty – a duty which is a cornerstone of the public’s already limited right to participation in the Federal environmental approvals process.
WHAT HAPPENS NEXT?
Now the Federal Environment Minister will need to go back to the drawing board and open up assessment of the project for public comment again.
The Federal Environment Minister did not concede ACF’s initial argument in the case, which was that the ‘water trigger’ should have applied to the Scheme. Given the resolution of the case before the scheduled hearing in June, the Court did not get the opportunity to determine that argument. As a result the community is still no closer to having an answer on why the ‘water trigger’ should not have applied to the North Galilee Water Scheme – a project which will take up to 12.5 billion litres of water a year from Central Queensland to service a coal mine.
EDO Qld will continue to assist the community in scrutinising the Minister’s pending re-assessment of the project.
 The Water Licence Application submitted at a State level was provided by Adani to the delegate in response to his request for further information. It states: “… during construction of the mine and rail infrastructure (including all off-lease components) and first years of operations, the Project is reliant on external water supplies …”.
 EPBC Act s 75(1A).
 Further amended originating application.
 Tickner v Chapman (1995) 57 FCR 451 at 476-7 per Burchett J.
 Tickner v Chapman (1995) 57 FCR 451 at 495-6 per Kiefel J.