Factsheets ·

Coal Seam Gas: Community Submission and Appeal Rights

01 September, 2013

This factsheet outlines community submission and appeal rights with respect to CSG activities. It provides a broad overview of Queensland law and how you can have your say (including lodging a Court appeal) on the impacts of a project. 

This Factsheet is for general information purposes only, it is not legal advice. Important legal details have been omitted to provide a brief overview of this area of the law. If you require legal advice relating to your particular circumstances contact EDO or your solicitor. © EDO (Qld) Current as at September 2013.

Key points

  • Only higher risk CSG projects are advertised for submissions/appeals;
  • Only people who make submissions when a project is first advertised can appeal to the Land Court; and
  • To make your submissions relevant you should refer to independent expert science and try and get an expert to help you understand the relevant risks.

For more detailed information on CSG, you can obtain a copy of EDO Qld’s comprehensive Guide to Mining and Coal Seam Gas Law, available here: http://www.edoqld.org.au/handbooks/.

Contents

  1. About coal seam gas (CSG) and how it is regulated
  2. Your rights to lodge a submission
  3. What to put in your submission and how to lodge it
  4. How to supercharge your submission
  5. Appealing a decision to approve CSG activities
  6. Useful contacts and further information
  7. Example submission on an application for an Environmental Authority

1.  About coal seam gas (CSG) and how it is regulated

What is CSG?

In order for coal to form underground a process occurs whereby decomposing plant matter is heated and compressed. As a result of this process, gas (predominately methane) becomes trapped by water in seams within the coal. Resource companies have worked out a technique to extract this gas. This process involves digging a vertical well into the coal seams and extracting the water. This allows for the pressure that has kept the gas in place to be removed and as such the gas is released and can flow. The gas flow is then captured for use as an energy source.

What are the main laws that apply to CSG?

There are two main Queensland laws that govern CSG:

  1. The Petroleum and Gas (Production and Safety) Act 2004 (Qld) (P&G Act);[1] and
  2. The Environmental Protection Act 1994 (Qld) (EP Act).

Federal Government approval will also be required if there is likely to be a significant impact on water resources or another matter of national environmental significance.[2]

There are also many other laws that may apply to CSG projects relating to, for instance, Native Title,[3] Indigenous Cultural Heritage[4] and Occupational Health and Safety.[5] Generally speaking, the normal planning laws do not apply to CSG activities, meaning Local Councils play very little role in CSG projects and activities.

What are the main permits required for undertaking CSG activities?

Firstly, to lawfully extract CSG, a resource company must apply for and successfully obtain a ‘resource tenure’ under the P&G Act. There are two types of resource tenures:

  1. An Authority to Prospect (ATP) - granted for exploration activities; and
  2. A Petroleum Lease (PL) - granted for production activities.

You may also hear CSG tenures called ‘resource authorities’ or ‘petroleum tenures’. They are essentially the same thing. Almost always, a company will hold an ATP over an area before they apply for a PL over all or part of the area.

In addition to each resource tenure, a company must obtain an ‘Environmental Authority’ (EA) under the EP Act. The EA is a very important document as it sets out all the ongoing operating conditions for the project. You might want to think of the EA as like a contract between the CSG company and the State Government. However, it is more correctly described as an operating licence from the State Government to the company. EAs can be amended upon application by the company or by the Government.

What Government agencies are involved?

The application for a resource tenure is made to the Department of Natural Resources and Mines (DNRM). The Minister for Natural Resources and Mines grants the final permits but DNRM handles the administration. The application for the EA is made to the Department of Environment and Heritage Protection (DEHP). If approved, DEHP will look after compliance and enforcement with the conditions of the EA.

Federal Approval (if required) is issued by the Federal Environment Minister under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act).

What other permits might be required?

Other permits may also be needed for CSG activities such as a Pipeline Licence (to transport gas outside the area of the resource tenure), or a Petroleum Facility Licence (to process or store gas outside the tenure area such as an LNG processing facility). Both of these are granted under the P&G Act, and both will also require an EA under the EP Act.

2.  Your rights to lodge a submission

There are no submission and appeal rights with respect to the company’s application for its resource tenure under the P&G Act. However, landholders and community members do have the right to make submissions (and bring Court appeals) if the company’s EA application fails to meet certain ‘eligibility criteria’.

What are ‘eligibility criteria?’

DEHP has developed eligibility criteria to distinguish between those EA applications which carry a high environmental risk (because of where they are located, or the intensity of activities or methods of extraction etc.) from those applications which carry a low environmental risk.[6] There are different types of eligibility criteria depending on what type of EA is being applied for (e.g. exploration, extraction, pipelines, etc.). You can find the criteria on DEHP’s website.[7]

What happens if the application does/doesn’t meet the criteria?

EA applications which meet the eligibility criteria will be automatically approved and receive standard EA conditions (these are referred to as ‘standard applications’).[8] In other words, the project can then go ahead without any public challenge. On the other hand, applications which don’t meet the criteria (called ‘site-specific applications’) will be publicly notified for submissions.[9]

The public has no submission rights as to whether a project meets the eligibility criteria or not. The criteria have been set by DEHP and only they can change them.

IMPORTANT!

On some rare occasions, a site-specific application may not be publicly notified for submissions. If DEHP determines that adequate public consultation has already taken place through an Environmental Impact Statement (EIS) process, and the environmental risks at the time the EA application is made have not changed, then the application for the EA will not be made public. However, a submission on the EIS will automatically count as a submission on the EA application and later appeal rights will be retained.[10] 

It is therefore very important that you make submissions if you see an EIS advertised for comment to maintain any further appeal rights.  Note, this rule does not apply to ‘Coordinated Projects’ for which an EIS is completed under the State Development and Public Works Organisation Act 1971 (Qld).[11]

Where can I find the public notice of the EA application?

The applicant must place a copy of the notice in a newspaper “circulating generally in the area where the activity is proposed to be carried out.”[12] This could be the Courier Mail or it could be the local newspaper for the region where the activities are located. DEHP also operates a public notification email service which may help you. Send an email to public.register@ehp.gov.au to subscribe.

EDO Qld also operates an ongoing ‘alert’ email service which usually contains, amongst other matters related to environmental law, details on resource projects available for public comment.[13]

What will the public notice contain?

The notice should contain the following:

  • a description of the activities proposed;
  • the land on which the activities are to be carried out;
  • where the application documents may be inspected or accessed;
  • where copies of, or extracts from, the application may be obtained;
  • that any person may make a submission about the application;
  • the submission period during which submissions must be made; and
  • how to make a properly made submission.[14]

Who can make a submission?

Any person (landholder or member of the community) may make a submission on an application that is publicly notified. It is very important if you want to maintain appeal rights further down the track that you do make a submission during the public notification period. This is because only ‘dissatisfied submitters’ have a right to seek an internal review of DEHP’s final decision to approve an EA, and thereafter, have the option of appealing to the Land Court.[15]

How long do I have to make a submission?

Submissions must be made within the nominated submission period. The submission period must be at least 20 business days after the application notice is published or a later date fixed by DEHP.[16] The public notice should say when the submission period ends.

Where can I view the application documents?

The company must keep copies of the following documents on a website during the public submission period:

  • the application notice;
  • the application documents (see below); and
  • the response to any ‘information request’.[17]

In addition, DEHP must keep the application open for inspection by members of the public during office hours on business days at;

  • their  head office (400 George Street, Brisbane); or
  • a DEHP office located nearest to the land to which the application relates; or
  • another place DEHP considers appropriate.
IMPORTANT!

It is a good idea to print copies of documents you find on the internet, as they may be taken down or moved at a later time and you want to make sure you have a copy.

DEHP must allow a person to take extracts from the application or, on payment of the appropriate fee, give the person a copy of the application, or a part of the application. They must also keep a copy of, or a link to, the application available on its website.[18] You can find current EA applications here:

What are the application documents?

The application documents for a site-specific application will generally include:

  • a description of the activities and the land;
  • an assessment of the likely impact on the ‘environmental values’[19];
  • details of any emissions or releases likely to be generated;
  • details of the management practices proposed to be implemented to prevent or minimise adverse impacts;
  • details of how the land the subject of the application will be rehabilitated;
  • a description of the proposed measures for minimising and managing waste generated; and
  • details of any site management plan.[20]

Site-specific applications to extract CSG must also include detailed information about water use at the site including:

  • the quantity of CSG water the applicant reasonably expects will be generated;
  • the flow rate at which the applicant reasonably expects the water will be generated;
  • the quality of the water, including changes in the water quality the applicant reasonably expects will happen;
  • the proposed management of the water including, for example, the use, treatment, storage or disposal of the water;
  • the measurable criteria (called ‘management criteria’) against which the applicant will monitor and assess the effectiveness of the management of the water, including, for example, criteria for each of the following;
    • the quantity and quality of the water used, treated, stored or disposed of;
    • protection of the environmental values affected by each relevant CSG activity;
    • the disposal of waste, including, for example, salt, generated from the management of the water; and
  • the action proposed to be taken if any of the management criteria are not complied with, to ensure the criteria will be able to be complied with in the future.

In practice, most of the above information will be contained in a detailed EIS already undertaken for the project before the EA is applied for. The information in the application does not need to restate the information in the EIS provided an assessment of the environmental risk would be the same as the assessment in the EIS.[21] In other words, you may find that the application documents are very similar to the EIS.

3.  What to put in your submission and how to lodge it

What form should my submission take?

There is no set format for a submission on an EA application however it is very important that it is ‘properly made’ otherwise it may not be accepted. A properly made submission must:

  • be in writing or made electronically; and
  • be signed by or for each person who made the submission; and
  • state the name and address of each signatory; and
  • be made to the administering authority i.e. DEHP; and
  • be received on or before the last day of the submission period; and
  • state the grounds of the submission and the facts and circumstances relied on in support of the grounds. [22]

Check the address in the public notice to be sure you send your submission to the correct address before the period ends. You should keep a copy of your submission, showing when and how your submission was lodged.

What criteria should I address in my submission?

To be most effective, your submission should address the matters which DEHP will be looking at when it decides whether or not to approve the company’s application. These include:

  • the ‘application documents’ (above) including any EIS completed for the project;
  • the ‘standard criteria’ under the EP Act; and
  • any relevant ‘regulatory requirements’.[23]

What are the ‘standard criteria’?

The words ‘standard criteria’ have a specific meaning under the EP Act.[24] They include, amongst other things:

  • the ‘character and resilience’ of the receiving environment;
  • the public interest;
  • the following principles of environmental policy as set out in the Intergovernmental Agreement on the Environment (IGAE):
    • the precautionary principle;
    • the principle of intergenerational equity; and
    • the principle of conservation of biological diversity and ecological integrity.[25]

If you are thinking of making submissions on an EA application, consider referring to the standard criteria under the EP Act. In assessing the application, could DEHP be satisfied that the application will not adversely affect these criteria? What is the evidence to back up your concerns?

What are ‘relevant regulatory requirements’?

The term ‘regulatory requirement’ is defined in the EP Act dictionary. It generally includes a reference to one or more of the State Government’s ‘Environmental Protection Policies’ (“EPPs”) as well other (relevant) regulations made under the EP Act. At the time of writing, the current EPPs are:

  • Environmental Protection (Air) Policy 2008 (Qld);
  • Environmental Protection (Noise) Policy 2008 (Qld); and
  • Environmental Protection (Water) Policy 2009 (Qld).

Before you make any submissions, read through the relevant EPPs so you understand what they are trying to achieve. Is there anything that you think DEHP should specifically focus on when it considers the company’s EA application? Will the company’s application meet the benchmarks set in these policies?

IMPORTANT! 
In making its decision on the EA application, DEHP must also comply with the provisions of the Environmental Protection Regulation 2008 (Qld) (EP Regs). Under the EP Regs, DEHP’s decision to approve or reject an EA application is categorised as an ‘environmental management decision’. There are very specific matters that DEHP needs to be comply with when making an environmental management decision. Specifically, it must carry out an ‘environmental objective assessment’ against specified environmental objective and performance outcomes. The environmental objective and performance outcomes are listed in Schedule 5 of the EP Regs.

4.  How to supercharge your submission

Relevance

  • Read the application carefully and highlight any deficiencies in the application.
  • Try to address the criteria the decision maker will use (see list above).
  • Try and include maps and photographs showing key features to be affected by the proposal.
  • If you know of them, refer to publications about the ecology of the area or about relevant creeks or ground water that may be affected.
  • If you can afford to hire an expert to assist you with a key concern, then you can submit that experts report as an attachment to your submission.
  • It might be helpful to suggest conditions of approval include monitoring or rehabilitation though you will need to balance the benefits of such suggestions against total opposition to the proposal. In other words, don’t just point out problems, try and find solutions. If there are no solutions, then you are within your rights to say the project should not go ahead.

Communication

  • It is important to try to be scientific and precise about your concerns if at all possible.
  • It is vitally important that you include a concise summary of your points on the front page of your submission so readers don’t get lost in the detail.
  • If you have time, talk to the media about the issue and send copies of your submission to relevant Ministers and other politicians. Request meetings and seek commitments.
  • Ask to meet with the company applying for the EA.
  • Ask to meet with the public servants at DEHP to ask questions and to put forward your views (details are at the back of this fact sheet). The CSG company will meet with them, so this is only fair that DEHP meet with you too.

5.  Appealing a decision to approve CSG activities

Finding out about the decision

If DEHP decides to approve the EA application, it must, within 10 business days after the decision is made, give any person who made a properly made submission an information notice about the decision.[26]

Asking DEHP to review its decision

A dissatisfied submitter for an EA application may apply for an internal review of a decision to approve an EA. The application must be made within 10 business days after the day on which the person receives notice of the original decision. Section 521 of the EP Act contains details about that review process. Basically, if you seek internal review then a fresh decision will be made on the application by DEHP. There is an approved form which you should use. You should contact DEHP immediately for a copy of the form if you want to apply for a review.

IMPORTANT! 
An application for review does not automatically ‘stay’ the decision so work can start on the activity. To halt the CSG activities until your review is heard, a separate application must be made to the Land Court.[27]

Appealing to the Land Court

If you are dissatisfied with DEHP’s internal review decision, you also have appeal rights to the Land Court. The appeal to the Land Court must be started within 22 business days after you received notice of DEHP’s internal review decision. On appeal, the Land Court has the same powers as DEHP.  The Land Court rehears the matter and may make a fresh decision.

There will be costs risks involved in any CSG appeal and it is very complex. Consult a lawyer for advice on your prospects of success before making the decision to appeal. If your case is being brought in the public interest, EDO Qld may be able to assist you. Please contact us for further information.

6.  Useful contacts and further information

Environmental Defenders Office (Qld) Inc.

Ph:       07 3211 4466

Fax:      07 844 0766

Post:     8/205 Montague Rd West End Qld 4101 

Email:   edoqld@edoqld.org.au

Web:     edoqld.org.au

NOTE! The EDO’s Mining and CSG Law in Queensland; a guide for the community (EDO Qld, 2013) is a comprehensive guide to assessment and approval of mining and CSG projects including example submissions, diagrams, flow charts and checklists. The guide is available for purchase through EDO’s website: http://www.edoqld.org.au/handbooks/ . Community and landholder discounts apply.

Department of Environment and Heritage Protection (DEHP)

  • 13 25 23 CSG Hotline or alternatively, phone (07) 3330 5715 for further information on specific CSG projects
  • Pollution Hotline 1300 130 372 if you wish to report a breach of conditions of approval.
  • 13 QGOV to find out where your local DEHP Business Centre is (or search http://www.ehp.qld.gov.au/contactus/businesscentres.html ) so that you can search the public register under the EP Act for environmental authorities, environmental reports, monitoring reports etc. A fee may be charged for copies of documents.

Post:    

  • ‘The Energy Assessments Unit’, Department of Environment and Heritage Protection, GPO Box 2454, Brisbane, QLD, 4001 for your submissions and other correspondence but check the public notice that this is correct address before sending submissions

Email:  

Web:    

Department of Natural Resources and Mines

Web:   

Federal Government

Web:    

7.  Example submission on an application for an Environmental Authority

 

John G. Citizen and Mary M. Citizen

Address: 123 Acacia Road, Smithfields, QLD 4357

Tel: (07) 4662 398600, Email: john.citizen@mail2meplease.com.au

9 July 2013

The Chief Executive

Department of Environment and Heritage Protection

GPO Box 2454, BRISBANE QLD 4000

 

Dear Sir/Madam,

Re: Application for Environmental Authority 

by Petroleum Products Pty Ltd

My wife and I are landholders in Smithfields. Our property is located within a coal seam gas exploration tenure (ATP123) which has been held by Petroleum Producers Pty Ltd since 2008. The company has recently lodged an application for an Environmental Authority (EA) to accompany a proposed Petroleum Lease over the area. The application for the EA was advertised for public submissions on 1 July 2013. I have discussed the project with the company at length. The application proposes that we will have 6 gas wells over our property spaced at 800 metres apart. Pipelines are also proposed to run down the Western edge of our property. A brine management dam is proposed some 900 metres from our crops.

We are opposed to this application as there is an unacceptable risk to our land and livelihoods if the project goes ahead. Our first concern is with the possible impacts on groundwater - specifically contamination of the XYZ Alluvial Aquifer which we currently draw bore water to irrigate our 42 hectares of crops - chickpea, sorghum and cotton. In addition to this concern, other concerns are:

  1. Potential for flooding from the high hazard dam given its location on a flood plain;
  2. Impacts of salinity on soil. This is predominately an agricultural area – the special high quality soils of our area would suffer if there were any elevated concentrations of salt;
  3. Erosion caused by the installation of the pipelines.

We attach the following documents in support of our submission:

  • Further detailed explanation of each of the risks described above including relevant photos and maps of our property and the proposed coal seam gas operations (18 pages).
  • Preliminary report from Professor Soil D. Scientist which shows the good quality agricultural land we reside on and how an increase in salinity levels can adversely affect it (9 pages).
  • Preliminary report from Dr G. Hydrologist which shows the irreversible effects contamination could have on the XYZ Alluvial Aquifer (7 pages).

We don’t want coal seam gas wells or pipelines on our land. Our family have lived here since 1936 and we wish to keep farming this area long into the long future. The project should be moved elsewhere or not approved at all.

Yours sincerely,

John G. Citizen  Mary M. Citizen

 

 


[1] Even though CSG is a ‘gas’, under the law it is referred to as ‘petroleum’.

[2] For more information on Federal Government approval, see EDO Qld’s factsheet: Commonwealth Laws: the EPBC Act. Note, some existing CSG projects and assessments will be covered by the recent water trigger amendments in July 2013. See: http://www.environment.gov.au/epbc/about/water-trigger.html

[3] See for instance the Native Title Act 1993 (Cth) and Native Title Act 1993 (Qld).

[4] See for instance the Aboriginal Cultural Heritage Act 2003 (Qld) and the Torres Strait Islander Cultural Heritage Act 2003 (Qld) particularly section 23 of those Acts – the cultural heritage ‘duty of care.’ You can search the cultural heritage register here: https://www.datsip.qld.gov.au/people-communities/aboriginal-torres-strait-islander-cultural-heritage/cultural-heritage-database-register.

[5] The P&G will largely apply to safety of operating plants, but so may parts of the Work Health and Safety Act 2011 (Qld), Public Safety Preservation Act 1986 (Qld) and other laws.

[6] Prior to April 2013, this distinction in the EP Act used to be between level 1 and level 2 activities. You may still see references to level 1 (i.e. higher risk) and level 2 activities (i.e. lower risk) in permits, Government documents, websites, Court decisions etc. 

[8] Environmental Protection Act 1994 (Qld) s 170(2).

[9] Environmental Protection Act 1994 (Qld) s 149.

[10] Environmental Protection Act 1994 (Qld) s 150(3).

[11] Environmental Protection Act 1994 (Qld) s 150(1)(a)

[12] Environmental Protection Act 1994 (Qld) s 152(2)(b). Note that an EA for a CSG pipeline may be advertised together with the ‘pipeline licence’ application under the P&G Act.

[13] You can subscribe to our email alerts by using the box at the bottom of our website homepage: http://www.edo.org.au/edoqld/

[14] Environmental Protection Act 1994 (Qld) s 153(1).

[15] Environmental Protection Act 1994 (Qld) ss 519-530.

[16] Environmental Protection Act 1994 (Qld) s 155.

[17] Environmental Protection Act 1994 (Qld) s 156.

[18] Environmental Protection Act 1994 (Qld) s 157.

[19] ‘Environmental Value’ has a specific meaning under the EP Act. See s 9.

[20] Environmental Protection Act 1994 (Qld) s 125.

[21] Environmental Protection Act 1994 (Qld) s 125(3).

[22] Environmental Protection Act 1994 (Qld) s 161.

[23] Environmental Protection Act 1994 (Qld) s 176.

[24] See the definition of ‘standard criteria’ in Environmental Protection Act 1994 (Qld) Schedule 4 (dictionary). Also see this case: Burtenshaw & Ors v Dunn [2010] QLC 70 (13 April 2010) at paragraphs [38] and [69] available for download from the Land Court’s website.

[25] You can find a copy of the intergovernmental agreement here: http://www.environment.gov.au/about-us/esd/publications/intergovernmental-agreement.  The principles of Environmental Policy are at section 3.

[26] Environmental Protection Act 1994 (Qld) s 198(4).

[27] Environmental Protection Act 1994 (Qld) s 521(6).

Environmental Defenders Office Queensland (EDO Qld) gives a strong legal voice to the environment when needed most.

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