News & Blog Posts · Energy & Climate

New evidence indicates Adani has breached approvals

12 September, 2018

Strong new evidence indicates that Adani has breached its environmental approval for the Carmichael Coal Mine - with calls for the Queensland Government to investigate.

Read the ABC story and watch the video

What has happened? - Summary

Adani has commenced works on its mine site which appear to be in excess of what their approvals allow.

Aerial imagery collected by conservation group Coast and Country, and reported to media today, appear to show the construction of bores consistent with the planned location of Adani’s advanced dewatering bores.

Adani’s environmental approval prevents the commencement of ‘Stage 2’, which includes commencing dewatering operations, until it has a plan approved to manage the impacts on nearby springs (the Groundwater Dependent Ecosystem Management Plan, or GDEMP).

As the government has not approved the GDEMP, commencement of dewatering operations is a breach of the conditions of approval.

It is reported that the Queensland government is investigating.

What is at risk?

The Carmichael Coal Mine (the Mine) is near a unique spring ecosystem called the Doongmabulla Springs. The Doongmabulla Springs is a nationally significant wetland of ‘exceptional ecological value’[i] which is home to 11 endangered or vulnerable species.[ii] The springs have cultural significance to local indigenous groups and have been described by ecologists as one of the world’s last remaining pristine oases.

However the source of water for the Doongmabulla Springs remains a mystery.[iii]  One leading theory is that source of water for the springs is the coal seams for the Mine.[iv]  If so, ‘dewatering’ (removing water from) the coal seams for the mining operation will likely cause the Doongmabulla Springs to be lost.[v] The loss of the ecological community from the Doongmabulla Springs cannot be effectively replaced.[vi]

Therefore, identifying the source of water for the Doongmabulla Springs is critical to considering any potential impact of the Mine.[vii]

What do Adani’s approvals allow?

Adani’s environmental conditions require approval of a Groundwater Dependent Ecosystems Management Plan (GDEMP), which must include research to identify the source of water for the Doongmabulla Springs,[viii] before the commencement of ‘Project Stage 2’. ‘Project Stage 2’ is defined to include ‘site clearance’, ‘new access roads’ and ‘commencing dewatering operations’.[ix]

As at 23 August 2018 the GDEMP had not been approved, meaning Adani could not commence ‘Project Stage 2’ before that date.

View:  3_-_Plan_of_Operations_-_Adani_Mining_Pty_Ltd.pdf and 4_-_Adani_Mining_EPML01470513_2018_Annual_Return.pdf

What is Adani alleged to have done?

Coast and Country has published aerial imagery evidence indicating significant ground disturbance for the construction of six bores on the Mine site, including related site clearance, construction of new access roads, and commencement of dewatering operations.   These bores are in the locations identified in Adani’s plan of operations as dewatering bores, and described as ‘trial dewatering bores’.[x] Five of these bores are now publicly registered.[xi]

These activities appear to satisfy the definition of commencing ‘Project Stage 2’ prior to the approval of the GDEMP, in breach of the environmental approval and the Environmental Protection Act 1994 (Qld) (EPA).

It is also an offence under the EPA to provide the Department of Environment and Science (DES) with a document containing information that a person knows, or ought reasonably to have known, is false or misleading in a material particular.[xii]

Adani is required to submit an annual return each year to the DES that reports its compliance with the conditions of its environmental authority as well as the progress of activities causing disturbance.[xiii]

Adani’s annual return submitted on 22 March 2018 stated that the ‘actual’ and ‘planned’ disturbance areas are zero for the annual return period ending on 2 April 2018.[xiv]

However, the aerial imagery published by Coast and Country indicates that large areas of land have been actually disturbed before 2 April 2018 and Adani’s plan of operations at the time showed a further 114 ha that was planned to be disturbed before 29 September 2018.[xv]

What this means for Adani

The Magistrates Court has been reported to say:

[A]n environmental authority is a conditional licence to carry out environmentally relevant activities and, in exchange for the privilege associated with the authority, the community through the department and the legislative regime expects strict compliance with the authority and condign punishments for non-compliance with the authority.[xvi]

The public will expect that the DES will enforce the EPA and protect the springs.

There are a variety of enforcement tools that the DES can use to enforce compliance with the EPA. These include Environmental Protection Orders to secure compliance, civil proceedings for Court orders to remedy or restrain the offence, criminal prosecutions for certain offences and issuing a penalty infringement notice where the breach is clear (as it did after Adani’s associated entity allegedly breached its Temporary Emissions Licence at the port of Abbot Point.)

Contraventions of the EPA also form part of the ‘environmental record’ which the Department can rely on to cancel or suspend a suitable operator registration.[xvii]   

An example enforcement is when the former Department of Environment and Heritage Protection (DEHP) used its powers under Chapter 5, Part 6 EPA, unilaterally amended the conditions of Cougar Energy Ltd’s (Cougar) environmental authority to require the Company to decommission and rehabilitate its gas project site during the concurrent criminal prosecution of offences by Cougar against the EPA.[xviii]  

A further example is Queensland’s government’s prosecution of Linc Energy Ltd for multiple alleged offences under the EPA.

EDO Qld would expect DES to take the evidence presented by Coast and Country very seriously and undertake its own investigations to independently determine whether DES agrees that the law has been breached.  If DES agrees that Adani has broken the law, EDO Qld would expect DES to take enforcement action to ensure compliance with the law.

___

[i] Adani Mining Pty Ltd v Land Services of Coast and Country Inc & Ors [2015] QLC 48 [267], [317].

[ii] https://wetlandinfo.ehp.qld.gov.au/wetlands/facts-maps/diwa-wetland-doongmabulla-springs/.

[iii] Department of Science, Information Technology and Innovation. 2016. Lake Eyre Basin Springs Assessment Project: Hydrogeology, Cultural History and Biological Values of Springs in the Barcaldine, Springvale and Flinders River supergroups, Galilee Basin and Tertiary Springs of western Queensland (LEBSA). Page 163 -194.

[iv] LEBSA page 174-175.

[v] Adani Mining Pty Ltd v Land Services of Coast and Country Inc & Ors [2015] QLC 48 [267], [295-6] and [322]; John Webb (2015) Expert report on Groundwater Impacts to the Land Court. Para [55] available at http://envlaw.com.au/wp-content/uploads/carmichael9.pdf

[vi] Adani Mining Pty Ltd v Land Services of Coast and Country Inc & Ors [2015] QLC 48 [322].

[vii] LEBSA page 193.

[viii] Environmental Authority EPML01470513 dated 5 June 2017, definition of Groundwater Dependent Ecosystems Management Plan, available at https://environment.ehp.qld.gov.au/env-authorities/pdf/epml01470513.pdf

[ix] Environmental Authority EPML01470513 dated 5 June 2017, definition of Project Stage 2, available at https://environment.ehp.qld.gov.au/env-authorities/pdf/epml01470513.pdf .

[x] Adani (September 2017) Plan of Operations Carmichael Coal Project, p 111, Appendix A – Mine Domain Borefield Layout; and page 8.

[xi] http://resources.information.qld.gov.au/groundwater/reports/borereport?gw_pub_borecard&p_rn=165581 , http://resources.information.qld.gov.au/groundwater/reports/borereport?gw_pub_borecard&p_rn=165582   

http://resources.information.qld.gov.au/groundwater/reports/borereport?gw_pub_borecard&p_rn=165584

 http://resources.information.qld.gov.au/groundwater/reports/borereport?gw_pub_borecard&p_rn=165583

 http://resources.information.qld.gov.au/groundwater/reports/borereport?gw_pub_borecard&p_rn=165580

[xii] Environmental Protection Act 1994 (Qld) (EPA) s 480.

[xiii] EPA, s 308.

[xiv] Adani’s ‘Annual Return’ for the period 3/4/17 – 2/4/18, page 4.

[xv] Adani (September 2017) Plan of Operations Carmichael Coal Project, Table 3, p 75.

[xvi] Department of Environment and Science ‘Prosecution Bulletin no.3/2018’ (March 2018) 2.

[xvii] Definition of ‘environmental record’ in Environmental Protection Regulation 2008 (Qld) schedule 1(6).  

[xviii] Cougar Energy Limited v Debbie Best, Chief Executive Under the Environmental Protection Act 1994 [2011] QPEC 150.

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

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