It’s not just impacts to groundwater that are unclear in the Oakey Coal Action Alliance cases - it’s also who has the power to hear and assess potential impacts to groundwater. Ahead of two separate cases, find out how the new Associated Water Licences (AWLs) have thrown a spanner into the legal mix.
Following New Acland Coal Pty Ltd’s (NAC’s) mining objections hearing, the Land Court found on 31 May 2017, amongst other things, that the proposed impacts to groundwater from NAC’s mine expansion were unacceptable and should not be allowed.
In the Land Court case, the largest public interest case in the Court's history, NAC were given more than one opportunity to put-forward groundwater evidence, and failed to convince the Member there would be no significant impact each time.
At the time, farmers like OCAA’s Noel Wieck, who run an award-winning dairy farm with his children and grandchildren near Acland, thought his decade-long worry his legacy's groundwater supplies would be lost or damaged forever at the hands of the expansion were over.
The Department of Environment and Science (DES) followed the Land Court’s recommendation to refuse the environmental approval on 14 February 2018.
NAC appealed the Land Court’s decision to the Supreme Court, which found that groundwater supply was outside of the scope of the Land Court’s jurisdiction for mining objections hearings on 28 May 2018.
The Supreme Court held that this was largely because NAC is required to obtain an Associated Water Licence (AWL), which is a separate approval from NAC’s mining leases and environmental authority (the subject of the Land Court’s mining objections hearing).
It should be noted that not every coal mine in Queensland will need an AWL. The AWL framework arose through changes in legislation commencing in 2016, which EDO Qld was heavily involved with (read more here).
It is unclear how many mines will be required to obtain an AWL, as it depends on the timing of a mine’s approval processes. For example, Adani was required to obtain an AWL for its Carmichael Coal Mine (read more here).
In its appeal, OCAA contends that groundwater supply was within the Land Court’s jurisdiction for NAC’s mining objections hearing, despite the requirement for NAC to also obtain an AWL.
Put simply, this is because the legislative framework for the grant of NAC’s mining leases and environmental authority mandates a full assessment of the environmental impacts of the project, including a determination as to whether it is in the public interest that the project takes place.
How can the environmental impacts of the mine be fully considered and balanced with other considerations, such as the economic benefits of the project, if groundwater supply is excluded from consideration?
There’s a lot at risk. As Noel says: “The quality of our dairy produce is attributable to the physical characteristics of our property, and the basalt character of the country. Thousands of hectares on adjoining properties who all have livestock enterprises might encounter permanent damage to their underground water supplies if this expansion goes ahead.”
On 20 June 2018, the Land Court published directions outlining the procedure for the remitted Land Court hearing, accessible here. The Land Court did not grant Oakey Coal Action Alliance’s (OCAA’s) request for an adjournment of the matter pending the outcome of its appeal to the Court of Appeal. The hearing date for the appeal is TBA.