Natural Resources & Mining
Getting to First Coal - It's Not Mission Impossible
An overview of the rapidly evolving laws and policies regulating the approvals required to develop a coal mine in Australia
Getting to First Coal | 1
Over the past several years the protest activities of a variety of interest groups regarding the development of fossil fuel projects in Australia has stepped up remarkably. Several New South Wales projects, in particular, have seen civil unrest; for example, Maules Creek (coal), Narrabri/Piliga (CSG) and Lismore/Bentley (conventional gas). The Maules Creek coal project is reviewed in this paper.
It is interesting to speculate as to why this activism has become so pronounced. Concerns about climate change are at the heart of the matter. Emotions are running high in parts of the community. One accelerant is possibly social media. The one line grab, a "meme" and a photo can seemingly influence people much more than a relatively dull dissertation of facts on a contentious matter.
There is no climate change hurdle or gateway in either a state or federal approval process.
Green activism is moving away from project sites and into the central business district with direct communication with investors and lenders.
This paper limits the analysis to the coal sector and to New South Wales, Queensland and the Commonwealth laws.
The laws and associated policies have been changing at a rapid pace as state and Commonwealth Parliament is endeavouring to get the balance right. Hurdles and "gateways" have been rapidly created to add scientific rigour to the approvals process. Large areas of land are "off limits" and competing land use recognised. Water has an increasing prominence. As the hurdles increase and gateways arise the potential for duplication of red and green tape has been recognised and moves are afoot to reduce duplication between state and Commonwealth approval processes.
In times of political impasse, as we have seen in Australia of late, the electoral pressure of marginal seats and the balance of power in the Senate has particular significance in this debate. Parliament has been very reactive to green activists. It would appear that certain aspects of the approvals process are now moving back in favour of fossil fuel project proponents.
A trade off for increased regulation appears to be a growing limitation on the appeals process. However, from the proponents' viewpoint, the increase in hurdles and gateways adds significantly to delays in obtaining an approval.
The governments are seeking to strike a balance of interests of the electorates - but balance is in the eye of the beholder.
The words and expressions "greens", green activists and green politicians are not used in the pejorative. It is merely the name given colloquially to the various people and bodies that are described in this paper. I suggest that in reality most members of society are "green" to a certain extent and concerned about the environment. It is just that they do not display their concerns in an activist manner nor do they share all aspects of the concern.
For further information
Philip Christensen Partner
T: +61 7 3069 6210 E: Philip.Christensen@ bakermckenzie.com
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Part 1 - Recent Regulation of Coal Projects in New South Wales and Queensland
Setting the Scene
Concerns about climate change are at the heart of the current protest activity. The granting of project approvals involves a balancing act. In my view, for many people associated with the climate change movement, the "balance" will never be "right" until the world stops burning coal.
This has led to comment by a number of coal mining executives including Mr Paul Flynn, the CEO of Whitehaven Coal Ltd and Mr Greg Boyce, Chairman and Chief Executive Officer of Peabody Energy, to comment on this as "green imperialism".
On the basis that coal as an energy source will be the dominant fuel well into the future, the "green dream" of cessation of fossil fuel combustion will not be fulfilled in our lifetime.
Consider the following.
Thermal coal is the world’s fuel of choice for electricity generation – accounting for 41% of all generation – because it is reliable and affordable. Metallurgical coal is also an essential ingredient in the manufacture of steel and cement.
Coal benefits all Australians through its contribution to exports, wages, investment and tax and royalties revenue.
Coal is Australia’s second-largest export earner (after iron ore) and the largest export industry in both Queensland and New South Wales.
According to the Bureau of Resources and Energy Economics (BREE), export volumes of coal will rise to 372 Mt in 2013-14, an increase of 11% from 2012-13.
Similarly, in the International Energy Agency’s core scenario, Australia’s coal production grows by almost 50% between 2011 and 2035 (compound average annual growth rate of 1.7 percent), driven by rising exports1.
In Australia the share of grid electricity is as follows2:
* B Comm, LLB (NSW); Baker & McKenzie, Lawyers, Brisbane.
1 Minerals Council of Australia, Coal Hard Facts, 6 http://www.minerals.org.au/file_upload/files/resources/coal/Coal_Hard_Facts.pdf
2 Ibid 1
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Electrification also means that fewer people must rely on wood, crop residues and animal waste as their main cooking and heating fuels:
Increasing life expectancy by reducing exposure to noxious fumes from indoor biomass stoves. Household air pollution from solid fuels contributes to 3.5 million premature deaths per year from respiratory disease – more annual deaths than from HIV/AIDS and malaria combined in sub-Saharan Africa.
Freeing up hours for farming and education that would otherwise be spent gathering fuel.
Reallocating crop residues and dung from household use to more productive employment as fertiliser.
The International Energy Agency (IEA) expects global energy demand to increase by one-third by 2035, with developing economies contributing 90% of this growth.3
This growth will be driven by developing economies and centred in electricity generation, with nearly three-quarters of the increase in world coal demand coming from the power sector.
Further perspective to the debate was provided by Mr Harry Kenyon-Slaney, a senior executive of Rio Tinto. As reported in the Australian Financial Review (10 September 2014), Mr Kenyon Slaney noted that "Australians seem to have exaggerated notions of our 'relative significance' in the coal cycle".4
He reports that, "Global thermal coal production is 7000 million tonnes annually. China digs and consumes half of this. It runs 13,900 coal mines. Australia exports just under 200 million tonnes a year. That represents just 3% of annual production. We have 73 thermal coal mines. Coal supplied 80% of electricity in China and 70% in India".
The picture is quite clear:
Coal is here to stay for a very long time.
Australian coal production is very small compared to global production.
Australian greenhouse gases are a very small part of the planet's GHG emissions.
Coal is vital to the strength of the Australian economy.
Coal/electrification is vital to the health and general welfare of millions of people in developing countries.
3 Minerals Council of Australia, Coal Hard Facts, 19 http://www.minerals.org.au/file_upload/files/resources/coal/Coal_Hard_Facts.pdf
4 Matthew Stevens, 'The Burning Question of Coal' Australian Financial Review, 10 September 2014
Brown coal 24.90%
Black Coal 50.40%
Black Coal 90.30%
NSW & ACT
Black coal 76.50%
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When writing about "balance" I cannot help but observe that the green activists and green politicians seldom appear to consider fossil fuels in a balanced manner. It is a simple Orwellian chant akin to "four legs good, two legs bad". Climate change activists and green politicians do not promote an economic alternative considered feasible to closure of the fossil fuel industry. They appear not willing to debate the use of cleaner coals, technology around carbon capture and storage or the full cost of renewables and alternative energy sources. I believe a more sophisticated debate would benefit all stakeholders.
The zealotry of the climate change activists and green politicians will not be reduced. So, in my opinion, challenges to fossil fuel projects will continue. There is no acceptance of balance by many activists and green politicians. There is seldom recognition given to community concerns of jobs, health and better welfare both locally and overseas.
For other stakeholders such as farmers and people in communities close to fossil fuel projects, there should be much more satisfaction about the balance of their interests. This paper will outline the significant protections now afforded these sections of the community.
"Stopping the Australian Coal Export Boom"5
This manifesto sets the tone for much of the NGO activities in the coal sector over the past several years. It is dated November 2011. The manifesto is a proposal to fund the strategy of the "green movement" apparently promoting the strategy. It is all about climate change.
The strategy of the "Stop the Boom" movement is:
"Our strategy is to 'disrupt and delay' key projects and infrastructure while gradually eroding public and political import for the industry and continually building the power of the movement to win more."6
The "Stop the Boom" manifesto continues:
By prioritising infrastructure campaigns, our aim is to delay the proposed increase in port capacity substantially (by several years). While it is not yet possible to quantify the long term impact we might have, we aim to severely reduce the overall scale of the coal boom by some hundreds of millions of tonnes per annum from the proposed 800Mtpa increase."7
It is noteworthy to consider the "green imperialism" point as the "Stop the Boom" manifesto clearly seeks to restrict "coal supplies for a new generation of coal power stations in India …"8
In view of the undeveloped state of electrification in India, Africa and many other developing countries, little wonder the indifference of green activists and green politicians to suffering in such developing countries raises a moral point to many. That issue is not considered in the "Stop the Boom" manifesto.
The manifesto lists a large number of NGOs who developed the proposal. NGO's are listed in Appendix 2.
5 Bob Burton, Sam Hardy, and John Hepburn, Stopping the Australian Coal Export Boom (2011) https://www.qrc.org.au/_dbase_upl/stoppingtheaustraliancoalexportboom.pdf
6 Ibid 3
7 Bob Burton, Sam Hardy, and John Hepburn, above n 2, 6.
8 Bob Burton, Sam Hardy, and John Hepburn, above n 2, 3.
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It is worth extracting the six elements to the strategy of the "Stop the Boom" movement9.
1. Disrupt and delay key infrastructure
Challenge and delay key infrastructure developments (ports and rail and 'mega mines').
2. Constrain the space for mining
Build on the outrage created by coal seam gas to win federal and state based reforms to exclude mining from key areas, such as farmland, nature refuges, aquifers, and near homes. Landowners locking the gate.
3. Increase investor risk
Create uncertainty and a heightened perception of risk over coal investments.
4. Increase costs
Increasing the cost of coal is fundamental to the long-term global strategy to phase out the industry. We can start to remove the massive subsidies to the coal industry, and to internalize the ‘externalized’ costs of coal.
5. Withdraw the social license of the coal industry
Change the story of coal from being the backbone of our economy, to being a destructive industry that destroys the landscape and communities, corrupts our democracy, and threatens the global climate.
6. Build a powerful movement
Create stronger networks and alliances and build the power necessary to win larger victories over time.
As regards the use of the law, the "Stop the Boom" manifesto provides:
1. Mount legal challenges to the approval of several key ports, mines and rail lines (Level 1);
2. Run legal challenges that delay, limit or stop all of the major infrastructure projects (mines, rail and ports) that have been identified as a high priority in the strategy (Level 2);
3. Create a platform for public campaigning around these projects and on the wider issue of coal regulation (Levels 1 and 2);
4. Push climate change law in Queensland and New South Wales so future climate change cases are more likely to succeed (Levels 1 & 2).
"Legal challenges will draw on a range of arguments relating to local impacts on wetlands, endangered species, aquifers and the World Heritage Limited Great Barrier Reef Marine Park as well as global climate impacts".10
By disrupting and delaying key projects, we are likely to make at least some of them unviable. Delaying some projects will also help to delay others. We are confident that, with the right resourcing for both legal
9 Bob Burton, Sam Hardy, and John Hepburn, above n 2, 5.
10 Bob Burton, Sam Hardy, and John Hepburn, above n 2, 6.
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challenges and public campaigning, we can delay most if not all of the port developments by at least a year, if not considerably longer, and may be able to stop several port projects outright or severely limit them".11
The "Stop the Boom" manifesto includes a detailed budget and concludes with a list of projects which it would appear are key targets. These projects are: Project Name Proponent
Alpha (Tad's) Coal Mine
GVK & Hancock
Galilee Coal ("China First")
Carmichael Coal Mine & Rail
South Galilee Coal Project
Bandana & AMCI
Goonyella to Abbot Rail
Balaclava Island Coal Terminal
Abbot Point MCF
Abbot Point T2 (x80)
NQBPC / BHP
Abbot Point T3 (x110)
NQBPC / Hancock
Abbot Point T4-7 (x230)
Hay Point (Dudgeon Point)
NQBPC / DPPM
Fitzroy Terminal Project
New South Wales
T4 Newcastle port expansion
Port Waratah Coal Services
11 Bob Burton, Sam Hardy, and John Hepburn, above n 2, 6.
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Coal and Allied / Rio Tinto
Hunter Valley Operations Complex
Coal & Allied/Rio Tinto
Moorlarben Coal - Stage 2
Maules Creek Coal Project
Cobbora Coal Mine
New South Wales Government
As for funding, the "Stop the Boom" manifesto sets out a budget in some details. It also acknowledges the "generous support of the Rockefeller Family Fund".12
The Queensland Government has reacted to this use of the law as a device as set out in the "Stop the Boom" manifesto. On 9 September 2014, the Queensland Parliament passed the Mineral and Energy Resources (Common Provision) Act 2014. This law severely restricts rights to object to mining lease applications and limits the powers of the Land Court so it may consider only the impacts of a proposed mine or those directly affected by a proposed mine. The Queensland Minister for Natural Resources and Mines, the Hon. Andrew Cripps said, in commenting on certain cases that had been before the courts, "These cases were a waste of valuable time and resources and are proof of the disruptive claims peddled time and again by green groups, whose sole purpose is to shut down the resources sector and deny Queenslanders jobs and royalties".13
It is interesting to note that the "Stop the Boom" manifesto does not consider any benefits that a fossil fuel project might bring to a community - local, state, Australia or overseas.
There is no expressed regard for the impacts on people in less developed countries who seek substantial electrification of their communities to advance their health, prosperity and well being.
12 Bob Burton, Sam Hardy, and John Hepburn, above n 2, 2.
13 Melinda Howells 'Anger Over Mining Approval Changes' ABC News 10 September 2014 http://www.abc.net.au/news/2014-09-10/anger-over-mining-approval-changes/5733882
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The "Stop the Boom" manifesto sets the tone for one side of the "balance". The counter-balance at the other end are the fossil fuel proponents. In the middle (the fulcrum) is the government - straddled either side by the community.
The role of government is to determine the best interests of society. This is obviously a balance of all the competing interests within society - and includes an intergeneration scope.
It is fundamental, in a modern western democratic society as found in Australia, that the government is accepted as the person or institution that sets the balance among competing interests. This does not mean that the government should not or cannot be challenged - of course it should and is regularly challenged.
The role of environmental activists is long recognised by government. Thus, for example, s45D of the Australian Competition Law provides a defence if the dominant purpose of the boycotting person was related to environmental protection. Another example is the standing afforded by various legislation to a "green group" in a legal challenge to an approval for a fossil fuel development.
Freedom of speech and assembly are laudable notions. But the question being asked by coal project proponents is where does freedom of speech and freedom of assembly turn towards anarchy?
Putting it more simply - if the umpire's decisions are not accepted, then it is no longer a game played by the rules. Yet the rules are the determinants of our civil society. I believe the community will not condone civil disobedience against coal mining projects. That this issue is serious is evidenced by the U.N. Climate Summit held in New York in September 2014. It was attended by 100 Heads of Government and joined by more than 800 leaders from finance, business and civil society. The purpose of the summit as expressed by Chairman Ban Ki-Moon was to “raise political momentum for a meaningful universal climate agreement in Paris in 2015 and to galvanize transformative action in all countries to reduce emissions and build resilience to the adverse impacts of climate change”.14
I submit that as the depth and breadth of law, regulation and policy as developed over the past few years has substantially increased the burden of acquiring a coal mining approval ("raising the bar") then a trade-off should be the acceptance by the competing interests of a proponent who has complied with the rules and obtained a favourable decision.
Climate change activists
Fossil Fuel project proponents
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Unfortunately this is not well accepted by many green NGOs and green politicians and as they seek to move society toward the goal of complete cessation of coal mining. If this continues, civil unrest may follow, as Tony Windsor has observed.15
15 'Windsor - "Hold Firm on Water Trigger"' The Northern Daily Leader 26 August 2014 http://www.northerndailyleader.com.au/story/2513095/windsor-hold-firm-on-water-trigger/
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Government Response to Community Concerns Regarding Coal Mining Projects Including Climate Change - Resetting the Balance
New South Wales
The following are the more significant recent changes to the environment and planning laws in New South Wales affecting the coal mining sector:
Repeal of Part 3A of Environmental Planning and Assessment Act 1979 (NSW) (EP&A Act)
State Significant Development concept
Planning Assessment Commission
Strategic Regional Land Use Plans and associated "Gateway" process
Agricultural Impact Statements
Aquifer Interference Policy
Mining State Environmental Planning Policy amendment ("Resource Significance SEPP").
Biodiversity Offsets Policy for major projects
While this paper does not seek to examine these reforms in detail, the following overview highlights the general nature of the reform. This is important because these reforms highlight that the government has been highly reactive to fossil fuel projects and is seeking to get the balance right.
Repeal of Part 3A of EP&A Act and State Significant Development Concept
Part 3A of the EP&A Act has been repealed. Part 4 of the EP&A Act becomes the new planning law for coal mines.
On October 1, 2011 the EP&A Act was substantially amended and with particular focus on large fossil fuel projects. As a result, all new coal mining developments are a State Significant Development (SSD) under the new provision. The Minister for Planning can determine other projects to be a SSD.
Another significant feature is the introduction of a Planning Assessment Commission (PAC). Importantly for coal mining proponents, if the PAC holds a formal public hearing then there is no judicial merits appeal for a decision of the PAC.
The current practice of the PAC is to conduct public hearings.
Maules Creek coal mine was subjected to the PAC process under transitional provisions hence there were no merits appeal to the PAC approval. A public hearing was held for several days. Contrast this with an "older" Part 3A application in relation to Warkworth coal mine in the Hunter Valley in New South Wales.
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In the case of a merits appeal, the Land and Environment Court "… stands, metaphorically speaking, in the shoes of the Minister and determines for itself, on the facts and law that exist at the time of determination of the appeal, whether to approve or disapprove the application for the Project".16
Much debate exists as to whether the Court is the appropriate forum to decide the merits of a coal mine development. In the case of Warkworth mine, the Land and Environment Court delivered its judgment on 15 April 2013. This was more than three years after the project application was lodged and more than one year after the PAC approval. The proponent (Rio Tinto) has expressed considerable concern.
It is not intended in this paper to examine the reasoning of Preston CJ. Rather, to note that since this decision, the New South Wales Government has introduced a new planning regulation the "Resource Significance State Environmental Planning Policy".
The "balance" has possibly swung in favour of a coal mine proponent by eliminating a merits appeal in the circumstances discussed above. One criticism of this issue is that public hearings are a poor substitute for a full court review. On the other hand, the PAC process and other reforms has significantly informed the community of all the key issues.
Planning and Assessment Commission
The PAC is constituted under Schedule 3 of the EP&A Act as an independent panel of experts in planning and other relevant areas.
The key functions of the PAC are to:
Determine major projects such as coal under delegation from the Minister;
Review any such major projects including conducting public hearings;
Provide independent expert advice on planning and development matters.
The Minister's delegation requires a PAC review where political donations have been declared by a proponent, a local council has objected or more than 25 objections were received by the Department of Planning and Environment.
Clearly the PAC process has been introduced to allow the community to see a non-political and transparent assessment process.
The introduction of the PAC has added scientific and independent rigour to the approval process. While this is commendable, a proponent looks carefully at the time taken to go through the PAC process. The number of submissions received can be very significant and especially so if the proponent is required to address submissions. Many submissions are detailed and well considered. Many others appear as somewhat "form" submissions drawn up from a template prepared by a project opponent.
Virtually all submissions are negative - as expected. As previously mentioned, one very important feature of the PAC process is that there is no merit based appeal to a court from a PAC determination that has had a public enquiry. The New South Wales Government considers the public involvement in this exhaustive, open and transparent process dictates that the PAC decision should be final. Contrast the Warkworth coal mine
16 Bulga Milbrodale Progress Association Inc v Minister for Planning and Infrastructure and Warkworth Mining Limited  NSWLEC 48,7.
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extension project. A fossil fuel proponent will see a trade off between the extra time taken to go through the PAC process and the fact of no merits appeal.
Unfortunately, as is evident from the Maules Creek experience, parts of the community or at least the green activist element, refuse to accept the "umpire's decision". The umpire in that case has been the PAC (at the state level) and the Minister for the Environment (at the federal level under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (the EPBC Act)).
At Maules Creek approximately 100 people have been arrested since the PAC determination. Most are charged with unlawful entry on inclosed lands under the Inclosed Lands Act 1901 (NSW). Some are charged with "hindering mining equipment" under s201 of the Crimes Act 1900 (NSW). Activists typically are fined $300-$400 and acquire a criminal conviction.
This is the actual arrested activists. There has been significant protest activity at the site, in the local areas and in the Sydney CBD. To date there have also been three court challenges. All as contemplated by the "Stop the Boom" manifesto.
Strategic Regional Land Use plans and associated "Gateway" process
The New South Wales Strategic Regional Land Use Plans were announced on 11 September 2012 and include the introduction of the Strategic Regional Land Use Policy, with a proposed objective to balance the growth of mining and coal seam gas industries, with the protection of state agricultural land and water resources. The Strategic Regional Land Use Plans created the Land and Water Commission, introduced to perform a community advisory role overseeing exploration across New South Wales (discussed in more detail later in this paper).
An associated Gateway process was established as a result of this initiative to further protect agricultural land and water.
New South Wales has mapped most of the state as to its agricultural and water significance. The policy was stated by the New South Wales Government to "set out a range of initiatives to better balance growth in the mining and coal seam gas industries with the need to protect agricultural land and water resource"17 (emphasis added).
Should the land, the subject of a coal mine development application fall within strategic agricultural land then it must be assessed via the Gateway process.
Strategic agricultural land comprises:
Bio-physical strategic agricultural land - based on the inherent qualities of the land; and
Critical industry clusters - based on the land's importance to viticulture and the equine industry.
Note that this Strategic Regional Land Use Policy applies to both coal and coal seam gas.
The Gateway process focusses solely on the scientific assessment of land and water impacts of the project located on strategic agricultural land. This includes potential aquifer impact. Advice is sought from, amongst others, the Commonwealth Independent Expert Scientific Committee (IESC). This IESC also is the review
17 Department of Premier and Cabinet, Central West Regional Action Plan NSW 2021 (2012) 2
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body for, inter alia, water impacts under the EPBC Act. The early involvement of the IESC should reduce duplication if the EPBC Act is triggered.
Applications have been received by the New South Wales Department of Planning for the following coal projects:
Spur Hill Underground Coking Coal project
Bylong Coal project (Kepco)
Drayton South Coal mine (Anglo Coal)
Watermark Coal mine (Shenhua)
Caroona Coal mine (BHP Billiton)
In the case of Watermark and Drayton South, reviewing the applications undertaken by the Gateway panel indicates that it is indeed a highly comprehensive and scientific exercise that is undertaken. Interestingly, none of the above projects received unconditional Gateway certificates. If a conditional Gateway certificate is issued, the project can proceed through the development approval stage for a full merit assessment (via a PAC). The environmental impact statement will be required to address the matters raised in the Gateway certificate.
The Gateway panel, in the case of the Drayton South Coal project, in its 10 December 2013 report, was concerned with nearby critical industry clusters both equine and viticulture. In the case of the equine cluster, the panel stated, "…that open-cut coal mining as proposed at Drayton South and thoroughbred horse-breeding studs of the nature, scale and importance of Coolmore and Woodlands (Darley), are incompatible land uses that cannot co-exist in close proximity. Potential impacts of the proposed mine would be significantly deleterious to these horse studs and the equine cluster, to the extent that it may clause the studs to exit the region and demise of the cluster".18 The panel went on to suggest that an appropriate distance of buffer land between the equine business and the mining activities proposed could be a mitigation strategy.
By way of further example, in the case of the Caroona Coal project where a Gateway certificate was sought by BHP Billiton, the Gateway panel certified that in their opinion none of the relevant criteria of the State Environmental Planning Policy 2007 (SEPP 2007) were satisfied. The Gateway panel made a range of recommendations in relation to the relevant criteria.19
It is worth considering the time taken by the Gateway panel to consider these applications. The cost to the proponent in terms of expert report and delay is not known. However, if the proponent has contracted take or pay obligations for rail or port capacity associated with the proposed development then months of delay, can be very expensive. Green activists are well aware of this.
18 NSW Government, Mining & Petroleum Gateway Panel, Drayton South Coal Project Advisory Report (December 2013)
19 NSW Government, Mining & Petroleum Gateway Panel, Report by the Mining& Petroleum Gateway Panel to Accompany a Conditional Gateway Certificate for the Caroona Coal Project (July 2014)
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Spur Hill Underground Coking Coal project
16 December 2013
19 March 2014
Bylong Coal project (Kepco)
10 January 2014
15 April 2014
Drayton South Coal mine (Anglo Coal)
13 November 2013
10 December 2013
Watermark Coal mine (Shenhua)
(By Director-General) 13 November 2013
10 January 2014
Caroona Coal mine (BHP Billiton)
3 April 2014
7 July 2014
In several of these applications, the IESC advice was sought and delivered within this timeframe. So too, advice from the New South Wales Office of Water.
The Strategic Regional Land Use Policy also introduced reforms for mineral exploration in New South Wales. The Land and Water Commissioner, a position created by this policy, has oversight and a community advisory role with respect to mineral exploration across New South Wales. The Commissioner has the ability to review exploration approvals. In this regard, note the Metgasco case study referred to later in this paper.
For members of the community who are concerned about horse breeding, groundwater and underground water, the wine industry and strategic agriculture more generally, the New South Wales Strategic Regional Land Use Policy is a very significant "re-balancing" in their favour.
It is interesting to observe how the IESC on Coal Seam Gas and Large Coal Mining Developments has been utilised at both a state and federal level. Indeed a review of the summary of advice provided to regulators at http://iesc.environment.gov.au/advice/proposals.html indicates that a large number of projects have been reviewed by the IESC largely in Queensland and New South Wales. The only other project in the interim report was in Western Australia. In all 74 projects have been reviewed from the period 2012 to 2014.
Further reference is made to the IESC in relation to the EPBC Act below.
Agricultural Impact Statements
The requirement for Agricultural Impact Statements was introduced as a by-product of the Strategic Regional Land Use Policy on 11 September 2012.
An Agricultural Impact Statement is necessary for all activities requiring a Review of Environmental Factors under the Mining Act 1992 and Petroleum (Onshore) Act 1991, and is requested at the exploration and development stages of a proponent's application.
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Community consultation plays a significant role in the development and assessment of an Agricultural Impact Statement. Proponents are required to create an engagement strategy that promotes communication between the industry, impacted landowners, and the surrounding community.
When implemented effectively, the concerns of the community are addressed, and the impact statement reflects the proponent's degree of community consultation.
The key concern of the agricultural community is water. This impact is dealt with in more detail under the Aquifer Interference Policy.
The effectiveness of a proponent’s engagement strategy and community consultation will be considered during further and additional application stages.
The level of detail in an Agricultural Impact Statement will directly reflect the likely scale of impact of the proposed activity, meaning smaller projects will not be unfairly burdened with strict and overly thorough requirements.
Aquifer Interference Policy
The Aquifer Interference Policy took effect in New South Wales in September 2012. It is a key part of the Strategic Regional Land Use Policy. The objective of the policy is to protect water reserves in New South Wales by assessing likely impacts associated with aquifer interference activities which include mining activities.
There are three key requirements at the foundation of the Aquifer Interference Policy:
Account for or prevent the taking of water;
Address the minimal impact considerations;
Propose remedial actions in the event actual impact is greater than predicted.
Through the policy, proponents are required to account for water usage and prepare information for the Minister. The Minister uses this information in assessing the project proposals, guided by the Water Act 1912 and Water Management Act 2000.
For a coal mining project, the New South Wales Office of Water will consider the proposed development against the Aquifer Interference Policy.
In the event the project falls within Strategic Agricultural Land then the Gateway panel must assess water issues against the Aquifer Interference Policy.
Under the SEPP 2007, the Minister for Primary Industries must provide advice to the Gateway panel on aquifer impacts. This is done through the New South Wales Office of Water.
As described above, the Gateway panel takes advice from not only the Minister but also the IESC.
For persons in the community who are directly concerned with water use in particular, farmers, this comprehensive policy should largely eliminate their concerns as to the impact on their farmland of a coal project. The studies undertaken are thorough, scientific and independent of the proponent.
However, perhaps the litmus test will be the Shenhua Watermark project in New South Wales. This is the project which the media release of the New South Wales Department of Planning and Infrastructure quoted
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the Acting Director-General as saying, "The Watermark Coal project will be one of the most scrutinised mines in the state's history".20
The PAC released its Review Report in relation to Watermark in August 2014. The report concluded:
"… the Commission is generally satisfied that the site of this proposal .. should be able to be mined without significant impacts to the agricultural productivity of the Liverpool Plains. … The Commission considers that the mine is approvable, subject to some further water modelling to corroborate the predicted level of impact on water .. ".21
The New South Wales Department of Planning and Environment provided its Environmental Assessment Report in May 2014. It noted the exhaustive review process that had been undertaken and concluded:
"The Department has carefully weighed the impacts of the project against the significance of the resource and sociol-economic benefits. On balance, the Department believes that the project's benefits outweigh its residual costs… and that it is in the public interest and should be approved, subject to stringent conditions."22
In light of the activist activity at the Maules Creek mine, which is relatively close by, it will be interesting to see how the approval process continues. A second PAC report (the Application Determination Report) is required to actually determine the application. This may or may not involve further public hearings. Note that in the case of Maules Creek, the first PAC report (Review Report) was dated August 2011 and the second PAC report (the determination) was a year later in August 2012.
Unfortunately, it would appear that NGOs such as the Caroona Coal Action Group will not accept the findings of the PAC. There is no doubt they will be encouraged by the NGOs who support the "Stop the Boom" manifesto.
Mining SEPP amendment (Resource Significance)
Many critics of the Resource Significance SEPP consider it a reaction by the New South Wales Government to the Land and Environment Court decision concerning Warkworth. Part of that decision concerned the economic benefits stated by Rio Tinto (and accepted by the Government) and the review of those economic benefits by Preston CJ - including by contrast to the various environmental impacts.23
The timing of the Resource Significance SEPP as well as its content does appear a direct response by government to the Warkworth merit appeal judgment.
The Resource Significance SEPP came into effect 4 November 2013. The Resource Significance SEPP relates solely, at this stage, to mining proposals under Part 4 of the EP&A Act. The primary purpose of the Resource Significance SEPP is to ensure that the economic significance of the resource (coal) is the principal consideration for the PAC when deciding a development application. The Explanatory Memorandum set out this primary purpose was to be achieved by:
20 Mark Skelsey, 'Unprecedented Scrutiny to Apply to Watermark Coal Project' (Media Release, 28 February 2013)
21 NSW Government, Planning and Assessment Commission, Watermark Coal Project Review Report (August 2014) II
22 NSW Government, Planning and Environment, Environmental Assessment Report (May 2014) 4
23 Bulga Milbrodale Progress Association Inc v Minister for Planning and Infrastructure and Warkworth Mining Limited  NSWLEC 48,7.
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acknowledging the relative significance of each mineral resource to the state and to regions, based on economic benefits, as well as strategic considerations such as alignment with infrastructure provision and inter-dependencies with other industries and development;
ensuring that the balancing of other considerations under the SEPP is done in a manner which is proportionate to the relative significance of the resource;
establishing clear environmental and amenity criteria for resource proposals which are deemed to be acceptable standards.24
The media release by Minister Hartcher (Minister of Resources and Energy) set the political tone in stating that this Resource Significance SEPP would "… deliver greater certainty and confidence for investors and communities and would ensure a balanced assessment of all mining projects. The assessment of major mining projects has always been about balance …"25 (emphasis added)
The following key provisions were set out in the Explanatory Memorandum:26
a new aim (in clause 2 of the Mining SEPP) to promote the development of significant mineral resources, and give the aims of the SEPP effect when a consent authority determines a mining DA;
making the ‘significance of the resource’ the consent authority’s principal consideration under Part 3 of the Mining SEPP when determining a resource DA, and setting out the matters which will assist the consent authority in establishing the resource’s relative significance in comparison with other resources across the state;
identifying non-discretionary development standards under the provisions of section 79C of the Act addressing the following matters - noise, air quality, airblast overpressure, ground vibration and aquifer interference;
clarifying in the SEPP that these standards will, when satisfied, prevent a consent authority from refusing consent to the development on the specific grounds to which the standard relates, but will not prevent a consent authority from regulating the development on other grounds;
ensuring that a consent authority considers any certification by the Chief Executive of the Office of Environment and Heritage that measures to mitigate or offset biodiversity impacts of the proposed development will be adequate; and
minor administrative amendments to improve the structure of the instrument.
The New South Wales Government sees this Resource Significance SEPP as enhancing the approvals process - which it sees as a "merit assessment process" undertaken by the PAC. Clearly the government regards the PAC as the "merits appeal court" not the Land and Environment Court (or any other judicial body).
Opponents to the Resource Significance SEPP argue that prioritisation of economic benefits over other social and environmental impacts is wrong.
24State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) Amendment (Resource Significance) 2013 (Explanatory Memorandum, 2013) 1
25 The Hon. Chris Hartcher, 'Benefits of Mining an Important Part of Planning Assessment Process' (Media Release, 4 November 2013)
26 NSW Government, Planning and Environment, Explanation of the Intended Effect of the Proposed State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) Amendment (Resource Significance) 2013, 1.
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In terms of balance, it appears that the combination of no merits appeal on coal mining projects that have undergone a PAC process with public hearing plus the prioritisation of the coal projects' economic benefits is a significant shift toward the coal mining proponent.
Biodiversity Offsets Policy for Major Projects
The New South Wales Biodiversity Offsets Policy for Major Projects is projected to be phased in over a transitional period of 18 months beginning 1 October 2014. It is applicable to state significant infrastructure and state significant development under the EP&A Act. Accordingly coal mines will be within the scope of this policy.
In New South Wales, a coal mine has been required for some time to address bio-diversity, and possible offsets under the Director-General's Requirements (DGRs) for the project.
Typically, a study would be undertaken during the Environmental Impact Statement (EIS) phase with the final EIS setting out the issues regarding biodiversity destruction, mitigation and to the extent unavoidable destruction, compensating offset areas.
This has been seen as too "unscientific" and variable. Indeed, at the Commonwealth level, the Senate held an inquiry in 2014 into environmental offsets. The report dated June 2014 is by the Environment and Communications Reference Committee. This is attracting state and federal government attention.
The Maules Creek mine has been subjected to all manner of criticism by green activists and green politicians. A case study is set out in Appendix 1. One issue of angst to green activists and the green politicians is the adequacy and effectiveness of the Maules Creek biodiversity offsets.
In New South Wales, the government has changed the "rules" regarding biodiversity offsets through the Biodiversity Offsets Policy. The New South Wales Biodiversity Offsets Policy aims to standardise biodiversity impact assessment and offsetting for coal projects.
The Biodiversity Offsets Policy states that it "… strikes an effective balance between the needs of proponents, communities and the environment"27 (emphasis added).
The idea is that the Biodiversity Offsets Policy will become legislation after 18 months.
A central feature is the establishment of a Framework for Biodiversity Assessment (FBA). This is the tool by which the biodiversity impacts of a project will be measured and the offsets, if applicable, determined.
One feature of the Biodiversity Offsets Policy is that it requires the offsets to be determined by the proponent before a development application is lodged. This, it is suggested, will favour a proponent by being able to plan for the cost of offsets early in the project analysis. Other features that are favourable to a proponent include the ability of a proponent to pay money into a fund to satisfy an offset required rather than having to locate and purchase the offsetting land. This should be financially advantageous to a proponent as too often a proponent is "forced" to pay above market value prices for areas due to the need to have the issue settled in a timely manner. It will also neutralise the arguments over whether the offset land is "like for like".
27 NSW Government, Environment & Heritage, 'NSW Biodiversity Offsets Policy for Major Projects' (10 September 2014) http://www.environment.nsw.gov.au/biodivoffsets/bioffsetspol.htm
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Note that while the Biodiversity Offsets Policy allows variations to the "like for like" offset rule, this is not the case where the issue concerns critically endangered species and communities under the EPBC Act. These must be offset on a "like for like" basis.
Offsets can be acquired after the project commences provided the proponent has entered into a VPA (voluntary planning agreement) prior to the project approval. This too is favourable to the proponent as offset acquisition should be aligned to actual destruction - which will generally be over many years as the project progresses.
Commonwealth Biodiversity Offsets
Coal projects have generally found themselves within the ambit of the EPBC Act because they include a "controlled action". That is, an action which has or may likely have a significant impact on a matter of national environmental significance.28
With the inclusion of the "water trigger" into the EPBC Act (refer below) there is even more scope for coal projects to be assessed under the EPBC Act.
The use of environmental offsets is not specified in the EPBC Act. Rather, the practice of the Department of the Environment has been to include conditions regarding biodiversity offsets for many years.
Since October 2012, the federal government has had an offsets policy under the EPBC Act. Reviewing an approval under the EPBC Act shows that great care appears to be taken in evaluating the threatened flora and fauna and determining the appropriate biodiversity offset.
In the case of Maules Creek, the decision of Minister Tony Burke dated 11 February 2013, is illustrative of this care and consideration. Notwithstanding exhaustive scientific work (including reference to the IESC the biodiversity offset conditions were criticised by many green activists and green politicians. In the Australian Greens Minority Report, Senator Larissa Waters wrote, “Despite a consistent stream of information from community and independent ecological experts, the Department of Environment has been unable to address the fact that Whitehaven Coal's proposed offset areas are woefully inadequate to offset their destruction of the Leard State Forest…The Maules Creek approval is a complete farce and should never have been granted under our national environment law…Minister Hunt must immediately suspend the approval for the Maules Creek coal mine given this information about the gross inadequacy of the so-called ‘offsets’, and Whitehaven Coal should be prosecuted for providing the Government with false information in order to get approval for their environmentally disastrous mine at Maules Creek”.29
This rather emotional response comes notwithstanding an exhaustive review by two governments and many experts.
The Maules Creek conditions regarding biodiversity offsets “provides for the conservation in perpetuity of approximately 13,000 hectares of equivalent or better quality land in exchange for the disturbance of approximately 1,600 hectares of land.”30 The conditions include restrictions on clearing of habitat for threatened species and limitation of project area disturbance, submission of a Biodiversity Corridor plan,
28 Environment Protection and Biodiversity Conservation Act 1999 (Cth) s67
29 Larissa Waters, ‘Australian Greens Minority Report’ Parliament of Australia (2014) [1.11,1.18, 1.19,]
30 Ian McAleese, Michael van Maanen, 'Maules Creek Biodiversity Offsets Package' (ASX Announcement, Whitehaven Coal, 16 April 2014) 1, 2.
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submission of a Conservation and Biodiversity Bond Activities, standards that the offset areas must meet and provision of and implementation of an offset management plan, to name a few.31
In particular, note the condition 11 regarding the need to continue to acquire offset lands until the biodiversity offset area is satisfied. This may sound rather straightforward, but the undertaking to verify offset areas is expensive in that it requires great effort by specialist scientific consultants and to be done properly takes many months. This time is a significant cost that proponents seek to minimise. The complexity of offsets and compliance is a significant cost.
It is not clear what action, if any, will result from the Senate Committee Report. However, while the committee was divided on conclusions and recommendations (Greens in dissent), some of the recommendations of the majority are worth noting because it is the writer's submission that the issue of biodiversity offsets will remain a contentious issue for coal mine proponents for some time to come.
Key recommendations included:
Amendment to the EPBC Act to expressly recognise the EPBC Act Environmental Offsets Policy.
The Environmental Offsets Policy be amended to clarify the principle of additionality.
Offsets not to be required in areas already protected by federal or state laws or policy.
Offsets only be used as a last resort.
Greater emphasis on avoidance and instigation.
Greater guidance on areas where offsets are unacceptable.
Offsets to be identified prior to approval being given.
All offset plans and strategies required as EPBC Act approval conditions be published.
Development of a national register of offsets.
A technical review of the offsets policy be commenced as soon as possible.
These are all seemingly balanced.
The last recommendation of the committee is recommendation 21, "…that the Australian Government NOT accredit state and territory approval processes under the [EPBC Act]". [Emphasis added.]
The Coalition Committee members (Senators Williams and Ruston) reported that (at 1.19)
"The Coalition Government is committed to implementing a one-stop shop for environmental approvals."
"The one-stop shop will be implemented through approved bilateral agreements under the EPBC Act."
"The one-stop shop will deliver a single assessment process, a single approval with a single set of conditions."
The status of these bilateral agreements is set out in further into this Paper.
31 Department of Sustainability, Environment, Water, Population and Communities, Maules Creek Coal Mine Project Approval (February 2013) 2 - 10
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It will be interesting to see how the New South Wales Biodiversity Offsets Policy will be reconciled with the EPBC Act and Policy having regard to the federal government's desire to reduce duplication. At present, the states and the federal government are not in alignment.
The following are the more significant changes (and proposed changes) to the environment and planning laws in Queensland relating to coal:
Revising overlapping tenure framework;
Modernising Queensland's Resources Acts Program;
Reduction of Red Tape and Green Tape;
New environmental offsets regime;
Water Act reform.
While this paper does not seek to examine these reforms in detail, the following overview highlights the general nature of the reform - and considers the "balance" that is sought to be struck.
Overlapping tenure framework
A new overlapping tenure framework for the coal and CSG sectors is proposed to be established by the Mineral and Energy Resources (Common Provisions) Act 2014 (Common Provisions Bill) which was passed by the Parliament on 9 September 2014 (with amendment) and currently awaiting Royal Assent. The proposed framework provides a way forward and certainty for industry after significant consultation amongst industry which resulted in the joint industry submission to government entitled Maximising Utilisation of Queensland's Coal and Coal Seam Gas Resources - A New Approach to Overlapping Tenure in Queensland (the White Paper). The proposed framework is based on the concepts and principles outlined in the White Paper and its changes "are aimed at facilitating co-existence between Queensland's coal and CSG industries to ensure they work together to achieve the best commercial outcomes for both industries and for Queensland".32
Modernising Queensland's Resources Acts program
The Common Provisions Bill also seeks to implement stage 1 of Modernising Queensland's Resources Acts Program (MQRA Program). The ultimate aim of the MQRA Program is to, through a number of stages, consolidate Queensland's resource authority administration framework, which is currently provided for across five resources Acts, into one single, common resources Act. The intention behind the MQRA Program is to deliver more streamlined processes and "[R]educing the complexity of the framework will enable owners, occupiers and public land managers to deal with resources companies with a better understanding of their rights and have a greater say in whether resources activities can be undertaken close
32 Mineral and Energy Resources (Common Provisions) Bill (Qld) 2014 21
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to their primary residence and certain business infrastructure".33 The reform will also reduce the regulatory burden and compliance costs on government and industry.34
A number of land access reforms are also proposed in the Common Provisions Bill:
Expand the jurisdiction of the Land Court to allow the court to make determinations on matters relating to conduct issues and to examine the behaviours of parties during the negotiation of a conduct and compensation agreement.
Require the existence of an executed conduct and compensation agreement to be noted on the relevant property title at the cost of the authority holder.
Allow two willing parties to opt out of the need to negotiate a conduct and compensation agreement provided the Land Access Code conditions apply as a minimum.
Adopt a single restricted land framework for all resources types.
These amendments follow a review of the government's Land Access Policy Framework by an independent panel of agricultural and resource industry experts in 2012. The review involved in-depth consultation with stakeholders which consisted of landholders, community groups, peak bodies, resource authority holders, lawyers and other land access professionals from around Queensland.35 The government developed a six-point action plan in its response to the report of the land access review panel which included a number of the now proposed legislative reforms.
The Regional Planning Interests Act 2014 and Regional Planning Interests Regulation 2014 commenced on 13 June 2014 and applies to coal. The implementation of this new regime repeals the former Strategic Cropping Land Act 2011 and prevents resources companies from carrying out resources activities on areas of regional interest. It does this by creating a new approval requirement for resource activities and certain "regulated activities" which are carried out by resources companies in an area of regional interest, which include:
Priority agricultural areas;
Priority living areas;
Strategic cropping area;
Strategic environmental areas,
although some activities are exempt.
33 Ibid 4
34 Ibid 3
35 Land Access Implementation Committee, Land Access Implementation Committee Report (August 2013) 7 https://mines.industry.qld.gov.au/assets/native-title-pdf/land-access-implementation-committee-report.pdf
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A regional interests development approval must be obtained prior to being able to carry out the activity, unless an exemption applies. The regime seeks to "strike an appropriate balance between protecting priority land uses and delivering a diverse and prosperous economic future for the regions".36
Reduction of red tape and green tape
Since coming into power, the Queensland Government has been focused on building a four pillar economy of which resources is one. Significant effort has been invested in cutting red tape and regulation and speeding up project approvals to stimulate Queensland's economy and create jobs.37
Legislative reforms have to date included:
Reform of the licensing framework under the Environmental Protection Act 1994 to provide for a single approvals process that applies to all environmentally relevant activities.
Various amendments to the environmental impact statement (EIS) process for co-ordinated projects under the State Development and Public Works Organisation Act 1971 by virtue of the State Development, Infrastructure and Planning (Red Tape Reduction) and Other Legislation Amendment Act 2014, which was assented to on 15 August 2014. The intention of the amendments are relevantly to streamline the approvals process and "allow the Coordinator-General to more efficiently control the EIS process and development in state development areas", among other reasons.38
The Department of Environment and Heritage Protection has released its Regulatory Strategy containing its long-term vision for the department's regulatory, compliance and enforcement activities, and which states that "[A]t its core this strategy reinforces the department's objective of strong environmental management supporting sustainable economic development".39
Amendments to the objections process to a mining lease application and environmental authority application have been proposed in the Common Provisions Bill and include the following:
Limit who has standing to object to a mining lease application to only certain landholders and local governments. No other party will be entitled to object. Note that this means that NGOs will no longer have standing to object to a mining lease application under the Mineral Resources Act 1989 (Qld); however, such groups still retain an objection right as part of the environmental authority application process, subject to the new limitations which are outlined below.
Only a person who has made a submission on a site-specific application for an environmental application (EA) may object - this removes the right to object for small-scale mining operations and limits who has standing; however, retains the right for members of the public to lodge a submission in respect of any
36 Queensland Government, Department of State Development, Infrastructure and Planning, Regional Planning Interests Act (2014) http://www.dsdip.qld.gov.au/infrastructure-and-planning/regional-planning-interests-act.html
37 Queensland Government, Campbell Newman Premier of Queensland, We Will Grow a Four Pillar Economy (2014) http://www.thepremier.qld.gov.au/plans-and-progress/plans/6-months-july-dec-12/four-pillar-economy.aspx
38 Explanatory Notes, State Development, Infrastructure and Planning (Red Tape Reduction) and Other Legislation Amendment Act 2014 (Qld) 5
39 Queensland Government, Department of Environment and Heritage Protection, Regulatory Strategy (2014) 4
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medium to large size mines that would require a site-specific EA and, therefore, retain their standing to object.
Limit the objection criteria for a mining lease application now to compliance with the Act and, in relation to owners of land - whether the proposed access is reasonable, and in relation to local government - the effect on local government infrastructure.
Provide for the Land Court to strike out objections at any point in the objection process where an objection is: outside the jurisdiction of the court, vexatious, frivolous or an abuse of the court process.
No objection on an environmental authority can be made where a Coordinator-General's report deals with all of the issues relating to that environmental authority and there has been no change in the development following the issue of the report.40
The Minister for Natural Resources and Mines, Hon. Andrew Cripps, is quoted to have said that the Common Provisions Bill "seeks to achieve a balance between ensuring a competitive resources sector and protecting the rights of individuals and communities potentially impacts by mining activities" and "prevent the abuse of Queensland's legal system by green groups pursuing an ideological agenda."41
New environmental offsets regime
This regime consists of a new Environmental Offsets Act 2014, Environmental Offsets Regulation 2014 and the Queensland Environmental Offsets Policy. The Act commenced on 1 July 2014. It provides for a single offsets policy to replace the former five existing Queensland offset policies concerning koalas, vegetation, marine fish habitat and biodiversity. The new offsets regime is intended to streamline the use of environmental offsets and remove inconsistency and duplication. It facilitates the proposed introduction of a state approval bilateral agreement (discussed later in this paper) for the purposes of demonstrating an alignment of the state’s offsets regime with the Commonwealth’s regime by virtue of the regime being governed by a single Act. The Act does not impose an environmental offset condition but stipulates when one can be imposed under another Act. Offset conditions can be imposed under a number of other Acts such as the Environmental Protection Act 1994, Vegetation Management Act 1999 and the Fisheries Act 1994. Note however, that the Coordinator-General’s powers under the State Development and Public Works Organisation Act 1971 are not affected by this regime; however, it is likely that the Coordinator-General will be guided by it.
Water Act reform
The government has introduced the Water Reform and Other Legislation Amendment Bill 2014 into Parliament which is currently with the Agriculture, Resources and Environment Committee for consideration. One of the proposed reforms set out in the Bill is in relation to the mining resources sector and is intended to provide "…a more consistent framework for underground water rights for the resource sector and for appropriate management of impacts on underground water due to resource sector activities. "42 It proposes to do this by bringing mining operations into line with the existing provisions for the petroleum and gas industry which allows for the taking of groundwater as a direct result of mining activity ("associated water") without requiring a water entitlement and ensures that the take of non-associated water is restricted and
40 Explanatory Notes for Amendments to be moved during consideration in detail by the Hon. Andrew Cripps MP, Minister for Natural Resources and Mines , Mineral and Energy Resources (Common Provisions) Bill 2014 (Qld) 4
41 'New Queensland Law Limits Mine Objection Rights' Carbon & Environment Daily 10 September 2014
42 Explanatory Notes for Water Reform and Other Legislation Amendment Bill 2014 (Qld) 6
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regulated in the same manner as other water users i.e. by requiring an appropriate water entitlement. It also imposes statutory make good obligations in relation to mining operations. As the Bill is still being considered it is a case of monitoring its progress through Parliament.
Reducing Red and Green Tape (Commonwealth and State Bilateral Agreements)
Another reform that is shifting the balance back toward fossil fuel proponents are the bilateral agreements between the Commonwealth and various states (including New South Wales and Queensland).
It is proposed to amend the EPBC Act:
"to facilitate the efficient and enduring implementation of the Australian government's one-stop shop reform for environmental approvals.
This bill makes amendments to clarify the existing provisions of the EPBC Act to help ensure the durable operation of the one-stop shop and provide certainty for business. None of the amendments change or reduce the standards that state and territory processes must meet in order to be accredited under bilateral agreements, and indeed in appropriate cases, states are actually lifting their standards either through procedural steps or legislative steps to be in accord with the highest of Commonwealth standards".43
The Bill is the Environment Protection and Biodiversity Conservation Amendment (Bilateral Agreement Implementation) Bill 2014. It passed the Lower House and went to the Senate on 15 May 2014. The Senate referred the Bill to the Environment and Communications Legislative Committee.
The Committee recommended the Bill to be passed. How this Bill will fare on the floor of the Senate is unknown. The Labor senators and Green senators dissented and it has been announced that the Greens have secured an agreement with the Palmer United Party to block the federal environmental laws from the Government's one-stop shop.
The New South Wales position is that a draft approval bilateral agreement between New South Wales and the Commonwealth has been prepared and the statutory public comment period on the draft closed on 13 June 2014. However, the agreement has not yet been finalised. It is expected that complementary legislation to give effect to the implementation of the approval bilateral agreement will be introduced in New South Wales.
Similarly, the Queensland position is that a draft approval bilateral agreement between Queensland and the Commonwealth has also been prepared and the statutory public comment period on the draft also closed on 13 June 2014. However, the agreement has not yet been finalised. The Sustainable Planning (Infrastructure Charges) and Other Legislation Amendment Act 2014 amends the State Development and Public Works Organisation Act 1971 to facilitate the implementation of the proposed bilateral agreement. The amendment Act was assented to on 16 June 2014.
43 Explanatory Notes, State Development, Infrastructure and Planning (Red Tape Reduction) and Other Legislation Amendment Act 2014(Qld)
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In terms of "balance" the position of the "proponent" side and the "green" side of the debate can be seen from the submissions. In essence, the proponent side welcomes the perceived duplication reduction and states that environmental standards will not be compromised.
The Green view is that the states should have less power environmentally not more, that environmental standards will be lowered and that the states have a conflict of interest in the balancing of environmental protection and economic development - and the states will favour economic development.
Mr Tony Windsor, the former MP in the Federal Parliament and who was responsible for the introduction of the "water trigger" to the EPBC Act was not in support of the Bill. In an article by Mr Windsor in the ABC Environment Report [26 August 2014] he concluded:
"Given the deteriorating trust of government generally, the Senate has the opportunity to maintain one thread of that trust and avoid any potential civil unrest.44(Emphasis added.)
The role of government as the arbiter of the balance required for fossil fuel project developments and protecting the environment must be maintained. As the Maules Creek case study shows, some members of the community do not accept the "umpire's decision".
Commonwealth - EPBC Act "water trigger"
The EPBC Act was amended on 19 June 2013 to include a "water trigger" policy, deeming all water resources in connection with mining developments a matter of national environmental significance.
The objective of the amendment is to protect water resources used in connection with projected developments, and allow the Minister for Environment to impose conditions regulating water conservation.
Prior to the amendment, the Minister could take water impacts into account when considering the matters relevant to an EPBC Act referral. That is, endangered flora and fauna. Now water itself is an object of the EPBC Act and the Minister can directly impose conditions concerning water as a matter on itself. It does not need a connection with endangered flora or fauna. Referrals to IESC Year State Number of Referrals
New South Wales
New South Wales
44 'Windsor - "Hold Firm on Water Trigger"' The Northern Daily Leader 26 August 2014 http://www.northerndailyleader.com.au/story/2513095/windsor-hold-firm-on-water-trigger/
Getting to First Coal | 26 Referrals to IESC Year State Number of Referrals
New South Wales
Climate Change and the Approvals Process
The Commonwealth does not have a "climate change trigger". The EPBC Act does not address climate change. However, there was some discussion around amending the EPBC Act to include an "interim greenhouse trigger" of 500,000 tonnes of CO2e as part of the prescribed review of the Act which first occurred in 2009. As part of that review, the final report recommended including such a trigger which would apply to scope 1 emissions and only up until the commencement of the Carbon Pollution Reduction Scheme which was in the process of being drafted at that time. The review did not however support introducing a trigger to capture coal exports (i.e. scope 3 emissions) because "companies engaged in the mining of coal have limited capacity to substantially reduce emissions produced overseas (except perhaps by preferencing the mining of black coal over brown coal)".46 As part of its response to the review in August 2011, the Commonwealth did not agree to this recommendation because at that stage, it was committed to introducing a national carbon price and therefore, considered such amendment to be unnecessary. There have not been any further suggestions of introducing a greenhouse trigger.
New South Wales
In New South Wales, a fossil fuel project will be a State Significant Development. As such, the proponent will be required to address the environmental requirements of the Director-General of the Department of Planning (DGRs).
In relation to greenhouse gases, the DGRs (for a coal project) could be as follows:
Greenhouse Gases - including:
a quantitative assessment of potential Scope 1, 2 and 3 greenhouse gas emissions;
a qualitative assessment of the potential impacts of these emissions on the environment;
46 Independent Review of the Environment Protection and Biodiversity Conservation (EPBC) Act 1999 (2009) 113
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an assessment of reasonable and feasible measures to minimise greenhouse gas emissions and ensure energy efficiency47.
In Queensland, a major fossil fuel project may trigger the requirement to prepare an EIS either under the Environmental Protection Act 1994 or as a “coordinated project” under the State Development and Public Works Organisation Act 1971 (SDPWO Act). The project proponent will prepare its EIS based on the terms of reference issued by the Department of Environment and Heritage or the Coordinator-General, respectively.
The draft terms of reference are finalised following a public consultation period. In relation to greenhouse gases, the terms of reference (for a coal project) could include the following:
Provide an inventory of projected annual emissions for each relevant greenhouse gas, with total emissions expressed in 'CO2 equivalent' terms for the following categories: Scope one emissions, where 'scope one emissions' means direct emissions of greenhouse gases from sources within the boundary of the facility and as a result of the facility's activities.
Scope two emissions, where 'scope two emissions' means emissions of greenhouse gases from the production of electricity, heat or steam that the facility will consume, but that are physically produced by another facility.48
Note that there is no requirement for scope three emissions to be considered in Queensland at this point in time although as terms of reference for an EIS are determined on a project by project basis, such a requirement could form part of a finalised terms of reference.
Scope 3 GHG emissions
Currently, Scope 1, 2, and 3 emissions are not defined under any Australian legislative instrument. Their terms are contained in the GHG Protocol; a private carbon-accounting standard developed by the World Business Council for Sustainable Development and the World Resources Institute. The use of the terms in the GHG Protocol have become internationally standard terms for carbon accounting, used by industry, businesses and regulators alike and have also been adopted in relevant decisions by Australian courts.
The climate change activists in relation to a coal project will be mostly concerned about Scope 3 emissions.
For a coal project, Scope 3 emissions are the emissions which are a result of combustion of coal by a person other than the proponent, i.e., customers of the proponent. These would typically be foreign power utilities, cement manufacturers and steel mills.
To demonstrate the relative size of Scope 1, 2 and 3 emissions, the Maules Creek EIS reported (average tonnes CO2 emissions): 49
47 NSW Planning and Infrastructure, Major Development Assessment Mining & Industry Projects, Vickery Coal Project Environmental Impact Statement - Director General's Requirements (2011) http://www.whitehavencoal.com.au/operations/documents/Attachment1-Director-GeneralsRequirements.pdf
48 Queensland Government, The Coordinator-General, Carmichael Coal Mine and Rail Project - Final Terms for the Environmental Impact Statement (2011) http://www.dsdip.qld.gov.au/resources/project/carmichael/tor-carmichael-coal-mine-and-rail.pdf
49 Maules Creek Coal Project Environmental Assessment (Hansen Bailey, 2011) 108
Getting to First Coal | 28 Scope 1 Scope 2 Scope 3 Total
Life of project
Clearly, Scope 3 is by far the dominant source of GHG emissions.
The EIS will contain a detailed calculation as to the greenhouse gas emissions according to the coal types produced. Generally thermal coal and/or coking coal.
In the case of Maules Creek, the EIS (page 108 of volume 2) contained a report by an expert PAE Holmes - dated 11 July 2011. After setting out the basis for the calculation of GHG emissions, PAE Holmes concluded that:
"Based on the IPPC estimate that a doubling of the CO2e concentration in the atmosphere would lead to a 2.5○C increase in global average temperature and that the current global CO2e load is approximately 3,000gt, it can be estimated that the average annual emission (Scope 1,2 and 3) during the life of the proposal … could lead to an annual increase in global temperature of 0.00003○C … Based on the above, there is not likely to be any measurable environmental effect due to the emissions of GHGs from the proposal. i.e. the contribution of the project to GHG emissions will be negligible. In practice, of course, the effects of global warming and associated climate change are the cumulative effect of many thousands of such sources."
The article, The Influence of Climate Change Litigation on Governments and the Private Sector by Brian Preston, is an excellent review of how climate change activists have had a significant influence in this area. I commend the article.
In relation to fossil fuels, Preston notes the Anvil Hill case (Gray v Minister for Planning).50In Anvil Hill, the Land and Environment Court held that the Director-General's decision that the proponent's EIS adequately addressed the environmental requirements of 75F of the EP&A Act was void and of no effect.
In the Anvil Hill case there had been no requirement for Scope 3 emissions to be considered.
As noted above, this is clearly no longer the case. However, for climate change activists, as the Maules Creek example shows, the consequence, under present laws, is negligible.
It is for precisely this reason that climate change activists use the numerous other tests to seek to prevent or delay fossil fuel projects - as consistent with the "Stop the Boom" manifesto.
50 Gray v The Minister for Planning and Ors  NSWLEC 720
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Part 2 - NGOs, Proponents and Possible Actions/Remedies
Cut to EDO Funding
There is a mood in the present federal government and the Queensland Government that use of the judicial system to delay and disrupt fossil fuel projects has gone too far.
In the budget measures outlined in the Mid-Year Economic and Fiscal Outlook in December 2013, the federal government cut federal funding to the Environmental Defenders Office (EDO). Federal funding equated to about half of the funding of the EDO.
In the "Stop the Boom" manifesto, it is clear that the green activists are well funded. As previously mentioned there is a reference acknowledging the support, inter alia, of the Rockefeller Family Foundation.
Judicial Review - Merit Appeals
Is there any merit to a merits review?
Under the EPBC Act, there are limited rights of merits review for particular decisions. Such rights apply only to decisions made by a Ministerial delegate, and not to Ministerial decisions. The types of decisions which may be subject to merits review include decisions regarding threatened species and ecological communities (s 206A), migratory species (s 221A), marine species (s 263A), and conservation orders (ss 472, 473). However, note there is no merits review for broader project approvals.
In both Queensland and New South Wales, the right to merits review has also been limited. In New South Wales, only an objector (i.e. a person who made a submission objecting to a development application during the public exhibition period) may bring a merits appeal within 28 days of notification of a decision to approve designated development.51 However, as mentioned earlier in this paper no appeal is available if a public hearing has been held by the PAC.52
This means, in current reality, that there is no longer a merit appeal in New South Wales for coal projects.
In Queensland, there are still merits review rights under the Environmental Protection Act 1994. However, in terms of third parties rights, these are limited to those persons who have made a submission on a site-specific application for an environmental application.53 Note also that in relation to a prescribed project, which may include a 'coordinated project, once a step in notice has been issued, the Coordinator-General's decision on the prescribed project cannot be appealed against under the SDPWO Act or other relevant legislation54.
In addition, one of the benefits for a project proponent in Queensland in running its approvals process through the SDPWO Act is that the conditions of its environmental approval which are determined by the Coordinator-General cannot be challenged by way of merit appeal.
51 Environmental Planning and Assessment Act 1979 (NSW) s 98(1)
52 Ibid s 98(5)
53 Environmental Protection Act 1994 (Qld), s 524
54 State Development and Public Works Organisation Act 1971 (Qld), s 76P(1)
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In this case, a merits review was undertaken in the New South Wales Land and Environment Court and the approval for an extension of the mine was overturned by the judge (Preston CJ). The Productivity Commission in its report of November 2013 Major Project Development Assessment Processes summarises the criticism by the judge of the initial approval as follows:
The offsets were not scientifically proven to be effective
Some of the social impacts on the community had been overlooked
The input-output analysis overstated the employment gains of the project
The non-market valuation study was flawed in its design
The benefit-cost analysis failed to take into account issues of equity, distributive justice, and intergenerational equity (a component of ecologically sustainable development, which is an objective of the relevant planning legislation).56
The advantage of a merits appeal is that it provides accountability and the exposure of poor decisions. However, as the New South Wales Minerals Council has noted, “third party merit appeals add delay, cost and risk to the development assessment process”.57
I would also submit that it is not the role of the court to be put in the place of the decision-making body who is required to follow a rigorous and technical assessment process which must balance environmental, heritage, social and economic considerations. This is particularly so having regard to the significant recent reforms to the approvals process as outlined in Part 1 of this paper.
The Productivity Commission in its report of November 2013 said that it is supportive of a limited review process, such as judicial review, for Minister’s decisions which would preserve the integrity of decisions made by elected representatives. 58 However, the Commission did not have the same view where the decision is made by a delegate (and therefore, a body which is not accountable to Parliament in the way that a Minister is). In that case, the commission was supportive of a limited merits review for major project primary approval decisions. The commission was of the view that judicial review (and not merits review) of decisions made by a Minister strikes the balance between accountability and timeliness. 59 A merits review tribunal on the other hand, is not accountable to the public.
Note, however, that in New South Wales the PAC is the delegate of the Minister and an exhaustive, open and public process takes place.
55 Bulga Milbrodale Progress Association Inc v Minister for Planning and Infrastructure and Warkworth Mining Limited  NSWLEC
56 Australian Government Productivity Commission, Major Project Development Assessment Processes - Productivity Commission Research Report (November 2013) 251 http://www.pc.gov.au/__data/assets/pdf_file/0015/130353/major-projects.pdf
57 Major Project Development Assessment Processes - Productivity Commission Research Report, above n 258
58 Major Project Development Assessment Processes - Productivity Commission Research Report, above n 264
59 Major Project Development Assessment Processes - Productivity Commission Research Report, above n 267
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Commonwealth (EPBC Act) judicial review
A person who is “aggrieved by a decision” may bring judicial review proceedings against a decision made by the Minister under the EPBC Act, pursuant to ss5 and 11 of the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act). Typically an environmental NGO will have standing. This is a long standing practice.
The court trigger is likely to be a request for “statement of reasons” of the Minister’s decision, pursuant to s 13 of the ADJR Act. The environmental NGO has 28 days after it receives a copy of the Minister's decision to request a statement of reasons. Following this, the NGO will have 28 days after it receives the statement of reasons to appeal the Minister’s decision. Note that if an environmental NGO is not provided with a copy of the Minister's decision (e.g. because it did not request it), then it will have a reasonable time within which to request the statement of reasons. The Minister may refuse to provide a statement of reasons if unreasonable time has elapsed since he made his decision. It is open to the court to make a declaration as to what is reasonable. This could create some uncertainty for a mining proponent as to whether or not a decision to approve its project application will be challenged.
In the case of Maules Creek, the Minister (The Hon. Tony Burke) made his decision on 11 February 2013. The statement of reasons was not forwarded to the NGO (NICE - Northern Inland Council for the Environment) until 20 June 2013 (i.e. four months later). The Federal Court proceedings were commenced on 18 July 2013. Judgement was delivered in the Federal Court on 20 December 2013.
It is this use of the judicial system and delays in administration of approvals (e.g. the four months between the date of the Maules Creek EPBC Act approval decision and the delivery of the statement of reasons) that fossil fuel project proponents find very unsatisfactory.
These delays in a project adversely affect many areas, including employment of staff, ordering plant and equipment, possibly paying for contracted rail and port charges (rail/ship or pay) and cause the need to possibly realign banking covenants to reflect the project's delayed cash flows.
Note the introduction of the Environment Legislation Amendment Bill 2013 which seeks to give certainty for past and future decisions made by the Minister. This is discussed in further detail below.
State judicial review
Any person may bring judicial review proceedings in New South Wales provided they are commenced within 3 months of the notification of determination of a development application.60
In Queensland, there are limited judicial review rights for major project approval decisions under the Judicial Review Act 1991. The SDPWO Act purports to exclude decisions, acts or conduct of the Coordinator-General from review (however, the enforceability of this provision is in question).61
These rights are consistent with the recent changes to the SDWPO Act, pursuant to the Common Provisions Act, which prevent any appeal being made on environmental conditions which are imposed by the Coordinator-General as part of its assessment process. In relation to those recent changes, the Minister for Natural Resources and Mines, Hon. Andrew Cripps has expressed that "the balance the bill seeks to achieve does not extend to enabling green and anti-economic development groups based interstate or
60 Environmental Planning and Assessment Act 1979 (NSW) s 101, 123
61 State Development and Public Works Organisation Act 1971 (Qld) s27AD
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overseas whose motive is to stop resource projects and the thousands of jobs the sector supports, or cause significant delays to the progress of mining projects by lodging ideologically-based objections."62
There are stark differences between Commonwealth and state environmental legislation in how they respectively deal with and enforce non-compliances with legislative provisions or conditions of development consent i.e. whether such non-compliances can result in invalidity of administrative decisions.
There is currently a case before the Land and Environment Court in New South Wales in relation to Maules Creek whereby the Maules Creek Community Council (a very small NGO) are arguing that the Biodiversity Management Plan of the mine was approved in contravention of a condition of development consent.
Tarkine National Coalition Inc v Minister for the Environment  FCA 468 (Tarkine) sets out the common law doctrine of invalidity: the question as to whether a decision made in breach of a condition regulating the exercise of a statutory power is invalid involves a question of statutory construction to determine whether the purpose of the legislation is to invalidate any act done in breach of the condition.
However, the law at the state level is quite different. In most states, and as noted above, environmental statutes have open standing provisions that allow “any person” to commence proceedings to remedy or restrain a breach of the Act (see e.g., s 123 of the EP&A Act NSW). For example, a breach of a development consent is also deemed to constitute a breach of the EP&A Act. Once a court has found that there has been a breach of the legislation (or development consent) it has a very broad discretion to make any orders that it thinks necessary to remedy that breach (see s 124 EP&A Act NSW). This means that the question of whether a Biodiversity Management Plan approved in contravention of a condition of development consent is invalid is up to the discretion of the Court and is a question of fact and degree. The applicable legal test is not the common law doctrine of invalidity as it was applied in Tarkine; the court simply asks, has a breach been committed and if so, then the court has a broad discretion (under the statute) to make any order it thinks fit. If the court considers the breach to be minor and that compliance with the development consent in the first place would not have resulted in a different outcome, then the court could uphold the existing Plan as it is.
The common law doctrine of invalidity only arises where the statute is silent as to what the court must do when an administrative procedure set out in the legislation has been breached i.e. under the EPBC Act. Because the state legislation provides a broad discretion, the Court is basically free to decide on a case-by-case basis whether the Plan should be overturned.
Therefore it is possible, in relation to Maules Creek, that the court could uphold the existing Plan or do otherwise. However, in the meantime the project is subject to possible delay while the court proceedings are finalised. Once again, this demonstrates the avenues open to environmental NGOs to bring actions against mining projects consistent their "Stop the Boom" manifesto to “… 'disrupt and delay' key projects…”.63
As an aside, note that the Environment Legislation Amendment Bill 2013 was introduced to the House of Representatives on 14 November 2013 and seeks to deal with the implications of Tarkine as follows:
62 Eric Tlozek, 'New Queensland Laws Change How Some Stakeholders Fight Mining' ABC News 10 September 2014 http://www.abc.net.au/news/2014-09-10/mining-laws-in-queensland-will-lock-out-anti-mining-groups/5732046
63 Bob Burton, Sam Hardy, and John Hepburn, Stopping the Australian Coal Export Boom (2011) Queensland Resources Council https://www.qrc.org.au/_dbase_upl/stoppingtheaustraliancoalexportboom.pdf
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“The Bill being introduced sets out to amend the [EPBC] Act to provide that a failure to comply with a requirement for specified decisions and instruments under the Act that the Minister must have regard to any relevant approved conservation advice, does not invalidate those decisions and instruments. The amendments will apply retrospectively and prospectively to provide certainty for past and future decisions and instruments made or entered into by the Minister.”64
It was introduced into the House of Representatives on 14 November 2013. The Bill was approved by the House of Representatives on 9 December 2013 and then introduced to the Senate and read for the first and second time on 11 December 2013. It was then referred to the Environment and Communications Legislation Committee, who provided a report on 12 February 2014 recommending the Senate approve the Bill; however, no further progress appears to have been made since then. It is still with the Senate for approval and, therefore, what effect it will have on Tarkine remains to be seen, given the Bill’s retrospective application.
Legal remedies for fossil fuel proponents
A common complaint of the NGOs who are against fossil fuel projects is that the proponents submit misleading information during the approvals process.
On the other hand, proponents assert that they expend considerable money engaging third party experts seeking an approval. The outline in Part 1 of this paper clearly indicates the increased regulatory burden that a proponent must satisfy to acquire an approval. Too often, having received an approval, the government (through the approving body) is accused of collusion with the mining industry because it has accepted the reports and other information of the proponent or independent expert. Accusations by the green activists are that the state Government has a conflict of interest as it benefits in many ways from their projects.
The green activists, generally speaking, make either broad assertions such as "Maules Creek will warm the planet" or are much more focused, and assert matters such as "Whitehaven kills koalas", "Whitehaven denies access to sacred sites by Gomeroi people", "Maules Creek will destroy aquifers" and "The local community wants Maules Creek cancelled".
Freedom of speech is the immediate response of NGOs to suggestions that there should be any control here as to truth or accuracy.
However, as the NGO communications become "more targeted" proponents will examine what legal remedies they may have.
The range of remedies for a proponent who sees the project falsely maligned are:
Corporations Act 2001 (Cth) (Corporations Act) - s1041E;
Corporations Act - s1041H;
Injurious falsehood (tort);
64 ‘Environmental Legislation Amendment Bill 2013 (Cth)’ TimeBase Online Legislation Research, 21 November 2013
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Misleading and deceptive conduct - s18 of the Australian Consumer Law (former s52 of the Trade Practices Act 1974);
Secondary boycotts - s45D Australian Consumer Law.
Of course, the primary concern of a proponent as a plaintiff will probably be whether such court action will enliven the debate, i.e., become a green ' cause célèbre' - but that is a commercial consideration.
Corporations Act - s1041E
In January 2013, Jonathan Moylan carried out his hoax regarding ANZ Bank and Whitehaven Coal. It was, in effect, a device to delay or stop the Maules Creek project.
In brief, Mr Moylan dressed up a false letter using ANZ Bank letterhead and in the letter wrote (falsely) that ANZ had withdrawn its $1.2 billion facility to Whitehaven Coal.
The share price of Whitehaven Coal fell from $3.51 at 12.18pm on 7 January to $3.21 at 12.38pm. That is a $0.305 fall on 8.7% - reducing the market capitalisation by around $300 million.
Jonathan Moylan pleaded guilty to the offence, contrary to section 1041E(i) of the Corporations Act.
Moylan knew the information was false. The evidence proved it was a carefully planned act to damage Whitehaven Coal.
This conduct by Moylan was endorsed by the Green Senators.
Senator Rhiannon wrote "Congrats to Jonathan Moylan, Frontline Action on Coal, for exposing ANZ investment in coal mines".65
Senator Christine Milne wrote that the Moylan hoax was "part of a long and proud history of civil disobedience, potentially breaking the law, to highlight something wrong".66
Senator Sarah Hanson-Young was not as enthusiastic, merely stating that "I understand why it was taken. I understand the frustrations but don't encourage others to do it."67 There was no 'sorry' to the people who lost money or acknowledgment that this was a crime.
New South Wales Greens MP Cate Faehrmann commented that she supported the Moylan crime, "because we live in a world right now where the climate is changing rapidly and we know there isn't enough action on climate change. Sometimes people have to work outside the system".68
Corporations Act - s1041E
"A person must not … make a statement, or disseminate information, if
65 Jonathan Swan, Judith Ireland, Damien Bright, ‘Green MPs Congratulate Hoaxer Whose Deceit Triggered Sharemarket Turmoil’ The Sydney Morning Herald 9 January 2013 http://www.smh.com.au/business/greens-mps-congratulate-hoaxer-whose-deceit-triggered-sharemarket-turmoil-20130108-2ceu6.html
67 ‘Greens At Odds Over Whitehaven Stunt’ The Sydney Morning Herald 18 January 2013 http://www.smh.com.au/national/greens-at-odds-over-whitehaven-stunt-20130117-2cw44.html
68 Reported in The Drum 14 January 2013
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(a) the statement or information is false .. or .. misleading, and
(b) the statement or information is likely to induce a person [to by or sell shares], and (c) [the person does not care or knows the statement or information is false or misleading.]"
Liability for contravention of s 1041E does not attach to conduct. Rather, it is necessary to identify the relevant statement or information said to be false in a material particular or is materially misleading, which was likely to have had the relevant inducing effect and which the alleged contravener did not care whether it was true or false or knew or ought reasonably to have known that the statement or information was false in a material particular or was materially misleading.69
Relevantly, the statement or information is likely:
“(i) to induce persons in this jurisdiction to apply for financial products; or
(ii) to induce persons in this jurisdiction to dispose of or acquire financial products; or
(iii) to have the effect of increasing, reducing, maintaining or stabilising the price for trading in financial products on a financial market operated in this jurisdiction…”70
The prosecution need not show that the false statement or information actually induced a subscription or dealing in financial products or had an effect on the market price, only that it was likely to do so.
There are prescribed criminal penalties and civil liability where an individual or body corporate breaches s 1041E. However, in addition, the court may declare the resultant contracts for the sale or purchase of the securities to be void.71
As the Moylan Case demonstrates, the law is certainly able to respond to conduct which may be engaged in by NGO activists which fall foul of s 1041E and therefore, remains relevant in light of current activity.
Corporations Act - s1041H
"A person must not, … engage in conduct, in relation to a financial product … that is misleading or deceptive or likely to mislead or deceive".72
A "financial product" includes a share.
Civil liability attaches to the offence under s1041H – refer s1041I.
The sort of conduct that raises the spectre of s1041H is where an NGO publishes a notice (or which includes a circular and an advertisement) that perhaps advises a shareholder to sell his shares because the company has some "feature" that suggests the value of the shares is over-stated. Much has recently entered the public debate about so-called "stranded assets".
The elements that would need to be satisfied include whether a reasonable shareholder would be misled or deceived. The more colourful the "notice", i.e. the more extraordinary the claims, then perhaps the less likely the test would be satisfied. As always, it will depend on the facts and circumstances. However, as NGOs increasingly focus on shareholders and lenders to "avoid" fossil fuel companies, this section of the
69 Bathurst Regional Council v Local Government Financial Services Pty Ltd (No 5) (2012) 30 ACLC 12-072, per Jagot J at ].
70 Corporations Act 2001 (Cth) s1041E(1)(b)
71 NCSC v Monarch Petroleum NL (1984) 2 ACLC 256
72 Corporations Act 2001 (Cth) s1041
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Corporations Act may become relevant. Note that the "in trade or commerce" test of s 18 of the Australian Consumer Law is not present in s 1041H.
A fossil fuel proponent will be unable to sue for defamation unless it has less than 10 employees or is a not for profit corporation. This will generally not be the case.
In New South Wales the right of a company to sue for defamation was abolished in 2003. In Queensland it was abolished in 2006.
An action by a proponent for an attack on its reputation could lie in the tort of injurious falsehood or a misleading and deceptive conduct claim (s18 ACL).
Injurious falsehood (tort)
This tort is akin to an action for defamation - but quite separate. The essence of the tort is that a person has maliciously published a false statement to other people and thereby caused damage to the plaintiff. There are obvious similarities with s18 ACL "misleading and deceptive conduct". That head of liability is examined below. This tort can be differentiated in two ways. Firstly, unlike s18 there is no requirement of being in "trade or commerce" to bring the action. Secondly, a plaintiff could recover aggravated or exemplary damages rather than compensating damages under s18 ACL.
The four essential elements are:
A false statement made to another person(s).
Publication of the false statement.
Malice - i.e., intent to cause harm or damage.
Actual damage caused by the false statement.
See, for example, Palmer-Bruyn & Parker Pty Ltd -v- Parsons  208 CLR 388.
So, if by way of example, an NGO produces, say, a newsletter or writes in similar terms to universities, church bodies, fund mangers or lenders, that states that Whitehaven Coal is:
killing koalas and their habitat at Maules Creek;
warming the planet
desecrating aboriginal sacred sites,
going to damage the underground water aquifers,
has no community support, and
is going to be a so called "stranded asset".
and imploring the person to withdraw support of Whitehaven by selling its shares or terminating the loan agreement. If this is untrue, what can be done? Can this tort of injurious falsehood be claimed by Whitehaven Coal?
It would appear that the tests of 'falsify' and 'publication' are satisfied.
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It is probably clear that there is malice - as the intent is to ultimately stop the development of the Maules Creek mine or indeed cause the company to become insolvent. There is little doubt that most NGOs seek to harm fossil fuel proponents. Read the "Stop the Boom" manifesto, for example.
However, the test of actual damage appears difficult to be satisfied. It will all depend on the facts. Even if, say, a church or university fund sold its shareholding and declared it would never again invest in a coal mining company, it is hard to see the damage caused to Whitehaven Coal by such action.
Other factual scenarios could lead to direct loss. For example, if a lender withdrew loan facilities because of a false statement by an NGO and the company (as potential borrower) could not refinance in good time or on similar terms then the nexus appears much more direct and so could constitute damage.
Misleading and deceptive conduct - s 18 Australian Consumer Law
Section 18 of the Australian Consumer Law relevantly provides that "(1) A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive."
This section is concerned with conduct which, of its nature, bears a trading or commercial character. However, whether the impugned conduct falls on the side of being "in trade or commerce" is not always clear. It is determined according to the facts of each case.
Some guidance on how a court may interpret the phrase is found in case law. Three propositions may be drawn from the High Court case, Houghton v Arms  HCA 59:
1. the High Court is inclined to interpret "in trade or commerce" broadly;
2. liability may arise even where the offending individuals were unaware that their conduct was misleading or deceptive and had taken all reasonable steps to prevent it from being so; and
3. a person may incur liability if their conduct relates to the trading or commercial activity of others.73
It is this third proposition which is of particular relevance to activities of NGO activists as the activists may not typically be engaged in trade or commerce themselves. However, that is changing. Each NGO and the relevant activity would have to be reviewed on its own facts. However, that does not mean that they will avoid the reach of section 18. It has been suggested that there are two matters which must be considered further:
1. is it sufficient for the activist’s statement to be about a business or trading entity or must it be to that entity – it is suggested that the former is a better view; and
2. consider the degree of connectivity that must exist between the impugned statement and the other person’s business activity for the statement to be characterised as having occurred in trade or commerce. In this regard, consider the following:
2.1 whether the statement is made about a particular business rather than about a section of the business community;
2.2 whether the statement was designed, or intended to affect the business about which it was made; and
73 Clarke P, 'Misleading or Deceptive Conduct and Public Debate' (2011) Competition Consumer Law News 123
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2.3 whether the impugned conduct was designed to merely promote the interests of the speaker, rather then to affect the interests of the target.74
I set out below a number of different scenarios by way of example to illustrate where I consider the law to be at the moment. The intention is to examine the scope of ‘in trade or commerce’ in various factual scenarios. I do not propose to consider all other elements to be satisfied in order to succeed in a claim for misleading and deceptive conduct under s18.
Scenario One: Ben & Jerry's "Scoop Ice Cream, Not the Reef" campaign
According to their website, Ben and Jerry’s “Scoop Ice Cream, Not the Reef” strategy involves travelling around Australia, scooping out free ice cream and raising awareness of how the Reef is at serious risk from intensive dredging, mega ports and shipping highways and encouraging Australians to join them. It has been reported that “An unscientific web poll in Brisbane Times showed most readers are now more likely to buy the ice cream”.75
Ben & Jerry’s has a history of being a social justice campaigner. That conduct in and of itself will not be sufficient to be regarded as being in trade or commerce simply because the brand’s broader activities are in trade or commerce – one must examine the particular conduct in question i.e. giving out free ice cream to raise awareness. A key consideration is the reported showing of increased interest to buy the ice cream.
A business that publicly contributes to the debate of social, economic or political issues, or which seeks to influence public opinion in a particular direction, will not be regarded as acting in trade or commerce where it has no immediate commercial interest in the outcome of its representation and its conduct is not otherwise commercial in nature. For example, in Village Building Co Ltd v Canberra International Airport Pty Ltd,76 advertisements seeking to influence public opinion and government decision makers in relation to new flight paths for an airport were held not to have been published in trade or commerce. It may also be possible for a business to gain an indirect benefit from its advocacy but its conduct not be regarded as "in trade or commerce". However, advocacy intended to advance the business’ commercial interests rather than to altruistically contribute to public debate or understanding is likely to be characterised as occurring in trade or commerce.
It seems to me readily arguable that Ben & Jerry’s conduct seeks to influence government decision makers in the interest of social and political debate and that its business may, as a result, gain an indirect benefit from its advocacy i.e. increased interest in its products. As such, I believe it to be conduct "in trade or commerce".
Scenario Two: a broad accusation against mining
A broad accusation by a green NGO against the mining industry at large is unlikely to be regarded as conduct "in trade or commerce". This is the "Stop Coal Mining - Its Warming the Planet" type material.
74 Clarke P, 'Misleading or Deceptive Conduct and Public Debate' (2011) Competition Consumer Law News 123
75 Alexander White 'Can Ben Jerry's Save the Great Barrier Reef' The Guardian 30 April 2014 http://www.theguardian.com/lifeandstyle/australia-food-blog/2014/apr/30/can-ben-jerrys-save-the-great-barrier-reef
76 Village Building Co Ltd v Canberra International Airport Pty (2004) 210 ALR 114
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Scenario Three: allegation by NGO activists in social media, newsletters, website promotions and presentations to journalists, universities, fund managers and other community stakeholders (including Government) that Coal Company X kills koalas and destroys their habitat, etc .
Assume this is not true.
This is an attack specifically directed at Coal Company X. It is about the activity of Coal Company X and it particularly attacks its business. Is the attack designed or intended to affect the business? This appears not so much intended to promote the environmental concerns of the activists, rather it is a direct attack on the business interests of Coal Company X. It is intended to harm. It is directed to the 'social licence to operate' and reputation. I believe it arguable that by focusing on the individual company, with the intent to damage its business, that the NGO is engaging in trade or commerce.
Scenario Four: strategy to divest mining investments
It is reported that Greenpeace targeted Sydney University via an email campaign (and meetings) whereby it encouraged its members to email the vice-chancellor Michael Spence, demanding the institution follow its ethical investment guidelines and sell Whitehaven Coal and other fossil fuel company shares. It was also claimed that Whitehaven Coal was disrespecting the interests of the Gomeroi people. This campaign is an example of a broader global divestment campaign to “push banks and fund managers to pull capital from the coal industry”.77
On 25 August 2014, Sydney University said that it had halted its investments in Whitehaven Coal. “The university has issued an instruction to its Australian equities managers to make no further investments in the coal and consumable fuels subsector of the ASX”78
New South Wales Minerals Council chief executive Stephen Galilee is reported as having said that it was “a shame that Sydney University has caved in to the bullying of environmental activists masquerading as financial advisers…The divestment campaign is environmental activism dressed up as investment advice and anyone choosing to take investment advice from environmental activists do so at their own financial risk," Mr Galilee said, adding a recent report commissioned by the council had found the fossil fuel divestment case was based "on false premises and unsubstantiated claims, and may breach Australian law.”79
If in fact Greenpeace is providing some form of investment advice then this could be described as conduct of a trading or commercial character in and of itself. Failing that, it is arguable that the campaign was directly targeted at the commercial trade or commercial activity of Sydney University with the intention of affecting their investments in the mining industry and therefore may equate to conduct "in trade or commerce" this way. I submit that by engaging with investors, lenders and other relevant stakeholders in this manner, Greenpeace is acting in trade and commerce for the purposes of s18.
77 John Conroy 'Coal Boss Slams "Green Imperialism"' The Australian 29 August 2014 http://www.theaustralian.com.au/business/latest/coal-boss-slams-green-imperialism/story-e6frg90f-1227041240211?nk=a56a9559064ce9dab5ac46c603b73454
78 Peter Hannam 'Sydney University Creates Waves with Investment Ban on Coal' The Sydney Morning Herald 26 August 2014 http://www.smh.com.au/environment/climate-change/sydney-university-creates-waves-with-investment-ban-on-coal-20140826-108ecj.html
79 Peter Hannam 'Sydney University Creates Waves with Investment Ban on Coal' The Sydney Morning Herald 26 August 2014 http://www.smh.com.au/environment/climate-change/sydney-university-creates-waves-with-investment-ban-on-coal-20140826-108ecj.html
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Scenario Five: Market Forces campaigns encouraging divestment
The premise of Market Forces (an NGO) which appears to be an unincorporated association is that banks, superannuation funds and other bodies that have control of money should use it to protect the environment. Some recent campaigns have included the following:
Banks - campaign targeted at a number of banks aimed at shifting investment away from fossil fuel projects by asking the banks to prohibit loans to new fossil fuel extraction projects and sell down all stakes held in companies engaged in fossil fuel extraction.80
Superannuation - aimed at getting super funds to divest from coal and gas and "to help Australians make sure their retirement isn't funded by environmental destruction". Members of the public are provided with the platform to send a pre-prepared email to their super fund via a weblink.81
I understand that representatives of Market Forces set up meetings with fund managers and others and seek to persuade them to withdraw their investment. This is well beyond chanting from a banner or barricade. It is very much an engagement in trade and commerce.
In my opinion, for a productive debate on climate change to occur, all parties to the debate should be held to the same standard of behaviour. In this case it is simply that no party shall engage in misleading and deceptive conduct.
Whether the misleading and deceptive conduct causes damage that is compensable must be considered.
Material that gives the fossil fuel industry a "bad name" is not actionable if only because the relationship between such material and a plaintiff is too diffuse. There is no relevant connection.
However, as green NGOs become more assertive with investment banks, fund managers, shareholders and regulators, then the nexus between the conduct and actual damage becomes more real.
If a targeted campaign was mounted at the time of a critical business event and caused an adverse outcome to the business targeted, then damages appear rather direct.
Secondary boycotts - s45D of the Australian Competition Law
Section 45D of the Australian Competition Law prohibits secondary boycott activity. That is, an agreement or arrangement between two or more parties which has a purpose of "preventing restrictions or limiting":
"(i) the supply of goods or services to, or the acquisition of, goods or services from particular persons or classes of persons; or
(ii) the supply of goods or services to, or the acquisition of, goods or services from particular persons or classes of persons in particular circumstances or on particular conditions".
However, it is a defence to a contravention of section 45 D if:
"(a) the dominant purpose for which the conduct is engaged in is substantially related to environmental protection…"
80 'Urgent: Fossil Fuel Divestment' Market Forces 17 September 2014 http://openletter.marketforces.org.au/
81 'Time to Clean Up Our Super' Market Forces 17 September 2014 http://www.marketforces.org.au/campaigns/super/
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Note that if the environmental organisation is not a corporation, then for the purposes of section 45D, it is not a "person" hence section 45D has no application. Many NGOs are not corporations, hence the secondary boycott provisions do not apply.
Sinclair Davidson, in his paper A Critique of the Coal Divestment Campaign82 suggests that a number of green activists are engaged in secondary boycott activity. His thesis appears to be that activists are engaging in conduct for the purposes of causing loss or damage to a business.
As always, it will all depend on the facts, but whilst the "green defence" exists, there is no cause to answer.
In the Competition Policy Review, Issues Paper dated 14 April 201483 at paragraph 5.28, the question was asked, "Do the provisions of the CCA on secondary boycotts operate effectively, and do they work to further the objectives of the CCA?"
Submissions closed 10 June 2014. Various environmental groups submitted to the Competition Policy Review that to take away the "green defence" is to attack freedom of speech. The counter-argument is simply that this section of the community should not have immunity.
It is interesting to consider this balance as activists take on a more sophisticated role in meeting with investors and lenders to fossil fuel projects. The question will be asked as to why this sort of behaviour should be exempt from the standard of behaviour required by others engaged in trade and commerce.
A subsequent Competition Policy Review Draft Report dated September 2014 was released on 22 September 2014. In the paper at pages 50 and 51, it is reported that through its consultations, the Panel understood that the primary concern of industry is that “environmental groups may damage a supplier in a market through a public campaign targeting the supplier that may be based on false or misleading information”. It is noted in the paper that “expanding the laws concerning false, misleading or deceptive conduct to organisations involved in public advocacy campaigns directed at trading businesses raises complex issues”. But when balanced on the other hand “where an environmental or consumer group takes action that directly impedes the lawful commercial activity of others (as distinct from merely exercising free speech), a question arises whether that activity should be encompassed by the secondary boycott prohibition”. The Panel has invited further comment on this issue. Comment on the paper closes on 17 November 2014.
We wait to see if the "green defence" remains.
NGOs - Some Observations
NGOs are, by and large, either a corporation or an association. If a corporation, it is incorporated pursuant to the Corporations Act. If an association, it is state legislation, such as in New South Wales the Associations Incorporation Act 2009 or Queensland the Associations Incorporation Act 1981.
Some examples are set out in Appendix 2.
82 Sinclair Davidson, ‘A Critique of the Coal Divestment Campaign’ (Report, Minerals Council of Australia, 2014)
83 Commonwealth of Australia, The Australian Government Competition Policy Review (April 2014) 33 [5.28]
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In terms of "balance", an issue for fossil fuel proponents is that if sued by an NGO, they are generally of little or no financial substance.
In the case of Northern Inland Council for the Environment Inc -v- Minister for the Environment  FCA 1419, an action was brought in the Federal Court to overturn the approval decision of Minister Tony Burke under the EPBC Act for the Maules Creek project.
The Court found in favour of the Maules Creek proponent (Whitehaven Coal) and it dismissed the application by NICE to have Minister Burke's decision declared invalid.
NICE also sought, in separate proceedings in the Federal Court, an injunction to stay any activity at the Maules Creek site pending the Federal Court decision on the judicial review of the decision of Minister Burke. The court refused to grant the injunction.
The costs of the judicial review action in the Whitehaven case were awarded 80% in favour of Whitehaven Coal. The costs in relation to the injunction proceedings were fully awarded to Whitehaven Coal.
NICE is impecunious and does not have the funds to pay the costs of Whitehaven Coal as ordered by the Court.
Having been delayed six months by this court case and with a clear rejection of the NGO arguments by the Court, one can understand the basis for the Queensland Government reaction regarding objections.
As at the date of this paper, NICE has not paid the costs ordered by the Court.
Of course, this is neither new nor unexpected. The frontline of green activism, through NGOs such as NICE and others, do not have substantial balance sheets. Indeed, they would appear to have ongoing funding appeals (most are registered charities) to the public. The deeper pockets that are behind the frontline NGOs - such as the Rockefeller Family Foundation, are at a distance from direct liability.
The court case delayed Maules Creek by six months. With "live" so called take or pay obligations with the railway companies and the coal terminal operators at the Port of Newcastle, this delay is a serious cost. So, in terms of the "Stop the Boom" manifesto, it could be concluded that the green NGOs had a "win".
In terms of balance, it is difficult to judge. There is no doubt a valuable role to be played by green activists in challenging executive and administrative government decisions. On the other hand, the significant economic benefits that projects such as Maules Creek bring to the local community, state and federal economies are delayed by months, sometimes years. In the context of a fossil fuel proponent having passed through the various gateways and over the increased number of hurdles, frustration at the delays is understandable.
Soon after the Federal Court decision, Whitehaven Coal commenced ordering the mining fleet, engaging contractors, employing the workforce and generally expending the $750 million (plus) capital expenditure budget. This is "real" money and much of which flows immediately and directly into the local community.
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There is clearly considerable anxiety in Australia regarding climate change, water, farmland and other matters addressed. In this paper, Governments must remain the "umpire" of balance. Many of the reforms go a long way to satisfy the concerns of all except the climate change activists. Proponents of fossil fuel projects will accept increased regulation to a point - it becomes a matter of feasibility. What proponents have great difficulty accepting are changes to the "rules" during the approval process (which can take years) and then during the life of the mine.
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Appendix 1 – Maules Creek - Case Study
Maules Creek is an open cut coal project owned by Whitehaven Coal. This case study analysis commences in July 2010 but it is worth noting that the underlying tenements (a mining lease and exploration licence) were granted to Rio Tinto around 1990. Part of the proposed mine is in the Leard State Forest. A development consent was granted to Rio Tinto in June 1990. Whitehaven sought a project approval under Part 3A of the EP&A Act. The majority of the land within the project boundary and Leard State Forest has been logged over many years. This land is zoned for mining and forestry purposes. It is a Tier 1 coal asset with a low life of mine strip ratio of around 6.4:1 and the EIS reported 321 million tonnes of marketable reserves. The mine is planning to produce around 13Mtpa(ROM).
The Maules Creek project has seen around 100 people arrested over the past two years. It has been the object of intense protest activity by green activists - many of whom are signatories to the "Stop the Boom" manifesto. Maules Creek is a project expressly targeted in the "Stop the Boom" manifesto. It features prominently in all Australian NGO debate and protest.
It is a project much delayed as the following dates indicate:
09 Jul 2010 - Date of EPBC Act Referral
16 Aug 2010 - Lodged Part 3A project application and preliminary EA report to the New South Wales Department of Planning
23 Nov 2011 - PAC Hearing
Mar 2012 - PAC Review Report
Aug 2012 - Director-General's Environmental Assessment Report and recommended Conditions of Approval released. Referred to PAC for determination.
23 Oct 2012 - Part 3A Approval Received (issued by PAC under delegation from the Minister)
29 Nov 2012 - SEWPAC (now Department of Environment) requests advice from the Independent Expert Scientific Committee on Coal Seam Gas and Large Coal Mining Development (IESC) in respect of the water impacts of the Maules Creek Project
20/21 Dec 2012 - The IESC provides its advice to SEWPAC. The Minister then writes to Aston and certain federal and state Ministers attaching the proposed approval.
21 Dec 2012 - Extension for EPBC Act Approval - extended to 31 January 2013
18 Jan 2013 - Extension for EPBC Act Approval - extended to 7 February 2013
6 Feb 2013 - Extension for EPBC Act Approval - extended to 30 April 2013
11 Feb 2013 - EPBC Act Approval Received - Conditions 20-22 of the EPBC Act Approval required Surface and Groundwater Management Plans and the Leard Forest Mining Precinct Water Management Strategy (Water Management Plans) be approved by the Federal Minister prior to the commencement of construction. These plans were also required under condition 40 of the Part 3A Approval.
20 Jun 2013 - Statement of Reasons for Approval Decision under the EPBC Act in respect of the Maules Creek Project issued to NGO (Northern Inland Council for the Environment (NICE)).
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4 Jul 2013 - Whitehaven announces that it has received all requisite approvals required to commence construction (having received approval from SEWPAC for the Water Management Plans)
5 Jul 2013 - Registered Aboriginal Participants (RAPs) walk off site, raising concerns with the salvage work being conducted under the Aboriginal Cultural Heritage Management Plan. Numerous complaints and protests made by a faction of RAPs in respect of the salvage work throughout July-December 2013. Whitehaven consults with RAPs throughout this period.
18 Jul 2013 - EPBC Act Proceedings commenced in the Federal Court of Australia's General Division (New South Wales Registry) in respect of the Maules Creek Project (Proceedings).
23 Sep 2013 - NICE file interlocutory injunction application seeking to restrict construction works for the Maules Creek Project
25 Sep 2013 - Interlocutory hearing in respect of the injunction application - Justice Griffiths dismisses the application subject to providing an undertaking with respect to construction works.
20 Dec 2013 - Judgment received in respect of the Proceedings - Justice Cowdroy dismissed the Proceedings against the Maules Creek Project. Costs reserved.
3 Feb 2014 - Expiration of appeal deadline in the EPBC Act Proceedings
12 Mar 2014 - Judgment on Costs - Justice Cowdroy orders that: ○ NICE pay 80% of the costs of Whitehaven Coal in relation to the substantive application. ○ NICE pay the costs of Whitehaven Coal in relation to the interlocutory application filed by NICE on 23 September 2013. ○ There be no order as to costs in relation to the preparation of written submissions on the issue of costs.
10 Jun 2014 - Land and Environmental Court proceedings commenced against Whitehaven Coal by EDO / Maules Creek Community Council to stop clearing
12 Jun 2014 Land and Environmental Court undertaking granted to cease initial clearance operations
Some observations can be made about Maules Creek.
Polling by Whitehaven's independent pollsters indicates broad community support.
Of the 109 RAPs that were part of the salvage programme around 20-30 worked well on the site clearance.
There are no koalas in the site boundary.
All scientific reports (including from IESC) conclude minimal aquifer interference.
The biodiversity offset condition of the EPBC Act approval was undertaken by an independent qualified scientist (Government approved) and the verification process took five months to complete.
The Maules Creek project has been delayed two years from the date for first coal set out in the IPO prospectus. This delay can be largely attributed to:
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Litigation - six months.
Delay in delivery of Statement of Reasons - 5 months.
EPBC Act - water management plans condition - 4 months.
EPBC Act duplication with New South Wales approvals process - 4 months.
PAC1/PAC2 process - 12 months
The "balance from the proponent's viewpoint is materially imbalanced. The proponent would suggest that these delays added very little to the environmental protection afforded by the original New South Wales approval yet cost Whitehaven, its shareholders, the local community and the State, substantial money. In particular for Whitehaven, the rail and port take or pay obligation. This is a cash outgoing that the broad community cannot afford. The delays, in large measure, have not added to the environmental protection afforded by the original New South Wales approval.
New South Wales Approval
Part 3A application lodged August 2010
Approval received October 2012
EPBC Act Approval
August 2010 / Decision - Accredited Assessment Process
November 2012 / SEWPAC requests further water advice
December 2012 / EPBC Act extensions to 31 January
January 2013 / EPBC Act extensions to 7 February
February 2013 / EPBC Act extensions to 30 April
Received 11 February
Therefore 4 months after New South Wales approval, receive EPBC Act approval.
However, highly conditional.
EPBC Act Approval/Challenge
February 2013 / EPBC Act approval.
June 2013 / Statement of Reasons - 5 months delay.
July 2013 / NICE/EDO start Federal Court proceedings.
December 2013 / Court judgment - favourable - 6 months delay.
EPBC Act approval condition - no construction until Ministerial approval of surface and groundwater management plan.
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This was in addition to the water studies already completed for New South Wales.
Water management plan approved July 2013. Little change to work approved by New South Wales in November 2012.
Further 5 months delay in construction.
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Appendix 2 – NGO Groups Involved with the "Stop The Boom" Manifesto
Beyond Zero Emissions
Capricornia Conservation Council
Caroona Action Group
Environmental Defenders Office NSW
Environmental Defenders Office Queensland
Graeme Wood Foundation
Lock the Gate
Mackay Conservation Group
Mineral Policy Institute
Nature Conservation Council
The Australia Institute
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