On 9 November 2012, the Independent Expert Scientific Committee on Coal Seam Gas and Large Coal Mining Development (Committee) was established following the coming into force of amendments to the Environment Protection and Biodiversity Conservation 1999 (Cth) (EPBC Act).
These reforms require decision makers to obtain and take into account the Committee’s advice on the impacts of coal seam gas (CSG) and large coal mining (LCM) developments that are likely to have a significant impact on water resources before deciding whether or not to approve the development.
Who will be affected?
The amendments to the EPBC Act will affect those engaged in:
- ‘coal seam gas developments’, being CSG extraction that; or
- ‘large coal mining development’, being any coal mining activity that:
has, or is likely to have, a significant impact on water resources (including any impacts of associated salt production and salinity).
Such developments may have a significant impact either directly or cumulatively, when considered with other developments, whether past, present or reasonably foreseeable developments.
What is a ‘water resource’?
The EPBC Act adopts the definition of the term ‘water resource’ as set out in the Water Act 2007 (Cth), which means:
- surface water or ground water; or
- a watercourse, lake, wetland or aquifer (whether or not it currently has water in it);
What are the details?
In circumstances where the Commonwealth Minister for Environment (Minister) forms the view that a CSG or LCM development:
- is likely to have a significant impact on water resources; and
- may have an adverse impact on a matter of national environmental significance (MNES);
the Minister must obtain advice from the Committee before deciding whether or not to approve the development (new section 131AB of the EPBC Act). The Committee must provide the advice within 2 months of the request by the Minister.Once the Committee’s advice is provided, the Minister must consider the advice in deciding whether or not to approve the development (new section 136(2)(fa) of the EPBC Act).
What is the purpose and membership of the Committee?
The aim of the establishment of the Committee is to provide more certainty for regional communities around CSG and LCM developments, jobs and investment, and the protection of water resources.
The Committee will comprise of between 5 and 8 members appointed by the Minister on a part-time basis. Although the Minister may appoint members with expertise in other areas relevant to the performance of the Committee’s functions, the majority of the members must possess scientific qualifications in geology, hydrology, hydrogeology and/or ecology.
What are the Committee’s responsibilities?
In addition to providing advice to the Minister under the new section 131AB of the EPBC Act, the Committee is responsible for:
- Advising on research priorities to improve scientific understanding of the impacts of CSG and LCM developments on water resources;
- Advising on bioregional assessments in areas of high potential impact from CSG or LCM developments, including providing advice to the Minister on the priority areas in which these assessments should be undertaken;
- Advising on research and bioregional assessments commissioned by the Minister following consideration of the Committee’s advice;
- Publishing information on options for improving consistency and comparability of research in this area including in relation to the development of leading practice standards in relation to the protection of water resources from the impacts of CSG and LCM developments;
- Providing the Minister and the appropriate Minister in declared State or Territory Governments with expert scientific advice relating to the impacts of CSG and LCM development proposals on water resources and MNES. The Commonwealth is currently negotiating the National Partnership Agreement on Coal Seam Gas and Large Coal Mining Development (Agreement) with New South Wales, Victoria, Queensland, South Australia and the Northern Territory; and
- Advising on other matters prescribed by the regulations.
What is required by the Agreement?
The primary aims of the Agreement are to:
- Ensure the long term health, quality and viability of Australia’s water resources;
- Ensure the sustainable development of CSG and LCM developments given their potential contribution to Australia’s energy security and balance of international trade; and
- Address public concerns about the actual and potential impacts of CSG and LCM developments on water resources by ensuring that future decisions are informed by substantially improved science and independent expert advice.
The Agreement commences on execution by the Commonwealth and any other party. On 14 February 2012, Queensland became the first signatory to the Agreement. The Agreement has now also been signed by New South Wales and South Australia.
The Agreement requires signatories to amend relevant laws, regulations and guidelines to provide the following outcomes:
- CSG and LCM developments that are likely to have a significant impact on water resources are referred to the Committee for advice; and
- Decision makers must take account of the Committee’s advice in a transparent manner.
Further, signatories must seek advice from the Committee at appropriate stages of the approvals process for CSG or LCM development proposals that are likely to have a significant impact on water resources.
Where to from here?
The Agreement provides that States and Territories are to meet the following milestones:
- By September 2012, each signatory will publish a protocol that describes how they will decide which project applications should be referred to the Committee for advice; and
- By 31 March 2012, each signatory will amend relevant legislation, regulations and guidelines.
Despite the passage of the first milestone, New South Wales has not published any such protocol. Until such time as these milestones are achieved, it is difficult to comment on the implications of the referral regime.
However, on 30 September 2012, the Queensland Government published its protocol, which provides that:
- The decision maker for referrals to the Committee is either the Director-General/authorised delegate responsible for the administration of the Environmental Protection Act 1994 (Qld) or the Queensland Coordinator-General/authorised delegate for proposals being assesses as ‘significant projects’ under Part 4 of the State Development and Public Works Organisation Act 1971 (Qld);
- The term ‘likely’ is considered have a real possibility of occurring – a ‘remote’ chance of occurring will be insufficient;
- The term ‘significant impact’ is one which is ‘important, notable or of consequence, having regard to its context and intensity’; and
- Following the initial transition period, in almost all circumstances the referral to the Committee will occur immediately prior to or during the publication of the environmental impact statement.
Despite the fact that the Committee has been established and functions under the Commonwealth EPBC Act, due to the operation of the Agreement, the requirement for decision makers to obtain and consider advice from the Committee will also apply to State and Territory approval processes. This additional referral regime has the potential to increase the timeframe and complexity of the approvals process for CSG and LCM developments. Therefore, the NSW Government will need to ensure that the referral decision is made early in the approval process to avoid unnecessary delays to such developments and to ensure that the requirements are clear and transparent to avoid making the approvals process more complex.