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Submission to Select Committee on Certain Aspects of the Queensland Government Administration Related to Commonwealth Government Affairs

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Submission to Select Committee on Certain Aspects of the Queensland Government Administration Related to Commonwealth Government Affairs Submission to Select Committee on Certain Aspects of the Queensland Government Administration related to Commonwealth Government Affairs 18 November 2014 Introduction 1. Thank you for the opportunity to make a submission to this Committee. This submission is made by Environmental Justice Australia on behalf of the Conservation Action Trust (“CAT”). Environmental Justice Australia is a public interest legal practice. CAT is non-profit organisation located in Mumbai, India.1 CAT works with communities in the proximity of coal-fired power plants that are currently operational or in development and that are owned by the Adani group of companies (“Adani Group”), including around the Mundra Port and Special Economic Zone. 2. This submission addresses the following Terms of Reference of the inquiry – (1)(c) approval process for the development of projects for the export of resources or services insofar as they are administered by the Commonwealth or under a bilateral agreement with the Commonwealth; and (1) (e) whether it is appropriate for the Federal Minister for the Environment to delegate his approval powers to the Queensland State Government under the Environment Protection and Biodiversity Conservation Act 1999 by way of approval bilateral agreements or strategic assessments. 3. Our particular focus is the degree to which these processes under Queensland and Commonwealth environmental protection laws are capable of adequately identifying and responding to integrity issues related to the record of environmental compliance of project proponents. 4. CAT is currently a party to litigation in the Land Court of Queensland objecting to the grant of an environmental authority to Adani Mining Pty Ltd for the Carmichael Coal Mine project which includes building Australia’s largest thermal coal mine in the north Galilee Basin approximately 160km north-west of Clermont in Central Queensland (“Carmichael Coal Mine”). 1 See http://www.cat.org.in/. Environmental PO Box 12123 T (03) 8341 3100 Justice Australia A'Beckett Street PO F (03) 8341 3111 ABN 74052124375 Melbourne VIC 8006 E [email protected] L3, 60 Leicester St, Carlton W www.envirojustice.org.au 5. This submission outlines the reasons for CAT’s concern that the approval process for the development of the Carmichael Coal Mine, administered in part under a bilateral assessment agreement with the Commonwealth, has failed to address important issues about the suitability of the proponent to hold environmental approvals and the poor environmental record of the proponent. 6. We submit that the evidence raises serious questions about whether the proponent of the Carmichael Coal Mine, Adani Mining Pty Ltd (“Adani Mining”), is a suitable entity to develop and operate the mine. In India, the Adani Group has caused serious environmental harm around its port in Mundra and has a very concerning environmental record. Further, there have been worrying reports about involvement by the Adani Group in the illegal export of iron ore, including about bribing government officials. 7. Adani Mining is a wholly owned subsidiary company in the Adani Group and is inextricably linked to the integrated operations of the Adani Group. (This link is described further below at paragraphs 35 to 40.) As a result, the environmental record of the Adani Group should have been considered when assessing Adani Mining’s suitability to hold environmental approvals. 8. As described below, the Commonwealth and Queensland laws have proved inadequate to deal with these issues. This inadequacy of both the Commonwealth and Queensland laws to properly assess the suitability of proponents for major projects with a problematic environmental record will be further exacerbated should the Commonwealth and Queensland governments enter into a bilateral approval agreement which will have the result that these issues will be dealt with solely under Queensland laws and processes. 9. Under current Queensland environmental legislation, the provisions for assessing the environmental record of a proponent are contained in the ‘suitable registered operator’ provisions of the Environment Protection Act 1994 (Qld) (“EP Act”). Registration as a suitable registered operator is a precondition to obtaining an environmental authority. These provisions were introduced with effect from 31 March 2013 by the Environmental Protection (Greentape Reduction) and Other Legislation Amendment Act 2012 (Cth). 10. However we have been informed by the Queensland Department of Environment and Heritage Protection that Adani Mining was not required to submit an application to become a suitable registered operator under section 318F of the EP Act and was instead deemed to be a suitable registered operator under section 705 of the EP Act because it already held an environmental authority for an earlier project. It is unclear whether an adequate assessment of the suitability of Adani Mining to hold an environmental authority was undertaken as part of this earlier approval process. We are unaware whether Adani Mining declared its full environmental record when it applied for the environmental authorities that have been granted to it, and we have seen no record of Adani Mining declaring to the Queensland and Commonwealth governments the adverse findings against Adani Mining’s parent company that have been made by the Indian Ministry of Environment and Forests, described in paragraphs 17 to 28 below. Page 2 of 13 11. It is also not clear that the environmental history of the Adani Group has been adequately considered under Commonwealth environmental legislation, although this is a matter clearly relevant to the grant of approval under that legislation. Under section 136(4) of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (“EPBC Act”) provides that the Federal Minister for the Environment, when considering whether to grant an approval under that Act, may consider whether the person is suitable person to be granted an approval, having regard to: “(a) the person’s history in relation to environmental matters; and (b) if the person is a body corporate—the history of its executive officers in relation to environmental matters; and (c) if the person is a body corporate that is a subsidiary of another body or company (the parent body)—the history in relation to environmental matters of the parent body and its executive officers.”2 12. The Federal Department of the Environment the Commonwealth has also issued a policy statement addressing the consideration of a person’s environmental history.3 This policy statement indicates that matters relevant to a proponent’s environmental history should be interpreted broadly and will include non- compliance even where no proceedings are initiated in relation to that non-compliance, and non-compliance identified through monitoring and audit activities. 13. Adani Mining has made two referrals under the EPBC Act: for the North Galilee Basin Rail project and for the Carmichael Coal Mine.4 It is not clear that Adani Mining has provided any information about the environmental history of the Adani Group to the Federal Department of the Environment beyond that included in the referrals, or that the Federal Department of the Environment has given consideration to any information beyond that provided by Adani Mining in its referrals. In its referral documentation for the Carmichael Coal Mine dated 2010, in response to the question “Does the party taking the action have a satisfactory record of responsible environmental management?”, Adani Mining stated “The Carmichael Coal Mine and Rail Project is the Adani Group’s first operation within Australia. The Adani Group has a history of responsible environmental and community management applied to similar projects in other countries.”5 In response to the same question in relation to the North Galilee Rail project, in its referral documentation in 2 Environment Protection and Biodiversity Conservation Act 1999 (Cth), s 136(4). 3 Australian Government Department of the Environment, EPBC Act Policy Statement – Consideration of a person’s environmental history when making decisions under the EPBC Act, available at download at http://www.environment.gov.au/resource/epbc-act-policy-statement-consideration-persons-environmental-history- when-making-decisions (accessed November 17, 2014). 4 Australian Government Department of the Environment, Referrals list page (search for “Adani Mining”), available at http://www.environment.gov.au/cgi- bin/epbc/epbc_ap.pl?name=current_referrals&limit=999999&text_search=adani+mining (accessed November 17, 2014). 5 See “Invitation for Public Comment on Referral,” available to download at Australian Government Department of the Environment, Referral Detail – Adani Mining Pty Ltd/Mining/Moray Downs Cattle Station 160km North West of Clermont/QLD/Carmichael Coal Mine and Rail Project (2010/5736), page 27, available at http://www.environment.gov.au/cgi-bin/epbc/epbc_ap.pl?name=current_referral_detail&proposal_id=5736 (accessed November 17, 2014). Page 3 of 13 2013, Adani Mining excluded any reference to the operations of the Adani Group outside Australia and stated “Adani has not been subject to any proceedings under a Commonwealth, State or Territory law for the protection of the environment or the conservation and sustainable use of natural resources. Since establishing in Australia, Adani has sought to deliver community benefit from its business involvement.”6 14. Notably, in relation to the North Galilee Rail project, which was assessed via
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