Slides for ENVM3103 & ENVM7123 Lecture 5

Slides for ENVM3103 & ENVM7123 lecture 5 - 23 March 2020

Mining & EIA Course outline laws in Lecture Topic Queensland 1 Introduction 2 Planning schemes 24 March 2020 3 Development assessment Lecture 5 for Regulatory Frameworks for Environmental Management & 4 Conditions & development offences Planning (ENVM3103/7123), the University of Queensland 5 Mining & EIA Presented by: 6 CSG, ports & major infrastructure projects Dr Chris McGrath 7 Environmental harm & pollution 8 Nature conservation & vegetation management 9 Water management, fisheries & cultural heritage 10 EPBC Act 11 Climate change 12 Professional duties, ethics & courts 13 Future directions & exam review Photo: Tony Nielsen (2008) 12

Today’s lecture (Lecture 5) outline We explored the Adani Coal Mine in lecture 1 1. Today’s problems: New Acland Coal Mine – West Pit & Stage 3

2. Does the existing mine & its proposed new stage comply with the law and, if not, what steps need to be taken to make them comply?

• What laws regulate the mine?  When does planning vs mining/petroleum laws apply? • Are any applications needed to gain government approval?  Mineral Resources Act 1989 (Qld) – mining lease for tenure & royalties - [Nb. Water Act 2000 (Qld) – associated water licence pre-2016 application]  Environmental Protection Act 1994 (Qld) – environmental authority  Regional Planning Interests Act 2014 (Qld) - RIDA  State Development & Public Works Organisation Act 1971 (Qld) – EIS  EIA laws generally  Environment Protection and Biodiversity Conservation Act 1999 (Cth) - MNES • Are those applications likely to be granted?  How are mines assessed? 3. Regulatory capture: a huge problem for environmental regulation 4. What is the central principle of environmental regulation?

Climate change is a massive issue for Queensland’s mining sector but we will largely ignore it in this lecture (we will (Adapted from original) focus on it in lecture 9, plus ignoring climate change reflects OK, IS THERE ANYTHING . the current approach of mining regulators in Australia). ABOUT THE PROPOSED COAL MINE THAT WE HAVEN’T? COVERED IN THE EIA?

Photographer: unknown

1 Australia is already confronting the horrific impacts of the failure of our climate policies. 20 February 2020

Australian’s huddled under towels on the beach at Batemans Bay to escape bushfires Source: Twitter: Alastairprior via ABC News, 5 January 2020 78

Many people complain about the Lessons (from lecture 1): complexity of environmental and planning laws but no matter how simple you make the law, the factual complexity will remain. A witch’s brew of There is no simple solution to many complex, technical issues planning, development and mining issues because they are complex factually.

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This course aims to give you both:

Difficult disputes with lots 1. training in technical skills for of competing interests & your future careers; and stakeholders 2. knowledge of the values that underpin how the law is applied in practice.

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2 But the focus in this lecture is on understanding the regulatory system for mining. Here, the focus is on two, inter-related My aim is to both: aspects of the New Acland Coal Mine:

• To outline the basics of the regulatory system •“West Pit” for mining (EPA, MRA, etc). • the Stage 3 approval process • To confront the complex reality of regulating mining but not to get lost in the detail & fail to see the bigger picture of failure at many levels.

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Extensive (and ongoing) litigation about Stages 2 and 3 of the Acland Mine

New Acland Coal Mine

Oakey Brisbane

50 km

Source: QWI referral

http://envlaw.com.au/acland/

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CHPP

North Pit

Centre Pit

Centre Pit 1.5 km

West Pit West Pit South Pit

N 1 km Date of image: 27 January 2019 New Acland Mine looking north with West Pit in the foreground, Sep 2018. Source: OCCA 17 18

3 In 2017-18 the mining company also extended the southwest

West Pit boundary of South Pit beyond footprint applied for and assessed in 2005-2006

Source: OCAA

West Pit looking South, Sep 2018. Source: OCCA 19 20

CM2 Noise comes not just from the mining pits but also from: • the coal handling & processing plant (CHPP) on the northern part of the mine; and • Mining trucks hauling coal within the mine site (from pits to the CHPP and from the CHPP to the rail-line to the south of the mine).

Acland Mine Source: Qld Country Life (2014) Photo: Courier Mail

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Explainer: royalties are a payment to the government to purchase minerals owned There is a lot of money involved. by the State (they are not a tax i.e. a compulsory financial charge paid to government not being reasonable fees for a service or to purchase property).

“[882] [For Stage 3 of the New Acland Mine] with respect to royalties, 93% of the The mine currently produces 4-5 million land to be mined under Stage 3 was granted under pre-1910 titles, hence NAC tonnes of product coal / year. will [not pay] the usual royalties to the State. NAC will in effect pay the vast majority of its royalties (calculated at 7% of the value of the coal) to its related company APC. This is quite a saving for New Hope. …

At $100/ton, this equates to producing coal [991] … Only a small proportion of the returns of the project (including royalties with a gross value of $400-500 million per and taxes) will accrue to local residents and the state. … year. [1040] Approximately 93% of the land to be mined in Stage 3 was granted under pre 1910 land titles and consequently no royalties for coal mined on this land will be paid to the state. For the remaining land, Mr Campbell has estimated Because of the old tenures, most (93%) of approximately $39.9 million will be paid in royalties over the life of this project. OCAA submits that $436 million would have been expected to be paid (coal price the coal is owned by the landholder (the of $A78 – 80Mt) if all the land in revised Stage 3 was subject to the normal royalty mining company) and it pays no royalties to obligations to the state.” New Acland Coal Pty Ltd v Ashman & Ors and Chief Executive, Department of Environment and Heritage the State (normally around 7% of value). Protection (No. 4) [2017] QLC 24 (Smith M) at [882], [991] and [1040]. This decision was later found to be affected by apprehended bias against NAC but these facts were not in dispute.

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4 Picture: Andrya Hart

The New Acland Mine is in the midst of the Darling Downs, Queensland’s “Southern Food Bowl” and top quality farmland. Large public relations campaign funded by the mining company It is surrounded by neighbouring farms for whom noise, dust https://saveregionaltowns.com.au/ and groundwater impacts are a huge concern (and climate change for some farmers).

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Objectors and lawyers outside court after Land Court win in 2017 (later overturned) Source: EDO https://www.edoqld.org.au/new_acland_coal_mine_land_court_challenge Objectors and lawyers outside court after Land Court win in 2017 (later overturned) Source: EDO https://www.edoqld.org.au/new_acland_coal_mine_land_court_challenge 27 28

Chronology Ongoing • 2001 – Stage 1 (single pit approved as daytime-only operation but soon became 24 hr) litigation • 2006 – Stage 2 approved (3 pits: North, South & Central Pit) • 2007 – Original Stage 3 application (incl Manning Vale Pit) • 2012 – Original Stage 3 application rejected

• 2012 – Revised Stage 3 application (now Manning Vale East)

• 2016 – Land Court hearing (99-day hearing – groundwater & noise) • 2016 – Mining of new “West Pit” commences

• 2019 – Queensland Court of Appeal (apprehended bias & groundwater irrelevant under MRA & EPA) • Current – multiple remaining applications for revised Stage 3 Photo: ABC (Nathan Morris) 1 February 2020 https://www.msn.com/en-au/money/company-news/new-acland-coal- • High Court special leave application (for rehearing in Land Court) pursues-oakey-coal-action-alliance-for-legal-costs-ahead-of-possible-high- court-appeal/ar-BBZyjVw • Mining lease under MRA Note: I am acting for OCAA in the High Court • Water licence under Water Act 2000 (Qld) special leave application. • 2019 RIDA application under Regional Planning Interests Act 2014 (Qld) 29 30

5 Stage 2 Mining Lease Boundary and Pit Outlines” as described by NAC in its referral West Pit was (EPBC 2004/1884) not included in on 23 November 2004. the mine layout shown in 2006

EIS for Stage 2 The figure shows ML 50170 (red line), the proposed ML (blue line), and the current and proposed open cut pit layout (white line). The Location of West Pit yellow line (which is not shown in full) shows part of the boundaries of MDL 244

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The Stage 2 EA did not attach a map of the approved mining pits (but did attach a map of water monitoring locations showing pits)

Is West Pit lawful under the Stage 2 EA?

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Original Stage While the Stage 2 EA did not attach a map of the 3 proposed approved mining pits, it stated its the cover: mining pits

(including “Manning Vale”)

Source: Stage 3 EIS (2009)

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6 Original Stage 3 proposed mining pits Revised mine layout shown in (including 2014 EIS for “Manning Stage 3 Vale”)

Source: Stage 3 EIS (2009)

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The EA conditions for stage 3 (not yet in force) do limit the mining activity to an area identified in a map

“Manning Vale East Pit” on stage 2 shown in revised mine layout shown in 2014 EIS for Stage 3

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Is West Pit a breach of the EA? Principles for writing & interpreting conditions of approval (see handout for lecture 4):

3. The approval should clearly identify the activity that is approved and the conditions imposed upon the approval without a need to refer to the application (i.e. the approval should be a stand-alone document that either attaches or cross-references to any documents incorporated into it such as an approved plan).

…

13. Generally, an approval is to be interpreted as a stand-alone document without reference to the application material or other documents unless they are incorporated expressly or by implication (e.g. a condition that requires an approved rehabilitation plan to be complied with).

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7 Reality is complex and hard.

Current applications: in 2019 NAC applied for a Regional Interests Development Approval (RIDA) under the Regional Planning Interests Act 2014 (Qld) (RPIA) by reference to a “resource activity” that excluded large parts of the proposed Stage 3 mining pits and the CHPP where the ROM coal is Map from NAC RIDA processed on Stage 1 ML. application (2019)

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Context of the mine in the Context of the mine in Australian coal resources Queensland coal industry

Coal (Photographer not known) 45 46

Context of New Map of coal mines in Acland Coal Mine Queensland’s major mining area – the Bowen Basin Map of Queensland’s major mining areas – (mostly high quality the Bowen Basin, coking coal) Galilee Basin and Surat Basin Source: Qld Govt

Source: Qld Govt

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8 Map of further Map of Queensland’s expansion of mines new mega-mines in in the Surat Basin & the Galilee Basin the Clarence- Moreton Basin (largely below average quality Source: Qld Govt thermal coal)

Source: Qld Govt

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Today’s lecture (Lecture 5) outline

1. Today’s problems: New Acland Coal Mine – West Pit & Stage 3 Many laws 2. Does the existing mine & its proposed new stage comply with the law regulate mining and, if not, what steps need to be taken to make them comply? & petroleum • What laws regulate the mine?  When does planning vs mining/petroleum laws apply? • Are any applications needed to gain government approval?  Different types of tenure under the MRA Note: major regimes  Environmental authority under the EPA  Coordinated projects under the SDPWOA at federal and State  Water licence under the Water Act 2000 (Qld) levels for both  Referral under EPBC Act onshore and offshore  EIA laws generally  Regional Planning Interests Act 2014 (Qld) activities • Are those applications likely to be granted? See: SQELS  How are mines assessed? 3. Regulatory capture: a huge problem for environmental regulation 4. What is the central principle of environmental regulation?

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Understand and distinguish the following onshore Mining & petroleum activities are accepted development (therefore do not require approval) under the Planning Act mining & petroleum laws: 2016 (Qld) due to a combination of: • Mineral Resources Act 1989 (Qld) – exploration permit, MDL & mining lease (ML) • Section 44(6) of the Act (“if no categorising instrument o Mineral & Energy Resources (Common Provisions) Act 2014 (Qld) – categorises particular development – the development is compensation & overlapping resource tenures accepted development”) o Water Act 2000 (Qld) associated water licence [pre-2016 applications] but now water entitlement under s 334ZP of MRA • Not being listed as assessable development at a State level in any schedule of the Planning Regulation 2017 (Qld) • Petroleum & Gas (Production & Safety) Act 2004 (Qld) – ATP & petroleum lease • Environmental Protection Act 1994 (Qld) – environmental authority (EA) • Local governments are prohibited from making activities • Regional Planning Interests Act 2014 (Qld) – regional interests development approved under the Mineral Resources Act 1989 (Qld) or approval (RIDA) the various petroleum laws assessable development under Schedule 6 (Development local categorizing instrument is • State Development and Public Works Organisation Act 1971 (Qld) – EIS prohibited from stating is assessable development) of the • Environment Protection and Biodiversity Conservation Act 1999 (Cth) – MNES & Planning Regulation 2017 (Qld). assessment under Queensland Bilateral Agreement

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9 Mineral Resources Act 1989 (Qld)

[mining lease for tenure & royalties]

[Note also: Mineral and Energy Resources (Common Provisions) Act 2014 – compensation & overlapping tenures]

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General offence in MRA for exploring for Mining & petroleum activities are or mining minerals without relevant accepted development under the mining tenement (s402 MRA) Planning Act 2016 (Qld) but what constitutes “mining” or “petroleum”?

See s6 Mineral Resources Act 1989 (Qld) and s10 Petroleum & Gas (Production & Safety) Act 2004 (Qld)

[Contrast legal definition to scientific definition of mineral, which does not include coal]

[Refer to MRA]

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Definition of “mineral” in MRA (s6)

...

“rock mined in block or slab form for building or monumental purposes” is a “mineral” under s6 of the MRA.

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10 The legal definition of “mineral” under the MRA There are over 4,900 known mineral species; over 4,660 of these have does not reflect the scientific & technical definition been approved by the International Mineralogical Association (IMA). The general definition of a mineral encompasses the following criteria: Pyrite Photo: JJ Harrison • Naturally occurring • Stable at room temperature • Represented by a chemical formula • Usually abiogenic (not resulting from the activity of living organisms) • Ordered atomic arrangement

Amethyst Natrolite Native gold. Reference: Dyar MD & Gunter ME (2008) Mineralogy and Optical Mineralogy Photo: Rob Lavinsky (Mineralogical Society of America) Cf. http://en.wikipedia.org/wiki/Mineral Information and photos from http://en.wikipedia.org/wiki/Mineral

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There have been several proposals to change the Under many scientific & technical definitions, coal technical definition of “mineral” to consider is not considered a “mineral” because it is a rock biogenic or amorphous substances as minerals. that is formed from decayed plants and animals while minerals are described as being inorganic. The formal definition of a mineral approved by the IMA in 1995:

A mineral is an element or chemical compound that is normally crystalline and that has been formed as a result of geological Coal has the properties of sedimentary (and processes. sometimes metamorphic) rock, and does not In addition, biogenic substances were explicitly excluded: have the atomic structure of a mineral. Biogenic substances are chemical compounds produced entirely by biological processes without a geological component (e.g. shells of However, it may be considered a mineral taking marine molluscs, etc.) and are not regarded as minerals. However, if geological processes were involved in the genesis of the compound, into account the geological processes involved in then the product can be accepted as a mineral. its genesis.

Nickel, Ernest H. (1995). "The definition of a mineral". The Canadian Mineralogist 33 (3): 689–690; cf. http://en.wikipedia.org/wiki/Mineral See http://www.ask.com/question/why-is-coal-not-considered-a-mineral

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Ask a mining / minerals expert: is coal a mineral? Coal (from the Old English term col, which has “Strictly speaking, coal is NOT a mineral because it meant "mineral of fossilized carbon" since the 13th is organic, and lacks a standard chemical formula century) is a combustible black or brownish-black and ordered atomic structure (based on repeating sedimentary rock usually occurring in rock strata in units within a crystalline lattice framework), despite layers or veins called coal beds or coal seams. being formed as a result of geological processes. But – it [is] treated as a ‘mineral’ just like metallic The harder forms, such as anthracite coal, can be ores under Australian Bureau of Statistics regarded as metamorphic rock because of later classifications, and most Government publications both within Queensland and Australia-wide. exposure to elevated temperature and pressure. Coal is composed primarily of carbon along with variable That said, even within the ANZSIC, coal is separated out as a distinct resource from other metallic and non-metallic ores: quantities of other elements, chiefly hydrogen, sulfur, oxygen, and nitrogen. Subdivision 06 Coal Mining Subdivision 07 Oil and Gas Extraction References: Harper, Douglas. "coal". Online Etymology Dictionary. Blander, M. Subdivision 08 Metal Ore Mining "Calculations of the Influence of Additives on Coal Combustion Deposits". Argonne Subdivision 09 Non-Metallic Mineral Mining and Quarrying National Laboratory. p. 315; http://en.m.wikipedia.org/wiki/Coal Subdivision 10 Exploration and Other Mining Support Services”

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11 Despite coal arguably not being a Different types of tenures under the “mineral” in a strict technical sense, in a Mineral Resources Act 1989 (Qld) legal sense it is clear that coal is included as a mineral under the MRA having regard to the definition in s6 and The MRA is mainly concerned with mining the numerous references to “coal” and tenure and royalty issues “coal seam gas” in the MRA.

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“Artisanal” or “Hobby” mine tenures under MRA (differs from defined “small scale mining activity”) Large mining tenures

Prospecting permit: entitles the holder to prospect for Exploration permit: is issued for the purpose of and hand-mine for minerals (excluding coal) and/or peg exploration for minerals & may eventually lead to an a mining lease or mining claim on the available land application for a MDL or mining lease. specified. Mineral development licence: allows mining feasibility Mining claim: are granted to holders of prospecting studies, etc, to evaluate the development potential of the permits to carry out small-scale operations with limited defined resource. Excludes other miners from lodging use of machinery; can be up to one hectare in area ; application for mining lease. and entitles the holder to prospect and hand-mine for specified minerals (excluding coal). Mining lease: allows mining operations and production of minerals using machines for sale. (Nb. Also fossicking licences under Fossicking Act)

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Exploratory drilling for the Wandoan Coal Mine. Exploration drilling core showing coal seam

Source: Xstrata Coal

Exploration activities typically involve relatively small impacts across a large area. The exploration permit gives access rights for these activities. Source: Xstrata Coal 71 72

12 Major rights under exploration permit (s129 MRA)

Target (D-E) coal seams at base of Alpha Mine bulk sample pit Source: Courier Mail

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The next step from an exploration permit is a “mineral development licence” (MDL), which Requirements allows mining feasibility studies, etc, to evaluate for exploration the development permit potential of the defined resource. Excludes other application miners from lodging application for mining lease. (s133 MRA) NAC has an MDL to the south of the mine.

Source: New Hope Coal, Stage 2 EPBC Act referral, Figure 2.

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Holders of exploration permits can restrict the grant of mining leases in the area (s232 MRA).

Photographer: unknown A full-blown mine involves much greater impacts and requires a mining lease. Photo: Curragh Coal Mine (11.5 mtpa ROM) near Blackwater, Queensland. Photo: Tony Nielsen (2008)

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13 The mining lease gives a right to extract a mineral Application process for mining lease and sell it, subject to paying royalties (s235 MRA) (s245- MRA)

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Note: because the ML application for Stage 3 of the New Acland Mine was made prior to amendments in 2016, it requires an “associated water licence” under the Water Act 2000 (Qld) (with objection rights and potential hearing Environmental authorities for in the Land Court). mining under the Environmental Groundwater impacts of mining applications after 2016 are Protection Act 1994 (Qld) assessed under the EPA and holders of a MDL or ML have an automatic water entitlement under s 334ZP of the MRA: [Skim read & overview of structure – discussed further in lecture 7]

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(Old) Structure of EPA chapters – prior to “greentape reduction” in 2013 Chapter Heading 1 Preliminary (objects, etc) 2 Environmental Protection Policies (EPPs) 3 Environmental impact statements [for mining & petroleum activities] 4 Development approvals & registration (other than for mining or Ch 5A activities) 4A Great Barrier Reef protection measures Overview of EPA 5 Environmental authorities for mining activities 5A Environmental authorities for petroleum activities & GHG storage 6 General provisions about environmental authorities & registration certificates 7 Environmental management [In this lecture - Part 1 (Environmental duties), s 319 concentrating on - Part 8 (Contaminated land) approval process for 8 General environmental offences - Part 3 (Offences related to environmental harm), ss 437 & 438 mining. Key concepts for 9 Investigation & enforcement general offences such as 10 Legal proceedings “environmental harm” to - Part 2 (Executive officer liability), s493 be covered in Lecture 7]. - Part 2A (Unlawful environmental harm), s493A 11 Administration 12 Miscellaneous 13 Savings, transitional and related provisions Sch 4 Dictionary

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14 New structure of EPA chapters – after to “greentape reduction” in 2013 Chapter Heading 1 Preliminary (objects, etc) General offence (s426 EPA) 2 Environmental Protection Policies (EPPs) 3 Environmental impact statements [for mining & petroleum activities]

4A Great Barrier Reef protection measures 5 Environmental authorities & environmentally relevant activities (ERAs)

5A General provisions about ERAs 7 Environmental management - Part 1 (Environmental duties), s 319 - Part 8 (Contaminated land) 8 General environmental offences - Part 3 (Offences related to environmental harm), ss 437 & 438 9 Investigation & enforcement 10 Legal proceedings - Part 2 (Executive officer liability), s493 - Part 2A (Unlawful environmental harm), s493A 11 Administration 12 Miscellaneous 13 Savings, transitional and related provisions Sch 4 Dictionary

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Environmentally relevant activities New Ch 5 of EPA covers all environmental (ss 18 & 19 EPA) authorities (amended 2013)

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64 “prescribed ERAs” are listed in Sch 2 of the Mining activities are a resource activity that requires an Environmental Protection Regulations 2019 (Qld) environmental authority (ss107 & 110 EPA)

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15 Remember – it is an offence to carry out an ERA Definition of “small scale mining without an environmental authority (s426 EPA) activity” in Sch 4 of EPA

..... [see rest of definition]

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New Ch 5 of EPA covers all environmental Three types of ERA applications authorities (amended 2013) (s121-124 EPA)

Following amendments to the EP Act to simplifying its administration that took effect on 31 March 2013, applications for an environmental authority for a mining or petroleum activity are divided into three different types:

Standard applications—when an applicant can meet the eligibility criteria and all the standard conditions associated with an ERA. This application type is generally restricted to low-risk activities and are not publicly notified except for applications involving a mining lease (s149)

Variation applications—when an applicant can meet the eligibility criteria but needs to change one or more of the standard conditions for an ERA

Site-specific applications—when an applicant does not meet the eligibility criteria for the ERA, where there are no eligibility criteria in existence or the activity is part of a coordinated project being assessed by the Coordinator-General. These applications are subject to a whole-of-project assessment and include public notification. Standard conditions may be used in these approvals, however, it is likely that site-specific conditions will also be imposed.

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The Regional Planning Interests Act 2014 (Qld) principally protects:

The Regional Planning Interests Act 2014 (Qld) Principally protects: provides for Regional Interests Development • Priority agricultural areas Approval (RIDA) principally to ensure that • Strategic cropping areas decisions about resource activities such as mines • Priority living areas and CSG are assessed against regional plans. • Strategic environmental areas (SEA)

Principally applies to: • Resource activities (mining & petroleum / CSG) • Regulated activity (broadacre cropping) [Nb. SEA only] See http://www.dsdip.qld.gov.au/infrastructure-and-planning/regional- planning-interests-act.html • Regulated activity (water storage / dam) [Nb. SEA only]

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The State Development & Public Works Organisation Act 1971 (Qld) provides an environmental impact statement (EIS) process for “coordinated projects” [previously called “significant projects”] EIA basics

Formal environmental impact assessment (EIA) processes are used by decision-makers in over 100 countries around the world.

The most common form of EIA is preparation of an environmental impact statement (EIS), first used in the National Environmental Policy Act 1969 (USA) .

See Christopher Wood (2003), Environmental impact assessment: a comparative review (2nd ed, Prentice Hall, London). http://www.dsdip.qld.gov.au/assessments-and-approvals/coordinated-project-declaration.html

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17 Basic purpose of EIA Statutory context of EIA in Qld

An EIS for a coal mine in Queensland may be required The typical aims of EIA are to inform under: the decision-maker and the public of • Environment Protection & Biodiversity the true impacts of a proposal and Conservation Act 1999 (Cth) allow alternatives and mitigation • State Development and Public Works measures to be weighed up. Organisation Act 1971 (Qld)

See Christopher Wood (2003), Environmental impact assessment: a • Environmental Protection Act 1994 (Qld) comparative review (2nd ed, Prentice Hall, London). (Nb. normally only one EIS process is used)

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The basic process for assessing mines sounds fairly simple

EIS or other assessment Objection Ministerial Application for by Objection hearing in approvals a mining lease government period Land Court & EA produces draft EA

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But becomes very complicated in practice

Environment Protection & Biodiversity Conservation Act 1999 (Cth)

[Examined in more detail in lecture 10]

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18 Matters of national environmental significance are the key trigger for approval under the EPBC Act (Stage 3 of Bilateral agreements the New Acland Mine triggered to MNES): 1. World Heritage places 2. National Heritage places Assessment bilaterals – substitute state EIA 3. Ramsar wetlands procedure for EIA under EPBC Act but 4. Listed threatened species & listed threatened ecological Commonwealth retains ultimate decision on communities (ss 18 & 18A) approval or refusal. 5. Migratory species Approval bilaterals – allow state to make 6. Nuclear actions ultimate decision. 7. Commonwealth marine areas 8. Great Barrier Reef 9. Mines and CSG impacting on water resources (ss 24D & 24E)

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Bilateral agreements

All states and territories have entered assessment bilaterals with the Commonwealth. In Queensland EIA under the EPBC Act may be done using the EIS procedure in the: • State Development & Public Works Organisation Act 1971 (Qld) • Environmental Protection Act 1994 (Qld) • Sustainable Planning Act 2009 (Qld) [See handout from Lecture 5 on EIA procedures]

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Criteria for assessing mining lease Criteria for assessing mining lease (s 271 MRA) (s 269(4) MRA)

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19 Criteria for assessing mining lease Object when assessing environmental authority (s 269(4) MRA) (ss 3 & 5 EPA)

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Criteria for assessing environmental authority Definition of “standard criteria” (ss 175-180 EPA) Sch 4 (Dictionary) of EPA

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Mining So, to answer our key questions: applications are rarely Does West Pit & the proposed rejected but it Stage 3 of the New Acland Coal can happen. Mine need any approvals to comply with the law?

Are those approvals likely to be granted?

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20 While decisions on approvals for coal mines Over-arching duty to achieve ESD in theory prohibit decisions that are not consistent with ecologically sustainable development, in practice they involve weighing up broad considerations of jobs and economic benefits vs adverse social and environmental impacts.

In this weighing up process, jobs and

economics typically trump other Adani Mining Pty Ltd v Land Services of Coast and Country Inc & Ors considerations. [2015] QLC 48 at [58] (MacDonald P)

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Jobs and economics trump social and environmental impacts: “We are in the coal business. If you want decent hospitals, schools and police on the Australian politicians have “quarry vision” – they beat we all need to understand that.” believe that Australia’s Queensland Premier Campbell Newman, 1 June 2012 greatest asset is its mineral and energy resources – coal above all.

This distorts our national politics and stymies action on climate change.

Guy Pearse (2009)

Photographer: unknown

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A landmark study of business regulation in Australia in 1986 concluded (pp 1 & 43):

“Australian business regulatory agencies are of manners gentle … litigation or any kind of adversarial encounter with industry is 3. Regulatory capture: a huge commonly undertaken only as a problem for environmental last resort.” “The major agencies in Queensland regulation dedicated to environmental regulation differ dramatically in their approaches from those of their counterparts in New South Wales and Victoria. [In Queensland] one sees an explicit avoidance of prosecution in favour of a tolerant, conciliatory approach.”

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21 It is no surprise that the current Australian Government approves any and every application for a coal mine.

“Don’t be afraid, don’t be scared, it won’t hurt you. It’s coal.” Scott Morrison (then Australian Treasurer), 2017, attempting to ridicule the Opposition’s commitment to renewable energy. Photographer: Unknown Cartoonist: David Pope: http://www.smh.com.au/photogallery/federal-politics/cartoons/david-pope-20141123-1t3j0.html 127 128

“Capture theory describes the process by which government agencies responsible for corporate regulation shift from enforcing public interest law to serving the interests of Regulatory capture theory is an the corporate identities being ‘regulated’. Two broad models have been theorised: important aspect of research into ‘systemic capture’, which refers to the procuration of an entire regulatory system by organisational behaviour. the regulated industry …; and ‘influence’ models …. Sources of undue influence include personnel interchange – the ‘revolving door’ theory – and identification In it, “the shift is a subtle one in which with industry values through frequent contact. Direct personal inducement – outright corruption – is the crudest form of the mores, attitudes, and thinking of capture. ‘Agency survival’ can also be a significant factor in appeasing strong interest those regulated come to prevail in the groups which have influence with the agency’s political masters. Legislation may approach and thinking of many be partly symbolic, designed to satisfy international obligations, or to quiet regulatory officials.” public interest groups, with the tacit understanding between government and regulators of under-enforcement.” Keith Hawkins, Environment and Enforcement: Regulation and the Social Definition of Pollution (Clarendon Press, Oxford, 1984), p 3. Briody & Prenzler (1998) 15 EPLJ 54 at 55

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“Reasons for grossly inadequate enforcement of We still have a big problem with regulatory environmental laws [in capture of environmental regulators in Queensland] must include a notion of partial capture of Queensland (including political decision- the Department of making by Ministers & regulators). Environment. Causal factors include attenuated political interference, There is often an enormous gap between possible over-familiarity what the law says on paper and reality in with industry through practice. common industry background, and an organisational tradition of Note: this is not always the case (e.g. DES under-enforcement.” prosecutions of Linc Energy 2013-2020) Briody & Prenzler (1998) 15 EPLJ 54 at 71

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22 Environmental Protection Act 1994 (Qld), s 215 (2)(n) For the New Acland Coal Mine, if we assume: • failing to attach a map of the mine pit areas to the Stage 2 environmental authority was merely an enormous stuff-up / negligent (rather than regulatory capture); and • mining West Pit is lawful & a prosecution would fail [note: I disagree], … Why has the Department of Environment & Science taken no steps since 2015 to amend the environmental authority to attach a map of approved pits & stop West Pit when it clearly has power to do so (under s215(2)(n) of the EPA)?

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The term “regulatory capture” is applied to If you work as a consultant in the private sector in the future, who will you want to work for? regulators (i.e. government) but the same or stronger influences affect the private • Large mining companies & other developers sector such as environmental consultants (who can pay your professional fees & who you and lawyers. can expect return business from over many years)? Few, if any, private consultants or lawyers • The government (who can also pay your fees)? speak out against industry interests (“don’t bite the hand that feeds you”). • Members of the public & community groups (who, generally, cannot pay your fees & will not expect return business from in the future)? This will influence your careers too.

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Applications for mines are assessed against broad, qualitative criteria such as whether the approval would be in “the public interest” and “economic and social matters” in the context of 4. What is the central principle of broad objectives such as “ecologically environmental regulation sustainable development”. (i.e. law and policy)? There are no (or very, very, very few) quantitative limits for impacts above which refusal is mandatory.

See e.g. MRA, s 269(4)(k); EPA, standard criteria; and EPBC Act, s 136(1)(b)

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23 It is no surprise that the current Australian Government approves any and every application for The dominant political paradigm a coal mine. in Queensland and Australia is that we will mine and burn all available fossil fuels.

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We like to think that environmental policy and decisions are based predominantly on science and evidence but the reality is many government decisions are:

• highly political (i.e. they are aimed at winning or holding power in government) and/or

• ideological (based on a set of political, cultural, or religious beliefs that support unlimited growth, private profit/money & jobs rather than science or evidence) with claims of being based on science and the There are important lessons about the exercise of “best available information” used as Ministerial “discretion” in $100 million Sports Rorts camouflage. Scandal, which led to the then Sports Minister, Bridget McKenzie, resigning on 2 February 2020. Picture: Marc Tewksbury/AAPSource:AAP 141 142

The Minister’s office prepared a spreadsheet in which sporting applications were colour-coded for government (Liberal / National) seats and opposition (Labor) seats

A leaked spreadsheet assessing applications for a Federal Government sports grants program. Colour-coded spreadsheet exposes $100 million ‘sports rort’ scandal.

Source: ABC News: Matthew Doran https://www.abc.net.au/news/2020-02-02/bridget-mckenzie-sport-grants-minister-rules/11922152 Source: ABC & News.com https://www.news.com.au/finance/work/leaders/colourcoded-spreadsheet-exposes-100-million-sports-rort-scandal/news-story/92ded4a6a5f878d70493ac4191929a70

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24 Applications for mines are assessed against broad, qualitative criteria such as whether the The Morrison Government's $100 million approval would be in “the public interest” and sports rorts scandal has lessons for the “economic and social matters” in the context of environmental law. broad objectives such as “ecologically sustainable development”. Ministerial "discretion" is equally skewed to approve coal mines, we just don't see There are no (or very, very, very few) leaks of the colour coded spreadsheets quantitative limits for impacts above which to illustrate it. refusal is mandatory.

See e.g. MRA, s 269(4)(k); EPA, standard criteria; and EPBC Act, s 136(1)(b)

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What the law says on paper and what happens in practice is like seeing a shark fin on the surface of the water.

The shark fin is what the law says e.g. the mining lease for a coal mine must be in the “public interest”.

The “exercise” of discretion is what lies beneath the words on the paper.

Photo: Dave Valencia http://www.divephotoguide.com/user/davevalencia/gallery/reef-sharks/photo/14434/ 147 148

The surface: the law states goals for “sustainable The surface: what the law says on paper. development” & allows a discretion for approval in the “public interest”

Beneath the surface: strong preference / culture* Beneath the surface: the exercise of discretion supporting: • Growth (i.e. unlimited expansion)

• Private profit (i.e. money)

• Employment / jobs (e.g. in construction)

(* I have deliberately avoided the word “bias”)

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25 Don’t be naïve by assuming that the law will protect the environment. Ministers (who are politicians) often make political decisions (e.g. based on supporting There is often a big gap between what the growth, private profits and jobs) but so do: laws says on paper, and how it is implemented. • government departments

• local governments We live in a culture that strongly supports growth, private profit and jobs. It should be • “independent” agencies & authorities (e.g. unsurprising that discretions granted for GBRMPA). approvals routinely favour those things.

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Don’t be naïve but also don’t be cynical “[Environmental] Legislation may be partly about environmental regulation & symbolic, designed to satisfy international government generally. obligations, or to quiet public interest groups, with the tacit understanding between Be realistic – in reality, environmental government and regulators of under- regulation & government are not a utopia enforcement.” where the best ideas & policies flourish in a seamless system based on the best Briody M and Prenzler T ‘The Enforcement of Environmental Protection Laws in Queensland: A Case of Regulatory Capture?’ (1998) 15(1) EPLJ 54 at 55 available science.

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The main (central) lesson that I have learnt in my career is: Is there a central paradigm or Environmental regulation principle in this for environmental (law and policy) is hard regulation in Australia? and money talks.

e.g. “ecologically sustainable It is hard factually and legally. development” Money talks, not in the sense of outright corruption, but in the fact that money buys political influence & the resources to buy the best lawyers and experts to support extensive damage to the environment.

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26 The financial resources that large Today’s lecture (Lecture 5) outline mining companies and other 1. Today’s problems: New Acland Coal Mine – West Pit & Stage 3 developers wield puts them at a great 2. Does the existing mine & its proposed new stage comply with the law and, if not, what steps need to be taken to make them comply?

practical advantage to people in the • What laws regulate the mine? community who oppose a mine or other  When does planning vs mining/petroleum laws apply? • Are any applications needed to gain government approval? large project proceeding.  Mineral Resources Act 1989 (Qld) – mining lease for tenure & royalties - [Nb. Water Act 2000 (Qld) – associated water licence pre-2016 application]  Environmental Protection Act 1994 (Qld) – environmental authority  Regional Planning Interests Act 2014 (Qld) - RIDA  State Development & Public Works Organisation Act 1971 (Qld) – EIS Financial resources gives them the  EIA laws generally ability to “outgun” the community (&  Environment Protection and Biodiversity Conservation Act 1999 (Cth) - MNES • Are those applications likely to be granted? even government) with lawyers and  How are mines assessed? paid consultants. 3. Regulatory capture: a huge problem for environmental regulation 4. What is the central principle of environmental regulation?

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Take home points: Further reading: 1. Mining and petroleum is accepted development under the Planning Act 2016 (Qld), therefore the development assessment system does not apply to them.

1. Look at the complexity (not the detail) of the 2. The definitions of “mineral” and “petroleum” are the key to understanding EIA documents on the litigation against the what activities are exempt from the Planning Act 2016 (Qld). New Acland Coal Mine Stage 3 at 3. Different regimes exist (at a State level) for: http://envlaw.com.au/acland/ • tenure & royalties vs environmental protection • mining vs petroleum (including gas) activities • onshore vs offshore activities

5. There are a number of different statutory processes for environmental impact assessment (EIA) in Queensland. Preparation of an environmental impact statement (EIS) is one of them and commonly used for large mines. 6. Approvals for mines involve weighing up broad considerations of jobs and economic benefits vs adverse social and environmental impacts. In this process, jobs and economics typically trump other considerations. 7. Regulatory capture is a huge problem for environmental regulation.

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