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? 34 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 56 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. 910 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. 11 12 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. 13 14 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/ 15 16 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 21 22 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. 23 24 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). 25 26 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 31 32 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? 33 34 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) 35 36 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) 37 38 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 39 40 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.