Thursday, 22 January 2015

The Newman Government’s Water Act amendments: Part 3, Make Good

Mine monitoring bore going dry
Photo sourced: Farmer claims mine water monitoring is flawed
By George Houen

Make Good

Mine dewatering is to be subject to the Water Act provisions requiring underground water impact reports, baseline assessments, general agreements and make good agreements. These will do little if anything to protect the rights of other groundwater users.


Miners will hide behind the one-side and trivial provisions of the Water Act to frustrate any attempts by landowners to achieve make good agreements that are actually workable and enforceable. The limited  bargaining power which the landowner may have during the current objection process will no longer count for anything as far as a make good agreement is concerned.  

The Water Act make good provisions are so one-sided and fundamentally flawed that in practical terms are they unenforceable, for example:

  1. settlement of a make good agreement is not required before dewatering begins, so the landholder has no bargaining power – only a recourse to the Court and the Court would be restricted by these badly designed Water Act provisions
  2. no requirement for independent expert testing of bores;
  3. bore owner not entitled to the data and reports
  4. baseline testing of private bores inadequate (especially as sustainable yield and gas intrusion not tested)
  5. no regular monitoring of private bores including for specific capacity (short-form yield test) and gas intrusion
  6. no expert-determined declining value trigger levels for individual bores derived from monitoring data (just one-size-fits-all water level decline which is not conclusive proof of diminished capacity)
  7. no process for independent expert interpretation of impaired capacity and its cause when trigger levels reached
  8. no process for resolving appropriate make good action
  9. no dispute resolution process for technical matters requiring expert assessment
  10. both make good and compensation are assessed according to the ‘authorised purpose or use’ of the bore, ie. its licensed yield limit (if there is one) and description of its utilisation at the time of baseline testing. Either or both of those parameters may be substantially below the bore’s actual capacity.


Licenced yield (if the bore is subject to licensing) can be amended. Subject to that upper limit it is the owner’s right to use the bore’s full capacity and it is that full capacity which must be underwritten by the make good system.  

The Water Act make good scheme fails to test (baseline test) and track (by monitoring) an individual bore’s actual capacity and thereby accurately identify any adverse change and its cause. Data from those in-house assessments isn’t required to be shared with the bore owner. Those

broad groundwater assessments and reports under the Water Act will gather a vast bank of data which is of little if any use when it comes to achieving a just outcome for the owner of a damaged bore.

More detail of the dysfunctional nature of the make good scheme may be found in ‘Make Good Flaws’, a supplementary document from Basin Sustainability Alliance at the 29thOctober 2014 public hearing of the Agriculture, Resources and Environmental Committee of Parliament.   

As is painfully obvious from experience in make good negotiations with CSG companies, such weak and inadequate terms in the Act are used by resource companies as a shield to deflect and frustrate any attempt by landholders to negotiate realistic and enforceable terms of a make good agreement. 

As stated above, dewatering approval should only granted after the proponent has entered into a make good agreement with each potentially affected bore owner.

Private make good agreements can meet all the tests referred to above. In both parties’ interests the agreement must lay out a process for gathering and supplying to both parties the necessary up to date data and fact and independent expert assessment. Both parties require that information as evidence in the event a make good claim arises. The resource company’s right to challenge a make good claim in court must be respected. The onus of proof of damage and its cause is on the bore owner and the standard of proof is demanding, so that the agreement must ensure the necessary data and fact are available if needed.

 A government-sponsored standard make good agreement would be appropriate, but that should be the extent of the Government’s involvement.

Areas in Surat Basin where aquifers will be impacted by coal seam gas
Prepared by the Office of Groundwater Impact Assessment
Managing groundwater impacts of coal seam gas
 Previous published related posts


  1. Representing PRA Joanne Rea at the Water Act Amendments hearing [page 41] on October 29 2014 said,
    "Property Rights Australia has had long-term reservations about how make-good would work at all levels to the continued efficiency of property owners. The bill does not address all of those concerns. Almost no mention is made of how problems will be resolved. Time frames are too long, particularly in the event of a cataclysmic event. The practical reality is that resources companies do not construct make-good bores in a timely manner and try to get landowners to accept money instead. Our belief is that this then becomes new infrastructure and is no longer covered by make-good provisions, because it is treated differently under the act.

    Landowners bear the onus of proof that resources companies are responsible for loss of quality or quantity of water in the event of a serious dispute. Reasonable access to proof has been curtailed, if anything, by this bill. The water monitoring authority, rather than being the government or an independent authority, is to be the resources company. Involvement of the government seems limited and, I must say, it seems unwilling. Even if this was a contest between two players of equal size and financial strength, which it is not, this legislation has one party on an uneven footing already, with the resources company the holder of the hydrogeological and water monitoring information, with severe penalties for anyone who may interfere with a monitoring bore, which remains the property of the resources companies and may be plugged by such company at any time without reference to anyone.

    It is also one of the basic tenets of science and agriculture that you cannot monitor anything without measuring it, so the bill making it clear that monitoring bores do not need to have a baseline assessment is, quite clearly, not suitable for the purpose. One of the main determinants of whether or not a bore has been affected is based on the underground water impact assessment report, which sets out the obligations to monitor and manage impacts on bores and springs. The fact that small low-impact or no-impact mines or resources companies in unregulated areas are not required to complete an underground water impact assessment report or a baseline assessment, in spite of having make-good obligations, leaves a gaping hole with no clear path on how such obligations are to be realised.

  2. Of course make good agreements are crap... once its gone, its gone.. what are they going to do.... truck in 15 or 20 thousand gallons per hour to run a travelling irrigator???


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