The Newman Government’s Water Act amendments: Part 4 - Stream diversions

by George Houen

McArthur River Mine, photo sourced [here] 

Stream Diversions 

Setting the miners free to dewater as much as they like and without any prior impact assessment is  not consistent with the Bill’s treatment of miners’ authority to divert surface water in streams, which currently also requires a water licence. Under the amended section 98 of the Water Act they may only divert a stream if the particular diversion and its impacts were assessed as part of the grant of an environmental authority and a condition of the authority allows it.  

Comment 

It should be permissible that objections against an environmental authority or its conditions (including any Coordinator General’s conditions) may include objections against a proposed stream diversion.

 

First Refusal for Affected Landholders 

Under the Bill’s clause 334Z of the MR Act, the miner may use the associated water for any purpose anywhere. This could result, for example, in groundwater which the bore owner is entitled to and is relying upon, being taken and used by the miner off lease for a non-mining purpose, or sold to someone else for a non-mining purpose.  

Comment 

Where the dewatering produces associated water in excess of a miner’s requirements for the mining purposes, the miner should be required to treat the surplus by reverse osmosis, then give all potentially affected landholders first right of refusal to take the treated water for their own use, at no cost.

 

Agreement 

A template make good agreement (which is readily adapted for either mining or CSG) is available from landholder Services. It was first adopted at the Callide Mine some 6 years ago and has been subjected to extensive review since. Provisions for baseline testing, monitoring and setting of trigger levels in the original agreement have operated satisfactorily. 

 George Houen

Landholder Services Pty Ltd

13 Cottesloe Street

Toowoomba

Qld 4350

Phone 07 4632 1024

 

 

 

Previous published related posts

The Newman Government’s Water Act amendments: Part 1 - Deregulation of the Dewatering of Mines

The Newman Government’s Water Act amendments: Part 2 - Uncoordinated Approval System

 

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

 

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

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.

Comment

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

The Newman Government’s Water Act amendments: Part 1 - Deregulation of the Dewatering of Mines

The Newman Government’s Water Act amendments: Part 2 - Uncoordinated Approval System

The Newman Government’s Water Act amendments: Part 2 - Uncoordinated Approval System

 by George Houen

Image sourced Qld Government, water bores

Uncoordinated Approval System
 

Currently mine dewatering must be authorised by a water licence under the Water Act, application for which is a separate process from the mining lease and environmental authority and it occurs separately and much later. It also has its own appeal process, for which the Land Court is also the arbitrator. 
 

The Land Court has found that currently it has only marginal jurisdiction on the issue because the water licence is not part of an objections hearing. This leaves landholders potentially affected by impacts of dewatering with nowhere to go. President of the Court CAC MacDonald, in her judgement on the objections hearing for the Wandoan Coal project², addressed her observations about this undesirable dichotomy to the respective Ministers for Mines and Environment, saying (inter alia) at [608]: 
 

             … The impacts of water diversions and extractions associated with the project seem to me to be highly relevant to any consideration of whether the project should be approved or refused. In my opinion, it is unsatisfactory that the impacts of water extractions and diversions are not properly assessed and considered under the Water Act until after the project has been approved under the MRA and the EPA.

 

The separate (and later) water licence application and approval process doesn’t allow cumulative impacts of mining to be properly addressed and by the time a decision is made on grant of a water licence it is likely that the mining project will already have been approved. Thus it is unlikely the decision maker for the water licence will reject the application and so derail the project. If a landholder did appeal the grant that would be a doubling up of their cost and time spent on an objections hearing.                     

Some water licenses for mine dewatering may have make good conditions, but never on terms that realistically are enforceable – ie. no proper baseline testing of the individual bore for sustainable yield (water levels are not enough), no proper monitoring to develop data and no properly derived trigger values. That is, a bore owner relying on such a make good condition could not meet the onus of proof or the standard of proof required to sustain a make good claim.   

 

Comment

The present legislation governing approval of mine dewatering is dysfunctional and needs to be fixed – not by the process set out in the Bill but by way of a scheme:

1. placing approval of mine dewatering under the Environmental Protection Act;
2. integrating objections with the mining lease/environmental authority approval process, such that cumulative impacts cab be assessed;
3. providing transparency, appropriate assessment of impacts and the right for objectors to be heard before the Land Court;
4. making dewatering conditional upon the proponent having first settled make good agreements with all potentially affected bore owners;
5. putting disposal of associated water from mines on a similar footing to the disposal obligations of CSG producers, ie. requiring it only be released after treatment by reverse osmosis;
6. the miner’s right to use the associated water for any purpose anywhere be subject to first offering it free of charge to landholders affected by the dewatering.

 

It seems inappropriate that this authority to dewater (including by evaporation from a mine pit) is placed in the Mineral Resources Act. Perhaps this is done deliberately to exploit the prohibitions and limitations placed on mining lease objections by the Common Provisions Act. 

 

 

 

Image sourced ABC: Coal Seam Gas by the numbers.



Previous published related post

The Newman Government’s Water Act amendments: Part 1 - Deregulation of the Dewatering of Mines 

The Newman Government’s Water Act amendments: Part 1 - Deregulation of the Dewatering of Mines

by George Houen

 

Deregulation of  the Dewatering of Mines

To clear the way for the extraction process in open cut and longwall underground coal mining (and to a lesser extent other minerals), miners pump accumulated groundwater out of the pit, they also pump from bores to dewater the ground in advance. 

Image sourced [here]

 

 

 

The pit becomes a sump which drains all aquifers overlying the target coal seam, and the coal seam itself. The resulting drawdown extends outward in a radius determined by permeability of the ground and interconnection between aquifers. One expert report for the Galilee Basin predicted the radius of permanent drawdown to extend 30km – even with lesser distances, the scope for damage  to landholder’s bores is obvious.

 

 

 

 

 

That this dewatering has major implications for the environment and for owners of water bores is authoritatively shown by Land Court’s Alpha Coal judgement¹, in which the primary recommendation was to reject the mining application. Despite extensive expert study and evidence on groundwater, the Court found that evidence unsatisfactory as to the impact of the mine’s dewatering on other groundwater users and on the ecology. The Court’s fallback recommendation made any approval for the mine conditional upon:

1.  the proponent first obtaining water licenses on conditions which resolve all concerns pursuant to the precautionary principle, and
2. additional groundwater monitoring points on each of the objectors’ properties, and
3. the proponent must enter into make good agreements with each of the three objectors either within 12 months of grant of the mining lease, or before mining activities commence, whichever is the sooner.   

In contrast to the impacts of mine dewatering, dewatering for CSG (which is unregulated) targets the specific gas-yielding coal seam. It is usually deeper than the water supply aquifers and usually with poorer quality water. It is dewatered to liberate the gas from fissures in the coal. Except where private bores actually draw from that same seam, the impact of CSG dewatering on water bores is indirect. In response to the alteration in relative water pressures, and depending on permeability and interconnections, water from other aquifers may flow to the dewatered coal seam. Because the coal itself is not disturbed, presumably it is possible in the long term that the original saturation and pressure balance would be reinstated. 

Comment

The Land Court’s Alpha Coal decision shows, as is common sense, that mine dewatering impacts are difficult to predict but involve major, direct and permanent impacts on the groundwater relied upon by landholders and townsfolk, as well as significant environmental impacts. Accordingly mine dewatering should be made an integral part of the approvals process. But as explained below, CSG dewatering is very different in its process and its impacts. The proposition that mine dewatering needs to be deregulated to put miners on an even footing with CSG operators is contrived and invalid.

Skid mounted pump installed on a barge in a coal mining operation
Photo sourced [here]

 

Previous Related Posts

The Newman Government’s Mining Reforms - Part 1 Common Provisions, Restricted Land

 

The Newman Government’s Mining Reforms - Part 2 Common Provisions, Mining lease application and notification

 

The Newman Government’s Mining Reforms - Part 3 Common Provisions, Objections

 



PRA Qld election media release: No Disadvantage principle

No disadvantage principle 

Property Rights Australia calls on all party leaders and independent candidates in the upcoming Queensland election to commit to one simple, straight forward principle that each and every  landowner or regional community should experience “No Disadvantage” due to the resources industry or resource infrastructure.

   

Property Rights Australia chairman Dale Stiller stated that, “Landowners should not be subsidising mining, coal seam gas projects and associated infrastructure which is exactly what is happening when negative impacts on landowners and communities are not being recognised, not compensated for or no priority given over resource activity when there is no current solution to unrepairable damage to things of fundamental value such as the very small percentage of high quality soils. The ability of the productive capacity of the land should not be impaired nor impacts to enjoy prior amenity of life residing on that land be left not resolved.”

“All parties and candidates must commit to and govern by the simple No Disadvantage principle in the next parliament when it enacts policy and introduces legislation, “said Mr Stiller, “A simple no disadvantage principle, enshrined in legislation, would ensure that all Queenslanders can enjoy the resources boom, with no losers, no victims and the present unresolved palpable resentment defused.”

“Most landowners accept that the resource industries are necessary, however with significant issues unresolved farming families simply loathe the fact that they are currently subsidising the resource sector. “

PRA believes that committing to the No Disadvantage principle provides a positive solution, a rule of thumb to progress all of Queensland into the future. While there may be some within political parties that may wish to dispute what has occurred in the past, it is important that all of the population is informed and lessons are learnt from past mistakes.

“The last two governments have failed the No Disadvantage test”, said PRA chairman Dale Stiller, “not only in the term of the current Newman LNP government, but also in the prior Beattie and Bligh ALP governments, it has been regional landowners and communities that bore the full brunt of the mining boom, and the unseemly haste to which the coal seam gas industry was steamrolled out”, said Mr Stiller

The impacts landowners have suffered have been largely ignored in the larger cities and coastal areas where the majority of the electorates are. For these urban electorates regarding the resource activity that is occurring in rural and regional Queensland, the only news that they receive is about jobs, royalties to help the budget and creating an economic powerhouse for Queensland. Debate is often based on environmental issues and rarely are adverse changes for regional landowners and communities mentioned.

“The lack of awareness to major impacts that are very real to the people living where resource activity is occurring is extremely frustrating”, said Mr Stiller. “The debate is conducted as if it is a Terra Nullius ‘out there’ while, especially in the coal seam gas industry, it is sprawling invasively across the landscape, where farming families are endeavouring to produce food and fibre to help feed and clothe the people of this Nation”.

Property Rights Australia recently produced this incomplete list of what landowners have been subjected to:

Non-disclosure of information; isolate, divide & conquer; contrived bluffs; strategized and pressured negotiations; limited and miserly compensation; landowners time uncompensated both before and after a CCA is signed; blatant wasting of landowner's time; stress; complete disregard and disinterest in how agricultural management systems can work in with a gas field; the co-existence myth; gates open; weeds; loss of underground water; no solution for a mountain of salt and other contaminants brought to the surface; loss of amenity of living including privacy; roads destroyed; dust; noise; sense of community lost; liability from contamination unresolved; uncompensated diminution of property value; unsaleable properties; non-compliance to signed agreements.

Governments must govern for all. The Newman government systematically made significant legislative changes to numerous Acts that have severely reduced the rights of landowners for the benefit of miners.

PRA calls on Premier Campbell Newman (LNP), Annastacia Palaszczuk (ALP), John Bjelke-Petersen (PUP), Rob Katter (KAP), Penny Allman-Payne, convenor (Qld Greens) and all Independent candidates in the Queensland election to commit to the “No Disadvantage” principle.

      
 

 

 

The Newman Government’s Mining Reforms - Part 3 Common Provisions, Objections

by George Houen



Photo sourced [here]

Objections - environmental approval  

The Environmental Protection, State Development and Mineral Resources Acts all apply.    

• For environmental approval of small (standard) mining applications, nobody will be notified and nobody may object.
• Where the Coordinator General conducts an EIS for large (site specific) mining, he or she can (and I believe will) block all environmental objections.
• Only on the small number of mid to large projects where Environment and Heritage (DEH) - rather than the Coordinator General - conducts the EIS or the alternative environmental approval process, will there be assured public notice and a right to object.

For standard mining applications, there will be no advertising of the application and no direct notice to affected landholders of the application for, or grant of, a standard environmental authority. And nobody – not even the affected landowner - will have a right to make submissions or to object. Nobody can challenge decisions by the chief executive of DEH to issue environmental authority for standard mining projects. Nobody can submit that extra conditions are needed. Even if the applicant has a bad past record or is otherwise unworthy of being granted environmental authority, nobody can raise those concerns. On its record, DEH will invariably decide in favour of the miner.

 

For environmental approval of large (site specific) projects: 

1. If an EIS has already been completed through either the Coordinator General or alternatively DEH, any submissions previously made on the EIS (except any part relating to a Coordinator General’s condition) may, if the submitter requests, become objections initially to DEH and ultimately to the Land Court.
2. But if the Coordinator General, in stating conditions for the proposed environmental authority, has also stated he or she is satisfied the conditions adequately address environmental effects of the mining activity, no submissions can go forward as objections.
3. For a non-EIS project, the application to DEH for environmental authority and the application documents will be publicly advertised and any person may make submissions. Then once DEH makes its decision, submitters may elect to have their submissions treated as objections to be heard by the Land Court. 

 I believe, based on past performance, we can expect that in every case where the Coordinator General conducts an EIS he or she will invoke that power to prohibit objections. With standard environmental applications also rendered untouchable, only on the small number of site specific applications conducted exclusively by DEH is it assured that notification will continue and the right to object in the Land Court remain. 

Photo sourced [here]

Objection to mining lease applications.

 For small (standard) mining applications –

1. Only the owners of land subject to the mining lease, or of access land, or of adjoining land and the Shire Council, may object to the mining application; and
2. Grounds of objection are for the first time restricted and severely limited, as below.

For medium and large (site specific) applications –

1. As to the application for mining lease, only the owners of land the subject of the application, and of any access land and of any adjoining land and the Shire Council may object.
2. Permissible grounds of objection for owners of subject land are specified and severely restricted, ie: whether the Act has been complied with; whether mining is appropriate land use; whether mining supports sound land use management; impacts on the surface of the land within the mining lease; impacts on affected persons.

As is the case now, the Court can only allow objectors to give evidence and make submissions within the scope of their grounds of objection duly lodged.  All five of the new grounds of objection for owners of the subject land are inconsequential. They will be impossible, or near impossible, to substantiate with evidence. Impacts on the surface land might be a potentially viable ground if it referred to the owner’s land outside the lease, but it doesn’t – it refers only to land within the lease.

 A new provision covering both environmental and mining lease objections reinforces the Court’s existing ability to strike out non-conforming objections. A costs order against the objector would usually follow a strike out order. Since the court has always had discretion to strike out objections, this provision isn’t necessary. Perhaps it is included to further discourage objections.

 Some of the issues which are important and meaningful  for landholders, but on which objections are prohibited by the new restricted grounds, include:  is the land actually mineralised; are the size and shape of the lease  justified; is the proposed term justified;  is the applicant’s past record satisfactory;  would the project cause damage to the balance land, does the lease cut off vital access roads, does the applicant have the financial and technical capability for the project.

 

Adjoining owners have an even shorter list of permissible grounds of objection, but one is potentially viable:  impacts on the existing use of adjoining land.

Under the reforms, the important matters on which it is the Court’s job to report have been selectively culled. The Court can no longer report on: whether the proposed lease is mineralised and the lease size and shape OK; whether  utilisation of the deposit is acceptable; whether the applicant has the necessary financial and technical resources; whether the applicant’s past record is satisfactory; whether term of lease sought is appropriate, etc.  Those matters will in future be decided by the Minister alone, without either landholder input or the Court’s independent assessment.

 In a nutshell, as they affect mining lease applications the reforms:

1. restrict the right to object to only specified landowners and the Shire; and
2. restrict the grounds of objection to relatively inconsequential matters which will be difficult if not impossible to support with evidence;
3. consequently render it likely futile to object and for those who do object, increase  the risk of a costs order;  
4. remove from the Court’s jurisdiction the responsibility to assess and report on the bona fides and merit of mining lease applications; and
5. consequently restrict the Court’s ability  to independently advise the Minister on the merits of mining applications.

 

 

Previous Related Posts

The Newman Government’s Mining Reforms - Part 1 Common Provisions, Restricted Land

The Newman Government’s Mining Reforms - Part 2 Common Provisions, Mining lease application and notification

New bill denies natural justice

PRA: Hearing into new Qld resources bill

PRA: Regional Queensland deserves better

 

 

The Newman Government’s Mining Reforms - Part 2 Common Provisions, Mining lease application and notification

by George Houen

 

Continuing from Part 1 Common Provisions, Restricted Land

 

Marking Out: the white posts a metre high which, for generations, have visually located the boundaries of a mining lease will be  history. At lodgement stage, unless directed otherwise by the chief executive, the lease applicant will only need to describe the boundaries on paper, by GPS coordinates or the like. Physical markers are no longer compulsory.

 

 

While the chief executive has power to order the applicant to physically mark the lease boundary in some way, that may or may not happen And when you do eventually receive formal notice of the lease application, it won’t necessarily even include a map of the proposed lease boundaries.

Notice: No longer will mining applications be publicly advertised –  the Mining Lease Notice will be given but only to the owner and/or occupier of the subject land, or of land across which access is required, plus the owner of adjoining land, the owner of infrastructure (eg. powerline or pipeline) and the relevant local government. An even smaller selection of persons are permitted to  object – ie. the owner of land subject to the lease, the owner of any land required for access, the owners of adjoining land, and the local government. Objecting will likely be futile and risky, as will be explained below.

The old certificate of application, which was required by the Act to be issued as soon as the lease application was accepted, is eliminated and not replaced. To the extent it was issued as required, the certificate gave landowners prompt notice that someone had applied for a mining lease and the details of the application. But in practice that basic right was denied because, especially in recent years, the department issued the certificate, not at the start as required but at the end, simultaneously with issue of the certificate of public notice (where it served no purpose). Elimination of the certificate of application means the department can in future leave affected landowners in the dark without breaking the law.

For larger projects requiring an EIS or the processing of a complex environmental authority application, the objection phase is typically delayed 4 years or so after lodgement.  Landowners left in the dark for that lengthy period could fail their duty to the bank to disclose the encumbrance, could commit in ignorance to new improvements or other personal or business plans that would be affected by the proposed lease, could buy or sell land in ignorance of the lease application and so on.

 
The Mining Lease Notice replaces the old, publicly advertised certificate of public notice. The new notice has the limited purpose of directly notifying the few people who still have objection rights of their opportunity to object to the lease application. An additional purpose will be to give the landowner the one and only formal notice of the details of the application (but on larger projects where it matters most, typically 4 years too late).

 
The Mining Lease Notice for standard lease applications (ie. small mining covered by area limits and standard environmental conditions) is to be given to the same list of affected persons as soon as the chief executive is satisfied the applicant is eligible and that the application complies with the Act. If the department complies with this statutory obligation, that will at least ensure prompt notice of standard applications to landowners affected by small mining. However, the reforms mean it will also likely be futile for these owners to object, as explained in Part 3.

 

 



Former Acland residents moved for the Acland mine. Photo sourced Toowoomba Chronicle

Previous Related PostsThe Newman Government’s Mining Reforms - Part 1 Common Provisions, Restricted Land

New bill denies natural justice

PRA: Hearing into new Qld resources bill

PRA: Regional Queensland deserves better