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