Australia makes landmark decision on water protection with Alpha Coal rulingPublished by MAC on 2014-04-13
Source: The Conversation, ABC
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Australia makes landmark decision on water protection with Alpha Coal ruling
10 April 2014
Australia - This week's court ruling on the future of the A$6.4 billion Alpha Coal project in Queensland - set to be one of the biggest coal mines in the world - is of major significance for how mining projects are assessed in Australia.
Erring on the side of caution, the Queensland Land Court recommended on Tuesday that the mine proposal either be rejected by the state government, or else only be allowed to proceed with extra conditions to protect groundwater.
In an unusually complex decision, explained over 149 pages, Land Court member Paul Smith concluded there were serious uncertainties about how the mine would affect the region's groundwater and local land owners. On that basis, he recommended that extra conditions should be met before the mine goes ahead. These include extra water level monitoring on the properties of three families that objected to the mine, and that Hancock obtain water licenses and enter into "make-good agreements" with those potentially affected.
The location of the Alpha Coal mine and the planned 500km railway to connect it to the Queensland coast to export its coal. Alpha Coal Project Coordinator-General's report, May 2012, Queensland Government, CC BY
The court's recommendations are not binding, and what happens next now rests with the Queensland government. In a statement, Acting Premier Jeff Seeney said: "We look forward to working with the project proponents to deliver jobs and economic benefits to Queenslanders."
In all likelihood, the project will therefore get the go-ahead, subject to new conditions. (Whether it proceeds is another matter: as the ABC's business editor explained this week, lower coal prices have raised serious doubts about the project's economic viability.)
The government's decision on how to proceed in light of the court's findings is a critical test for how seriously it takes communities' concerns over impacts of mining on long-term water security.
The court's finding is significant in the bigger picture, for several reasons. It appears to raise the legal bar for protecting groundwater, in the context of a large number of major mining proposals currently under assessment. It acknowledges that uncertainty about potential impacts on groundwater are cause for taking a precautionary approach. It is also likely to be influential on future decisions, because Alpha Coal mine is a keystone project for the mining industry, which it hopes will unlock the Galilee Basin up to massive new coal mining development for decades to come.
Huge new coal projects on the horizon
The proposed layout for the Alpha Coal mine. Alpha Coal Project Coordinator-General's report, May 2012, Queensland Government, CC BY
If built, GVK Hancock's Alpha Coal project in central Queensland's Galilee Basin would aim to produce 30 million tonnes of coal a year over three decades, from six open-cut coal pits stretching over 24 kilometres (shown in the map on the right).
The project is predominantly owned by Indian company GVK, with a 79% share, while Gina Hancock's Hancock Prospecting holds 21%.
As well as the A$3.4 billion mine, a new A$3 billion, 500 kilometre rail corridor to transport coal from the nine proposed mines inland all the way to the controversial Abbot Point export port is also contingent on the Alpha mine going ahead.
In combination, Alpha Coal and other proposed new mines in the Galilee Basin would become the largest open-cut coal mining district in Australia, possibly the world. The ramifications of Alpha Coal going ahead therefore go well beyond this one project.
Australia's coal reserves, including the vast, untapped areas of the Galilee basin in inland Queensland. Geoscience Australia, CC BY
A more cautious approach
In the environmental assessment documents prepared for Hancock GVK, groundwater modelling was used as the basis to predict impacts of the de-watering required to excavate the open-cut mine pit.
Four expert witnesses were extensively questioned about their understanding of the hydrogeology of the area, and about the validity of the predictions made on the basis of the model. While it was agreed that the modelling was conducted in accordance with industry best practice, it emerged that there were serious uncertainties in the model's assumptions and predictions.
Ultimately, it was found that there were assumptions made that were not based on conclusive field evidence. This particularly regarded the location and rates of groundwater recharge, the geological structure and its control on groundwater flow, and the scale of off-site impacts of the mine on neighbouring areas.
The latter point would seem to be an obvious concern to address for all mining projects. This is particularly true for the Galilee, where it is known that multiple mines are proposed in close proximity and that their cumulative impact may go beyond that of any individual mine site.
As Queensland Land Court member Paul Smith wrote in his decision:
My concern relates principally to my lack of confidence, from a precautionary perspective, in the groundwater evidence and, because of that, my concerns regarding the knock-on effect to ecology should the predictive groundwater modelling relied on by Hancock not be correct.
The decision may prove to be a strong precedent for adopting a more cautionary approach to impacts of mining on groundwater. While the same principle has been applied in smaller scale disputes about groundwater, it has not been applied to a project of this size before.
No crystal ball
Clearly the Land Court understood in this case that groundwater models are not crystal balls that can unequivocally predict the scale, time-frame and magnitude of impacts.
Rather, they are an aid to assist with understanding how a groundwater system works and how it may respond to change. Models may provide a range of potential predictions of impacts under different scenarios, but this is contingent on them being built on the basis of extensive field data and observation.
A central problem with the approval process for mining projects remains that this type of detailed field data (such as baseline groundwater monitoring over an extended period) is typically absent or inadequate at the stage when mining environmental impact assessments are completed or approved.
Mr Smith also made an important comment about the Land Court's role in the environmental approvals process, stressing that the court was not - as was suggested at one stage - simply a "rubber stamp" for major projects already approved by the state co-ordinator general.
The rigorous scrutiny applied in this case means that the court's conclusions on a precautionary approach on groundwater - which is so vital to so many - should be taken seriously elsewhere for other projects seeking environmental approval. If it is not, then the lack of confidence many communities already have in environmental assessment processes will be undermined even further.
Matthew Currell does not work for, consult to, own shares in or receive funding from any company or organisation that would benefit from this article, and has no relevant affiliations.
Queensland court rejects Alpha Coal Project
Kathleen Calderwood, Craig Zonca and William Rollo
8 April 2014
The Queensland Land Court has recommended the State Government either reject the GVK Hancock Alpha Coal Project, in the Galilee Basin in Central Queensland, or allow it to proceed subject to a number of conditions.
The case was originally heard late last year, with objectors citing concerns in regards to groundwater, climate change and biodiversity.
The open cut mine, located 130 kilometres south-west of Clermont, is expected to produce 30 million tonnes of coal per year, creating up to 3600 construction jobs and 990 operational jobs.
One of the objectors Peter Anderson, from Eureka Station, says he's pleased with the outcome.
"What he's (the Judge, Member Smith) done is brought the Water Act, which is usually the last license that a mining company needs before they commence mining as I understand it, that's been brought from the very end of the approval process to the forefront.
"He's also recommended that the precautionary principle, so I understand that to mean that any concerns must be addressed, they can't be dismissed," he said.
"(The Judge) put that in front of the granting of the mining lease and environmental authority, which is quite a win because our concerns were the impact on underground water."
"We were never against the mine, but what we are against is the mine impacting on our asset value and our business.
"If it does well, then there has to be compensation paid or they have to buy us out if the impact is too great for us to be able to continue business on that land."
It's a particularly monumental win for Mr Anderson and his family, as they were representing themselves in court.
"The only way we could get the company to talk to us was to commence action in the Land Court and once we commenced that action they came to talk to us.
"They said they would pay our expenses for our negotiations in striking a make good agreement.
"Negotiations unfortunately broke down and they haven't paid our expenses and we continued with the action in the Land Court," he said.
"We'd spent $120,000 in trying to negotiate a make good agreement and also with the costs for the Land Court proceedings.
"There became a point where we elected to represent ourselves and my sister-in-law Janeice Anderson represented us in the Land Court herself.
"I've got to give credit to her she did a good job and it isn't easy, but you know we just couldn't afford to continue with legal help."
Derec Davies, from Coast and Country, one of the other objectors, says he isn't surprised by the result.
"This is a fantastic and a huge win for Queensland and for Queensland farmers and for the protection of our water resources.
"We came very prepared and we had some of Australia's best water experts doing work on this," he said.
"Resoundingly the Judge, Member Smith, has stated very clearly that the evidence provided before the court in relation to groundwater was unsatisfactory and it's not in the public interest for this mine to be approved."
However, GVK Hancock has welcomed the recommendation from the Land Court that the Environmental Authority and Mining Lease for the project be granted subject to conditions.
In a statement they say the Land Court clearly confirmed that GVK Hancock's comprehensive environmental assessment addressed all the objections raised with no requirement for further conditions apart from groundwater.
It continues that the groundwater conditions do not raise any new environmental obligations under the project's existing environmental approvals.
They say they will continue working cooperatively with landholders, the local community and Governments.
The Acting Premier Jeff Seeney says the Government will look at the recommendations.
"From what we've seen of them already they certainly don't present any major problems at all for the progression of the project.
"Whatever the land court recommends we would've been ensuring that all the of the work was done that needs to be done."
Mr Seeney says the judgement actually didn't suggest that the project should be rejected.
"That's simply not right.
"There's a strange wording being used but there's no suggestion that the land court recommended that the project be rejected.
"There's no question that the processes that we've got in place for the issuance of a mining lease and the for the issuance of the water licence are both comprehensive they address different things.
"Arguing about the timing of them isn't the real issue the real issue is to make sure those processes facilitate the development of the resources industry."
Despite this, Janeice Anderson, a landholder from Alpha who objected to the project is calling the judgement a Landmark decision.
Ms Anderson represented herself and her family in the land court, while also homeschooling her children.
"It's a bit like waking up to find three inches of rain in your rain gauge.
"And we're just really appreciative and thankful of the decision that the Land Court had made, that they'd recognised the uncertainties in the modelling of the groundwater impacts and the need for Hancock GVK to be accountable for those impacts for landholders.
"We really need now for the Minister to uphold that decision, because if he doesn't uphold the decision of the Land Court then it'll be like getting that rain and not getting the follow up, we'll be back in drought again."