October 27, 2013
Meanwhile, back in Court...
This was the last chance for the graziers of the Galilee Basin who are worried about their water supply, and community environmental groups concerned about the wider implications of nine mega mines producing 330 million tonnes of coal a year for 30 years, to challenge the approval of Hancock Coal's Alpha mine (see also Farmers vs Big Coal 1, 2 and 3, September 2013).
The landowners spoke by videolink from Emerald Magistrates Court so as not to have to make the long trek to Brisbane for a few hours only. All were greatly concerned that the groundwater on which their livelihoods depend is at risk from mining. They share a belief that baseline monitoring* should have been carried out over a longer period and a cumulative impact assessment (of all the mines proposed) should have preceded the approval of the Alpha project; and Make-good Agreements (MGAs) between landowners and mining companies should, similarly, be in place before approvals are granted. Paola Cassoni pleaded for an impartial agency to monitor compliance with MGAs, and denounced the attachment of confidentiality clauses that undermine trust and solidarity within the Galilee's farming communities, and would prevent landholders from objecting to water licences to de-water the aquifer above the coal seams.
The cumulative impact of several Galilee mines and management plans to deal with the consequences of construction and operation on the water supplies of properties adjoining the Alpha Mining Lease Area (MLA), or indeed any of the other MLAs, are crucial to these landowners' water security. What if the groundwater modelling is wrong, Jericho landholder Bruce Currie asked, and there is serious impact on his bores? And, down the line, how does he prove which mine is responsible?
The elephant in the courtroom throughout these proceedings has been the Great Artesian Basin (GAB). The Galilee Basin lies to the east of GAB, but insufficient hydrogeological data made a vexed issue of the question of recharge of aquifers, for example. Hancock's claim that the GAB will not be impacted by the Alpha project is taken as read, is it? Not up for discussion, or inclusion in an assessment of the cumulative impact of all the region's mines? Or is it that Hancock in no way wishes to open the enormous can of worms (especially with regard to water licences) that the GAB would prove to be? There was no impact in the Alpha modelling, but the results of modelling depend upon its parameters, one of which is the western boundary, the hydrogeological details of which could not be agreed upon by expert witnesses.
But I digress...
The landowners' feelings of powerlessness were palpable despite legal etiquette. Janeice Anderson spoke of being between a rock and a hard place; Mr Currie stated that he had nothing to gain and everything to lose, unlike Alpha Coal; Paola Cassoni asked the Court to consider how many landholders would want to take a multinational company to court for breach of contract.
Counsel for the Coast and Country Association of Queensland (CCAQ) questioned two basic assumptions of Hancock Coal: that coal is good, and everyone supports the mining and export of coal; and that whatever has to happen to the environment will be OK because the mining company will be able to manage it. Unjust and unproven assertions were being made, he claimed: that the demand for coal will continue; and that the impact on groundwater is fully understood. He doubted that ecologically sustainable development could be maintained under the legislative framework, but nevertheless asked that the framework be applied in this case in order to determine if the evidence presented to Court stood up.
CCAQ counsel and the Judge debated the rather schizophrenic relationship of the Environmental Protection Act (EPA) and the Mineral Resources Act (MRA) with reference to the mining industry. The MRA assumes that mining is in the interest of the common good, while the EPA recommends the precautionary principle be applied: the MRA ties a judge's hands when it comes to conditions of approval, while the EPA requires that he decides whether there is sufficient evidence to show that what is proposed is amenable to the management of the conditions imposed.
Hancock's legal team suggested the Judge adopt a holistic approach, and not necessarily aim to tick all the boxes but rather establish a level of acceptability in balancing competing interests. That the MLA is to be mineralized is not in dispute and neither is the fact that there will be an impact in the MLA – within an 'acceptable level'. Future uncertainty does not mitigate against the approval of the mine now, Hancock's counsel argued. They also played down the relevance of groundwater impact management at this stage. Groundwater modelling is the issue in this case, under 'the statutory scheme'; the impacts on groundwater will be dealt with robustly during the water licensing process (under the Water Act). They dismissed some expert witnesses' disagreement with the groundwater modelling parameters as insignificant.
Above all, Hancock obviously do not want their application held up by any consideration of changes to the wider assessment procedures. Their counsel pointed out that the Judge should only be concerned with their application, not those of other mining companies in the future. Hancock have conducted a 'rigorous assessment process' and the Co-ordinator General's 'suite of conditions' adequately protects the landowners and establishes monitoring safeguards.
Finally, they reiterated their belief that the Alpha mine will not contribute to an increase in global greenhouse gas emissions – since the coal is intended for export and coal production is determined by demand, if Hancock don't feed that demand, somebody else will – or climate change in Queensland. And, as far as ecology is concerned, they claim to have provided an adequate response to the impact of the mine in what is a highly disturbed area. Counsel even went so far as to claim that their biodiversity offsetting management plan would improve it.
The Judge raised some interesting points: would it not be to all parties' benefit if there was greater baseline monitoring since this is a previously unmined region, and that it should be a prerequisite of approval; this is a green field site and its development is therefore of interest to the wider community; the potential loss of groundwater to the landowners, say, ten years from now, should not entirely be the responsibility of the mining companies but perhaps shared by the Queensland Government, who are, after all, receiving mining royalties.
The last player in the day's proceedings was counsel for the Statutory Party, the Department of Environment and Heritage Protection. This came as a bit of a surprise to me, since we'd heard very little from him throughout the case up to this point. He pointed out that matters concerning the quality of groundwater were the remit of the Environmental Protection Agency (EPA), and that the 'take' of water was the concern of the Department of Resources and Mines. He expressed an opinion that not all of the day's submissions had related to the evidence and advised the Judge to be cautious. He was confident that any impacts of mining would be capable of management by the suite of conditions at four levels: Commonwealth, the Queensland Co-ordinator General, the Environment Impact Assessment (EIA) and water licensing. He finished by describing the limitations on the Judge's conditional power, which was not at all what most people in the public gallery wanted to hear.
The Judge now goes away with a mountain of paper as well as substantial electronic material, and will deliver his recommendations, hopefully, within three months. We left court and tried to be positive about the outcome (Coast and Country Association of Queensland supporters and their legal advisors, below).
the establishment and operation of a designed surveillance system for continuous or periodic measurements and recording of existing and changing conditions that will be compared with future observations