November 1, 2015

Imaginary lines

I'm sorry for the gap in coverage of the Kevin's Corner case in Brisbane's Land Court: from the first day to the last, in fact. (See also Not in Kevin's Corner, October 2015.) Friday was final submissions day: there was some urgency to finish, and Court was adjourned by lunchtime. In between there had been six days of evidence, a large proportion of which was devoted to groundwater. Mid-point, I was poised to write about water issues again, but key elements haven't really changed since the Alpha case in 2013: the uncertainty of modelling outcomes; misjudged priorities (profit trumps groundwater); and expedient decision making preceding adequate research.

Nevertheless, here is some of the evidence… interspersed with a few of my observations, and pictures, for light relief.

An early witness was Andy Mifflin, GVK Hancock's Executive General Manager Development Projects, a title with a word missing, surely. He sounded like a Northerner to me, but one who'd had the humour and friendliness beaten out of him by many years in a contentious industry; more like a dour Scot, in fact. He told the Court that he had monitored the approvals process for the Alpha mine, and that reports and documents produced for Kevin's Corner (KC) were different because it has underground operations; that rail infrastructure required for the KC mine was the responsibility of a different company, Hancock Coal Infrastructure; that KC coal is slightly below the Newcastle benchmark; and that GVK's longterm contracts are with equity partners (such as energy companies) so current low futures trading figures for coal are irrelevant.
Coal train heading for Gladstone
Grazier Bruce Currie, representing himself in Court, has so far been unable to secure a make-good agreement with GVK. His property is west of the 0.5 metre drawdown contour, ie further away from the mine site, but he was concerned about the absence of a 0 metre contour. GVK cannot, however, be 100 per cent sure that Mr Currie's bores will never be impacted. He believes that make-good agreements are failing landowners, but the judge, Member Cochrane, explained that he could neither make nor change the law; only use the law to adjudicate on the issue of this case: should a mining lease be granted, and, if so, with what conditions? The proposed Water Management Plan would include monitoring bores, but bore surveys to date have been for groundwater modelling purposes. Mr Currie's bores have not been surveyed, but Mr Mifflin assured him he was not being ignored. At one point, Member Cochrane told Mr Currie to 'stop fishing' for information to further his cause rather than arguing his case. Mr Currie was seeking reassurance, of course, and was rather harshly reined in. However, I sensed that GVK's counsel, Damian Clothier QC, was resisting at least some of his jack-in-a-box urge to object to Mr Currie's cross-examination on subtle legal grounds that Mr Currie was completely unaware of.

Ecologist Dr David Dique was called by GVK. There was some discussion about how to define 'the region' in which to assess cumulative impacts of mining. In Dr Dique's opinion, it would include other Galilee coal projects but not mines in the Bowen Basin further east: ongoing Cumulative Impact Assessment (CIA) might encompass additional areas in the future. 'Regional' and 'local' definitions seem to vary in specificality: so Regional Ecosystems (REs, eg Natural Grasslands of the Queensland Central Highlands) are clearly defined, but the concept of 'local' for certain environmental values might be less clear. CIAs are complex, Dr Dique said, and they compound a level of uncertainty already present in the complex scenario surrounding a project such as KC. (I think it was at this point that Member Cochrane first mentioned the term 'motherhood statement', which means vague, feel-good platitudes – often used by politicians – that few people would disagree with.) Dr Dique acknowledged that the CIA was not complete, but for those ecological communities identified, the KC mine will have a low rating of impact.
Drummond Range, east of Alpha
Dr Dique detailed the need for longer-term field studies of species that move from one location to another because of changing conditions such as water availability. There are no Black-throated Finches recorded for the KC mine lease area, but GVK have gone beyond the call of duty in surveying for them anyway and, assuming that the birds may be there one day, have committed to resurveying at intervals in the future. With regard to revegetating degraded land, Dr Dique confirmed the uncertainty of its success because of the long periods required, but quickly moved on to what he regarded as successful offsets in the Bowen Basin, and the sound measures in place in Queensland to mitigate the potential for environmental harm. I'm sure we can all rest easier in our beds having thus been reassured.

By day 2 I had become aware of the lever arch file phenomenon. Mr Clothier and his two juniors – Clothier's clones I shall call them – had many files with them, so many they took over part of the prisoner's dock (this was the Magistrates Court). Whenever Coast and Country's counsel Dr McGrath referred Member Cochrane to a particular document submitted to the Court, Clothier and the clones would hastily grab the relevant files, loudly snapping open and shut the folder's mechanism. This appeared to be an ostentatious ritual that no one else at the bar table deemed necessary, and it became increasingly irritating during the proceedings.

It was Groundwater Day for what seemed like eternity. With the best will in the world and a determination to understand why the expert witnesses don't agree about groundwater behaviour in the Galilee Basin, the keenest student would be dulled by a couple of hours' debate about the definition of potentiometric surface – an imaginary surface representing the elevation and pressure head of groundwater and defined by the level to which water rises in a well*. Even His Honour was 'completely befuddled' at one point.

Mark Stewart, hydrogeology expert for GVK, took the stand on Wednesday morning of the first week: he was still there on the Friday. He began by explaining standard bores and vibrating wire piezometers. He talked about the MODFLOW groundwater modelling program (which I misheard as mudflow, an inappropriate name I thought). The same conceptual model was used for KC as for Alpha but with modifications for KC's underground section. Under slow and deliberate cross-examination by Dr McGrath, Mr Stewart explained potentiometric head in confined aquifers (ie those overlain by a confining bed of significantly lower hydraulic conductivity – the movement of fluid through pore spaces or fractures – which hinders the vertical movement of water). By this time, rock strata were being called 'units', which didn't help those already being bombarded with unfamiliar terminology. Further exchanges reduced our somewhat diminished will to live.

Next day there were endless minutiae about bore log readings and the interpretation of hydrographs. 'Is this line of questioning going somewhere?' asked Member Cochrane at one point, rather less than politely. It was, as it happened: Dr McGrath threw the position of the 300 metre drawdown contour into doubt, which was significant. Its revised position would back up the hypothesis of Dr Webb (see below) of recharge from the west. It was particularly hard for those lacking a contour plan to follow this argument.

And then, at 3pm, a new topic. Hurrah! Types of modelling boundaries. Sigh. The selection of boundary type – a no-flow boundary or a constant head boundary – is of critical importance to the simulation of reality. Every model needs a system of boundary conditions to establish a link with its real surroundings. 'Help me, what's it mean [sic]?' cried the Judge, speaking for us all. Constant head boundaries are used where there are no obvious natural boundaries such as a river – at the north and south boundaries in this case. This is fine as long as the boundaries are sufficiently far away from the area of drawdown (the fall of the water table caused by the pumping of groundwater out of coal seams), otherwise the impact of drawdown in the model will be affected. Are you still with me?
Milky Dam, Bimblebox Nature Refuge
Dr John Webb, hydrogeology expert witness for Coast and Country, took the stand on Friday and continued on Monday. Mr Clothier was clinical in his attack. I've seen him at work before and knew what to expect. His cross-examination seems fairly innocuous at first, lulling the witness into a false sense of security, until he identifies a flaw in the evidence. He'll worry it, adding other errors or omissions, until he goes in for the kill, in this instance undermining Dr Webb's reputation as a hydrologist and an expert witness. Dr Webb admitted his errors – indeed, the development of a hypothesis is on occasion enabled by them – but, eventually bullied and worn down, he conceded to Clothier that his work had not been that of a competent professional. At times his testimony was agony to watch: surely it is enough to get a witness to admit his or her mistakes, without being humiliated to boot. While under oath, Dr Webb was not permitted to talk to others about the case during recesses, during which he cut a lonely figure.

At the core of Dr Webb's hypothesis had been the folding of strata and the resultant fractures of the otherwise low-conductivity Rewan formation through which water might flow (see also A model of imperfection, April 2015). Ultimately, this might impact on drawdown. Information made available to Dr Webb since the Alpha case, namely seismic data, had ruled out the possibility of an anticline in the east. He stood accused of not removing it from his subsequent submissions soon enough. Mr Stewart's 'oversight' on the other hand, had supported Dr Webb's belief that there is recharge (replenishment of water in an aquifer) from the west. There wasn't as much mention of recharge mechanisms as in previous cases against proposed mines in the Galilee Basin. According to Mr Stewart, when describing input and output of the groundwater model, recharge represents a small part of the water balance in the system.

One potentially worrying implication of Dr Webb's corrections to his hypothesis is their bearing on the judgment of the Alpha case. Then, Member Smith set a precedent by recommending that the mine not be approved unless further investigation and monitoring of groundwater was put in place. Of course, nothing can change that judgement, and what is clear from this case is that there remains huge uncertainty about groundwater behaviour and the impacts of the development of so many large mines on a limited and precious resource. 

The economic argument sounded very familiar, too: the input-output model vs cost-benefit analysis. Mr Brown (of Economics Associates, who did the modelling) was first up, in defence of input-output. Within the terms of reference for a mining company's application to mine in Queensland, this is the model required. 'Does it create a negative number?' inquired the Judge. 'No', came the reply. How convenient, I thought. Roderick Campbell (of The Australia Institute) was much more interesting. Mr Clothier may have regretted electing one of the clones to cross-examine someone who dealt ably with questions to the extent that he interwove his opinion at the end of each answer. He made the case for welfare economics: cost-benefit analysis was essential in a project such as KC. Input-output assumes a limitless supply of arable land, water, other resources and workers for the mine rather than taking away any of these things from other sectors, hence this models's overstated economic benefits. He felt that decision-makers (such as the Co-ordinator General) should have been made more aware of the shortcomings of the model used. Mr Campbell preferred that decision-makers use their brains to consider a whole rack of social, economic and environmental factors in estimating the 'costs' of a mine.

Finally, there was environmental scientist Robert Storrs, whose company authored the CIA. Kathryn Kelly, representing the North Queensland Conservation Council, highlighted the inadequacies of the report. It failed to provide numerical values for 'high', 'medium' and 'low' cumulative impacts in a table. It had omitted the Adani mine and its rail link to port, the port development itself, and the passage of coal bulk carriers through the Great Barrier Reef. It had omitted the impacts of related projects on which KC will depend such as a new power station, power supply network and water supply system. The overall impression was of patchy data, some of it based on desk-top research when there was relevant additional and accessible data in the public domain (relating to the Carmichael mine, for example). The CIA was not sufficiently robust or consistent with the precautionary principle to adequately assess potential environmental harm. So, for example, there was no data for habitat loss in 19 other projects in the area, nor was there scheduled to be.
Remnant woodland of the Desert Uplands
In the beginning, I found Member Cochrane's approach interesting. His constant questioning seemed to be in everyone's interest, clarifying cloudy issues and holding arrogant lawyers to account. As the case progressed, however, he exhibited bias and even bullying tactics. He was inconsistent, on occasions advising participants to take their time; on others becoming irritated by their less-than-obvious line of questioning. Sometimes he went as far as almost rephrasing the less experienced objectors' questions for them; but he was hard on Dr Webb for 'fencing' with Mr Clothier who, frankly, made unnecessarily demeaning demands. In my opinion, His Honour could be petulant – ticking off one young chap for bringing a takeaway coffee into court as if he were a naughty child – and egotistical, showing off his knowledge of hydrogeology or economic theory rather than asking a genuinely enlightening question, and correcting typos in final submissions that he had given the parties fewer than two days to complete. 

I have no doubt he will find that GVK Hancock did everything that was required of them within the terms of reference, and therefore recommend their mining application is approved. The conclusion I have reached from three cases of this kind is that the existing approvals process is not sufficiently wide ranging in terms of scope, or thorough – from baseline studies to impact management strategies – to adequately inform important decision makers. And decision makers who are already challenged in a transitional economy clinging to an obsolete free-for-all mentality; on a continent at serious risk of climate change and biodiversity reduction; and in a nation whose political leaders are not yet fully recognisant of major change in numerous other so-called Western democracies.

Member Cochrane thinks it is unlikely he will hand down his recommendations before 6 December. This is the date on which the final components of the former LNP government's Water Reform and Other Legislation Amendment Act (WROLA) will be proclaimed by default unless the Palaszczuk government extends the Act's non-proclamation period or tables its own water reform bill. The fate of WROLA will determine whether or not GVK Hancock have to obtain a water licence in addition to mining approval. The potential abolition of this requirement is a further complication in the already vexed issue of Galilee Basin development.
* the potentiometric head in a well in an unconfined aquifer is at the elevation of the water table. In a well in a confined aquifer, the potentiometric head is typically at a higher elevation than the top of the aquifer due to the confining pressure

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