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Pembroke Olive Downs Pty Ltd v Sunland Cattle Co Pty Ltd & Ors

 

[2020] QLC 27

LAND COURT OF QUEENSLAND

CITATION:

Pembroke Olive Downs Pty Ltd v Sunland Cattle Co Pty Ltd & Ors [2020] QLC 27

PARTIES:

Pembroke Olive Downs Pty Ltd (applicant)

 

v

 

Sunland Cattle Co Pty Ltd (active objector)

 

and

 

Namrog Investments Pty Ltd  (active objector)

 

and

 

Balanced Property Pty Ltd (active objector)

FILE NOs:

MRA599-19 (MLA700032)

MRA600-19 (MLA700033)

MRA601-19 (MLA700034)

MRA602-19 (MLA700035)

MRA603-19 (MLA700036)

PROCEEDING:

Hearing of applications for mining lease and objections

DELIVERED ON:

31 July 2020

DELIVERED AT:

Brisbane

HEARD ON:

3, 4, 8, 9, 10 & 18 June 2020 

HEARD AT:

Brisbane 

PRESIDENT:

FY Kingham

ORDERS:

I recommend to the Minister for Natural Resources, Mines, and Energy, as the Minister responsible for the Mineral Resources Act 1989, that he grant MLAs 700032, 700033, 700035 and 700036 as applied for and grants MLA 700034 for the reduced area identified in exhibit 418.

CATCHWORDS:

ENERGY AND RESOURCES – MINERALS – COURTS OR TRIBUNALS EXERCISING JURISDICTION IN MINING MATTERS – application for mining lease – where the project was a coordinated project – where an Environmental Authority had already been issued – where the scope of the objections narrowed substantially before the hearing – where the applicant and one of the active objectors agreed on a reduced area for one of the MLAs – where the contested evidence related to ground and surface water issues – where the Court recommended the grant of the mining leases 

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – where an objector made numerous grounds of objection – where the objector did not wish to be heard on many of them, but did not withdraw them – whether an objector can withdraw a ground of objection or a fact or circumstance relied on in support of a ground of objection – where the Court found an objector could do so

Environmental Offsets Act 2014 s 14(2)

Environmental Protection Act 1994 s 182, s 184, s 215(2), s 300

Land Court Act 2000 s 7, s 22 

Land and Resources Tribunal Act 1999 (repealed) s 49  Mineral Resources Act 1989 s 252(1), s 260(3), s 261, s 265, s 268, s 269, s 276, s 386J, s 391A

State Development and Public Works Organisation Act 1971 s 26(1)(a)

Strong and Sustainable Resource Communities Act 2017 s 6, s 9

Bat Advocacy NSW Inc v Minister for Environment

Protection, Heritage and the Arts & Anor (2011) 180 LGERA 99, cited

Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 [50]-[60]; [2001] NSWCA 305, cited

Queensland Conservation Council Inc v Xstrata Coal Queensland P/L & Ors [2007] QCA 338, applied 

Sinclair v Mining Warden at Maryborough & Anor (1975)

132 CLR 473, cited

Tickner v Chapman (1995) 57 FCR 451, cited

APPEARANCES:

S Holt QC with J Ware (instructed by Allens) for the applicant

E Morzone (instructed by Emanate Legal) for the objector, Sunland Cattle Co Pty Ltd

N Loos (instructed by Colin Biggers and Paisley) for the objectors, Namrog Investments Pty Ltd and Balanced Property Pty Ltd

  1. [1]
    Pembroke Olive Downs Pty Ltd is the proponent of the Olive Downs Coking Coal Project, located approximately 40 km south-east of Moranbah, on the Isaac River. 
  2. [2]
    To undertake the Project, Pembroke has applied for three mining leases for coal (MLA 700032, MLA 700033 and MLA 700034) and two mining leases (MLA 700035 and MLA 700036) for related infrastructure. 
  3. [3]
    Because there were objections to the grant of each of those MLAs, the applications and objections were referred to the Court.[1] 
  4. [4]
    The Court’s function is to hear the applications and any objections to them and, considering statutory criteria,[2] to make a recommendation to the Minister for Natural Resources, Mines and Energy about each application. The Court may recommend the Minister grants or rejects an application, in whole or in part, and may recommend a lease is granted subject to conditions it considers appropriate.[3] 
  5. [5]
    An unusual feature of the hearing, for a project of this scale, is that there were no objections to the draft environmental authority notified by the Department of Environment and Science.[4] The EA has since been issued, to take effect upon the grant of the mining leases, if that occurs. In this hearing, the Court has no function in relation to the EA.[5] However, the conditions of the EA are relevant to some of the objections and the statutory criteria the Court must consider.
  6. [6]
    Another unusual feature of the hearing is that it occurred during restrictions imposed to mitigate risk related to the COVID-19 pandemic. The hearing was conducted by videoconferencing and using an electronic document database, with the assistance of the solicitors for the applicant. Instead of a physical site inspection, the applicant prepared a video presentation. The five expert witnesses who gave oral evidence did so in a concurrent evidence session conducted by videoconference. The hearing proceeded as scheduled and without delay. This is due, in no small part, to the efforts of the parties, their solicitors and counsel. I note with pleasure, their collaboration in ensuring the best use of the Court’s time and resources under difficult conditions. 
  7. [7]
    Having heard the evidence, and considered the applications, the objections, and the statutory criteria, I recommend the Minister grant MLAs 700032, 700033, 700035 and 700036 as applied for and grants MLA 700034 for the reduced area identified in exhibit 418.
  8. [8]
    These reasons briefly describe the Project and the objections to the MLAs. Then the reasons address the evidence, and related objections, by reference to each of the statutory criteria, before considering what recommendation the Court should make on the applications. 

The Project

  1. [9]
    The Project is located in central Queensland, south-east of Moranbah and north-east of Dysart, in the Bowen Basin, a well explored and developed coal producing region. 
  2. [10]
    The approximate area of open cut mining and for associated waste rock emplacement and infrastructure uses is 16,300 ha. Some 10,600 ha of the Project area is already cleared or disturbed by agricultural activities.
  3. [11]
    The Project anticipates production of up to 14 Mtpa of product coal (20 Mtpa of runof-mine coal)[6] for overseas export over an operational period of 79 years, although the terms now applied for are much shorter than that. This means, if granted, Pembroke will need to apply to renew the leases to see out the full life of the Project. 
  4. [12]
    The location and scale of the Project is evident from the following figure,[7] which also puts the Project in the context of mining activity in the region.

Judgment-Image

  1. [13]
    There are 25 operating coal mines in the region. The Project is immediately south of the Moorvale South Mine, and within six km of the Peak Downs and Saraji mines to the east. Other mines within a 30 km radius are Moorvale, Duania, Poitrel, Millennium, Eagle Downs and Lake Vermont.
  2. [14]
    Pembroke proposes mining over two mining domains: Olive Downs South (ODS) and Willunga. It proposes on-site run-of-mine coal handling and crushing facilities on both domains. Other infrastructure for the mine is proposed for the ODS domain.
  3. [15]
    The mine infrastructure area will include a coal handling and preparation plant (CHPP), and product coal stockpiles with capacity to produce approximately 14 Mtpa of product coal. The proposed arrangements for the Project, and associated infrastructure, are illustrated by the following figure:[8]

Judgment-Image

  1. [16]
    Pembroke has secured access to port and rail facilities to transport and export the product coal. It proposes to construct a rail loop and rail-loadout facility on the ODS domain and a rail spur to the Norwich Park Branch Railway, so its product can be transported by rail to the Dalrymple Bay Coal Terminal for export. 
  2. [17]
    Parallel to the rail spur, and within an existing road reserve, Pembroke proposes to construct a new water supply pipeline from the Eungella network to the mine infrastructure area.
  3. [18]
    Pembroke also proposes to construct an electricity transmission line from the Broadlea Substation to the mine infrastructure area, access roads from Annandale Road and the Fitzroy Development Road, and all associated infrastructure and utilities.

The objections

  1. [19]
    There are four objectors to the MLAs. All are owners of land affected by the MLAs.
  2. [20]
    The figure below[9] shows the MLAs overlaid onto the underlying landholdings. Pembroke owns two of the properties affected by the MLAs, Iffley and Deverill. The objectors own the other freehold grazing properties:  
  1. (a)
    Sunland Cattle Co Pty Ltd owns Old Bombandy (MLA70034). 
  1. (b)
    Namrog Investments Pty Ltd owns Vermont Park (MLA70033). 
  1. (c)
    Balanced Property Pty Ltd owns Seloh Nolem (MLA70033). 
  1. (d)
    Geoffrey and Ruth Bethel own Willunga (MLA 70034). 

Judgment-Image

  1. [21]
    Three of the four objectors elected to be active parties in the hearing: Sunland, Namrog and Balanced. This means they participated in the hearing fully. Sunland objected to the grant of each of the MLAs.  Namrog objected to the grant of each MLA except MLA 700034. Balanced objected to the grant of MLA 700034. 
  2. [22]
    The other objectors, Geoffrey and Richard Bethel, did not elect to be an active party. They objected to the grant of MLA 700034. Although they played no active role in the hearing, I must consider their objection, about the biodiversity offsets for the Project, in deciding what recommendation to make on MLA 700034. I have done so at [284] to [297] of these reasons.[10]  
  3. [23]
    The active objectors raised numerous grounds. Well before the hearing, Namrog and Balanced abandoned all grounds of objection but those dealing with impacts on groundwater and surface water, including flooding and water quality.
  4. [24]
    Sunland’s objections were more wide-ranging. Although they led evidence on a limited number of issues, they did not formally abandon any grounds of objection. Pembroke called upon Sunland to withdraw those grounds where there was no contest on the evidence. Counsel for Sunland submitted it is not possible to do so.
  5. [25]
    An objection must state the grounds of objection and the facts and circumstances relied on in support of those grounds.[11] An objector may withdraw an objection.[12] However, there is no express power in the Mineral Resources Act 1989 for an objector to withdraw one or more grounds of objection or the facts and circumstances relied on for one or more grounds of objection.
  6. [26]
    The distinction between an objection and what an objection must include makes sense because of the consequence under the MRA of an objector withdrawing an objection. An application for a mining lease is only referred to the Court if there is an objection to it.[13] If all objections to a mining lease are withdrawn before the Court makes its recommendation to the Minister, the Court may remit the matter to the chief executive of the Department of Natural Resources, Mines and Energy.[14] The withdrawal of the objection, therefore, has consequences for the Court’s role in the mining lease application process.
  7. [27]
    The does not mean an objector cannot abandon a ground of objection, or a fact and circumstance relied on in support of that ground, during the course of a mining objection hearing. The MRA does not prohibit an objector from doing so. Further, it is consistent with the Court’s ability to control the hearing procedure.
  8. [28]
    Subject to an important restriction not relevant for present purposes,[15] the Court is able to “hear such persons and inform itself in such manner as it considers appropriate in order to determine the relative merits of the application, objections and other matters, and shall not be bound by any rule or practice as to evidence.”[16] Further, the Court has a wide discretion as to its procedure under the Land Court Act 2000.[17]The Court of Appeal considered a similar provision in the (repealed) Land and Resources

Tribunal Act 1999 (s 49) provided wide discretion as to the Court’s procedure for such hearings.[18]  

  1. [29]
    The Court has defined its procedure for mining objection hearings by Practice

Direction.[19] The Court’s objective is to conduct such hearings in a way that is accessible, fair, just, economic, and expeditious.[20] The PD encourages parties to clarify and confine the issues for the hearing. The Court’s approach is consistent with the objective of limiting the issues of fact being investigated, by clarifying the real issues in dispute.[21] The PD provides that a party may request an objector to provide further details of their grounds of objection by making a request for particulars. These may clarify or confine the scope of an objection but cannot add new grounds of objection. An objector, at any time, may abandon any ground of objection.[22]

  1. [30]
    Some change in the real issues in dispute is to be expected, between an objector lodging their objection and the Court making its recommendation. In most hearings, an objector will be provided with additional information about the application, before or during a hearing. That may be because material not served with the notice of application, such as commercially sensitive material, is provided during the hearing. Or an applicant may have undertaken further investigation of potential impacts in preparing for the hearing. Or, as in this case, the parties may have engaged experts who provide reports which clarify and reduce, the matters that an objector wants the Court to consider. Or, during the hearing, evidence is led that causes an objector to rethink their position in opposing the application.
  2. [31]
    Whatever the reason, in controlling its procedure, and in considering what recommendation to make on an application, the Court will act on a clear statement by an objector that it no longer maintains a ground of objection, or particular facts and circumstances relied on for a ground of objection.
  3. [32]
    Prior to the hearing, in response to Pembroke’s request for particulars, Namrog and Balanced advised they did not press any grounds of objection except grounds one and two. Those grounds raise issues about ground and surface water impacts.
  4. [33]
    Sunland was not as clear about what grounds, and which facts and circumstances, it maintained.
  5. [34]
    However, the parties’ definition of the issues in dispute narrowed prior to and during the hearing. Much of the lay and expert evidence led by Pembroke was not contested. There were also a number of joint reports prepared by experts engaged by the parties to advise the Court on matters raised by one or more grounds of objection. For some of those reports, there was no material disagreement between the experts and they were not required to give oral evidence.
  6. [35]
    Further, the active parties agreed upon a list of “the real and substantial issues of fact and law in dispute”.[23] That identified 37 issues relevant to seven statutory criteria. During the hearing, the parties provided an amended list which reduced the issues to 26, relevant to only three statutory criteria.
  7. [36]
    Save in one respect, Sunland did not suggest the Court need consider any ground of objection not identified in the amended list of issues. The one exception related to amenity impacts. Although Sunland did not rely on this as a reason to refuse the MLAs, counsel suggested the Court should recommend conditions to deal with the impacts of the Project on cattle, if it recommended the Minister grant the MLAs. Sunland made no closing submissions on the topic, and it seemed that issue fell away during the hearing. I have addressed that further at [114]-[118] and [248]-[263] of these reasons.
  8. [37]
    I will now turn to the statutory criteria I must consider in making my recommendations. For each criterion, I will identify, as best I can, any relevant objection and whether the objector maintains it.

Have the provisions of this Act been complied with? (s 269(4)(a))

  1. [38]
    Sunland objected on the ground that the MLAs were not properly made as they did not adequately comply with the requirements of the MRA.[24] In oral submissions at the hearing, counsel for Sunland clarified this ground. Sunland did not contend the MLAs are invalid, or that the Court lacks jurisdiction to hear them. Rather it took issue with the merits of the issues that, it says, were not properly addressed in the material lodged in support of the application.[25] Although initially identified on the list of issues in dispute, the amended list makes no reference to sufficiency of the information provided to the DNRME when Pembroke made its applications. 
  2. [39]
    Nevertheless, whether Sunland maintained the objection or not, the Court must consider whether Pembroke has complied with the provisions of the MRA in relation to these MLAs. 
  3. [40]
    DNRME oversees the application process. After receiving the MLAs, an officer of DNRME issued a Notice to Applicant[26] requesting additional information about the following matters:
    1. information clarifying the intersection of access routes for some MLAs with surrounding public roads;
    2. a visual representations of the proposed access routes;
    3. the inclusion of creeks, rivers, and public roads on the underlying land lists;
    4. information regarding all properties adjacent to properties which underly the MLA areas as per section 252A(7) of the Act; and
    5. details of all restricted land features.[27]
  1. [41]
    Pembroke provided that information on 18 and 19 July 2019.[28] 
  2. [42]
    On 23 July 2019, the Mining Registrar issued Mining Lease Notices for each of the MLAs.[29] The Mining Registrar can only do so if satisfied that the applicant is eligible to apply for the lease and has complied with the requirements of the Act.[30]
  3. [43]
    Pembroke has filed a declaration of compliance with the notification and service requirements for each MLA.[31] 
  4. [44]
    My attention has not been drawn to any evidence of non-compliance with the relevant provisions of the MRA for these MLAs.

Is the area applied for mineralised, or are the other purposes for which the lease is sought appropriate? (s 269(4)(b))

  1. [45]
    Sunland objected that the MLA areas are not sufficiently mineralised to warrant the grant of the MLAs and the other purposes identified are not appropriate to warrant the area of land identified in the MLAs.[32] Sunland did not include this in either the first or the amended list of issues.
  2. [46]
    There is uncontested evidence before the Court of mineralisation across the three MLAs which are to be mined (MLA 700032, MLA 700033, MLA 700034).
  3. [47]
    Pembroke relied on evidence from Mr Ian Alexander, a mining engineer with almost 40 years’ Australian and international experience in operations, technical services, management and evaluation of mines. He provided an expert report[33] and gave oral evidence, none of which was contested.
  4. [48]
    He referred to resource estimates for the Project which reported 377.6Mt of Measured[34] and Indicated[35] resource for the ODS domain and 276.6Mt of Measured and Indicated resource for the Willunga domain.[36] The estimates were prepared by a ‘competent person’, as required by the JORC code.[37]  Mr Alexander discussed them in some detail and expressed his confidence that the area of land subject to MLAs 700032, 700033 and 700034 are coal bearing.[38]
  1. [49]
    Further, Mr Alexander gave uncontested evidence about the purposes Pembroke specified for MLAs 700035 and 700036. MLA 700035 is sought for the rail spur line, the raw water pipeline and an out-of-pit waste rock emplacement area. MLA 700036 is sought for an out-of-pit waste rock emplacement area. These are purposes associated with extracting, processing or transporting coal product, or in supplying essential services to the mine. I accept Mr Alexander’s conclusion they are appropriate purposes for this Project.[39] 
  2. [50]
    Given Mr Alexander’s extensive experience, his clear reasoning and conclusions, and the absence of any contrary evidence, I am satisfied the areas of MLAs 700032, 700033 and 700034 are mineralised and that the purposes proposed for MLAs 700035 and 700036 are appropriate purposes for mining leases for a Project of this nature.

If the area is mineralised, will there will be an acceptable level of development and utilisation of the mineral resources within the area applied for? (s 269(4)(c))

  1. [51]
    Sunland objected that the level of development and utilisation of the resource did not justify the area of the proposed MLAs.[40]  
  2. [52]
    During the hearing, it became clear that this related only to the area of land on

Sunland’s property, Old Bombandy, applied for under MLA 700034. The area of MLA 700034 is addressed under the next statutory criterion. 

  1. [53]
    To the extent the objection raised an issue about the sufficiency of information provided with the MLAs, although that was included in the first list of issues, it was not included in the amended list.
  2. [54]
    In his report, Mr Alexander reviewed the development plan included in the Environmental Impact Statement (EIS). It comprises seven stages over 79 years, with production ramping up to 20 Mtpa by 2034 and staying at that level for about 12 years. He noted the development plan provides for mining 612 Mt of the 838.5 Mt total resources, equating to 73% of the total resources presently estimated. Mr Alexander said he considered the planned development and utilisation of the resources is acceptable.[41]
  3. [55]
    Mr Alexander’s opinion is uncontested. There is no reason for me to reach a different conclusion on the evidence before the Court.

Is the land and the surface area of the land applied for of an appropriate size and shape? (s 269(4)(d))  

  1. [56]
    In his written report, Mr Alexander gave detailed consideration to the size and shape of all the MLAs considering the area of mineralisation, the development plan, the proposed activities and their potential impacts. MLAs 700032, 700033 and 700034 follow the deposits to be mined and contain essential infrastructure. MLAs 700035 and 700036 allow for out-of-pit emplacement areas, which are required for the first pit in each domain. They will be progressively rehabilitated after sufficient space is available within the mined-out voids of the open cut pits to be progressively backfilled.[42] The size and shape of MLA700035 is also defined by the rail line, water pipeline and a service road, all of which are fundamental to the Project.  He concluded the size and shape of each MLA is appropriate.[43] 
  2. [57]
    Sunland objected that the size and shape of the proposed MLAs was a reason to refuse the grant of the lease,[44] however during the hearing, it became clear this objection was maintained only in relation to MLA 700034. During questioning of Mr Alexander by counsel for Sunland, it became clear that Sunland’s concern was an area on Old Bombandy described as a buffer zone. 
  3. [58]
    Mr Alexander said the benefit of a buffer zone is that it allows the mine to deal with the unexpected.[45] Counsel for Sunland asked him to assume that the buffer was not required to address amenity impacts or impacts on livestock. On that basis, Mr Alexander described the buffer area as generous.[46] 
  4. [59]
    After Mr Alexander gave that evidence, Pembroke proposed new boundaries for MLA 700034 which significantly reduces the buffer area, and the footprint on Old Bombandy. This resolved the concern raised by Sunland about the area of that MLA and was excluded from the amended list of issues.
  5. [60]
    Pembroke now seeks a recommendation that MLA700034 is granted for the boundaries as redrawn during the hearing.[47] I am satisfied, on the redrawn boundaries, that the size and shape of the surface area of MLA 700034 is appropriate. 
  6. [61]
    Mr Alexander’s opinion about the size and shape of the surface areas of the other MLAs is uncontested, and I accept it.

Is the term sought appropriate? (s 269(4)(e))

  1. [62]
    The project is expected to have a life of approximately 79 years.[48] However, at this stage, Pembroke seeks a 30-year term.
  2. [63]
    Although Sunland did not identify this as a ground of objection, it did raise the term in its facts or circumstances.[49] It said the Applicant had not provided evidence in relation to the size of the resource to be won, and that given the relative scale of the mining operations, the term sought is not appropriate.  
  3. [64]
    In his report, Mr Alexander said the information submitted in support of a 30-year term is broadly consistent with the DNRME operational policy guidelines for MLAs seeking terms greater than 25 years.[50] He noted the Project has a large resource as well as a large reserve base and is projected to have a significant mine life. It is projected to be one of the largest mines in Queensland based on maximum annual output.[51] Although Mr Alexander referenced a 2018 version of the guidelines in his report, in oral evidence he referred to a more recent version of the guidelines[52] and said there was no substantive difference between the two.[53]
  4. [65]
    Mr Alexander did not purport to express an opinion on the suitability of the term, noting that it is a matter entirely at the Minister’s discretion.[54]
  5. [66]
    At the hearing, counsel for Sunland questioned Mr Alexander about the timing for the development of MLA 700034, the MLA affecting Old Bombandy. Counsel took Mr Alexander to figure 2-10 in the Project Description in the EIS:[55]

Judgment-Image

  1. [67]
    Mr Alexander said this shows that the southernmost areas of the Willunga domain, near the Old Bombandy border, will be mined from 2030. That pit is called Willunga 4.  He explained that the mining sequence for the Willunga domain is defined by the geology of the deposit, which is shallower in the southern area of Willunga 4, with the pit getting deeper as it moves north as the seam dips. From a mining point of view, it makes sense to mine the shallow material first.[56]
  2. [68]
    Counsel asked whether Mr Alexander was aware of a revised development plan showing there would be no mining in that area for another 25 to 30 years. Mr Alexander said he was not, and could only express an opinion on the information he had.
  3. [69]
    The obvious inference from counsel’s question is that this area should not be subject to a mining lease until it is ready to be exploited. Counsel did not show Mr Alexander a revised plan and, in his submissions, counsel for Sunland did not refer me to one. Sunland did not appear to maintain this issue after Mr Alexander gave his evidence, as it was removed when the list of issues was amended.
  4. [70]
    There is no prescribed limit for the term of a mining lease. The DNRME policy acknowledges that miners are applying for longer terms as the scale of mining projects increase. The purpose of the policy is to ensure DNRME can review mining operations as they proceed. Periodic renewal furthers that objective as it provides the opportunity to impose further conditions, if required. A 30-year term allows Pembroke to commence mining the Willunga domain in the initial term of MLA 700034, while providing the opportunity for DNRME to review the mining operations on that lease before they are too advanced.
  5. [71]
    I am satisfied, on Mr Alexander’s evidence, that Pembroke has provided adequate information in support of its applications for 30-year terms for each MLA. Except for those matters raised by Sunland, which it appeared not to maintain after hearing from Mr Alexander, I am not aware of any reason the Minister should grant the MLAs for a shorter term.

Does the applicant have the necessary financial and technical capabilities to carry on mining operations under the proposed mining lease? (s 269(4)(f))

  1. [72]
    No objection was made about Pembroke’s technical capability to carry on the mining operation. 
  2. [73]
    However, Sunland objected that Pembroke’s financial capability to carry on mining operations is subject to commercial risks associated with commodity prices.[57] 
  3. [74]
    This is probably an objection that is more relevant to whether there will be an acceptable level of development of the resource and whether it is in the public interest to grant the MLAs. 
  4. [75]
    I will deal with it when considering the public interest criterion. In any case, it was not included in either the first or the amended list of issues and Sunland did not lead any evidence on the topic, did not challenge Pembroke’s evidence about it and made no submissions about it.
  5. [76]
    Turning to Pembroke’s evidence of both financial and technical capability, Mr Mark Sheldon, the Chief Operating Officer of Pembroke, addressed this statutory criterion in detail in his affidavit. He exhibited:
    1. the financial capability statements and the technical capability statements submitted for each MLA
    2. the 2018 and (unaudited) 2019 annual reports of the Pembroke Resources Australian Unit Trust[58]
    3. the letter of commitment to funding from Denham Capital
    4. the Olive Downs Complex Bankable-Feasibility Study
    5. his curriculum vitae and those for other key executives – Chief Executive Officer and Managing Director, General Manager of the Mine, Chief Commercial Officer, Exploration Director and Chief Development Officer.
  6. [77]
    Pembroke is a wholly owned subsidiary of Pembroke Resources Nominee Pty Ltd as trustee for the Pembroke Resources Australian Unit Trust. Its ultimate holding company, Pembroke Resources LLC is owned by Denham Commodity Partners Fund VILP and Denham Commodity Partners VI-A LP. Denham Capital is a global private equity firm focused on resources and energy investments and has committed to provide funding to Pembroke through the Pembroke Australia Unit Trust.[59]
  7. [78]
    Mr Sheldon summarised the expertise of the team involved in developing the Project.

Drawing on his 40 years’ experience in various technical and senior managerial roles in the mining industry, he believes Pembroke has the financial and technical capability to successfully develop and operate the mine.[60] 

  1. [79]
    Further, Pembroke’s CFO says their initial development plan will be funded through cash from a number of sources, including the funding mechanism of the Pembroke Resources Australian Unit Trust, bank financing arrangements and a funding arrangement through selling down an interest in the Project.[61]
  2. [80]
    Dr Jerome Fahrer, who provided an expert report on economics modelling, has almost 40 years’ experience as an economist in the public and private sector and in assessing the economic contributions of projects such as this one. He observed that the staged capex approach proposed for this Project is a prudent way to mitigate financial risk, as the Project will earn revenue before Stage 2 and Stage 3 capital expenditures.[62] He noted that Denham Capital Management LP has committed capital in excess of US$10 billion and already contributed US$181 million to Pembroke.[63]
  3. [81]
    On the evidence before the Court, I am satisfied Pembroke has the necessary financial and technical capability to undertake a Project of this scale.

Has the past performance of the applicant been satisfactory? (s 269(4)(g))

  1. [82]
    Sunland objected that Pembroke’s past performance is limited to exploration activities only and cannot be considered sufficient evidence in relation to the development of any greenfield coal mine.[64]  
  2. [83]
    This is another objection that Sunland did not maintain at the hearing, and about which it led no evidence and made no submissions.
  3. [84]
    Pembroke says it has provided evidence of satisfactory past performance in the form of technical capability statements[65] and human/technical resource commitments.[66]
  4. [85]
    Mr Sheldon, Pembroke’s COO, deposed that Pembroke has never been issued with a show cause notice under either the MRA or EPA, and that there has been no noncompliance with the conditions of any environmental or resource authority in respect of Pembroke’s interests.[67]
  5. [86]
    There is no evidence before the Court to suggest Pembroke’s past performance, or that of its senior executives, has not been satisfactory.

Is there any disadvantage to existing holders of or applicants for exploration permits or mineral development licences? (s 269(4)(h))

  1. [87]
    There was no objection on this topic.
  2. [88]
    The MLAs overlap a number of exploration permits and mineral development licences. Pembroke holds some of them: MDL 3012, 3013, 3014 and 3025 and EPC 1949. They have obtained the consent of the holders of EPC 1951 and EPC 649, to MLA 700035 and 700036 respectively.[68]
  3. [89]
    There is no evidence any existing holder or applicant for an exploration permit or mineral development licence will be disadvantaged.

Will the operations to be carried on under the authority of the proposed mining lease conform with sound land use management? (s 269(4)(i))

  1. [90]
    Sunland objected that the proposed operations will not conform with sound land use management.[69] Its particulars of this ground of objection referenced adverse environmental impacts which are addressed under the next statutory criterion.[70]
  2. [91]
    The concept of sound land use management is somewhat nebulous. The phrase is not defined in the MRA and I was not referred to, and am not aware of, any judicial interpretation of the phrase in Queensland or of an objective standard to apply. 
  3. [92]
    The draft EIS surveyed the comprehensive regulatory framework for this Project.[71] It includes legislation and related approvals at both Commonwealth and State levels involving tenure, environmental, native title and aboriginal cultural heritage, and social issues, and for providing security for rehabilitation requirements, amongst other matters. The Coordinator-General’s Evaluation Report[72]includes information about the approvals in process and yet to be secured when the report was published in May 2019. 
  4. [93]
    Although it is not necessary to descend into the detail of those processes, which, other than tenure, are not before the Court, the scope of the Project, the potential impacts of the land use, and the methods for managing the activities have been extensively assessed under Queensland legislation.  
  5. [94]
    The Project was declared a “coordinated project” under the State Development and Public Works Organisation Act 1971. This imposed a requirement for an EIS.[73] The Coordinator-General drafted terms of reference for the EIS and considered the 15 submissions received from advisory agencies before finalising them.
  6. [95]
    Then Pembroke prepared a draft EIS, which was released for public consultation. There were 37 submissions by agencies or private submitters. Those submissions identified further information required or management strategies that should be adopted about a wide range of matters.
  7. [96]
    The Coordinator-General considered those submissions and requested further information from Pembroke. Pembroke provided a Supplementary EIS, which included a response to the submissions.[74]The Coordinator-General undertook an evaluation, issued an Evaluation Report, and recommended the Project proceed subject to stated conditions. 
  8. [97]
    Subsequently, DES advertised the draft EA and, after the public notification period passed without objection, issued the EA.
  9. [98]
    The two primary authorities under Queensland legislation that govern the Project, if the MLAs are granted, are the mining leases and the EA.
  10. [99]
    The conditions of mining leases include general conditions imposed by the MRA.[75] In large part these are not directed to land use management. They address access to the lease area, and payment of compensation, rental, royalties and local government rates and charges. 
  11. [100]
    The Minister for NRME cannot grant an MLA unless an EA has issued for all

activities to be authorised under the mining lease.[76] 

  1. [101]
    The Minister can impose further conditions on a mining lease, including about compliance with specific codes or industry agreements, as long as they are not the same, substantially the same, or inconsistent with, a relevant condition of the EA for the mining lease.[77] 
  2. [102]
    As there was no objection to the draft EA for these MLAs, the Court has no function in making recommendations about it. However, given the operational focus of an EA and the primacy of its conditions, the EA is relevant when considering whether the operations will conform with sound land use management. 
  3. [103]
    In oral submissions, counsel for Pembroke used the term “adaptive management” to describe the approach Pembroke will take to managing its operations.
  4. [104]
    “Adaptive management” is not a term you will find in either the MRA or the EPA. The term is used in one condition in the EA dealing with monitoring impacts on groundwater dependent ecosystems and wetlands.[78] However it contains no definition of that term.  
  5. [105]
    The Dictionary of Environment and Conservation[79] contains a helpful definition:

adaptive management (monitor-and-modify approach)

An approach to the management of natural resources that is based on learning by doing, and on making decisions as part of an on-going process of monitoring, review and adaptation. A planned course of action is kept under constant review, and is adapted where appropriate as new information becomes available from the monitoring of results, publication of new scientific findings and expert judgments, and changing needs of society.

  1. [106]
    The detailed conditions of the EA require Pembroke to adopt an adaptive management approach in managing and mitigating a range of environmental impacts from its proposed activities. Some of those dealing with water impacts are discussed under the next statutory criterion. There are many other examples in the EA.[80]
  2. [107]
    Further, an adaptive management approach is inherent in Pembroke’s Proponent Commitments.[81] The Coordinator-General’s approval specifically references those commitments:

…Accordingly, I approve the Olive Downs project, subject to the conditions in Appendix 1, the recommendations in Appendix 2 and 3 and the proponent commitments in Appendix 4. In addition, it is expected that the proponent’s commitments will be fully implemented as presented in the EIS documentation and summarised in Appendix 4 of this report.[82] (emphasis added)

  1. [108]
    Arguably, the commitments are not strictly enforceable unless adopted as conditions of an approval, such as the EA. Some have been given that status. To the extent they have not, the Coordinator-General’s recommendation provides a strong basis for regulatory intervention, including, should that prove necessary and appropriate, the possibility of amending the EA.[83]
  2. [109]
    The Project has been subject to a rigorous public assessment process as a coordinated project. The conditions of the EA and the Proponent Commitments adopt a sophisticated approach to managing the operations to be conducted under the mining leases, if granted. They evidence a commitment to sound land use management and provide a strong foundation for regulatory intervention if that is required.

Will the operations cause any adverse environmental impact and, if so, to what extent?

(s 269(4)(j))

  1. [110]
    The objectors made a number of objections about the adverse environmental impacts of the proposed operations, which narrowed considerably before and during the hearing. The focus was on water impacts. Before identifying the disputed issues there were some other objections that I will deal with briefly.
  2. [111]
    As already observed, Namrog and Balanced particularised their objections and limited the matters they wished to be heard about to issues of groundwater and surface water, including flooding and water quality.[84] 
  3. [112]
    However, they did make some closing submissions about ecological impacts, which criticised the opinions expressed by Dr Dique, the ecologist engaged by Pembroke. Dr Dique provided two expert reports. Namrog and Balanced did not require him for cross-examination. Counsel for those objectors submitted Dr Dique’s report was not based on the most recent evidence (which was given orally during the hearing) and because he had wrongly interpreted the effect of certain conditions of the EA.[85] I take that to be a reference to condition E21, which requires Pembroke to provide an annual report regarding ecosystem monitoring including about any adaptive management initiatives it has implemented. This would provide a basis for regulatory intervention, if required. 
  4. [113]
    Dr Dique was not given the opportunity to address the arguments made after the evidence closed. Namrog and Balanced led no evidence that challenged Dr Dique’s opinion. In those circumstances, I can place little weight on their submissions. I accept Dr Dique’s uncontested conclusions that there is unlikely to be a significant impact on groundwater dependent ecosystems associated with the Project.[86]
  5. [114]
    Turning to Sunland’s objections, on the first day of the hearing Sunland also advised it wished to be heard only in relation to groundwater and surface water.[87] Although it did not formally abandon or withdraw other objections, Sunland did not contest expert evidence led by Pembroke on the following matters: ecology, noise, air and dust, lighting, rehabilitation, pasture, livestock impacts and agricultural economics. 
  6. [115]
    Counsel for Sunland said the only grounds upon which it argued the Court should recommend refusal of the MLAs related to groundwater and surface water issues. However, at the beginning of the hearing, counsel maintained Sunland’s objection in respect of amenity issues, to the extent that he argued a condition should be imposed to deal with impacts on livestock. 
  7. [116]
    It seemed to me that Sunland effectively abandoned that argument during the hearing. It was not included in the amended list of issues in dispute and Sunland made no closing submissions on the topic. 
  8. [117]
    In any case, the uncontested evidence about the impact of noise, vibration and light on cattle, which I have considered at [248] to [259] of these reasons, does not justify a condition being imposed on the mining leases.[88] 
  9. [118]
    There is a further question about whether the Court can (or should) recommend a condition be imposed on a mining lease to regulate something it cannot authorise (that is, environmental harm). It is unnecessary to answer that question given my conclusion that no condition is required.

Water issues

  1. [119]
    Each of the parties led evidence about water issues from engineers or scientists with relevant expertise. Before the hearing, the parties’ nominated expert witnesses participated in a Court Managed Expert Evidence[89] process. They were jointly briefed and produced three joint expert reports relating to water issues:
    1. (a)
      a joint expert report on groundwater authored by Dr Merrick (for Pembroke), Dr Johnson (for Sunland) and Dr Telfer (for Namrog and Balanced);[90]
    2. (b)
      a joint expert report on surface water authored by Mr Roads (for Pembroke), Dr Johnson (for Sunland) and Mr McAlister (for Namrog and Balanced);[91] 
    3. (c)
      a supplementary joint expert report on groundwater and surface water authored by all five expert witnesses.[92]
  2. [120]
    Having reviewed those reports, the parties agreed there were five broad issues in dispute relevant to water:
    1. The reduction in flow duration in the Isaac River
    2. The impact of a causeway on the flow of the Isaac River
    3. Flooding
    4. Mine water quality
    5. Overland flow
  3. [121]
    The parties used that agreed list to set the agenda for a concurrent evidence session involving the five expert witnesses. The following discussion canvasses the evidence, and related submissions, on each issue. At the end of the discussion on each topic, I answer the specific questions identified in the amended list for each issue.

The reduction in flow duration in the Isaac River

  1. [122]
    The Isaac River is a major drainage feature of the Isaac Connors catchment, a subcatchment of the upper Fitzroy Basin.[93] It flows from the northwest to the southwest dividing the project between the ODS domain on its west, and the Willunga domain on its east. Both domains are to be mined in open pits.[94]
  2. [123]
    The mine pits will intersect water bearing strata. Water flowing into the pits will be collected in sumps and pumped out of the pits. I will consider the effect of this on:
    1. (a)
      groundwater 
    2. (b)
      surface water 
    3. (c)
      near-surface water 
  3. [124]
    The dispute about the reduction in flow in the Isaac River is relevant to the third of those issues. Ultimately, there was no significant dispute between the experts on the first two.

Groundwater

  1. [125]
    The experts agreed that drawdown within the alluvium, based on the distance to the 1 m drawdown contour, is modelled as extending approximately 4km north and 5km south-east of the ODS domain and 3km from the Willunga domain.[95] This area includes the northern sections of Sunland’s property, Old Bombandy.[96] 
  2. [126]
    The inflow of groundwater to the pits will form cones of depression around the pits for the dominant near surface aquifer and depressurise the lower confined aquifers. 
  3. [127]
    The EIS identified a number of existing private bores that may have a decline in groundwater to the point that make good agreements will be required.[97] In oral evidence, the groundwater experts agreed the bores are outside the cone of influence and should not be severely affected.[98]

Surface water

  1. [128]
    One effect of the changes in pressure in the aquifers is a loss of surface water from the Isaac River to the groundwater system. In oral evidence, the experts agreed that the Isaac River already loses surface water to the groundwater system,[99] despite the conclusion in their joint expert report that the river is a gaining system.[100] The inflow of groundwater to the pits will increase the rate at which that happens. 
  2. [129]
    Pembroke quantified the likely increased loss in a groundwater model prepared for the EIS.[101] Dr Merrick was involved in preparing and reporting on the model. Based on the model, Dr Merrick predicted an increase in the average loss from the river (or leakage to groundwater) of 884 ML/yr over the modelled 52km stretch of the Isaac River. This is a loss of between 0.4% and 0.5% of the average flow in the river.[102] Losses are predicted to be greater at peak mining in 2045 (1,350 ML/yr) and at end of mining in 2095 (1,100 ML/yr).[103]
  3. [130]
    The extent of the loss will differ depending on proximity to pits.[104] Further, the loss of surface water has more significance during dry periods. [105]
  4. [131]
    Sunland holds a water licence with a nominal entitlement of 1,250 ML/yr and a mean annual diversion of 600 ML. Dr Johnson observed infrastructure on Old Bombandy that would enable Sunland to extract surface water from the Isaac River, although he saw no evidence that water had been taken under the licence.[106] 
  5. [132]
    In any case, Sunland is not authorised to take water under the licence unless the flow in the Isaac River immediately downstream of the point of take is at least 1,080 ML/day.[107] The three surface water experts, Mr Roads, Dr Johnson and Mr McAlister, agree the groundwater drawdown will not affect Sunland’s ability to fully utilise this water licence.[108]
  6. [133]
    There is limited evidence about other surface water extraction downstream from the mine. There are four other downstream surface water licences connected to a total of three properties on the Isaac River.[109] There is no evidence about the conditions of these licences. However, their distance from the project is an important consideration.
  7. [134]
    Dr Johnson agreed with Mr Roads that the impact on surface water becomes less important to the overall function of the stream as you go downstream. He said:

The impact of the loss [indistinct] the mines will reduce as we go downstream, as the catchment becomes bigger. So, at some point downstream, the impact becomes negligible. It’s small to begin with and, by the time we’re significantly downstream, it doesn’t register at all.[110] 

  1. [135]
    The three properties affected are located approximately 55km to 79 km downstream of the project.[111] They are well outside the zone affected by the groundwater drawdown, as modelled in the EIS.[112] They are also beyond the 52km modelled for the surface water loss. In the absence of evidence to indicate a likely impact, it is reasonable to assume that there will be negligible, if any, impact on surface water users 55km, and more, downstream of the mine.

Near-surface groundwater

  1. [136]
    The area of sharpest contest between the experts was the impact of the mine on nearsurface groundwater, and how significant that was likely to be. 
  2. [137]
    Under s 52 of the Water Plan (Fitzroy Basin) 2011, landowners are authorised to take water from a watercourse for stock or domestic purposes. No licence is required. The Plan does not impose a limit on take.  
  3. [138]
    Sunland is concerned the mine will affect its ability, and that of other landowners, to take water from the sands in the bed of the Isaac River. The EIS did not address the issue. That is hardly surprising as Sunland did not raise it until recently and, until Sunland did, Pembroke was not aware that any landowner accessed water from that source. 
  4. [139]
    It was first raised in a statement by Mr Harris, a Director of Sunland, which was filed on 11 March 2020. He said Sunland was taking 250 ML/yr from this source.
  5. [140]
    Before the hearing, the parties advised the Court neither the surface water nor the groundwater experts had addressed the potential impact of the mine on Sunland taking that water, each deferring to the other. I directed all five experts to meet to do so, but they could not agree on the extent or significance of a reduction in near-surface groundwater. 
  6. [141]
    Assessing the potential impact became more difficult for the Court when Sunland renounced Mr Harris’ statement, even though the experts had considered it in expressing their differing opinions on the issue. 
  7. [142]
    By the end of the hearing, there was scant evidence of Sunland’s use of water from this source and no evidence that any other landowner did so. All Sunland established is that there are three sand spears[113] in the bed of the Isaac River along Old Bombandy, two of which are connected to pipes and pumps.[114] There is no evidence Sunland has extracted any water using sand spears, let alone 250ML/year. 
  8. [143]
    Considerable time was spent during the concurrent evidence session on the use of a flow duration curve to assess the potential impact on this resource, however the experts did not agree whether this was the best way to do so.  
  9. [144]
    The flow duration curve was used to identify the number of days on which the river flows at or above 1 ML/day and to predict the change that mining might bring. During evidence these were referred to as flow days and, when the flow was below 1 ML/day they were referred to as “no flow” or “dry” days. The latter is more accurate as there may still be some surface flow and some flow in the sands themselves. 
  10. [145]
    The groundwater experts used the modelled loss of surface water to groundwater of 884 ML/yr to predict the likely increase in the number of dry days. This would provide some indication of the potential impact of mining on near surface groundwater. Mr McAlister deferred to the groundwater experts on this issue. 
  11. [146]
    However, Mr Roads said he had difficulty with the use of the flow duration curve for that purpose. He said the annual groundwater model does not provide a firm basis for estimating impacts at the daily level. He said the loss of about 880ML/yr is an overestimate. In the surface water JER, Mr Roads explained in detail why he considered the groundwater model overestimates daily stream flow losses under both existing and proposed conditions.[115]  
  12. [147]
    One reason is that the figure was calculated on the assumption that the river flowed for 365 days a year. In fact, it flows on average 86 days of the year. He said it did not make sense to predict a stream flow loss when there is no stream flow.[116] Dr Johnson did not agree, because even on a low or zero surface flow, there could still be loss from the flow in the sands to groundwater.[117]
  13. [148]
    Mr Roads also said the analysis overestimated the loss because the flow measurement point is upstream of the mine. As the river travels downstream, its catchment increases and the losses would decrease.[118] Mr McAlister thought this was not a significant issue for analysing impact[119] and Mr Roads described it as a minor point.
  1. [149]
    The more substantial issue is the use of a figure derived from an annual groundwater model to predict what might happen on a daily basis.
  2. [150]
    Dr Merrick shared Mr Roads’ concerns about using an annual model for analysis of daily flows. He had done his best to adjust for what he described as the timescale issue. He accepted this did not fully account for the problem identified by Mr Roads.
  3. [151]
    Ultimately, though, Dr Merrick and Mr Telfer agreed that an annual figure of 884 ML/yr divided by 86 flow days, adjusted by 30% to deal with the timescale issue provided a reasonable indication of the likely increase in the number of dry days, that is, when the flow will be less than 1 ML/day, as a result of the mine:
    1. As an average, 16% or 14 days
    2. At peak mining in 2045, 22% or 19 days
    3. At end of mine in 2095, 19% or 16 days.[120]
  4. [152]
    Dr Johnson favoured an earlier assessment by Mr Telfer, which predicted a higher number of dry days due to mining.[121] However, Dr Johnson did not reject the agreed recalculation outright. He said he had not had time to get across the detail of the change.[122]
  5. [153]
    Given Mr Telfer’s agreement with Dr Merrick’s 30% adjustment to deal with the timescale, the weight of the groundwater evidence favours Dr Merrick’s adjusted estimates. This provides some information relevant to the impact on near surface groundwater but does not, alone, quantify the impact on the resource. 
  6. [154]
    None of the experts had ever been asked to quantify the impact on near surface groundwater or to assess the implications for users of that resource. The only expert who sought to do so in this case was Dr Merrick. 
  7. [155]
    He used two methodologies. First, he estimated the water in storage in the riverbed sediments by reference to the geometry of the aquifer; its width, thickness of sediment and porosity. Second, he assessed the rate of recharge of that resource from several water sources; vertical recharge from surface water lost from the river, rainfall recharge and lateral groundwater flow.[123]
  8. [156]
    Dr Johnson agreed with the first methodology, but not the second, although he had performed no assessment of his own.[124] Mr Telfer described work he had done in the River Murray, investigating and designing groundwater pumping systems to prevent saline groundwater discharging into the river. That involved the interaction between surface and groundwater.[125] However, he had never assessed the impact on users of a near surface groundwater resource,[126] and neither had Mr Roads[127] nor Mr McAlister.[128]
  9. [157]
    In a memorandum for the supplementary JER, Dr Merrick stated the following conclusions from his analysis:

Calculations of likely water storage in a 2-3 m thickness of river bed sediments, per kilometre of river reach, suggest that a withdrawal of 250 ML/year is possible, but barely sustainable, under current conditions if only a single spear is available. 

A reliable withdrawal of 250 ML/year is more likely if multiple spearpoints or bores are used along several kilometres of the river bed. 

The water stored in the river bed sediments is dependent primarily on leakage from the Isaac River when it flows. Vertical recharge is expected to contribute about 50 ML/year per kilometre of river length (for annually-averaged river stage at 0.32 m). For the 2 km length considered accessible to the two Old Bombandy known bores and the Sand Spear to the east of those bores, vertical recharge of about 100 ML/year is anticipated. This is significant compared to the volume withdrawn annually (250 ML/year). 

Section 2.3 of the previous report estimated an additional dry period of 6.2 days/year due to reduction in the length of the flow duration curve. Over a length of 2 km of the river bed, there would be a denial of replenishment of river bed sediments by 3.3 ML/km x 2 km = 6.6 ML/year, giving a reduction in replenishment of river bed storage by 6.6/250 = 2.6% if the entire 250 ML is withdrawn from a 2 km reach of the river.

A reduction in the number of flow-days from 86 to about 80, due to mining, would reduce the river leakage component by about 7%. Given this small impact, in my view mining would not materially compromise the yield from the river bed sediments that is currently relied upon as the river frontage is approximately 15 km long and water in the currently unaccessed river bed sediments would remain available for additional withdrawal.[129]

  1. [158]
    In oral evidence, Dr Merrick noted that the final figures for the reduction in the flow duration (between 16-22%) that he and Mr Telfer agreed upon also apply to the withdrawal of 250ML/year. He said that reduction:

is compensated without any difficulty by the remaining water that is stored in the rest of the river frontage, the remaining 10 kilometres or so that is not currently being accessed by sand spears.[130]

  1. [159]
    Dr Merrick’s assessment is the best evidence before the Court on the question. 
  2. [160]
    The experts agree the groundwater drawdown will have some effect on the near surface groundwater. There will be an increase in the number of dry days as a result of mining, in the range of 14 to 19 days. However, the best evidence of impact on Sunland is Dr Merrick’s estimate of the water available to Sunland across its river frontage. Sunland may need to use additional spears to access the water. That is a matter that can be addressed in a compensation determination.  There is no evidence that there are any other users of near surface groundwater or that anyone else would be adversely affected by the mine in relation to that water resource.
  3. [161]
    The issue must also be seen in the context of the evidence about Sunland’s water licences, its storage infrastructure and its stock watering needs. 
  4. [162]
    Because Sunland withdrew Mr Harris’ statement, there is no evidence Sunland takes 250 ML/year through the sand spears. Even if it does, 250 ML/year is more than double Sunland’s need for stock water purposes. Assuming Old Bombandy has a carrying capacity of 4,352 AE,[131] Dr Johnson estimated Sunland would require 108 ML/year.[132] In addition, Sunland holds surface water and overland flow licences allowing a total mean annual diversion of 950 ML/ year and permanent storage of up to 1,625 ML. The parties agree there will be no impact on Sunland’s ability to use its surface water licence and, for reasons given at [206] to [214] I have concluded there will be no material impact on Sunland’s ability to utilise its overland flow licence. On the evidence before the Court, Sunland has access to more water than it appears to need for a property with Old Bombandy’s stocking capacity.
  1. [163]
    My answers to the parties’ questions for this issue (as identified in the amended list of issues) follow:

Q: What is the impact of the groundwater drawdown of the Project on the flow duration curve for the Isaac River?

A: The groundwater drawdown of the Project will reduce by somewhere between 14 and 19 days, the number of days per year on which the flow in the Isaac River is at least 1 ML.

Q: Whether the Project’s groundwater effects may exacerbate its impact on the flow duration curve of the Isaac River?

A: The Project’s groundwater effects are the cause of the impact on the flow duration curve of the Isaac River.

Q: What are the applicant’s and active objectors’ existing rights and capacity to take water from the Isaac River?

A: Those rights are set out at [131]-[135], [137]-[142], [162], [207]. 

Q: What impact will the reduction in flow duration curve have on the ability of existing users to extract water from:

  1. (a)
    The Isaac River; and
  2. (b)
    the near-surface groundwater from the bed of the Isaac River.

A: With respect to (a) there will be no impact on Sunland’s ability to extract surface water from the Isaac River, and there is no evidence that other users will be adversely affected. With respect to (b) Sunland will have to use additional spears if it intends to extract 250 ML/yr from the near-surface groundwater in the bed of the Isaac River, and there is no evidence of any other users of this resource.

Q: Whether the conditions of the Environmental Authority (EA) are adequate in respect of the impacts of the flow duration curve for the Isaac River.

A: There are no relevant conditions of the EA.

Q: Whether any impact on the flow duration curve for the Isaac River is a reason for refusal of the grant of the mining leases?

A: No. 

Q: How and to what extent did the EIS assessment of the groundwater impacts of the Project deal with such matters?

A: The EIS did not address the groundwater impacts of the Project on the near-surface groundwater.

Q: Whether in order to avoid potential impacts a condition should be imposed guaranteeing Old Bombandy’s water entitlements?

A: No  

The impact of causeway on the flow of the Isaac River

  1. [164]
    In describing the project in the EIS, Pembroke identified two crossings on the Isaac River. One is a causeway crossing at the northern end of the ODS domain, the other is an overland conveyor and haul road crossing near the northern edge of the Willunga domain.  In the EIS, Pembroke made a commitment that all waterway crossings would comply with a guideline issued by the Department of Agriculture and Fisheries.[133] That commitment is a condition of the EA (H19). 
  2. [165]
    In its EIS, Pembroke stated the commitment was made “so as not to create a barrier to fish movement and minimise impacts on aquatic ecology.”[134]
  3. [166]
    Dr Johnson, for Sunland,[135] expressed a concern, not about aquatic ecology, but about the impact on Sunland’s water extraction rights. In the surface water JER, Dr Johnson noted the “very limited preliminary details” in the EIS. He said, “a causeway will not be an acceptable crossing solution” and that it has “the potential to interfere with flows downstream, particularly when surface flows have disappeared, and “hence impact on the water extraction rights of Old Bombandy.”[136]
  1. [167]
    It is not surprising the EIS did not provide detailed designs for the Isaac River crossings. Pembroke proposed and DES later accepted as appropriate, a DAF guideline that addressed an evident environmental risk – to aquatic ecology. As already observed, Old Bombandy’s surface water and overland flow extraction rights post-date the EIS and, until recently, Pembroke did not know Old Bombandy was extracting near-surface ground water.  In that context, the limited information about crossing design in the EIS is understandable. After Dr Johnson raised the issue, Pembroke sought further evidence from Mr Roads and Dr Merrick about impacts on water rights.
  2. [168]
    Mr Roads prepared a memorandum addressing the surface water impacts of the crossing during both the construction and operation phases.[137] He considered the concept design for the temporary crossing near the ODS domain for the construction phase. It consists of “low flow culverts laid under the pavement at the lowest point in the river bed to convey low river flows beneath the access road.”[138] He concluded that it complied with the DAF guideline and “there would no material impacts for flows that overtop the temporary crossing.”[139]
  3. [169]
    In the EIS, Pembroke stated that, when the crossing is upgraded for the operation phase, it would provide immunity against 50% Annual Exceedance Probability[140] floods.[141] Mr Roads said this would be difficult to achieve using a culvert and that a bridge was the most likely design. During the concurrent evidence session, Dr Johnson accepted that as a viable solution.[142] In any case, if the design complies with the DAF guideline, Mr Roads considers “there will be no impact on surface water users.”[143]
  1. [170]
    Dr Merrick prepared a memorandum addressing the groundwater impacts of the crossings.[144] He concluded existing users of groundwater from the river bed water supply would not be affected.[145] Drawing on his experience working on the Eastern Distributor roadway in Sydney, he concluded any hydraulic effect from the causeways would dissipate about 100 metres from the causeways.[146] Dr Johnson agreed “it’s very unlikely there would be an impact on downstream groundwater use as a consequence of this.”[147]
  2. [171]
    In its closing submissions, Sunland conceded that Dr Johnson “was satisfied the causeway could be designed and constructed in a manner that avoided any adverse impact.”[148]
  3. [172]
    Condition H19 of the EA stipulates that river crossings must meet the requirements of the DAF guideline. Although the focus of that guideline is aquatic ecology, Dr Johnson did not identify any inadequacy in the DAF guideline. Sunland did not argue the potential impacts of the causeways, whether alone or in combination with other factors, was a reason to refuse Pembroke’s applications. Nor did it propose any alternative or additional condition to H19 of the EA.
  4. [173]
    My answers to the parties’ questions for this issue (as identified in the amended list of issues) follow:

Q: What is the effect of the Project’s proposed causeway crossing on the flow in the Isaac River?

A: If the design complies with the DAF Guideline there will be no material impact on the flow in the Isaac River.

Q: What are the impacts of that effect on the ability of existing users of groundwater from the near-surface groundwater in the bed of the Isaac River?

A: The hydraulic effect of the causeway on groundwater will dissipate about 100m from the causeway. It was not clear on the evidence whether that would affect an existing sand spear. 

Q: What are the impacts of that effect on the ability of existing users of surface water from the Isaac River?

A: If the design complies with the DAF Guideline there will be no impact on the ability of existing users of surface water from the Isaac River.

Flooding

  1. [174]
    Namrog and Balanced objected to the grant of the mining leases because:

Mining coal in the Application Area will have a negative impact on surface water arising as a consequence of the Applicant’s proposal to undertake activities pursuant to the Mining Leases which will disturb the current landform of the Application Area and the surrounding area.[149]

  1. [175]
    Mr Roads and Mr McAlister agreed on the following matters related to flooding:
    1. (a)
      The project will increase flood levels upstream of the ODS Domain due to the construction of the flood protection bunds and the waste rock emplacement on the eastern side of the river (the Eastern Emplacement).
    2. (b)
      Pembroke had revised the Eastern Emplacement and this resolved an issue identified at the proposed Moorvale South Project located to the north of the Project for the 1 in 1000 annual exceedance probability (AEP) event.
    3. (c)
      Although the modelling undertaken for the EIS was done at a broad scale, further modelling was done after Pembroke revised the Stage 1 mine plan to mitigate the flood level impacts.[150]
    4. (d)
      The revised modelling was appropriate (Mr McAlister described it as was well-formulated, well-calibrated, well-validated and robust).[151]
    5. (e)
      Flood inundation will occur on land owned by Pembroke.[152]
  2. [176]
    Mr McAlister considered the flood level increases were not acceptable, because of their implications for geomorphological impacts. He and Mr Roads disagreed about the risk of significant geomorphological impacts and whether further conditions ought to be imposed on the mining lease to deal with that risk.
  3. [177]
    Before turning to the areas of disagreement, it is worth noting what the experts recorded as their agreement about geomorphic impacts:

A summary of the flood modelling results in relation to geomorphic impacts are as follows: 

  • For the 20% AEP event, there would be no changes in velocity, depth or stream power along the upstream and downstream reaches, which is expected given that the flows remain in channel for this event.
  • For the 10% and 5% AEP events, the changes in velocity, depth or stream power along the upstream and downstream reaches are negligible.
  • For the 2% AEP event, there would be a slight reduction in velocity and stream power upstream of the mine due to the elevated water levels and a slight increase in velocity and stream power in the downstream reach. The changes are measurable but are not significant.

The impacts of the Project for larger events would be higher than for the 2% AEP event with lower peak velocities and stream power in the upper reach and higher peak velocities and stream power in the lower reach. Overall, the revised Stage 1 mine plan would reduce the geomorphic impacts along the Isaac River when compared to the EIS configuration.[153]

  1. [178]
    During oral evidence, it became clear that Mr McAlister’s major concern was the risk of channel avulsion, particularly in a 1 in 1,000 year flood event.[154] Pembroke submitted this was raised for the first time during oral evidence. Although Mr McAlister was not as specific as he might have been in his written evidence, he did raise concerns about widespread system change in the Surface Water JER.[155]
  2. [179]
    Further, in the supplementary JER, Mr McAlister said he:

cannot accept that this project will not have potentially severe geomorphological impacts on the floodplain system of the Isaac River as a whole.[156]

  1. [180]
    Mr Roads did not share Mr McAlister’s concerns.[157] He accepted the assessment made by Dr Gipple, who prepared the geomorphology study for the EIS, that:

while there could be isolated areas subject to somewhat higher risk of scour compared to the existing situation, the overall risk of rapid and significant geomorphic change in the Isaac River due to the proposed mining activity was low.[158]

  1. [181]
    During oral evidence, it became clear that Mr McAlister focused on velocity in assessing risk, partly because “he was more comfortable with that.”[159] He considered velocity should be limited to 1.5 to 2 m/s.[160] Mr McAlister was particularly concerned with the modelled velocities in an area he called a “chute”. That is the area between the Eastern Embankment and the mining pits in the ODS domain for Stage 1 of the mine.
  2. [182]
    The following figure compares the velocity vectors in that area, without the Project (on the left) or with the Project (on the right), for a 0.1% AEP event (that is, a 1 in

Judgment-Image

1,000 year flood event).[161] It shows significant velocities on the floodplain without the mine infrastructure. However, there is a marked increase once the mining infrastructure, particularly the Eastern Embankment area, is taken into account in the modelling. The modelled velocities around the chute exceed Mr McAlister’s preferred velocity. 

  1. [183]
    Mr Roads said Mr McAlister’s velocity limit was too low for a flood plain. Mr McAlister was using a velocity limit that relates to exposed soils, when the banks are generally well vegetated and stable,[162] although he agreed there can be conditions “where it’s quite dry and no vegetation.”[163] Pembroke has made a commitment to maintain a minimum buffer zone of 200m between the mine pits and the Isaac River and to avoid riparian vegetation along the Isaac River as much as reasonably practicable.[164]
  1. [184]
    Mr Roads said Mr McAlister was ignoring another relevant factor, shear stress,[165] which Dr Gipple had also considered.[166] Mr McAlister agreed that it was a relevant factor.[167]
  2. [185]
    Mr McAlister and Mr Roads also agreed the revised design for the Eastern Emplacement area had reduced the problem.[168] The undisturbed area between the banks of the Isaac River and the mine pits on the west and the Eastern Emplacement on the east has significantly increased.[169] 
  3. [186]
    Nevertheless, Mr Roads accepted the chute remains a problem area,[170] but noted the design was still conceptual, and a detailed design solution was required.[171] They were halfway there because they had widened the chute, but there was more work to be done.[172] Mr Roads said there would be further changes to the configuration of mining and flood infrastructure:

They will change the configuration continually up until when they start mining, and then continually post-mining, as it always occurs.[173]

  1. [187]
    Mr McAlister said that his concerns would be addressed if the Eastern Embankment area was removed,[174] or redesigned to ensure flood velocities through the chute do not exceed 2m/s.[175]
  2. [188]
    Namrog and Balanced submitted the Court should require either of Mr McAlister’s suggestions as a condition of the MLAs.[176] I am not persuaded either condition is appropriate or necessary for the reasons that follow.
  3. [189]
    First, it is not appropriate to recommend a condition that the Eastern Emplacement area be removed from the mine plan without evidence about how that might be accommodated. Mr Alexander gave a written report[177] and oral evidence about the mine plan.[178] The Eastern Emplacement area will be used early in the project to store waste rock extracted from the first mining pit.[179] Once mining proceeds, waste rock from subsequent pits will be backfilled into a preceding mine pit. Mr Alexander considered the mine plan was of a high quality.[180] He was not asked any questions about the Eastern Emplacement area or whether there was an alternative to storing the waste rock in that location.[181] There is no evidence to show there is a practicable alternative to the current location of the Eastern Emplacement.[182] In any case Mr Roads considers there is a design solution to reduce the velocity of water on the flood plain in this area. 
  4. [190]
    Second, dealing with a condition about the design of the Eastern Emplacement area, Mr McAlister’s reliance on the single metric of velocity is not warranted. It is contrary to the evidence of Mr Roads and the approach taken by Dr Gipple, and to Mr McAlister’s own evidence that shear stress is a relevant factor.
  5. [191]
    Further, while velocity and shear stress are relevant to concerns about erosion and accretion, I am not satisfied those two metrics, let alone only one of them, is the best indicator for assessing the risk of channel avulsion. 
  6. [192]
    Mr McAlister did not address the following conclusion from the EIS flood assessment, which stands unchallenged:

It is important to recognise that velocity and shear stress provide an indication of local and immediate erosion potential only. Velocity and shear stress parameters generally indicate whether there is erosion potential to cause enlargement of the local channel cross section (depth and width). The long-term stability of a channel’s alignment is related to the morphological context of the reach. Stream power is a more useful indicator of hydraulic conditions reflecting the morphology of the channel, particularly for “bankfull” flows that are commonly known to be ‘channel forming events.[183]

  1. [193]
    DES raised the risk of geomorphic change in its submission on the Draft EIS, to which Pembroke responded.[184] Flooding and geomorphic impacts were considered by DES in the EA process and by the Independent Expert Scientific Committee (IESC) as a step in the approval process under the Environmental Planning and Biodiversity Conservation Act 1999 (Cth).[185]
  2. [194]
    Further, as well as the project commitment regarding riparian vegetation referred to above, Pembroke has made the following project commitments:
    1. The flood management infrastructure would be inspected by a suitably qualified and experienced person once per year between the months of May and October (inclusive) (i.e. in advance of the wet season). In addition, a visual inspection of the flood management infrastructure would be carried out following major flood events (e.g. 10 per cent AEP or greater) to identify any potential issues with erosion, settlement or slumping.
    2. Geomorphic monitoring would include a topographic survey of the Isaac River channel and floodplain, repeated every year for three years, and then either every five years, or after every flood event exceeding the five-year ARI event (e.g. 20 per cent AEP or greater).
    3. The rating curve would be adjusted regularly in consultation with the Department of Natural Resources, Mines and Energy (DNRME) or otherwise relocated further upstream (i.e. five km upstream) to the next best confined flow path which is relatively free of influence.
    4. Consultation would continue to occur with adjacent landholders regarding flood modelling to ensure cumulative flood impacts are well understood.[186]
  3. [195]
    Finally, the experts agree the revised Stage 1 reduces the geomorphic impacts from those assessed in the EIS and considered by the Coordinator-General, DES and the IESC. 
  4. [196]
    My answers to the parties’ questions for this issue (as identified in the amended list of issues) follow:

Q: What are the impacts of the Project on the floodplain?

A: There will be increased flood levels upstream of the ODS Domain and flooding of land owned by Pembroke. There will be increased velocity of water in the area described during evidence as the chute. 

Q: Are the Project’s impacts to the flood plain appropriately mitigated and managed, for example through EA conditions?

A: Yes. 

Q: Are the Project’s impacts to the flood plain a reason for refusal of the grant of the mining leases?

A: No.

Mine water quality

  1. [197]
    Namrog and Balanced objected that mining coal in the application area will have a negative impact on surface water. Its specific concerns were hazardous substances, increased sediment loads and mine water releases with high salt loads.[187] 
  2. [198]
    They called Mr McAlister to give evidence on the issue. However, they advanced no submissions based on his evidence[188] because Mr McAlister withdrew his comment on water quality, accepting that he had no quantitative evidence to support it.[189] 
  3. [199]
    Namrog and Balanced submitted there was other evidence before the Court that demonstrated the receiving waters have, occasionally, been found to exceed regional water quality parameters.[190] They argued the EA conditions do not deal with the cumulative impact of the project on regional water quality.
  4. [200]
    I cannot accept that submission. 
  5. [201]
    Pembroke’s EA contains a set of detailed conditions about water quality, including testing and reporting both discharges and the receiving water against threshold triggers.[191] The conditions are derived from a pilot study undertaken by DES, in conjunction with a number of mines, for coal mine water releases in the Fitzroy Basin.[192] The Isaac River lies within that basin, as one of many tributaries of the Fitzroy River. 
  6. [202]
    The evident purpose of the pilot was to manage cumulative impacts from mine releases across the catchment. DES described the pilot as follows:

From November 2012 until July 2016, the Queensland Government conducted a pilot of enhanced mine water release as part of a long-term strategy to improve mine water management across the Fitzroy Basin. Participating mines managed mine-affected water through enhanced environmental authority (EA) conditions enabling mines with legacy water issues to manage water releases more proactively and effectively over subsequent wet seasons. 

An enhanced environmental monitoring program was implemented for the 2012/13, 2013/14, 2014/15 and 2015/16 wet seasons to independently monitor any impacts of the pilot on catchment water quality. 

Overall, results show that the pilot conditions increased opportunities for mine water releases with no noticeable impact on water quality for ecosystem health, stock irrigation or domestic use. This demonstrated that well-managed and regulated coal mine water releases can be optimised without affecting environmental values or downstream drinking water quality. 

Based on the results of the pilot from 2012–2016, the pilot was concluded in July 2016.[193]

  1. [203]
    Ongoing real-time water quality monitoring data in the Fitzroy catchment is publicly available online.[194] DES also publishes details of coal mine water releases online, including whether they comply with the EA for the mine.[195] 
  2. [204]
    I accept Pembroke’s submission that I should place no weight on the objection regarding water quality.
  3. [205]
    My answers to the parties’ questions for this issue (as identified in the amended list of issues) follow:

Q: What are the known water quality impacts of the Project?

A: There is no expert evidence to allow me to answer this question.

Q: Are the Project’s water quality impacts appropriately mitigated and managed, for example through EA conditions?

A: Yes. 

Q: What is the impact of any potential for non-compliant water releases from the Project?

A: This question does not identify the non-compliant releases in question and there is no expert evidence to allow me to answer this question.

Q: Is the risk of potential non-compliant water releases and the consequent impact on water quality a reason for refusal of the grant of the mining leases?

A: No, given the EA conditions require real-time monitoring and public reporting of both discharges and the receiving water against thresholds set by DES.

Overland Flow 

  1. [206]
    Since January 2019, Sunland has held a licence to take overland flow water from the Isaac Connors Overland Flow Subcatchment on Old Bombandy.[196] Sunland says the mining lease will reduce the catchment area, and the overland flow, restricting its ability to make full use of the licence. 
  2. [207]
    Because the licence postdates the EIS, it was not addressed in the EIS process.
  3. [208]
    The experts initially disagreed on the size of the catchment that could drain to a potential dam constructed for the Sunland overland flow licence. During oral evidence on the issue, Mr Roads and Dr Johnson agreed to meet again to see if they could resolve, at least, how the project would reduce the catchment area. That evening they met and agreed the catchment area would be reduced from 56.9 km2 to 48.3 km2.[197]
  4. [209]
    They did not agree, completely, on the effect of the reduced catchment on Sunland’s ability to take overland flow water.  
  5. [210]
    Mr Roads presented his analysis in a document prepared for a meeting of the water experts. After he and Dr Johnson agreed on the reduced catchment area, he revised his analysis.[198] In summary, he concluded that if Sunland constructed the required infrastructure to fully utilise their overland flow licence, the project would make no difference to the average annual volume that Sunland could extract. Further, the project would not increase the number of “shortfall years”; that is, years where Sunland could not take their full annual diversion right (350ML).[199]
  6. [211]
    Mr Roads also undertook a sensitivity analysis of his results. Under a worst-case scenario (low runoff) there was an average reduction in extraction of about 3 ML (0.9%) of the mean annual licence volume.[200]
  7. [212]
    Dr Johnson said he had done his own modelling, but this was not before the Court. He did provide a yield analysis for the updated catchment area.[201] At the very highest, he put the impact in a dry year where there had been no carryover from previous years for water held in storage, at 10%.[202] That was his worst case. In general, in the shortfall years, Dr Johnson quantified the impact as being in the order of 5%.[203]
  8. [213]
    Mr Roads documented his methodology and analysis and exposed it to his peer during the joint reporting process. Dr Johnson did not. That constrained Mr Roads, and this Court, in evaluating the validity of Dr Johnson’s conclusions.[204] Were there a material difference between the two experts in the effect of their conclusions, I would prefer the evidence of Mr Roads. 
  9. [214]
    However, it seems to me to be unnecessary to do that. Dr Johnson described his conclusions and Mr Roads’ worst-case scenario as comparable. He said the only difference between their modelling was in their analysis of how the water is taken by Sunland. That involved assumptions about the location of and height of spillways within storages.[205] Dr Johnson said that difference “leads to what I’ll call a somewhat different outcome, but one that, with respect to this issue, is not significant.”[206] There would be a minor impact, which would not occur in every year, and would be worse felt in a dry year.[207]
  1. [215]
    The minor impact, albeit one that might be worst felt in a dry year, must be viewed in context. Relevant factors include:
    1. (a)
      Mr Roads’ assessment that the most likely outcome is there will be no difference in the average annual volume Sunland can extract or on the number of shortfall years;
    2. (b)
      Sunland’s water entitlements as a whole (both from the Isaac River and the bed of the river);
    3. (c)
      the lack of evidence about Sunland’s current use of water or the infrastructure to take overland flow water; and
  1. (d)
    Sunland’s right to claim compensation for impacts caused by the mine. 
  1. [216]
    Before concluding on this topic, there is one further matter I wish to note. During the concurrent evidence session, I prevented counsel for Sunland from eliciting evidence about the impact of the reduced catchment on overland flow water flowing to the Isaac River. Those questions raised a topic which had not been addressed by the experts in their meetings or joint reports, and which the parties did not identify in the agreed agenda for the concurrent evidence session or the amended list of issues of fact and law in dispute.[208] 
  2. [217]
    Counsel maintained the topic fell within a ground of objection. After the concurrent evidence session ended, I gave counsel the opportunity to apply for leave to lead further expert evidence on the topic.[209] Sunland did not make that application.[210]
  3. [218]
    My answers to the parties’ questions for this issue (as identified in the amended list of issues) follow:

Q: Will the Project reduce the catchment area of the local overland flow path and minor creek in the north-east of the Old Bombandy property?

A: Yes, from 56.9 km2 to 48.3 km2.

Q: What are Sunland’s existing rights and capacity to take overland flow water?

A: Sunland can take a mean annual diversion of 350ML/yr and construct infrastructure to store 1,625 ML. 

Q: What impact (if any) will any reduction in the overland flow catchment for the Old

Bombandy property have on Sunland’s ability to take its authorised overland flow water?

A: There may be a minor impact in some years.

Q: How and to what extent did the EIS assessment of the surface water impacts of the Project deal with such matters?

A: The EIS did not assess this. Sunland’s overland flow licence post-dates the EIS.

Q: Whether conditions should be imposed mitigating or managing any overland flow impacts?

A: No.

Will the public right and interest be prejudiced? (s 269(4)(k))

  1. [219]
    Namrog and Balanced did not maintain objections that might otherwise have related to this criterion.[211] 
  2. [220]
    Sunland objected that the loss of high value agricultural land to a mining lease for coal is contrary to the public right and interest, in circumstances of a downturn in the resource sector and lower demand for coal.[212]Although it did not expressly abandon this objection, Sunland led no evidence in support of it.
  3. [221]
    Counsel for Sunland made no submissions about this criterion, except to argue potential water impacts would affect Sunland and other water users downstream of the mine, now, during the lengthy term of the Project, and into the future.
  4. [222]
    Residual environmental impacts are relevant in considering whether the public right and interest will be prejudiced. I have already addressed the evidence of potential water impacts in some detail when considering environmental impacts at [119] to [218]. I will take my conclusions about water and flooding issues into account in considering this criterion as well.
  1. [223]
    Pembroke relied on the significant social and economic benefits of the proposed Project in support of the MLAs. As I understand the objectors’ cases, there was no contest about the information in the EIS or the expert evidence about the social and economic benefits. 
  2. [224]
    Under the Strong and Sustainable Resource Communities Act 2017, large resource projects undergoing an EIS process must provide a social impact assessment which identifies, analyses, and assesses positive and negative potential social impacts, in accordance with an SIA guideline.[213] 
  3. [225]
    The SIA guideline addresses five key matters: community and stakeholder engagement, workforce management, housing and accommodation, local business and industry procurement, and health and community wellbeing.
  4. [226]
    The SSCR Act prohibits a 100% fly-in, fly-out workforce, where, as in this case, the Coordinator-General nominates the project for that prohibition.[214] Further, the SIA must demonstrate priority is given to local and regionally based workers, followed by those willing to move to regional communities.[215]
  5. [227]
    The Coordinator-General’s Evaluation Report contains an analysis of the SIA for the proposed Project. As it is not in contest, it is not necessary to descend into great detail. However, it is worth noting the Coordinator-General’s key conclusions and the stated conditions to further enhance social benefits.[216]
  6. [228]
    The Coordinator-General concluded:
    1. (a)
      The Project presents an opportunity for local employment during construction;
    2. (b)
      Although the workforce needs exceed the current capacity of local communities to provide workers, it is likely there are workers with relevant skills living locally (therefore the Project was nominated for the 100% FIFO prohibition);
    3. (c)
      Local communities in the Isaac River local government area will benefit from local employment and training, business, and new residents.
  1. [229]
    To enhance social benefits, the Coordinator-General stated conditions to ensure:
    1. (a)
      Training and development programs enhance workforce participation opportunities for Aboriginal and Torres Strait Islander people and women;
    2. (b)
      There is sufficient housing for workers moving to regional communities to manage potential impacts on housing affordability and availability;
    3. (c)
      There is sufficient capacity to cater for additional demand from new residents for social services and facilities including childcare, schools, and healthcare.
  2. [230]
    To avoid, minimise or mitigate potentially significant negative social impacts, the Coordinator-General stated a condition requiring Pembroke to prepare a social impact management plan for the construction and operational phases for the ODS domain and to revise that before construction commences on the Willunga domain. Pembroke must report to the Coordinator-General on the SIMP annually, during construction and the first five years of operation of each of the ODS and the Willunga domains.
  3. [231]
    This demonstrates the potential for substantial positive social benefits for existing regional communities and a process to monitor how successfully Pembroke is managing potentially negative impacts.
  4. [232]
    The Coordinator-General also summarised the EIS assessment of the economic impacts of the Project.[217] In summary, they are:
    1. (a)
      There will be an estimated capital expenditure of $1,009 million over the life of the Project;
    2. (b)
      At a regional level, using computable general equilibrium (CGE) modelling, by 2050, the Project would contribute:
      1. $8.0 billion to the Isaac Regional Council local economy
      2. $212 million to the gross regional product of the Mackay Regional Council and Whitsunday Regional Council areas
      3. $10.1 billion to the gross state product of Queensland (including royalties);
    3. (c)
      An annual average of 500 construction jobs and 1,000 operational jobs over the 79-year life of the Project, with a peak operational workforce of 1,300 personnel from 2034;
    4. (d)
      At a national level, social benefits on a cost benefit analysis (CBA) of $2,239 million, $1,400 million of which is attributable to Queensland (including royalties).
  5. [233]
    Pembroke also relied on an expert witness statement by Dr Fahrer, to whom I have already referred at [80]. Dr Fahrer has considerable experience in assessing large resource projects and had no prior involvement in advising Pembroke on this mine. He reviewed both the CBA and the CGE modelling done for the EIS.
  1. [234]
    Although he differed in some of the assumptions made in both the CBA and the CGE modelling, he concluded both were robust and positive.[218]
  2. [235]
    He noted the CBA produces a net social benefit, even with a very conservative sensitivity in which coal prices fall 50%, and with a 20% fall in production. Dr Fahrer considered this coal price sensitivity analysis is conservative, because the effect of the large fall in coal prices would be likely offset by an expected depreciation in exchange rates.[219] 
  3. [236]
    Further, he considered the discount rate for the CBA was too high, leading to an underestimate of the net benefits. He considered those benefits were in the order of $3,628 million for Australia and $2,110 million for Queensland.[220] 
  4. [237]
    As to the loss of agricultural land, Dr Fahrer said the value of the land is fully accounted for in the CBA as a cost of the project. He considers it a reasonable assumption that the acquisition cost of the land is equal to the present value of the land in an alternative use, such as rural production.[221]
  5. [238]
    Dr Fahrer noted the CBA quantifies environmental, cultural and social impacts where possible, noting that most have been included in the capital and operating costs of the Project through mitigation, offset and compensation measures.[222]
  6. [239]
    The loss of land to agricultural production was estimated and taken into account in the CBA.[223] Further, the CBA assumes, as I have concluded on the evidence before the Court, that there will be no significant impacts on surface water and that Pembroke must make good groundwater bores for affected landowners.[224]
  7. [240]
    For reasons already given at [119] to [218] I have concluded the impacts on water users will be limited and that the risk of catastrophic geomorphic changes in the Isaac River is low. 
  8. [241]
    In the absence of submissions to the contrary, there seems no reason to significantly discount the assessment of social and economic benefits to account for unquantified residual environmental impacts. In addition, Pembroke will be required to provide security for the estimated rehabilitation costs of the Project.[225]
  9. [242]
    Dr Fahrer also concluded the CGE modelling, which is designed to determine the economic impacts of a project, shows large positive impacts.[226] 
  10. [243]
    The social and economic assessments upon which Pembroke relies support its submission that the public right and interest will not be prejudiced by the grant of the MLAs. 

Has any good reason been shown for refusing the application? (s 269(4)(l))

  1. [244]
    Namrog and Balanced did not maintain other objections that may be relevant to this criterion.[227] 
  2. [245]
    Sunland objected that in addition to the loss in agricultural land, the MLAs will adversely impact its agricultural enterprise in the vicinity of the application area and its larger agricultural enterprise, of which the affected property forms an integral part.[228] It listed 11 impacts which it says affect the operational ability of the land and cited these as contributing to a reduced ability to expand the cattle enterprise. 
  3. [246]
    As already observed, Sunland withdrew its reliance on a statement by Mr Paul Harris, a Director of Sunland. That fundamentally affects the evidence base for this objection. 
  4. [247]
    There is some relevant expert evidence which does not justify refusing the MLAs on the basis of Sunland’s objection. I note, also, that in his oral opening, counsel for Sunland conceded as much and did not maintain the MLAs should be rejected for those reasons.[229] Further, it was not included in the amended list of issues.
  5. [248]
    The uncontested evidence is worth recording, nevertheless. First, it may promote agreement as to compensation or reduce the time spent in considering such questions in a compensation determination. Second, the evidence addresses issues frequently raised by landowners who are concerned, understandably, about the impact of a mine on their livestock production.
  6. [249]
    Pembroke relied on the evidence of Mr Newsome, who holds degrees in Agricultural Economics and Rural Science with a focus on beef cattle production. He has a lifetime of experience in livestock production. He was raised on a cattle property, owns a commercial beef enterprise, and has devoted his postgraduate career to the livestock sector. 
  7. [250]
    Mr Newsome has relevant research experience, having managed livestock impact research projects associated with the New Acland coal mine on the Darling Downs. As he drew upon the results of those projects, as well as other literature, in reaching his conclusions, it is appropriate to briefly describe them.
  8. [251]
    One project was called the New Acland Cattle Grazing Trials (CGT). Observations of cattle grazing on three rehabilitated sites and one control site showed the cattle on the rehabilitated mined land performed better than those on the unmined site, when performance was judged by weight gain and compliance with market specifications.
  9. [252]
    The other project was called the New Acland Noise and Dust Project (NDP) which compared the grazing habits, weight gain and carcass data for cattle grazing adjacent to the operating coal mine with a control group grazing 5.6km from the mine. The trial was conducted over a 42-day period. It showed similar weight gain and that the animals grazing near the mine were no more stressed than animals grazing the control site.[230]
  10. [253]
    Ultimately, Mr Newsome concluded the Sunland cattle are unlikely to be impacted as a result of potential pollutants, including noise, dust, light or variation in water quality.[231]Although that opinion was not contested, some experts in other fields raised queries or recommendations about these matters.

Noise

  1. [254]
    The parties provided a joint expert report on noise prepared by Mr Paul King and Mr Shane Elkin.[232] They suggested Pembroke develop a site-specific noise and vibration blasting site law (based on blast data from ODS) to assist with accuracy of blast design for the Willunga Domain.[233] Mr King and Mr agreed that if blast MICS are kept below 350kgs and 4050kgs, blast noise (overpressure) is predicted not to exceed the noise exposure of cattle.[234] I note Mr King and Mr Elkin deferred to Mr Newsome on this issue.[235] Although Mr Newsome did not expressly address the recommendation, after considering the King/Elkin report, Mr Newsome’s opinion remain unchanged.[236] 
  2. [255]
    In his first report, Mr Newsome identified the key findings of the NDP. Cattle quickly adjusted to disturbance and did not alter their grazing behaviour because of mining activities or during blasting events. Nor did cattle avoid grazing near the mine. Mr Newsome noted most noise associated with mining is low frequency noise, out of the audible range of hearing for cattle.  He concluded there is unlikely to be an unacceptable negative impact from the Project on Sunland’s grazing business.[237] 

Dust

  1. [256]
    Turning to coal dust, Mr Newsome said coal dust alone is unlikely to have an adverse effect on cattle. In the NDP, concentration of PM10 was 29% higher on average at the trial site compared with the control site. Nevertheless, the difference in weight gain for the cattle on the two sites was negligible and, using ultimate pH as a measurement of stress, there was no material difference between the stress level of cattle at the two sites.[238]
  2. [257]
    Further, Mr Newsome said cattle diseases relating to dust are due to the bacterial component of dust in feedlots and cattle yards. Coal dust does not have the same content that carries bacterial sources as does dust from such settings.[239] 
  3. [258]
    In a joint expert report on air quality,[240] Mr King questioned the relevance of the NDP results because of different vegetation types at New Acland and Olive Downs. Mr King was careful to note he did not possess expertise to draw any conclusion. In his supplementary report, Mr Newsome explained why the NPD results were useful in assessing the likely impact on Sunland’s cattle.[241]

Lighting

  1. [259]
    As to lighting, Mr Newsome said there is no significant data on the impact of light from mining projects on livestock production. Although it was not addressed directly in the NPD, Mr Newsome observed that cattle grazed in close proximity to the mine did not demonstrate any negative impacts.[242]  

Pasture

  1. [260]
    There is another joint expert report of relevance, from Mr Short and Mr Marshall who agreed that, to the extent there are any changes to air quality, the acoustic environment, or lighting, they would have no impact on the growth and nutritional value of pastures on Old Bombandy.[243]
  2. [261]
    Mr Perkins, an agricultural economist engaged by Pembroke, considered the effect of the Project on Sunland’s larger enterprise. He concluded the productive impact is likely to be a 9% reduction in output (beef production) due to reduced grazing capacity. He relied on Sunland’s previous expansion for his expectation that it would obtain more land in response to a reduced capacity for their growing herd. He suggested proper compensation would ensure no adverse impact on the ability of the larger agricultural enterprise to expand.[244]
  3. [262]
    I am conscious Mr Perkins drew upon Mr Harris’s statement, since withdrawn.[245]Further, the reduced area he considered was the larger area on Old Bombandy originally applied for,[246] not the reduced area on the redrawn boundary now proposed by Pembroke. That boundary was proposed after counsel for Sunland asked Mr Alexander to assume that buffers were not required for amenity impacts. In any case, this is a matter that can be dealt with by compensation if the MLAs are granted.
  4. [263]
    The matters raised by Sunland are not a good reason to refuse the MLAs, as Sunland properly conceded once the expert evidence was to hand. Any other reason to refuse the MLAs that any objector maintains, has or will be considered under other criteria.

Taking into consideration the current and prospective uses of the land, is the proposed mining operation an appropriate land use? (s 269(4)(m))

  1. [264]
    Namrog and Balanced did not maintain other objections that may be relevant to this criterion.[247]
  2. [265]
    In his closing submissions, counsel for Sunland maintained Sunland’s objection that the Project is not an appropriate land use.[248] 
  3. [266]
    Judged by the agreed Amended List of Issues of Fact and Law in Dispute, by the end of the hearing Sunland had confined its objection about the appropriateness of the land use to ground and surface water impacts and the implications for Sunland’s access to water for its operations. I have already addressed this when dealing with the potential environmental impacts and will not address the water issues further here.
  4. [267]
    However, other issues were raised by counsel for Sunland during his opening. Although he did not address these in his closing written submissions, counsel described ground and surface water as the “two main issues remaining in dispute.”[249] This leaves open the possibility that Sunland maintained the issues raised during counsel’s opening. 
  5. [268]
    I have not considered any other allegation in the objection relevant to this criterion, as Sunland, in effect, abandoned them by not referring to them in submissions or by drawing my attention to relevant evidence.
  6. [269]
    Turning to the other issues raised in counsel’s opening, these related to post-mining land use for an area on Old Bombandy and the impact of the Project on a plant species used for fodder.
  7. [270]
    Dealing first with post-mining land use, the EIS states that approximately 65% of the project area would be returned to grazing uses, 25% would be restored to woodland habitat and around 10% of the site would be occupied by final void lakes and surrounding slopes and batters. The Coordinator-General considered the return of 90% of the areas disturbed by mining to either grazing or native vegetation to be an acceptable final land use outcome.[250] The EA contains detailed conditions about progressive and final land rehabilitation, including that the final voids are safe, stable and non-polluting.
  8. [271]
    There is an area of about 570 ha or 5% of Old Bombandy that will be used for waste rock emplacement for the Willunga domain.[251]Pembroke is required by its EA to return this area to either agriculture (low intensity cattle grazing), or native vegetation (woodland).[252] Sunland’s concern was Pembroke’s ability to return this area to low intensity cattle grazing.[253]
  1. [272]
    Mr Short, engaged by Pembroke, and Mr Marshall, engaged by Sunland, prepared a joint expert report addressing pasture and rehabilitation.[254] They agreed on the following matters:

The Sunland land can be rehabilitated to a state that is safe, stable and nonpolluting.

To the extent there are changes to air quality, the acoustic environment, the noise environment and the light environment on Sunland’s land caused by carrying out of the Project, these changes will have no individual or cumulative impact on the growth and nutritional value of pastures on Sunland’s land.[255]

  1. [273]
    However, they disagreed as to whether the waste rock emplacement area can be adequately rehabilitated to support a post-mining land use of beef cattle grazing. 

Rehabilitation to beef cattle grazing 

  1. [274]
    The experts used the Guidelines for Agricultural Land Evaluation in Queensland[256]to assess suitability for the land use of beef cattle grazing. Currently, the affected land falls within classes 3 to 5. Class 3 land is suitable with moderate limitations. Classes 4 and 5 are unsuitable with either severe (class 4) or extreme (class 5) limitations. The predicted post mining classification is class 3 where >70% of the land is <10% slope gradient and class 4 where >30% of the land is in the range of 10-15% slope gradient with <10% exceeding 15% slope gradient.[257]
  2. [275]
    The experts agree the effect of compliance with the relevant EA conditions will mean the land is rehabilitated with slopes of up to 12.3% grade.[258] 
  3. [276]
    Mr Short says this does not automatically exclude rehabilitated land from being suitable for classes 1, 2 or 3 for beef cattle grazing. He cites four coal mines which have been progressively rehabilitated to a standard that can support beef cattle grazing with moderate limitations.[259] 
  4. [277]
    Mr Marshall says that the areas of waste rock emplacement will be classified as land class suitability 4 because more than 30% of the rehabilitation area will have a slope greater than 10%.[260] 
  5. [278]
    The experts were not called to give oral evidence and neither Sunland nor Pembroke asked the Court to rule on this difference of opinion.
  6. [279]
    The affected area already includes land in classes 4 and 5. There is no evidence about the current use of the affected area.  On Mr Marshall’s assessment, it is not clear how much land would be rehabilitated to a lower classification than currently applies. There is also no evidence of how that would impact on Sunland’s cattle operation.
  1. [280]
    Given the state of the evidence about those matters, it is difficult to put any real weight on the difference of expert opinion on this topic. Further, Sunland appeared to accept this was an issue that could be dealt with by compensation.[261] That may well explain why counsel for Sunland did not address it in his closing written submissions.
  2. [281]
    The second issue raised by counsel for Sunland in his opening was whether the land could maintain leucaena, a plant species that counsel said was used for feeding cattle.[262] This was an apparent reference to Mr Marshall’s interpretation of the Surface Water JER. He said that report indicated potential impacts to surface water availability along the drainage line subject to the overland flow licence.[263] 
  3. [282]
    I was not referred to any evidence about the use of leucaena on Old Bombandy, but even assuming it is an important element of the current cattle operation, I place limited weight on this as a factor counting against the MLAs. 
  4. [283]
    I have already explained my reasons for concluding the potential impact on overland flow will be minimal at [206] to [214]. Further, Dr Dique, the ecologist engaged by Pembroke, concluded that the leucaena on Old Bombandy is unlikely to be significantly impacted by groundwater drawdown.[264] Counsel for Sunland did not refer me to any evidence on the topic, other than from Mr Mitchell, and made no closing submissions on the point. 
  5. [284]
    There is one other objection that is arguably relevant to this criterion, to environmental impacts and, perhaps, also to whether it is in the public interest to grant the MLAs. It relates not to the land the subject of the MLAs, but to areas identified for biodiversity and vegetation offsets for the residual environmental impacts of the Project.

Biodiversity offsets 

  1. [285]
    Geoffrey and Richard Bethel, the owners of Willunga, objected that the proposed vegetation and biodiversity offsets will have a detrimental effect on the environment and community and are not an appropriate use of the offset land.[265]
  2. [286]
    They say the Project will change the environmental values of that land, which will not protect it from environmental harm. The land will be unproductive and unprofitable. If not properly managed it will be vulnerable to pest infestation and bush fire, threatening the Ornamental Snake, a vulnerable species, as well as flora and other fauna.
  3. [287]
    Geoffrey and Richard Bethel did not play an active part in the hearing and led no evidence in support of their objection.
  4. [288]
    Pembroke relied on the evidence of Dr Dique about its biodiversity offset strategy.[266]The offset requirement arises under both State and Commonwealth legislation. 
  5. [289]
    Dr Dique considered Pembroke’s proposed Biodiversity Offset Strategy for matters of national environmental significance (MNES) under the Environmental Protection Biodiversity Conservation Act 1999. At the time Dr Dique prepared his report, the Commonwealth had not made its assessment decision under that Act. By the time the hearing took place, that approval had issued. 
  6. [290]
    Under the Environmental Offsets Act 2014, the Queensland Government must take into account any offset condition imposed under another Act for the same or substantially the same impact and environmental matter.[267]
  7. [291]
    Dr Dique observed Pembroke’s Biodiversity Offset strategy was developed by reference to extensive terrestrial flora and fauna surveys which included regional ecosystem assessments, targeted flora surveys, fauna habitat surveys and comprehensive fauna surveys. He commended the ecology team and Pembroke for the level of survey effort and data collected in what he regarded as an extensive field campaign. 
  8. [292]
    Dr Dique considered the significant residual impacts of the Project to threatened ecological communities, flora and fauna. He considered the comprehensive survey work “provides confidence in the quantification of impacts to terrestrial ecology and the requirement for offsets.”[268]
  9. [293]
    As to groundwater dependent ecosystems (GDE), he noted the relative lack of connectivity between deep aquifers affected by groundwater drawdown and the EA requirements for monitoring and evaluating impacts on groundwater and to take management and corrective actions if impacts are observed. He considered it unlikely there would be significant impacts to potential GDE and wetland vegetation communities.[269]
  10. [294]
    Dr Dique considered Pembroke’s proposed strategy adequately assessed and quantified impacts to matters of state environmental significance (MSES) and MNES. Pembroke’s approach delivers offsets in stages that align with the Project stages. Dr Dique concluded the staging and proposed quantum of offset is appropriate for the nature and scale of impacts.[270]
  1. [295]
    The evident concern held by Geoffrey and Richard Bethel was about management of the offset areas. They referred to two national parks which, presumably, they cited as examples of poor management. Pembroke is the freehold landowner of the proposed offset area of approximately 34,000 ha on three properties (Twenty-Mile, Iffley and Deverill). Dr Dique noted this should mean offset protection mechanisms should be readily achievable. 
  2. [296]
    Dr Dique’s evidence was uncontested. Further, a staged approach to relinquishment of offset obligations, will provide the environmental regulators with an opportunity to consider the adequacy of offsets for earlier stages of the Project.
  3. [297]
    The Commonwealth Government has accepted Pembroke’s Biodiversity Offset Strategy as appropriate to deal with the significant residual environmental impacts of the project. 
  4. [298]
    Turning to other matters relevant to this criterion, the project is in a mature coal mining area.  Open cut mining is already well established and this mine is in the vicinity of a number of existing coal mines, supporting infrastructure and coal mining communities. The land is not mapped as high quality agricultural land.[271]The majority of the land within the MLAs is class 3 land, suitable for grazing, but with moderate limitations.[272]
  5. [299]
    Sunland led no evidence of how the Project would impact upon its current operations. The EA imposes detailed rehabilitation requirements. Although there is a dispute about whether the waste rock emplacement area can be rehabilitated for suitability for beef cattle grazing, that area is only a small proportion of Old Bombandy. I have already stated my conclusion that the Project will not substantially impact upon landowners’ ability to draw on ground, surface and near-surface water for their operations.
  6. [300]
    The substantial benefits of the Project have been canvassed elsewhere in these reasons.
  7. [301]
    Taking into account each of those matters, and the current and prospective uses of the land, I consider the Project is an appropriate to be an appropriate use of the land applied for.

Conclusion 

  1. [302]
    I must weigh the various factors that the Court must consider in making its recommendation. That means I must bring my mind to bear[273] upon the “salient facts that give shape and substance to the matter”[274] and consider how all the relevant factors weigh in the balance.[275]
  2. [303]
    This is a major Project which has been subject to detailed assessment under both Queensland and Commonwealth legislation. It involves the extraction of a valuable metallurgical coal resource in the Bowen Basin and the associated purposes for which the leases are sought are appropriate. Pembroke has provided a detailed plan to develop and utilise the resource and has access to the financial and technical capabilities the Project requires. There is strong evidence of significant social and economic benefits. 
  3. [304]
    With the boundaries of MLA 700034 redrawn, the size and shape of the mining leases are appropriate. Pembroke has provided sufficient information to justify the 30-year term applied for. There is no evidence of unsatisfactory past performance by Pembroke or its executives. Other tenement applicants or holders who might be affected by the Project do not object to it.
  4. [305]
    There will be significant adverse and residual environmental impacts from a Project of this nature. DES issued the EA for this Project after it was assessed as a coordinated project through a public EIS process. Given the scale of the Project, it is notable that there were no objections to the EA. Pembroke has also secured approval from the Commonwealth Government under the EPBC Act.
  5. [306]
    The objectors’ concerns about the impact of the Project on ground, near-surface and surface water, and on water quality and flooding have been explored thoroughly by five expert witnesses who greatly assisted me with their detailed written and oral evidence. Some of them worked during breaks and overnight to reassess their opinions in light of new information and to provide as much clarity as they could about impacts that can only be estimated and modelled. I appreciated their efforts and was greatly assisted by this evidence. 
  6. [307]
    I have already stated my conclusions on that evidence and will not repeat that here. In summary, I am not persuaded the Project will materially reduce Sunland’s ability to access sufficient water for livestock on Old Bombandy. There is no evidence of impact on other surface or near-surface water users, and Pembroke will be required to “make good”, if any existing groundwater bores are affected.
  1. [308]
    Pembroke is subject to detailed conditions about water discharges developed by DES to address water releases from coal mines in this sub-catchment. Real-time monitoring and public reporting should minimise the risk of non-compliance with such conditions.
  2. [309]
    There are flooding risks associated with mining in the flood plains of the Isaac River. Flood mitigation works are governed by the EA. Pembroke will undertake ongoing geomorphological assessment. It has undertaken to refine the design of the Eastern Emplacement area to reduce water velocity in that area. 
  3. [310]
    There is uncontested evidence that groundwater dependent ecosystems are unlikely to be affected. There will be significant terrestrial impacts, but most of the land will be returned to grazing or native woodland. Biodiversity impacts have been addressed under State and Commonwealth offsets.
  4. [311]
    Both the EA and Pembroke’s Proponent Commitments employ an adaptive management approach, which is appropriate when dealing with uncertainties about the scale, nature or extent of impacts of a Project of this scale. 
  5. [312]
    The Project is located in a mature mining district and will contribute to a sustainable regional economy and provide considerable economic benefits at State and national level. 
  6. [313]
    Weighing all those factors in the balance, the evidence before the Court supports the grant of the MLAs.

Recommendation

I recommend to the Minister for Natural Resources, Mines, and Energy, as the Minister responsible for the Mineral Resources Act 1989, that he grant MLAs 700032, 700033, 700035 and 700036 as applied for and grants MLA 700034 for the reduced area identified in exhibit 418.

Footnotes

[1] Mineral and Resources Act 1989 s 265.

[2] MRA s 269(4).

[3] Ibid ss 269(1), (2), (3). 

[4] Environmental Protection Act 1994 s 182.

[5] Ibid s 184. 

[6] Ex 426 [21]. 

 [7] Ibid MS-5.

[8] Ibid MS-3.

[9] Ibid MS-4.

[10] Land Court of Queensland Practice Direction 4 of 2018 [15]-[20]. 

[11] MRA s 260(3).

[12] Ibid s 261.

[13] Ibid s 265.

[14] Ibid s 265(10).

[15] Ibid s 268(3). 

[16] Ibid s 268(2). 

[17] Land Court Act 2000 s 7. 

[18] Queensland Conservation Council Inc v Xstrata Coal Queensland P/L & Ors [2007] QCA 338 [50].

[19] LCA s 22.  

[20] Land Court of Queensland Practice Direction 4 of 2018 [2].

[21] Queensland Conservation Council Inc v Xstrata Coal Queensland P/L & Ors [2007] QCA 338 [51].

[22]  Land Court of Queensland Practice Direction 4 of 2018 [50] – [52].

[23] Ex 450. 

[24] Ex 65; Ex 199; Ex 262; Ex 328; Ex 398 [3.1.1].

[25] T1-42, line 46 to T1-43, line 16. 

[26] MRA s 386J.

[27] Ex 426 [56].

[28] Ex 5 to 9; Ex 139 to 143; Ex 206 to 210; Ex 269 to 273; Ex 339 to 343.

[29] Ex 62; Ex 196; Ex 257; Ex 325; Ex 395.  

[30] MRA s 252(1).

[31] Ex 63; Ex 197; Ex 258; Ex 326; Ex 396. 

[32] Ex 65; Ex 199; Ex 262; Ex 328; Ex 398 [3.1.2]. 

[33] Ex 410. 

[34] A measured resource is that part of a mineral resource for which quantity, grade (or quality), densities, shape and physical characteristic are estimated with confidence sufficient to allow the application of Modifying Factors to support detailed mine planning and final evaluation of the economic viability of the deposit (as defined at [23] of the JORC Code).  

[35] An indicated resource is that part of a mineral resource for which quantity, grade (or quality), densities, shape and physical characteristics are estimated with sufficient confidence to allow the application of Modifying Factors in sufficient detail to support mine planning and evaluation of the economic viability of the deposit (as defined at [22] of the JORC Code).  

[36] Ex 426, MS-14, MS-15. 

[37] The Joint Ore Reserves Committee of The Australasian Institute of Mining and Metallurgy and Australian Institute of Geoscientists and Minerals Council of Australia, Australasian Code for Reporting of Exploration Results, Mineral Resources and Ore Reserves (2012 Edition) page 4.

[38] Ex 410 [42]-[58].

[39] Ibid [59]-[72].

[40] Ex 65; Ex 199; Ex 262; Ex 328; Ex 398 [3.1.3]. 

[41] Ex 410 [74]-[81].

[42] Ex 75 [5.2.2]. 

[43] Ex 410 [85]-[155].

[44] Ex 65; Ex 199; Ex 262; Ex 328; Ex 398 [3.1.4]; T 1-36, lines 13 to 44. 

[45] T 1-73, lines 7 to 19.

[46] T 1-75, line 24.

[47] Ex 418. 

[48] Ex 72, page 2-12. 

[49] Ex 65; Ex 199; Ex 262; Ex 328; Ex 398 [4.4].  

[50] Department of Natural Resources, Mines and Energy, Operational Policy: Deciding the Term of a Mining Lease (version 1.01, 2018). 

[51] Ex 410 [157]-[179]. 

[52] Ex 411. 

[53] T 1-66, lines 30 to 40.

[54] Ex 410 [159], [179].

[55] Ex 72, figure 2-10.

[56] T1-75, line 36 to T1-76, line 1. 

[57] Ex 65; Ex 199; Ex 262; Ex 328; Ex 398 [3.1.5]. 

[58] The 2017 annual report is included in the referral material: Ex 22; Ex 157; Ex 217; Ex 286; Ex 356. 

[59]   Ex 426 [91]-[92].

[60] Ibid [3]-[5], [117]. 

[61] Ibid MS-17. 

[62] Ex 407 [114]. 

[63] Ibid [115]-[116]. 

[64] Ex 65; Ex 199; Ex 262; Ex 328; Ex 398 [3.1.6]. 

[65] Ex 61; Ex 195; Ex 256; Ex 324; Ex 394.  

[66] Ex 33; Ex 167; Ex 228; Ex 296; Ex 366. 

[67] Ex 426 [119]-[120]. 

[68] Ibid [122]-[127].

[69] Ex 65; Ex 199; Ex 262; Ex 328; Ex 398 [3.1.6].

[70] PEM.0009 – Response to Request for Particulars (Sunland Cattle Co Pty Ltd), filed 13 December 2019 [13]-[14].

[71] Ex 81. 

[72] Ex 68, page 41-44.

[73] State Development and Public Works Organisation Act 1971 s 26(1)(a). 

[74] Ex 124. 

[75] MRA s 276

[76] Ibid s 391A.

[77] Ibid s 276(5).

[78] Ex 426, MS-2, Condition E21. 

[79] Oxford Dictionary of Environment and Conservation (online at 23 July 2020) ‘adaptive management’.

[80] Ex 426, MS-2.  

[81] Ex 68.

[82] Ibid page 231. 

[83] Environmental Protection Act 1994 s 215(2).

[84] Ex 64; Ex 198; Ex 259; Ex 327; Ex 397 [1], [2]; PEM.0009 – Response to Request for Particulars (Sunland Cattle Co Pty Ltd) filed 13 December 2019; PEM.0010 – Response to Request for Particulars (Namrog Investments) filed 16 December 2019; PEM.0011 – Response to Request for Particulars (Balanced Property), filed 16 December 2019; PEM.0013 – Response to Further Request for Particulars (Sunland Cattle Co Pty Ltd), filed 30 January 2020.

[85] Outline of Submissions of the Objectors – Namrog Investments Pty Ltd & Balanced Property Pty Ltd, filed 18 June 2020 [68] – [69].

[86] Ex 433, page 20; Ex 444, page 3. 

[87] T 1-42, lines 25 to 34. 

[88] T 1-42, lines 1 to 33. 

[89] Land Court of Queensland Practice Direction 3 of 2018. 

[90] Ex 423. 

[91] Ex 424. 

[92] Ex 446. 

[93] Ex 72, figure 2-12.

[94] Ibid figure 2-1 to 2-10.

[95] Ex 423, page 13.

[96] Ibid page 15.

[97] Ex 423, page 13. 

[98] T 4-3, line 36 to T 4-4, line 10. 

[99] T 3-74, lines 20 to 21; T 3-81, lines 20 to 22. 

[100] Ex 446, Fig 6; Ex 424 [6.2.1]. 

[101] Ex 87.  

[102] T 4-12, line 10 to T 4-14, line 39. 

[103] T 4–14, lines 35 to 37.

[104] T 4-13, lines 19 to 20; T4-14, lines 1 to 5.

[105] Ex 424, page 17, page 33; T4-15, lines 19 to 24.

[106] T 4-16, lines 16 to 23.

[107] T 3-15, lines 17 to 24; Ex 424 [5.3.1]. 

[108] T 4-44, lines 5 to 35; Ex 424 [5.3.1]. They also agreed that Pembroke’s take of water from the river would not affect Sunland’s use of this licence.  

   [109] Ex 88, page 71.

[110] T 4-48, lines 31 to 41.

[111] Ex 448.

[112] Ex 87, page 92, figure 6-7 to 6-8. 

[113] These are javelin shaped structures that allow water to be extracted from the bed of the river when
there is no surface flow.

[114] T 3-34, lines 21 to 24.

[115] T 3-52, lines 19 to 44; Ex 424, page 29-30. 

[116] Ex 424, page 29-30.  

[117] T 3-55, lines 11 to 28.

[118] T 3-53, lines 10 – 16.  

[119] T 3-54, lines 31 to 38.

[120] Ex 414.  

[121] Ex 413; T3-51, lines 43 to 44.   

[122] T 3 51, lines 43 to 47.

[123] T 4-5, lines 34 to 47.

[124] T 4-6, lines 4 to 47.

[125] T 4-7, line 4 to T 4-8 line 14.

[126] T 4-10, lines 41 to 42.

[127] T 4-8, line 25. 

[128] T 4 8, line 41.

[129] Ex 446, page 103.

[130] T 4-21, lines14 to 16.

[131] T 3-22, lines 13 to 24; Ex 426, Table 1.  

[132] T 3 43, lines 32 to 47.

[133] Department of Agriculture and Fisheries, Accepted development requirement for operational works that is constructing or raising waterway barrier works (Version 1.3, 2018). 

[134] Ex 76, page 8. 

[135] Namrog and Balanced did not identify this as relevant to any ground of their objections.

[136] Ex 424, page 19.

[137] Ex 416. 

[138] Ex 72, [2.4.1], figure 2-25. 

[139] Ex 416, page 2.

[140] Annual Exceedance Probability (AEP) refers to the probability of a flood event occurring in any year. The probability is expressed as a percentage. For example, a large flood which may be calculated to have a 1% chance to occur in any one year, is described as 1%AEP.

[141] Ex 72 [2.4.1].  

[142] T 4-65, lines 31 to 32.

[143] Ex 416, page 3. 

[144] Ex 417.

[145] Ibid page 4.

[146] T 4-67, lines 25 - 40.

[147] T 4-65, lines 42 - 43.

[148] Written Submissions of Sunland Cattle Co Pty Ltd, filed 18 June 2020 [76].

[149] PEM.0010 – Response to Request for Particulars (Namrog Investments) filed 16 December 2019; PEM.0011 – Response to Request for Particulars (Balanced Property), filed 16 December 2019 [2(b)(iii)].

[150] Ex 424, page 18.

[151] T 5-37, lines 29 to 32.

[152] Ex 424, page 18; T 5-87, lines 21 to 23.

[153] Ex 424, page 19. 

[154] Avulsion is the process by which flow is diverted out of an established channel belt into a new flow pathway on the adjacent floodplain. 

[155] Ex 424, page 23.

[156] Ex 446, page 52. 

[157] T 5-76, lines 6 to 7.

[158] Ex 88 [5.3.4].

[159] T 5-72, lines 44 to 46.

[160] T 5-69, lines 19 to 20. 

[161] Ex 446, figure 4-11. 

[162] T 5-47, lines 5 to 10.

[163] T 5-51, lines 11 to 12.

[164] Ex 68, page 346.

[165] T 5-48, line 27.

[166] Ex 88, page 91.

[167] T 5-72, lines 44 to 46.

[168] Ex 424 [5.4.1]. 

[169] Ex 446, page 98; T 5-66 lines 21 to 29.

[170] T 5-71, lines 24 to 25. 

[171] T 5-57, line 45 to T 5-58, line 7. 

[172] T 5-71, lines 25 to 28.

[173] T 5-67, line 42 to T 5-68, line 4.

[174] T 5-58, lines 24 to 26.

[175] T 5-86, lines 16 to 19.

[176] Outline of Submissions of the Objectors – Namrog Investments Pty Ltd & Balanced Property Pty Ltd, filed 18 June 2020 [90] – [91].

[177] Ex 410. 

[178] T 1-75, line 32 to T 1-76, line 13; T 1-77, lines 30 to 34. 

[179] Ex 410, page 23-24.

[180] T1-77, line 28 to line 34.

[181] T1-75, line 26 to T1-76, line 11.  

[182] Ex 410, page 23-24, page 37. 

[183] Ex 88, page 83.

[184] Ex 124, page 48-49. 

[185] Ex 68, page 162.

[186] Ibid. There are some EA conditions (H20-H25) which may also be relevant, although they appear to relate to rehabilitation and post-mining land use. 

[187] PEM.0010 – Response to Request for Particulars (Namrog Investments) filed 16 December 2019 [2(b)]; PEM.0011 – Response to Request for Particulars (Balanced Property), filed 16 December 2019 [2(b)]. 

[188] Outline of Submissions of the Objectors – Namrog Investments Pty Ltd & Balanced Property Pty Ltd, filed 18 June 2020 [93].

[189] T 5-110, lines 23 to 30.

[190] Outline of Submissions of the Objectors – Namrog Investments Pty Ltd & Balanced Property Pty Ltd, filed 18 June 2020 [94]; Ex 88, page 53, Table 5-7. 

[191] Ex 426, MS-2, Conditions F1-F4, Tables F1-F3. 

[192] T 5-104, lines 6 to 29.  

[193] Ex 422, page 1. 

[194] Queensland Government, “Water Monitoring Information Portal” (Data portal)  

[195] Queensland Government, “Environment”, Current Fitzroy Basin coal mine water releases (Data portal)  

[196] Ex 424, Appendix F, Water Licence 619524.  

[197] Ex 419.

[198] Ex 420. 

[199] T 5-4, lines 37 to 46.

[200] Ex 420, page 5; T 5-6, lines 9 to 14.

[201] Ex 421. 

[202] T 5-15, lines 24 to 27.

[203] Ibid lines 14 to 15.

[204] Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 [50]-[60]; [2001] NSWCA 305. 

[205] T 5-16, line 45 to T 5-17, line 3.

[206] T 5-17, lines 8 to 9. 

[207] Ibid lines 9 to 11.

[208] Ex 450.

[209] T 5-22, line 45 to T 5-23, line 10.

[210] T 5-114, lines 5 to 8. 

[211] Ex 64; Ex 198; Ex 259; Ex 327; Ex 397 [11], [12], [14].   

[212] Ex 65; Ex 199; Ex 262; Ex 328; Ex 398 [3.1.9]. 

[213] Strong and Sustainable Resource Communities Act 2017 s 9; Department of State Development, Manufacturing, Infrastructure and Planning, Social Impact Assessment Guideline (2018). 

[214] Strong and Sustainable Resource Communities Act 2017 s 6.

[215] Ibid s 9(3A).

[216] Ex 68, page 114-115.

[217] Ibid page 69-71. 

[218] Ibid [94].

[219] Ex 407 [108]-[109]. 

[220] Ibid [15]-[16]. Based on Mr Fahrer’s discount rate of 2.5%, compared to the Gillespie rate of 7%. 

[221] Ibid [111]. 

[222] Ibid [68]-[70].

[223] Ex 92 [3.4.1], [3.4.2].   

[224] Ibid [3.4.2].

[225] EPA s 300.

[226] Ex 407 [74]-[94]. 

[227] Ex 64; Ex 198; Ex 259; Ex 327; Ex 397. 

[228] Ex 65; Ex 199; Ex 262; Ex 328; Ex 398 [3.1.10]-[3.1.11].  

[229] T 1-42, line 25 to line 44.

[230] Ex 428 [38]. 

[231] Ibid [11]. 

[232] Ex 441. 

[233] Ibid [125].     

[234] Ibid.  

[235] Ibid [137].  

[236] Ex 429 [1].

[237] Ibid [77]-[86]. 

[238] Ex 428 [93].

[239] Ibid [87]-[96]. 

[240] Ex 443 [59]-[62]. 

[241] Ex 429. 

[242] Ibid [103]-[105]. 

[243] Ex 444 [1.1].

[244] Ex 431 [68].

[245] Ibid [17].

[246] Ibid [16].

[247] Ex 64; Ex 198; Ex 259; Ex 327; Ex 397. 

[248] Written Submissions of Sunland Cattle Co Pty Ltd, filed 18 June 2020 [84]; Ex 65; Ex 199; Ex 262; Ex 328; Ex 398 [3.1.12].

[249] Written Submissions of Sunland Cattle Co Pty Ltd, filed 18 June 2020 [6].

[250] Ex 68, page 8. 

[251] Ex 444, 6.1.1(f).

[252] Ex 426, MS-2, condition H1, Table H1.

[253] T 1-37, lines 2 to 11.

[254] Ex 444. 

[255] Ibid [1.1].

[256] Department of Science, Information Technology and Innovation and Department of Natural Resources and Mines, Guidelines for Agricultural Land Evaluation in Queensland (2nd ed, 2015). 

[257] Ex 444 [6.1.1(g) to (j)].

[258] Ibid [6.1.2]. 

[259] Ibid [6.1.2(b)-(e)]. 

[260] Ibid [6.1.2(i), (j), (m)]. 

[261] T 1-37, lines 24 to 27.

[262] Ibid lines 19 to 23.

[263] Ex 444, 7.1.2.

[264] Ex 434, page 3. 

[265] Ex 260. 

[266] Ex 443. 

[267] Environmental Offsets Act 2014 s 14(2).

[268] Ex 433 [1.5].

[269] Ibid. 

[270] Ibid [3.3], [4]. 

[271] Ex 72 [2.1.5]. 

[272] Ibid [2.2.8]. 

[273] Tickner v Chapman (1995) 57 FCR 451, 495.

[274] Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts & Anor (2011) 180 LGERA 99 [44]–[45].

[275] Sinclair v Mining Warden at Maryborough & Anor (1975) 132 CLR 473.

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Editorial Notes

  • Published Case Name:

    Pembroke Olive Downs Pty Ltd v Sunland Cattle Co Pty Ltd & Ors

  • Shortened Case Name:

    Pembroke Olive Downs Pty Ltd v Sunland Cattle Co Pty Ltd & Ors

  • MNC:

    [2020] QLC 27

  • Court:

    QLC

  • Date:

    31 Jul 2020

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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