Queensland Judgments
Authorised Reports & Unreported Judgments
  • sclq logo
  1. Caselaw
  2. QLC
  3. 2016
  4. Colton Coal Pty Ltd v Aldershot and District Against Mining Inc. - [2016] QLC 73

Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

Colton Coal Pty Ltd v Aldershot and District Against Mining Inc.[2016] QLC 73

Colton Coal Pty Ltd v Aldershot and District Against Mining Inc.[2016] QLC 73

LAND COURT OF QUEENSLAND

CITATION:

Colton Coal Pty Ltd v Aldershot and District Against Mining Inc. & Ors [2016] QLC 73

PARTIES:

Colton Coal Pty Ltd

(applicant)

v

Aldershot and District Against Mining Inc.

(objector)

and

Max Adlam, Jim Blackmore, Jane Jones, William McKillop, Colin Reynolds, Suzanne Reynolds, Christine Rodhouse, Philip Martin Rodhouse, John Sharp, Marilynn Sharp, Michael Ward, Peter Ward and Shirley Ward

(objectors)

and

Chief Executive, Department of Environment and Heritage Protection

(statutory party)

FILE NO/s:

MRA499-14 & EPA500-14 (MLA50273) (Colton A)

MRA501-14 & EPA502-14 (MLA50274) (Colton B)

MRA503-14 & EPA504-14 (MLA50280) (Colton C)

DIVISION:

General Division

PROCEEDING:

Hearing of application for grant of mining leases under s 268 of the Mineral Resources Act 1989 and objections decision hearing under s 220 of the Environmental Protection Act 1994

DELIVERED ON:

17 November 2016

DELIVERED AT:

Brisbane

HEARD ON:

15, 16, 17, 18 August & 13 September 2016

HEARD AT:

Brisbane

MEMBER:

WA Isdale

ORDER/S:

  1. In accordance with s 269 of the Mineral Resources Act 1989, the Court recommends to the Honourable the Minister administering the Mineral Resources Act 1989 that the applications be granted in whole.
  2. In accordance with s 222(1)(b) of the Environmental Protection Act 1994, the Court recommends to the Honourable the Minister administering  the Environmental Protection Act 1994 that the application be granted, but on stated conditions that are different to the conditions in the draft environmental authority issued on 1 September 2014 to the extent that Table D1 – Noise limits referred to in Condition D1 be replaced with the following revised table:
Table D1 – Noise limits
Colton Coal Pty Ltd v Aldershot and District Against Mining Inc. [2016] QLC 73

CATCHWORDS:

ENERGY AND RESOURCES – MINERALS – MINING FOR MINERALS – ENVIRONMENTAL PROTECTION LEGISLATION – where there is an objection to the grant of the mining tenures being applied for – where there are objections to the draft environmental authority – where the Court hears the objections – where the Court makes recommendations to the Ministers concerning the mining tenures and the draft environmental authority

Mineral Resources Act 1989, s 265, s 268, s 269

Environmental Protection Act 1994, s 220, s 222, s 223

Adani Mining Pty Ltd v Land Services of Coast and Country Inc. & Ors [2015] QLC 48

De Lacey & Anor v Kagara Pty Ltd (2009) 30 QLCR 57

Endocoal Limited v Glencore Coal Queensland Pty Ltd and Department of Environment and Heritage Protection [2014] QLC 54

Xstrata Coal Queensland Pty Ltd & Ors v Friends of the Earth - Brisbane Co-Op Ltd & Ors (2012) 33 QLCR 79

APPEARANCES:

D O'Brien QC instructed by HopgoodGanim for the applicant

G Houen for the respondents

S Barclay and KM Clayton for the statutory party

Background

  1. [1]
    The applicant wishes to mine coking coal at a 1,025.1264 ha site about 10 km to the north of Maryborough. Approximately 5 million tons of coal are in prospect of being extracted by open-cut mining of about 350 ha. The coal is planned to be prepared on site and then transported by railway to Gladstone for export. About 770 ha will be disturbed by the project. It is proposed that there would be one train per day carrying around 2,200 tons of payload.
  1. [2]
    Aldershot is a township of about 1,050 residents and, Mr Houen submitted, around 500 homes. In her objection, exhibit 11, Jane Jones states that there are 1,042 people and 285 homes. In exhibit 51, Brian Linforth says there are about 1,150 people in about 245 residences. The township is about 10 km north of Maryborough off the Bruce Highway and around 2 km from the boundary of the proposed mine. The spoil dump will be the part of the mine nearest the residents. Some of the residents have formed the respondent incorporated body, Aldershot and District Against Mining Inc., (AADAM) which, as a corporation, is a legal person and an objector.
  1. [3]
    One matter which was referred to in the hearing was that there is no reticulated water provided in the community and the residents rely on rainwater stored in tanks. The case presented to the Court on behalf of AADAM did not specify how many rainwater storage tanks may potentially be affected by the dust from the proposed mine.
  1. [4]
    Only AADAM objects to the mining lease applications, MLA 50273 (860.7 ha), MLA 50274 (162.9 ha) and MLA 50280 (1.5264 ha), known as Colton A, B and C respectively. It also objects to the draft Environmental Authority (EA). The applicant and the statutory party are in favour of the applications and EA.
  1. [5]
    In the case of the draft EA for the proposed project, the other objectors are a number of individuals who have chosen to rely on their written objections made in the process. They have chosen not to give or call evidence at the hearing but to rely on the concerns which they have already expressed. These persons are Max Adlam (exhibit 16), Jim Blackmore (exhibit 12), Jane Jones (exhibit 11), William McKillop (exhibit 16), Colin Reynolds and Suzanne Reynolds (exhibit 10), Philip Martin Rodhouse and Christine Rodhouse (exhibit 15), John Sharp and Marilynn Sharp (exhibit 13), Michael Ward, Shirley Ward and Peter Ward (exhibit 14).
  1. [6]
    The chief executive of the environmental regulator, the Department of Environment and Heritage Protection, which is the statutory party, was represented by counsel at the hearing. The applicant was represented by Queen’s Counsel and AADAM was represented by Mr G Houen, agent.

This Court’s role in the process

  1. [7]
    The Land Court performs an administrative function in the present proceedings. It does not decide a dispute but instead is permitted by law to make recommendations. The decision-making power rests with the relevant Minister.

Mineral Resources Act 1989

  1. [8]
    In the case of applications for mining tenures, the Mineral Resources Act 1989 (MRA) provides, in section 265, that objections are to be referred to the Court. That process was followed and under s 268(1) of the MRA the Court is required to hear the applications and objections. Under s 269 the Court is required to forward the objections, the evidence adduced at the hearing, any exhibits and the Court’s recommendation to the Minister. The section sets out what the recommendation must consist of and what the Court must consider. It is useful to set out s 269 in full since it is central to what the Court is required to do.

269 Land Court's recommendation on hearing

  1. (1)
    Upon the hearing by the Land Court under this part of all matters in respect of an application for the grant of a mining lease, the Land Court shall forward to the Minister—
  1. (a)
    any objections lodged in relation thereto; and
  1. (b)
    the evidence adduced at the hearing; and
  1. (c)
    any exhibits; and
  1. (d)
    the Land Court’s recommendation.

Note—

For other relevant provisions about forwarding documents, see section 386O.

  1. (2)
    For subsection (1)(d), the Land Court’s recommendation must consist of—
  1. (a)
    a recommendation to the Minister that the application be granted or rejected in whole or in part; and
  1. (b)
    if the application relates to land that is the surface of a reserve and the owner of the reserve has not consented to the grant of a mining lease over the surface area, the following—
  1. (i)
    a recommendation to the Minister as to whether the Governor in Council should consent to the grant over the surface area;
  1. (ii)
    any conditions to which the mining lease should be subject.
  1. (3)
    A recommendation may include a recommendation that the mining lease be granted subject to such conditions as the Land Court considers appropriate, including a condition that mining shall not be carried on above a specified depth below specified surface area of the land.
  1. (4)
    The Land Court, when making a recommendation to the Minister that an application for a mining lease be granted in whole or in part, shall take into account and consider whether—
  1. (a)
    the provisions of this Act have been complied with; and
  1. (b)
    the area of land applied for is mineralised or the other purposes for which the lease is sought are appropriate; and
  1. (c)
    if the land applied for is mineralised, there will be an acceptable level of development and utilisation of the mineral resources within the area applied for; and
  1. (d)
    the land and the surface area of the land in respect of which the mining lease is sought is of an appropriate size and shape in relation to—
  1. (i)
    the matters mentioned in paragraphs (b) and (c); and
  1. (ii)
    the type and location of the activities proposed to be carried out under the lease and their likely impact on the surface of the land; and
  1. (e)
    the term sought is appropriate; and
  1. (f)
    the applicant has the necessary financial and technical capabilities to carry on mining operations under the proposed mining lease; and
  1. (g)
    the past performance of the applicant has been satisfactory; and
  1. (h)
    any disadvantage may result to the rights of—
  1. (i)
    holders of existing exploration permits or mineral development licences; or
  1. (ii)
    existing applicants for exploration permits or mineral development licences; and
  1. (i)
    the operations to be carried on under the authority of the proposed mining lease will conform with sound land use management; and
  1. (j)
    there will be any adverse environmental impact caused by those operations and, if so, the extent thereof; and
  1. (k)
    the public right and interest will be prejudiced; and
  1. (l)
    any good reason has been shown for a refusal to grant the mining lease; and
  1. (m)
    taking into consideration the current and prospective uses of that land, the proposed mining operation is an appropriate land use.
  1. (5)
    Where the Land Court recommends to the Minister that an application for the grant of a mining lease be rejected in whole or in part the Land Court shall furnish the Minister with the Land Court’s reasons for that recommendation.
  1. (6)
    If—
  1. (a)
    the application is for the grant of a coal mining lease; and
  1. (b)
    under section 318BA, a preference decision is required;

the Land Court can not recommend that the lease not be granted so as to give preference to petroleum development.

An inspection or view

  1. [9]
    Section 268(4) of the MRA provides that the Court “may direct an inspection or view of the land the subject of the application”. There was imaging and mapping of this area provided in the evidence. There was also imaging and mapping of areas beyond the land the subject of the applications for mining tenures. On behalf of AADAM it was submitted that with the aid of a boat and helicopter or by road the Court should carry out an inspection. It was suggested that the applicant ought to bear the costs associated with this. The applicant was not prepared to do this and there was no support for the idea of an inspection or view from the applicant or the statutory party. The Court was not prepared to order an inspection in the existing circumstances. It urged the parties to make good use of maps and photographs, including overhead imagery, and indicated that the application for a site visit could be renewed as evidence progressed if an improved case for such an order could be shown. The Court indicated that it wanted agreement from the parties about what ought to be inspected in order to avoid an unstructured activity which could involve considerable waste of time and money. No agreement was ever reached.
  1. [10]
    The Court put time aside for hearing evidence at Maryborough and potentially conducting a view in conjunction with that. As the case proceeded, no party had any witness whose evidence needed to be heard at Maryborough and the submission on the part of AADAM, although repeated, did not improve. In the circumstances of the case, the Court did not direct an inspection or view as it was not satisfied that this was necessary to carry out its tasks.

Environmental Protection Act 1994

  1. [11]
    Under the Environmental Protection Act 1994 (the EP Act), the administering authority acted in accordance with the EP Act and referred the objections to the Court. The hearing under the MRA and the EP Act were conducted at the same time.
  1. [12]
    The EP Act sets out the nature of the objection decisions and what the Court must consider. These sections are in the following terms:

222 Nature of objections decision

  1. (1)
    The objections decision for the application must be a recommendation to the EPA Minister that—
  1. (a)
    the application be granted on the basis of the draft environmental authority for the application; or
  1. (b)
    the application be granted, but on stated conditions that are different to the conditions in the draft; or
  1. (c)
    the application be refused.
  1. (2)
    However, if a relevant mining lease is, or is included in, a significant project and, under section 210, Coordinator-General’s conditions were included in the draft, any stated conditions under subsection (1)(b)—
  1. (a)
    must include the Coordinator-General’s conditions; and
  1. (b)
    must not be inconsistent with a Coordinator-General’s condition.
  1. (3)
    The Land Court must, as soon as practicable after the decision is made, give a copy of the decision to each of the following—
  1. (a)
    the MRA Minister;
  1. (b)
    if a relevant mining lease is, or is included in, a significant project—the State Development Minister.

223 Matters to be considered for objections decision

In making the objections decision for the application, the Land Court must consider the following—

  1. (a)
    the application documents for the application;
  1. (b)
    any relevant regulatory requirement;
  1. (c)
    the standard criteria;
  1. (d)
    to the extent the application relates to mining activities in a wild river area—the wild river declaration for the area;
  1. (e)
    each current objection;
  1. (f)
    any suitability report obtained for the application;
  1. (g)
    the status of any application under the Mineral Resources Act for each relevant mining tenement.

Level 1 Objectors

  1. [13]
    The objectors who are natural persons chose to rely on their written objection only and to not participate in the Court process. These are Level 1 Objectors as referred to in Land Court Practice Direction 3 of 2015.
  1. [14]
    All of the material provided by these objectors was considered by the Court. Their concerns covered noise, dust on solar panels and dust getting into tank water and its potential for respiratory and toxic effects.
  1. [15]
    Although these objectors did not give or call evidence, the evidence which was provided to the Court was considered in the light of their concerns.

The hearing – witnesses, exhibits and an e-trial

  1. [16]
    The hearing of evidence took place in Brisbane and this occupied four days of Court time. Written submissions and oral submissions came later. The applicant called five witnesses. These were:
  1. Mr Shane Elkin, regarding noise impacts.
  1. Mr Simon Welchman, concerning air quality.
  1. Mr Michael Batchelor, a mining engineer.
  1. Mr Stephen Charles Eames, Director, Colton Coal.
  1. Dr John Thorogood, regarding water ecology.
  1. [17]
    AADAM called one witness, Mr Max Winders, an engineer.
  1. [18]
    Further, on behalf of AADAM, Mr Brian Linforth provided an affidavit, exhibit 118, confirming his witness statement. Ms Aileen Harrison confirmed her witness statement by affidavit which became exhibit 117. There was no challenge to their statements, which were exhibits 51 and 52 respectively.
  1. [19]
    The statutory party called Mr Timothy Mervyn Brain, a compliance delivery manager of the statutory party.
  1. [20]
    There were 126 exhibits, some consisting of many pages. The material was provided in electronic form so that it could be easily and quickly accessed in Court. This shortened the time needed to conduct the hearing as documents could be quickly displayed to the parties and the Court.
  1. [21]
    In exhibit 51, Mr Linforth states, as has been noted, that Aldershot is home to about 1,150 people in about 245 residences. He refers to matters regarding dust, noise, rainwater tanks and the Mary River. The contents of his statement were not disputed before the Court. In it he explains that AADAM is not against all mining but is against mining that would have significant negative impacts.
  1. [22]
    In exhibit 52, Aileen Harrison explains the effects of the New Acland coal mine on her and her family and their business and health. None of this was disputed. It is noted that Mr Linforth states in exhibit 51 that no agricultural land would be directly affected by the proposed project.
  1. [23]
    The hearing focused on the areas where the parties were in dispute. A consideration of the evidence in the light of the matters which the Court must address enables all of the objections to be considered together in their context.

The applicant’s case

  1. [24]
    The applicant pointed out that historically there have been small mines in the Burrum coal fields in this area. What is proposed is a relatively small open cut mine, as compared to the size of other open-cut coal mines. Probably about 5 million tons of coking coal will be mined. The closest residence is about 2 km from the boundary of the proposed lease. The pit will start about 4 km from the closest house and, after about 10 years, be 3 km away. The spoil dumping area will be the closest source of dust.
  1. [25]
    It was submitted that any water discharged into the Mary River would be “chemically benign” and could only be discharged, because of conditions in the draft EA, when there is significant flow in the river and when the water to be discharged meets the standard set for it. It was stressed that the water used for washing the coal is not to be discharged. What may be discharged is the rainwater that falls onto the site and which is stored in a dam. It is recognised that the ground will be disturbed by the mining activities so there will be sediment which the dam will catch. The three tenures sought are all part of the one project and may usefully be considered together. There is only one objection, from AADAM, to the applications for the mining tenures.

The witnesses called on behalf of the applicant

  1. [26]
    Mr Shane Robert Elkin was called on behalf of the applicant. He produced a report, exhibit 35, a response report, exhibit 39, and a joint expert report, exhibit 110. Mr Elkin is a mechanical engineer and a registered professional engineer in Queensland. He has considered the potential airborne noise impacts of the proposed mine. His opinion is that, with the use of appropriate site-based management measures, acceptable noise levels can be achieved at neighbouring noise-sensitive locations. He is an acoustic consultant with relevant experience and believes that the acoustic quality objectives are appropriate.
  1. [27]
    There is only one matter of disagreement between Mr Elkin and Mr Paul King, a mechanical engineer who is the respondent’s expert. Mr King is of the opinion that real-time noise monitoring should be installed prior to commencement of mining operations and continued throughout the mining. Mr Elkin disagrees and is of the view that non-real-time noise monitoring should be used. If non-compliance with noise limits becomes an issue, real-time monitoring should be used to manage the adverse impacts of noise.[1]
  1. [28]
    The predominant wind direction is from the south-south-west, which is away from the sensitive receptors, the people of Aldershot. Mr Elkin made clear in cross-examination that real-time monitoring available on the internet would be likely to trigger a lot of false positives and that the information needs to be analysed and interpreted by a professional before being published.[2]
  1. [29]
    Mr Simon John Welchman was called on behalf of the applicant. His report became exhibit 33. His response report is exhibit 36 and his joint report with Mr Paul King dated 15 October 2015 is exhibit 108. These experts have no areas of disagreement.[3] The joint report is succinct and it is worth setting out its substance. The report is in the following form:

“INTRODUCTION

  1. In accordance with the Order of the Court, Mr King and Mr Welchman met on 1 October 2015 to discuss whether the air quality issues associated with the Colton Coal Project can be resolved, in whole or in part.
  1. On 28 January 2010, Colton Coal applied for the grant of ML 50273 and 50274 principally for the purpose of open cut coal extraction. On 2 November 2010, Colton Coal applied for ML 50280 for the principal purpose of providing tenure for part of the rail infrastructure that is required to service the mine.
  1. The Colton Project is located in the Fraser Coast Regional Council area in southern Queensland approximately 10 km north of Maryborough and 300 km north of Brisbane. The project will consist of the development of a 5 million tonne inferred coking coal resource of the Burrum coal measures. The project is planned to mine up to 1.2 million tonnes per annum (Mtpa) of run of mine coal by open cut methods to produce on average 0.5 Mtpa of product metallurgical coal for export. The project production life is estimated to be 8 to 10 years.
  1. The Colton Coal Project is proposed to be an open cut coal mine using excavators, bulldozers, trucks and other equipment for overburden and interburden removal. Coal will be mined using small excavator type machinery, trucks and other equipment.
  1. The Department of Environment and Heritage Protection (EHP) issued a draft Environmental Authority (EA) including conditions dated 1 September 2014. The draft EA was the subject of public notification and a number of submissions were made in respect of it.
  1. Objections have been lodged by the following parties:
  • Aldershot and District Against Mining Inc.;
  • John and Marilyn (sic) Sharpe;
  • Phillip (sic) Martin Rodhouse and Christine Rodhouse;
  • Colin Reynolds and Suzanne Reynolds;
  • William McKillop and Max Adlam;
  • Michael Ward, Shirley Ward and Peter Ward;
  • Jim Blackmore; and
  • Jane Jones.

DOCUMENTS RELIED UPON

  1. In preparing this Joint Expert Report we have primarily relied upon the following documents:
  • Colton Coal Mine Project Environmental Management Plan, prepared for Colton Coal Pty Ltd by AARC, May 2014 (EM Plan)
  • Mining Lease Application numbers 50273, 50274, 50280
  • Two detailed air quality assessments were prepared for the Colton Coal Project, namely:
  • Colton Mine Project, Air Quality Impact & Greenhouse Gas Assessment, prepared for AARC, ASK Consulting Engineers Pty Ltd, 16 August 2011 (ASK AQ Report, Annexure J of the EM Plan)
  • Colton Coal Mine, Supplementary Air Quality Assessment, prepared for AARC, ASK Consulting Engineers Pty Ltd, 1 April 2015 (ASK Supplementary AQ Report). The ASK Supplementary AQ Report is attached as Annexure ‘B’ to this Statement of Evidence
  • Statements of Evidence prepared by Simon Welchman and dated 1 May 2015 and 3 September 2015
  • Statement of Evidence prepared by Mr Paul King and dated 13 July 2015
  • The reasons for objection of the submitters
  • The draft Environmental Authority issued by EHP dated 1 September 2014.

OBJECTIONS

  1. Mr King and Mr Welchman agree that the reasons for objection of the submitters can be summarised as follows:
  • Adverse impact on tank water
  • Air quality assessment is inadequate
  • Heavy metals associated with coal
  • Draft EA fails to properly address proximity to Aldershot.

AREAS OF AGREEMENT

  1. Mr King and Mr Welchman agree that the air quality assessment studies conducted by ASK Consulting Engineers Pty Ltd and supplemented by peer review and dispersion modelling conducted by Katestone Environmental Pty Ltd (Katestone) show compliance with the relevant air quality objectives.
  1. Mr King and Mr Welchman agree that the air quality assessment study conducted by Katestone was conducted appropriately and in accordance with regulatory requirements. Mr King and Mr Welchman agree that the assessment has been correctly made against the appropriate air quality objectives, which are detailed in Mr Welchman’s First Statement of Evidence at Table 2.
  1. Mr King and Mr Welchman agree that the air quality assessments (ASK, Katestone and MWA Review) demonstrate that it is possible to undertake the Colton Coal Project and, at the same time, manage dust emissions to achieve compliance with regulatory air quality requirements, and on this basis not result in adverse impacts on the sensitive receptors in the surrounding area including those sensitive receptors at Aldershot.
  1. Mr King and Mr Welchman agree that the grounds of objection are not supported by the air quality assessment studies that they have conducted. In particular, Mr King and Mr Welchman agree on the basis of the air quality studies conducted, that:
  • The air quality assessments of the Colton Coal Project have assessed appropriate air quality indicators and provide a reliable basis for determining appropriate conditions of approval
  • The dust associated with the Colton Coal Project is not likely to adversely affect tank water at existing sensitive receptors
  • The metals associated with the Colton Coal Project are not likely to adversely affect air quality at existing sensitive receptors
  • The dust associated with the Colton Coal Project is not likely to adversely affect the operation of solar panels at existing sensitive receptors in Aldershot
  • The dust associated with the Colton Coal Project is not likely to adversely affect the operation and maintenance of swimming pools at existing sensitive receptors
  • The gaseous emissions associated combustion engine related emissions from the Colton Coal Project are not likely to adversely affect air quality at existing sensitive receptors
  • The gaseous emissions associated with blasting have not been assessed in detail through the various studies, albeit the ASK reporting identified appropriate strategies to manage such emissions to acceptable levels
  • The Draft EA conditions relating to air quality are appropriate given the scale of the project and the proximity of nearest sensitive receptors.

13 Mr King and Mr Welchman agree that the indicative air quality controls identified in the EM Plan and in the reporting of ASK and Katestone provide a reasonable basis to achieve the air quality objectives. The preparation of a formal Air Quality Management Plan will inform operators of their day to day responsibilities and actions in managing air quality impacts.

  1. Mr King and Mr Welchman agree that additional reduction in dust levels could be achieved, if it was required e.g. due to particularly adverse conditions (such as unusual weather), by modifying key dust producing activities. Mr Welchman’s Second Statement of Evidence investigated reducing the intensity of overburden haulage during the night and offsetting such a reduction with increased daytime haulage. Mr Welchman found that the peak 24-hour average concentration of PM10 was significantly reduced by this operational amendment. Whilst such a variation in activities was not found to be necessary at all times for the project to appropriately and adequately manage its dust emissions and to achieve compliance with the air quality objectives, the investigation shows that there is additional scope to reduce dust emissions in adverse circumstances.
  1. Mr King and Mr Welchman agree that the compliance monitoring regime required in the Draft EA conditions is adequate to inform the operators of ongoing air quality impacts such that the mine operators manage activities to not cause elevated levels of PM10 and PM2.5. Mr King and Mr Welchman agree that the PM10 and PM2.5 objectives have been formulated such that if a mining activity achieves compliance with the objective for PM10, compliance with the PM2.5 objective will also be achieved.
  1. Mr King and Mr Welchman agree that Colton Coal should develop an Air Quality Management Plan for its operations. An Air Quality Management Plan is a necessary tool for mine operators to manage day to day operations to mitigate the potential for air quality impacts. The Air Quality Management Plan would be subject to regular review and amendment as the mine operations progress. The Air Quality Management Plan should include ongoing dust monitoring, a complaints receipt and response handling procedure, and a suite of potential air quality emission mitigation measures to inform and assist mine operator as to the actual measures that may be implemented.

AREAS OF DISAGREEMENT

  1. There are no areas of disagreement.

DECLARATION

  1. The Experts acknowledge that they have read and understood relevant extracts of the Land Court Rules 2010 (Qld) and the Uniform Civil Procedure Rules 1999 (Qld). The Experts acknowledge that they have an overriding duty to assist the Court and have discharged that duty. The Experts have not received any instructions to accept, adopt or reject any particular opinion in preparing this joint report.
  1. The Experts confirm that:
  1. (a)
    The factual matters stated in this report are, as far as we are aware, true
  1. (b)
    We have made all the enquiries that we consider appropriate
  1. (c)
    The opinions in this report are genuinely held by the Experts
  1. (d)
    The report contains references to all matters that we consider are significant.”
  1. [30]
    Mr Welchman made clear in cross-examination that he and Mr King concluded that the proposed “activity can be controlled to avoid adverse impacts”[4] and that the “draft EA conditions were adequate to manage the activity.”[5]
  1. [31]
    When questioned about whether the rainwater-based water supply of the Aldershot residents was in danger of contamination from heavy metals in dust he stated that “the levels are not likely to go anywhere near drinking water guidelines.”[6] In Mr Welchman’s expert opinion “the data says it won’t occur and I can’t see how it would occur.”[7] This expert evidence is not contradicted by Mr King.
  1. [32]
    In cross-examination by Mr Houen, in relation to this important matter of drinking water safety, the following exchange occurred:[8]

“Would it be – am I right in thinking that a lot of it would depend on the nature of the overburden at the particular site?‑‑‑I – based on my calculations for Colton Coal and in that – in the instance of Colton Coal, I don’t believe that the – the – there is a likelihood that overburden dust landing on peoples’ roofs and – and being transported into tanks would cause water contamination.  I – I don’t believe that’s the case.

Can you understand that if you’re – that, from the people who live in Aldershot – that that isn’t going to satisfy them because they’re well aware that there will be dust from the mine on their roofs and getting washed into the tanks?  That ‑ ‑ ‑?‑‑‑I – I can understand a concern exists.  Based on my calculations and the work that was done, those concerns aren’t founded on any – on – on – on the data.  They’re not supported by the data.

And as to the extent that you’re involved as a consultant and an expert and perhaps advisor to Colton Coal, you wouldn’t support a – a – baseline testing of the rainwater tanks, followed by some monitoring to establish that your conclusion is right?‑‑‑No, I wouldn’t support that.  No.

No.  Notwithstanding that it’s a matter of great concern to them as residents?‑‑‑I understand it’s a matter of concern.  I don’t believe the concern is – is warranted, given my assessment.

Can you appreciate that, taking that on its merits – your assurance – that doesn’t satisfy them?‑‑‑Well, I – I don’t know their opinion.  I – I take it from you, that doesn’t satisfy them? 

Absolutely?‑‑‑Right.  Okay.  I understand that.

Do you see any – any merit in a precautionary principle being adopted in that if Colton is the one that’s definitely going to have an effect on their rainwater tanks, that they be given the benefit of baseline testing and some monitoring to establish that in fact your opinion is correct?‑‑‑I – I’ve – I think I’ve covered this already.  I – my attitude is that the results of my assessment show that those concerns aren’t warranted.  So I – that’s – that’s my attitude.”

  1. [33]
    Mr Michael James Batchelor was called on behalf of the applicant. Mr Batchelor is an engineer with particular expertise in minesite water management. His report is exhibit 40 and his joint report with Mr Winders is exhibit 111. Exhibit 40 is a report in response to Mr Winders’ report. The parts of the joint report, exhibit 111, which set out the areas in which these two experts agree and disagree is most instructive and worth setting out. The experts report in the following terms:

“Introduction:

i. This appeal relates to the conditions set by the State in its draft Environmental Authority (EPML00367613) for the Colton Coal Project at Maryborough.

ii. Matters of relevance to this JER relate to mine water management, which includes provision for the discharge of water into the Mary River via a submerged outfall.

iii. Both experts have prepared individual reports for the court outlining their opinions on relevant issues as well as areas of disagreement between the two experts.

iv. Recognising the complexity of some issues, the intent of this JER is to establish a basis of 'common ground' upon which the parties can subsequently jointly consider and resolve more specific issues that may be in dispute.

Areas of agreement:

Management of water from different mine site sources

1. It is good practice for a mine water management system (WMS) to separate water from different sources according to their expected chemical and physicochemical properties.  For example, water which has had low level contact with mining operations (leading to minor changes to chemical and physicochemical properties) should be separated from water which has had notable changes in water quality.

Effect of source of release water on the results of site water balance modelling

  1. The Site Water Management Assessment report (WRM, April 2014) includes the results of water balance modelling to simulate the behaviour of the WMS. The modelling was used to assess:
  • The likelihood of uncontrolled releases from the Worked Water System (WWS);
  • The frequency and duration of releases from the Intermediate Water System (IWS) to the Mary River.
  1. The water balance modelling was based on the assumption that only IWS surface runoff captured in the Mine Water Dam would be released, but water captured in the WWS would not.
  1. The release of water to the receiving environment will not be authorised from either water management sub-system unless the release conditions specified in the draft Environmental Authority (EA) are satisfied.
  1. If water stored in the WWS meets the release conditions in the EA, Colton Coal may opt to release it to the Mary River via the pipeline at the Mine Water Dam.
  1. If the Site Water Management Assessment assumed Colton Coal did regularly release water to the Mary River from the WWS as well as from the IWS, the likely effect on the water balance modelling would be to:
  • Increase the estimated frequency and duration of releases to the Mary River.
  • Reduce the estimated volumes of water accumulating in the WWS.

Storage containment capacity of WWS

  1. Colton Coal proposes that water captured in the WWS would be stored in the various WWS dams for later reuse in meeting site water demands.
  1. Mine water containment systems are generally designed and operated to achieve two outcomes following prolonged heavy rainfall:
  1. enable the active pits to be dewatered so that operations can continue;
  1. reduce the risk of uncontrolled discharge to the receiving environment to an acceptable level.

Areas of Disagreement:

Quality of water captured in the WWS and IWS

  1. MW states that no evidence has been provided that modelling of water quality, within the storages comprising the mine water management system and of the released water to and from those storages, has been simulated over the life of the mine. As a realistic risk assessment of the impact of releasing mining-sourced waters into the Mary River should include simulation of the above variations in relevant water quality parameters, as well as variations in the volumes of water likely to be released with such water quality variations, MW considers that insufficient simulation has been undertaken and reported upon to clearly demonstrate that the proposed water management plan will protect currently-recognised environmental values and water quality objectives of the Mary River estuary.
  1. MW considers that, if water quality modelling had been included in the risk assessment, it would have shown that the resultant risks to the environment could have been further minimized by simulating practical revisions of the water management plan.
  1. MW points out that simulation of water quality within the water management system should be a fundamental part of the monitoring and review process required to be undertaken to satisfy relevant conditions in the draft environmental authority. Accordingly, MW considers that presentation of the results of simulating the water quality variations within and out of the currently-proposed system should be a pre-requisite to the Court's consideration of the adequacy or otherwise of the water quality conditions included within the current draft environmental authority.
  1. MB acknowledges that variations in the concentrations of potential contaminants in the dams making up the MWS are to be expected. However, he believes that modelling of water quality within the storages comprising the MWS would not materially change the outcomes of the design and impact assessment of the project for the following reasons:
  • Water captured in the WWS will present the highest potential risk of harm to the receiving environment. The WWS has already been designed on the basis that the water it contains may not be suitable for release and will therefore require full containment without release. Hence the modelling of the WMS does not include releases from the WWS.
  • The draft EA release conditions have been set to ensure that when water is released, the Environmental Values of the receiving environment are protected. If the water quality does not meet this standard, its release will not be permitted. If this was the case, the outcome would be to reduce estimated frequency and duration of releases to the Mary River and to reduce the potential impacts on the River.
  • The likely geochemical properties of runoff from the overburden dump were characterised in the Mary River Discharge Investigations (Hydrobiology, May 2014), based on laboratory testing of the overburden material by EGi and CSIRO. That report concluded that metal concentrations (with the possible exception of Cd and Se) in the Mine Water Dam were unlikely to exceed the ANZECC trigger values. As a result, water in the IWS would not be expected to present a risk of harm to the receiving environment. This is consistent with experience at other coal mines, where overburden runoff is typically suitable for release if erosion and sediment control measures are properly implemented. It is therefore unlikely that releases to the Mary River from the IWS would be significantly limited by exceedance of the draft EA water quality conditions.
  1. MB agrees that during operations, process simulation of water quality undertaken as part of monitoring and review would be useful in ensuring the relevant conditions in the draft environmental authority can always be met.

Release of water from the IWS

14. MW States that Colton Coal's proposed release of water from the WMS to the Mary River via a pipeline is one option for managing water in the Mine Water Dam. Another option would be for the Mine Water Dam to instead serve the function of a sediment dam, with water being allowed to flow to the nearby headwater tributaries of the Susan River.

15. MB responds that this alternative arrangement is possible, and was considered during conceptual design of the WMS, but the Mary River pipeline option was preferred because the dilution offered by Mary River flows would reduce impacts on the receiving waters.

Release of Water from the WWS

16. MW states that Colton Coal is likely to routinely transfer water from the WWS to the Mine Water Dam - ultimately for release. This greatly increases the complexity of the water management system, and could result in the release of acid mine drainage water to the Mary River.

17. MB responds that the system has not been designed to operate in this way. The clearly stated aim of the proposed water management system is to separate the WWS and IWS. Transferring water from the WWS to the Mine Water Dam would be entirely inconsistent with this aim.

18. MB further responds that:

  • the WWS storage capacity was sized so that WWS water could be contained on site;
  • while the draft EA does not preclude the release of water to the Mary River, Colton Coal would need to carefully test water in the receiving environment and the WWS to be confident the release would be compliant. Releases are likely to occur only under exceptional circumstances;
  • in the event that potentially acid-forming overburden material generated highly acidic water in the WWS, its release would be prohibited by the pH release limit in condition F4 of the draft EA.

Consequence Category

19. MW is of the opinion that the Mine Water Dam should be assigned a "High" Consequence Category due to:

  • the Environmental Values of the Mary River receiving waters;
  • the potential for transferring WWS water to the Mine Water Dam and to the Mary River;
  • the potential for the Mine Water Dam to contain acid mine drainage water;
  • the harm that the release water may therefore cause to the Environmental Values of the Mary River.

20. MB responds that:

  • The Environmental Values of the Mary River and the consequent impacts of releases are being addressed by other experts.
  • It is not envisaged that (in the event that it was released) WWS water would be discharged into the Mine Water Dam, it would instead be pumped directly to the inlet of the Mary River pipeline.
  • Water could only be released if it was compliant with the EA release conditions. In which case the criteria for "High Consequence" dams would not be triggered.
  • Based on the geochemistry of the out-of-pit overburden, the Mine Water Dam is unlikely to contain acid mine drainage water.
  • The draft EA release conditions include a limit on pH (which would prevent acid water from being released).

Water Reuse

21. MW is of the opinion that the site water management system should have been designed such that:

  • releases are not made to the Mary River, and
  • water captured in the WWS should be used as part of a beneficial reuse scheme.

22. MB responds that he is aware that Colton Coal has attempted to pursue reuse opportunities with other parties, but that at this stage such an option is not part of the project to which the draft EA applies.”

  1. [34]
    Mr Batchelor’s evidence was that the worked water system, if operated as specified, would not result in an overflow into the Susan River under all historical rainfall conditions since 1890.[9]
  1. [35]
    Cross-examination of Mr Batchelor was attended by some issues of relevance.[10] It was established that, if acid sulphate soil impacted the quality of the water being considered for release, it would not be allowed to be released if it was outside of the EA release conditions.[11] The pipeline, about 5.5 km in length, is not required to be purged before a sample is taken[12] so it was suggested that a sample might not be valid, if taken at the discharge point, until some time had elapsed.[13]
  1. [36]
    This point focuses on sampling at the discharge point. According to item (ii) of the introduction to exhibit 111, the discharge point into the Mary River is “a submerged outfall”. Item F10 of exhibit 9, the draft EA, refers to mine-affected water “when measured at the monitoring points specified in Table F1”.[14] That Table shows “MRP1”. The Monitoring Point is described in Table F1 as “Sampling point drawing water out of Mary River discharge pipeline”.[15] It does not appear that there is any requirement to measure at the submerged outfall, with the resultant problem introduced by the length of the pipe. Mr Batchelor said there could be a sample taken at the pipe inlet.[16] It seems that a sample point drawing water out of the pipeline near its inlet is both contemplated and suitable. The point made about sampling at the outlet point has no force.
  1. [37]
    Mr Stephen Charles Eames was called on behalf of the applicant. He is now the general manager of corporate development of the parent company New Hope Corporation Limited and a director of Colton Coal Pty Ltd. In cross-examination, Mr Eames was asked whether there is an intention to follow the present application, if it is approved, with a further application for a much enlarged Colton Coal mine. Mr Eames said that there are no plans for another application “at this point in time.”[17]
  1. [38]
    Dr John Anthony Thorogood was called on behalf of the applicant. He is an aquatic ecologist. He has prepared a report, exhibit 32, response reports, exhibits 37 and 41, and a joint report with Mr Winders, exhibit 107. The joint expert report, exhibit 107, sets out the areas of agreement and disagreement and it is useful to set out the principal parts of it. It is in the following terms:

“Introduction

i This appeal relates to the conditions set by the State in its draft Environmental Authority (EPML00367613) for the Colton Coal Project at Maryborough.

ii Matters of relevance to this JER relate to the proposed discharge of water from the mine to the Mary River.

iii Recognising the complexity of some issues, the intent of this preliminary JER is to establish a basis of 'common ground' upon which we can subsequently jointly consider and resolve more specific issues.

We agree that

iv the development of the proposed mine should be considered within an ecologically sustainable framework.

v the receiving environment should be protected through integrated management that is:

  • underpinned by an understanding of the receiving environment and the establishment of environmental objectives,
  • based on the  development  and  implementation  of  appropriate management strategies, and
  • accountable.

Colton Coal Pty Ltd v Aldershot and District Against Mining Inc. [2016] QLC 73Colton Coal Pty Ltd v Aldershot and District Against Mining Inc. [2016] QLC 73vi whilst a uniform standard of environmental protection may be applied across an industry, the unique circumstances of each project should be reflected in the management strategies applied to achieve this standard.

vii the proposed release point is approximately 9 km upstream of waters designated as having High Ecological Value, the upstream boundary of the Great Sandy Strait Marine Park, and the upstream boundary of the Susan River Fish Habitat Area.

viii the proposed release point lies within the mid-reaches of the Mary River estuary, where waters are described in the Environmental Protection (Water) Policy 2009: Mary River environmental values and water quality objectives (July 2010) as 'moderately disturbed'.

ix the draft Environmental Authority prescribes the conditions (of river flow) under which mine water may be released and the minimum quality of water that may be released, and that the release of mine water must be monitored and reported on.

x the draft Environmental Authority prescribes that the release of excess mine water may only occur during periods of significant natural flow within the river (>150 ML/day).

We disagree on the following matters:

A Risk-based Approach to Environmental Management

xi JT considers that a risk-based approach (where the likelihood and consequence of various potential impacts are objectively considered) is appropriate to assessing the likely impacts associated with, and managing, the regulated discharge of water from the Colton Coal project. A risk-based approach to environmental management underpins the approach taken by every Australian state and the Commonwealth (see Appendix A).

xii MW considers that the risk-based approach of the proposed water management plan, which would allow untreated mine water discharge to be frequently discharged into the Mary River estuary, while possibly suitable for existing mines discharging into inland streams of lesser ecological value, is inappropriate in this instance.

xiii JT responds that the draft Environmental Authority specifies the conditions (of river flow) under which mine water may be released and the minimum quality of the water to be released.

Uncertainty in Impact Assessment

xiv JT considers that some degree of uncertainty is acceptable (expected) in impact assessment, and must be reflected in a project's environmental management strategies. This view is consistent with the State's Environmental Protection Act (1994), the National Water Quality Management Strategy and ANZECC Guidelines. Monitoring is considered an integral element of environmental management (under the Act), reflecting a clear acceptance of a degree of uncertainty with respect to impact assessment.

xv MW disagrees that uncertainty is acceptable in this instance as the proposed water quality management plan could be revised to remove uncertainty from the impact assessment.

Adaptive Management

xvi JT considers that adaptive management allows monitoring to support changes in practices where required, allowing best practice environmental management to be implemented as technologies evolve. Department of Environment and Heritage Protection policies support this view, advising that an adaptive management approach 'allows for best practice environmental management to be implemented as technologies develop over time' and that under a regimen of adaptive management, 'environmental licences issued to operators can be changed to take into account new research, monitoring or modelling which suggests the potential for unintended or unexpected impacts on the environment.'

xvii MW disagrees that adaptive management is appropriate for the protection of the estuary's ecological values and that the water management plan, as currently stated, should be upgraded to ensure that the need for adaptive management is minimal.

xviii JT responds that the draft Environmental Authority specifies the conditions (of river flow) under which mine water may be released and the minimum quality of that water. That is, it is the Environmental Authority, not the mine's 'water management plan' that determines the nature of impact (if any) of the release of mine water to the Mary River.

xix MW also considers that the Receiving Waters Monitoring Plan is unlikely to identify the likely need for adaptive management as it is limited to looking for changes in specific water quality parameters and not aimed at identifying adverse changes to ecological values of the estuary which may prove to be long-term or irreversible.

Colton Coal Pty Ltd v Aldershot and District Against Mining Inc. [2016] QLC 73xx JT responds that 'adaptive management' may be broadly applicable to the management of the proposed mine. It may for example, be applied to the length of time water is held in the Mine Water Sediment Dam prior to release (to facilitate the settling of suspended solids). It may also be applied to the Receiving Environment Monitoring Program (REMP) prescribed in the draft Environmental Authority. The REMP reflects an understanding that any impact relating to the release of mine water, to flora and fauna, must (logically) be mediated via water quality. The REMP does not proscribe the monitoring of 'ecological values' and in fact states that 'the REMP should encompass any sensitive receiving waters or environmental values downstream .....’. Environmental Values ascribed to the mid-reaches of the Mary River estuary include 'aquatic ecosystems'. Colton Coal has yet to finalise a REMP design document.

Environmental Authority

xxi While it is agreed that an Environmental Authority should take into account the nature of the proposed activity, the values, sensitivities and resilience of the receiving environment, and the regulations, policies and objectives articulated by government, MW considers that the regulations, policies and objectives articulated by government need to be considered for relevance on a site-specific basis. Of particular relevance in this case are the interpretation of policies for the release of mine waters into inland streams and the environmental values of the Mary River estuary and the Great Sandy Region, which are quite different to those of inland streams.

xxii MW considers that the draft environmental authority (EA) is deficient in that it is based upon applying a generic policy, developed for the adaptive management of existing and expanding mines discharging large volumes of contaminated water into inland river systems, to a new mine discharging into an estuary with readily identifiable environmental values.

xxiii JT responds that the draft Environmental Authority, whilst reflecting the industry-wide application of policy (the Department of Environment and Heritage Protection's 'Model Water Conditions for Coal Mines in the Fitzroy Basin' provide an obvious example) also reflects the specific nature of the proposed activity and the specific values, sensitivities and resilience of the receiving environment. The Environmental Authority appropriately reflects the characteristics of the proposed mine and the receiving waters.

xxiv MW considers that the draft EA is also deficient in that its conditions  only require post-flood event water quality monitoring as a basis for  identifying the need or otherwise for the adaptive management of releases of pollutants into an estuary for which recent government policies and regulations are seeking improvements in both water and sediment quality.

xxv JT responds that MW's contention is not supported by a careful reading of the draft Environmental Authority. The draft Environmental Authority reads, (extracted from condition F19), 'this must include monitoring the effects of the mine periodically (under natural flow conditions) and while mine effected water is being discharged from the site’. Under the draft Environmental Authority, mine (effected) water may be discharged at any time there is a rate of flow greater than 150 ML/day over the Mary River and Tinana barrages.

xxvi MW considers that the draft EA is incorrect in allowing the mine to be regularly dewatered through a submerged outfall in a location already impacted upon by a sub-standard sewage treatment plant’s outfalls into an estuary where current government policies require further reductions in the pollutant loads discharged from urban, agricultural and mining sources to protect seagrass and coral - seagrass being the more significant in this instance.

xxvii JT responds that both the proposed means of discharge and the draft Environmental Authority reflect the Environmental Values and Water Quality Objectives of the mid-reaches of the Mary River and downstream. The release of mine water in accordance with the draft Environmental Authority will not adversely impact seagrasses or corals.

xxviii JT considers that the release of 0.2 m3/s of uncontaminated waters to the Mary River during periods of significant natural flow (>300 ML/day) would not result in environmental harm.

Bioaccumulation and Environmental Flows

xxix JT considers that the risk of bioaccumulation cannot be increased where introduced water contains contaminants at lower concentrations than the receiving waters.

xxx JT considers that environmental flows cannot be detrimentally impacted where introduced water is less contaminated than the receiving waters.”

  1. [39]
    Dr Thorogood was asked about the four hour inspection of the Mary River estuary by boat that Mr Winders made on 7 December 2015 and which is reported in exhibit 57. Asked about the value, if any, of that inspection without instrumentation Dr Thorogood said:

“Well, to be blunt, I think it really has no scientific basis and, therefore, no scientific merit.”[18]

  1. [40]
    In cross-examination, Dr Thorogood said that:

“… it is entirely reasonable to expect that the water being discharged will typically be less turbid than the water that is discharged to.”[19]

  1. [41]
    In relation to the concept of using reverse osmosis to treat the water before it is discharged into the Mary River, Dr Thorogood said:

“I have no background or particular expertise in the treatment of water per se. The only further comment I would make is that in as much as using a sledgehammer to crack a proverbial walnut would seem to be excessive, using reverse osmosis to remove the essentially benign concentration of metals from the water that’s proposed to be discharged would be excessive and if – you know, I’m not a lawyer either but if we turn to the EP Act, you can see that it very clearly encourages an appropriate management response to identified threats and the application of reverse osmosis simply wouldn’t be appropriate to a threat this negligible.”[20]

  1. [42]
    In relation to the testing of discharge water, Dr Thorogood said:

“…in practical circumstances the testing would normally be expected to be undertaken at the – at the start of the pipe rather than the end because the end is literally underwater in the Mary River.”[21]

  1. [43]
    He said that:

“The discharge from Colton Coal will have negligible nutrients and, typically, very low suspended solids.”[22]

  1. [44]
    Dr Thorogood said that if, as a precaution, it is desired to have the discharge water diluted and dispersed as quickly as possible, it would be done under conditions of significant natural flow. This strategy of discharge to a flowing river has been adopted because it has been seen to work in the Fitzroy River.[23]

AADAM’s case

  1. [45]
    AADAM called one witness, Mr Maxwell Francis Winders. The exhibits associated with Mr Winders are numbered 49, 57, 58, 59, 60, 107, 109, 111 and 115. Exhibit 49, attachment 3, is the report of Mr Arunakumaren, principal hydrological modelling engineer. The report, provided to Mr Winders, modelled the effectiveness of the proposed water management system. It notes that the suspended solids are usually reddish brown in colour at low concentration and blackish at high concentrations. The Court notes that the clarity of a liquid is referred to as its turbidity. Exhibit 124 illustrates that. Exhibit 126 shows that Mr Winders is a mechanical engineer and that his registration with the Board of Professional Engineers Queensland lapsed on 30 June 2016. Mr Winders is a very experienced engineer and the Court draws no adverse inference from the lapse of his registration, which he said was a “complete surprise” to him.[24] In submissions, the Court was informed that the registration of Mr Winders has been restored.
  1. [46]
    Mr Winders was of the opinion that:

“… the draft EA is deficient in not specifying total suspended solids to be equivalent to that which applies to the middle estuary.”[25]

  1. [47]
    Mr Winders describes himself as an environmental engineer.[26] He took part in three expert conclaves, meeting with Dr Andrew McCowan, Dr Thorogood and Mr Batchelor. Dr McCowan, an expert on water flow and mixing, was, by agreement of the parties, not called. There are no issues regarding his opinions. Mr Winders claimed that he was expert in the same areas as the opposing experts. His curriculum vitae begins at page 38 of exhibit 49. He is, as has been noted, a mechanical engineer by training.[27]
  1. [48]
    Mr Winders is of the opinion that the proposed dams should be constructed to meet the applicable requirements where their failure would have a high consequence.[28] He is of the view that this Court should decide on the applicability of this standard to the proposed dams.[29] He does however agree that a registered engineer will need to be involved in the design process and will have to assess the relevant consequence category at that time.[30]
  1. [49]
    Mr Winders is of the opinion that turbidity limits on the discharge water do not adequately deal with the issue of sedimentation, a matter on which he and Dr McCowan did not reach any agreement.[31] He did not raise the issue of sediment with Dr McCowan[32] and it was suggested in cross-examination that it is actually not an issue at all.[33] Mr Winders said that the matter was not about science but about satisfying community values.[34] When cross-examined about suspended sediment and sedimentation, Mr Winders was unable to point to anywhere in his reports where he expressed the concerns which he put to the Court in his evidence.[35]
  1. [50]
    Mr Winders agreed that turbidity is easy to measure.[36] The unit of measurement is Nephelometric Turbidity Units (NTU) and measurement can be done on-site.[37] Measuring total suspended solids is more complicated and usually has to be done off site.[38] He agreed that he failed to raise this in the joint expert report process with Dr Thorogood.[39]
  1. [51]
    Mr Winders agreed that total suspended solids is unlikely to be a concern in assessing whether or not water could be released.[40] He was of the view that compliance with the 50 NTU limit would not exclude a concern of potential environmental harm.[41] He was of the opinion that the impact of the mine is going to be on total suspended solids but could not point to any data actually supporting that.[42]
  1. [52]
    As well as agreeing that sedimentation had not been brought up until he came to the witness box,[43] Mr Winders introduced another point which he described as “critical”, well into his cross-examination.[44] He said that the river flow limits for water release are not appropriate.[45] Mr Winders is an experienced expert witness and was questioned about why he had not raised these matters earlier.[46] He was squarely challenged on the basis that his evidence was false.[47]
  1. [53]
    Mr Winders acknowledged that in exhibit 107 at page 2, item (x) he had agreed with Dr Thorogood that the draft EA provides that minewater may only be released during periods of “significant natural flow” in the river. He accepted that this was directly contrary to the evidence he had just given in Court.[48]
  1. [54]
    Mr Winders pointed out that he had to address three opposing experts.[49] This is so, although producing the expert reports took place over time and he had the choice of whether or not to seek to cover the range of expertise required. Mr Winders is experienced as an expert witness[50] so it is hard to believe that matters which he might regard as important would be likely to first enter his head when he is in the witness box.
  1. [55]
    In the same category of late changes of opinion is Mr Winders’ view that the outfall into the Mary River is “completely unnecessary”.[51] This was initially raised on the second day of his cross-examination. It sits alongside his statement, made only seconds before, that the need for a condition that the minewater dam be “high consequence”, which he did raise in exhibit 111, was “… the nub of – everything I’m involved with here is concerned with that …”[52] If a river outfall was completely unnecessary, it is impossible to believe that it would not have been raised in the reporting process in which the experts engaged. The Court cannot accept this evidence, for the reasons which have been given.
  1. [56]
    Mr Winders did not find any seagrass in the middle estuary area that he inspected.[53] As a result of his inspection, he does not assert that the discharge point, mapped as in the mid-estuary, has the water quality characteristics of the lower estuary.[54] He was of the opinion that the water quality objectives for the lower estuary should be applied to the mid-estuary location at the point of the proposed discharge from the mine[55] “because the fish move up and down”.[56] Mr Winders eventually agreed that the water characteristics at the discharge point reflect the mid-estuary characteristics of the Mary River, not those of the lower estuary.[57] The exchange in this cross-examination illustrates an argumentative approach by Mr Winders rather than the approach of an expert. Additionally, the argument advanced was without any merit. Mr Winders was under no illusions about being argumentative and he said:

“That’s the whole thrust of the argument I’m trying to … put to the court.”[58]

  1. [57]
    Mr Winders did not support using reverse osmosis water treatment as part of the proposed project.[59]
  1. [58]
    The Court had the advantage of carefully observing this witness when he gave evidence. The Court formed the view that he failed to be convincing in raising matters in Court and attaching importance to them when they had not been prominent in the substantial process prior to the hearing. The witness’ manner was defensive in cross-examination and he was unable to give a convincing explanation why matters raised in Court for the first time were not expressed earlier if they were significant. The Court is unable to be satisfied that the concerns first raised in Court are actually matters of importance, for the reasons which have been given.

The statutory party’s case

  1. [59]
    The statutory party called one witness, Mr Timothy Mervyn Brain. He is a manager with the Department of Environment and Heritage Protection. He was the delegate of the administering authority who had the authority to decide applications made to it. His affidavit material became exhibits 86 to 104.
  1. [60]
    In cross-examination by Mr O'Brien QC, Mr Brain was shown exhibit 110, the joint expert report by the mechanical engineers, Mr Elkin and Mr King, in relation to noise.
  1. [61]
    Mr Brain agreed that these experts’ jointly proposed revised noise conditions for the EA should be adopted in place of those in the draft EA.
  1. [62]
    The Court accepts that this is appropriate and recommends that the draft EA be amended accordingly. The revised table, which appears on page 4 of exhibit 110, is in the following form:

Table 1 – Revised EA Noise Conditions: Table D1 – Noise Limits

Colton Coal Pty Ltd v Aldershot and District Against Mining Inc. [2016] QLC 73

  1. [63]
    When cross-examined by Mr Houen, Mr Brain explained that the limits that are used in the draft EA for water discharges are all limits that can be measured with a meter “so that you can get an immediate result”.[60] Turbidity is included to enable a quick measurement and a quick decision about whether the water is compliant with release criteria or not.[61] Turbidity criteria was chosen on the advice from “our scientific advisers”.[62] Mr Brain said that the current version of the model mining conditions “might include total suspended solids”.[63] This matter was not pursued before the Court. Submissions not seen by Mr Brain when he made his decision were provided to the Court and became exhibit 72.
  1. [64]
    Mr Brain said that, in respect of noise and dust at mines, the department would typically respond to complaints and would not proactively set up noise monitoring equipment itself, although it could do so.[64] The monitoring required by the draft EA is not required to be routinely sent to the department but is commonly viewed when inspections are carried out.[65] The submission that the statutory party’s Assessment Report, exhibit 82, should have been made publicly available, as it might have resulted in more objections, is not a matter upon which this Court can take any action.
  1. [65]
    The draft EA, exhibit 9, sets out requirements for dust and particulate monitoring. The respondent is asking for continuous air quality monitoring.[66] Mr Brain stated that there is dust deposition monitoring. Exhibit 9 page 5, condition B2, requires compliance with AS 3580.10.1, Methods for sampling and analysis of ambient air. Condition B3 requires monitoring in accordance with one or other Australian Standard Methods set out in B3, with sampling once every 6 days with a 24 hour sampling period. The sampling locations are specified. The modelling done for this project indicated that dust should not be a problem.[67]
  1. [66]
    Concerning dust contaminating rainwater tanks, that was a matter considered in relation to dust and there are requirements for dust deposition and air monitoring.[68]

The Land Court’s recommendation under s 269 of the MRA

  1. [67]
    Section 269(4) of the MRA requires that when making a recommendation to the Minister that an application for a mining lease be granted in whole or in part, the Court shall take into account and consider a number of specified matters. These will be dealt with seriatim, taking into account all of the material before the Court and the preceding consideration herein. Exhibit 29, the affidavit of Mr Eames, makes detailed reference to these matters.

Section 269(4)(a) – Whether the provisions of the MRA have been complied with

  1. [68]
    An examination of the material before the Court demonstrates that all of the provisions of the MRA have been complied with. There was no submission to the contrary.

Section 269(4)(b) – Whether the areas of land applied for are mineralised or the other purposes for which the leases are sought are appropriate

  1. [69]
    There is coal in this area and the parent company of the applicant is a coal mining company. It was not suggested that there is no coal here. The Court is satisfied that the land applied for is mineralised. In exhibit 29, Mr Eames, a mining engineer, explains in paragraph 42 that over 100 core samples have been drilled in and around the mining lease areas, which are located in the Burrum coalfields. Historically, small scale coal mining was carried out in numerous places in this area of coalfields, Mr Eames states. Where the lease area is sought for infrastructure such as the rail link and coal preparation plant, these are appropriate purposes for the proposed project.

Section 269(4)(c) – Whether there will be an acceptable level of development and utilisation of the mineral resources within the areas applied for

  1. [70]
    Exhibit 29, paragraph 50 shows that there is an anticipated 5 million tons of product coal to be extracted at a rate of half a million tons per annum by open-cut mining. The planned operation, with coal preparation and rail facilities, would be an acceptable level of development and utilisation.

Section 269(4)(d) – Whether the land and the surface area of the land in respect of which the mining leases are sought are of an appropriate size and shape in relation to –

  1. (i)
    the matters mentioned in paragraphs (b) and (c); and
  2. (ii)
    the type and location of the activities proposed to be carried out under the leases and their likely impact on the surface of the land
  1. [71]
    The evidence before the Court shows that the land is a sufficiently regular shape and size in relation to the specified matters and the type and location of the proposed activities and their likely impact on the surface. There was no suggestion to the contrary at the hearing.

Section 269(4)(e) – Whether the term sought is appropriate

  1. [72]
    There was no suggestion to the contrary. The 20 year term sought for Colton A, B and C is appropriate for the preparation, mining and rehabilitation which would be required to be carried out.

Section 269(4)(f) –  Whether the applicant has the necessary financial and technical capabilities to carry on mining operations under the proposed mining leases

  1. [73]
    Exhibit 29, the affidavit of Mr Eames, indicates that the applicant has the necessary means. There was no challenge to this at the hearing.

Section 269(4)(g) – Whether the past performance of the applicant has been satisfactory

  1. [74]
    Exhibit 29, paragraphs 116 and 117, explain that the applicant does not have a history of performance. The applicant was incorporated for the purpose of the proposed project.

Section 269(4)(h) – Whether any disadvantage may result to the rights of—

  1. (i)
    holders of existing exploration permits or mineral development licences; or
  2. (ii)
    existing applicants for exploration permits or mineral development licences
  1. [75]
    Exhibit 29, paragraphs 118 and 119 explain that the only affected tenure holder, Blue Energy, has consented to the grant of the tenures sought.

Section 269(4)(i) –  Whether the operations to be carried on under the authority of the proposed mining leases will conform with sound land use management

  1. [76]
    The terms of the proposed mining lease and EA will have to be complied with. The operations to be carried on would conform with sound land use management if the conditions imposed are adhered to. It is noted that in cross-examination Mr Eames said:

“At this stage I can just reaffirm we have no plans for another application at this point in time.”[69]

  1. [77]
    What is being considered by the Court is the proposal before it. Exhibit 29, paragraphs 70 to 74 under the hearing “Possible future expansion”, set out possible future applications. What distinction there may be between plans and these possibilities was not explored with Mr Eames by any party.

Section 269(4)(j) –  Whether there will be any adverse environmental impact caused by those operations and, if so, the extent thereof

  1. [78]
    There will be an adverse environmental impact caused by a coal mine. The extent will be managed and minimised by the EA. The objections decision relating to environmental matters which is below should be read in this regard.

Section 269(4)(k) – Whether the public right and interest will be prejudiced

  1. [79]
    Exhibit 29, paragraph 123, states that the value of coal production from this project is estimated to be in the order of $80 million per annum for total coal production valued in the order of $800 million over the life of the project. Up to 120 employees would be required for construction and up to 120 full-time staff at full production. Recruitment is expected to be from the local area. Wages cost during construction is estimated to be $32 million. Annual royalty to the State is projected to be approximately $6.7 million, on average, from 2019. Annual payroll tax is estimated to be $600,000. Taxes and charges paid to Federal, State and Local Governments are estimated to be in excess of $17.5 million per annum on average. Direct investment in construction and mining equipment is estimated to be up to $250 million. Fixed infrastructure will be about 60% of this. Up to $100 million of construction expenditures is expected to be sourced from domestic suppliers. Rail and port services expenditure are expected to exceed $13 million per annum on average. There was no challenge made at the hearing to any of this. It does not appear that the public right and interest will be prejudiced. Significant public benefit is in prospect.

Section 269(4)(l) – Whether any good reason has been shown for a refusal to grant the mining leases

  1. [80]
    The consideration of the material put before the Court by the parties at the hearing does not indicate the presence of any good reason for a refusal to grant the mining leases.

Section 269(4)(m) – Whether, taking into consideration the current and prospective uses of that land, the proposed mining operation is an appropriate land use

  1. [81]
    Exhibit 29 sets out that the land is unallocated state land, a road reserve without a constructed road and a railway reserve without a rail line. This was not contradicted. The prospective uses of the land would be likely to be unchanged from current uses were it not for the proposed mining operation. The Court is satisfied that the proposed mining operation is an appropriate land use. No other use was supported in the evidence put before the Court. Historically, the area has supported logging and coal mining.

Conclusion

  1. [82]
    The Court recommends to the Minister that the applications be granted in whole.

Objections decision under the EP Act

  1. [83]
    The Court has considered the matters set out in s 223 of the EP Act, which is applicable due to s 683 of that Act. It is noted that no activities are contemplated in a wild river area and the status of the applications under the MRA has already been considered: they are the subject of the recommendation that they be granted in whole. The application documents and objections are before the Court, as are the reports and evidence of the witnesses. The regulatory requirements were considered in the evidence heard over four days and have been referred to in the consideration above of the evidence produced at the hearing. What was put before the Court at the hearing was not compartmentalised as the MRA and EP Act hearings were conducted together, which provided efficiencies. The Court has considered the Environmental Protection (Water) Policy 2009, the Mary River environmental values and water quality objectives for basin no 138, including all tributaries of the Mary River, exhibit 125. Also considered were the Model Mining Conditions, version 5, exhibit 105. The Court also had the benefit of a comparison of the Colton Coal Environmental Authority Conditions for Water with the Model Mining Conditions and the Model Water Conditions for Coal Mines in the Fitzroy Basin, exhibit 119.

The standard criteria

  1. [84]
    The Court is required to consider the standard criteria. Before turning to this, it is useful to refer to section 3 of the EP Act, which sets out the objective of the Act and section 4, which states how that objective is to be achieved. Those sections state:

3 Object

 The object of this Act is to protect Queensland’s environment while allowing for development that improves the total quality of life, both now and in the future, in a way that maintains the ecological processes on which life depends (ecologically sustainable development).

4 How object of Act is to be achieved

 (1) The protection of Queensland’s environment is to be achieved by an integrated management program that is consistent with ecologically sustainable development.

 (2) The program is cyclical and involves the following phases—

  1. (a)
    phase 1 — establishing the state of the environment and defining environmental objectives;
  1. (b)
    phase 2 — developing effective environmental strategies;
  1. (c)
    phase 3 — implementing environmental strategies and integrating them into efficient resource management;
  1. (d)
    phase 4 — ensuring accountability of environmental strategies.
  1. [85]
    The standard criteria are defined in Schedule 4 in the following way:

standard criteria means—

  1. (a)
    the principles of ecologically sustainable development as set out in the ‘National Strategy for Ecologically Sustainable Development’; and
  2. (b)
    any applicable environmental protection policy; and
  3. (c)
    any applicable Commonwealth, State or local government plans, standards, agreements or requirements; and
  4. (d)
    any applicable environmental impact study, assessment or report; and
  5. (e)
    the character, resilience and values of the receiving environment; and
  6. (f)
    all submissions made by the applicant and submitters; and
  7. (g)
    the best practice environmental management for activities under any relevant instrument, or proposed instrument, as follows—
  1. (i)
    an environmental authority;
  2. (ii)
    a transitional environmental program;
  3. (iii)
    an environmental protection order;
  4. (iv)
    a disposal permit;
  5. (v)
    a development approval; and
  1. (h)
    the financial implications of the requirements under an instrument, or proposed instrument, mentioned in paragraph (g) as they would relate to the type of activity or industry carried out, or proposed to be carried out, under the instrument; and
  2. (i)
    the public interest; and
  3. (j)
    any applicable site management plan; and
  4. (k)
    any relevant integrated environmental management system or proposed integrated environmental management system; and
  5. (l)
    any other matter prescribed under a regulation.
  1. [86]
    The National Strategy for Ecologically Sustainable Development is defined in Schedule 4 as follows:

National Strategy for Ecologically Sustainable Development means the ‘National Strategy for Ecologically Sustainable Development’ endorsed by the Council of Australian Governments on 7 December 1992.

  1. [87]
    In Endocoal Limited v Glencore Coal Queensland Pty Ltd and Department of Environment and Heritage Protection[70] at [42], Member Smith, referring to his decision in De Lacey & Anor v Kagara Pty Ltd[71] said:

“The National Strategy for Ecologically Sustainable Development of December 1992 contains the following statement of Australia’s goal, core objectives and guiding principles for the Strategy:

‘The Goal is:

Development that improves the total quality of life, both now and in the future, in a way that maintains the ecological processes on which life depends.

The Core Objectives are:

• to enhance individual and community well-being and welfare by following a path of economic development that safeguards the welfare of future generations

• to provide for equity within and between generations

• to protect biological diversity and maintain essential ecological processes and life-support systems

The Guiding Principles are:

• decision making processes should effectively integrate both long and short-term economic, environmental, social and equity considerations

• where there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation

• the global dimension of environmental impacts of actions and policies should be recognised and considered

• the need to develop a strong, growing and diversified economy which can enhance the capacity for environmental protection should be recognised

• the need to maintain and enhance international competitiveness in an environmentally sound manner should be recognised

• cost effective and flexible policy instruments should be adopted, such as improved valuation, pricing and incentive mechanisms

• decisions and actions should provide for broad community involvement on issues which affect them

These guiding principles and core objectives need to be considered as a package. No objective or principle should predominate over the others. A balanced approach is required that takes into account all these objectives and principles to pursue the goal of ESD.’

From the precautionary principle perspective, the key is the second bullet point to the guiding principles in the paragraph above, which sets out in a lengthened form what is currently referred to as the precautionary principle – that is, ‘where there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation.”

  1. [88]
    In Xstrata Coal Queensland Pty Ltd & Ors v Friends of the Earth - Brisbane Co-Op Ltd & Ors[72] President MacDonald considered the Goal, Core Objectives and Guiding Principles and said, at [256]:

“The precautionary principle is encapsulated in the second principle above. That is, where there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation.”

  1. [89]
    In Adani Mining Pty Ltd v Land Services of Coast and Country Inc & Ors[73] President MacDonald said:

“Precautionary principle

[36] The first respondent submitted that the precautionary principle was engaged in this case in relation to the DSC, the black-throated finch and the waxy cabbage palm. The application of the precautionary principle was discussed in detail in Telstra Corporation Ltd v Hornsby Shire Council, where Preston CJ said:

“The application of the precautionary principle and the concomitant need to take precautionary measures is triggered by the satisfaction of two conditions precedent or thresholds: a threat of serious or irreversible environmental damage and scientific uncertainty as to the environmental damage. These conditions or thresholds are cumulative. Once both of these conditions or thresholds are satisfied, a precautionary measure may be taken to avert the anticipated threat of environmental damage, but it should be proportionate.”

[37] His Honour went on to say that

  • Determining the existence of a threat of serious irreversible environmental damage does not involve, at the stage of assessing the first condition precedent, any evaluation of the scientific uncertainty of the threat. If there is not a threat of serious or irreversible environmental damage, there is no basis upon which the precautionary principle can operate.
  • The second condition precedent required to trigger the application of the principle is that there be a “lack of full scientific certainty”. The uncertainty is as to the nature and scope of the threat of environmental damage. Full scientific certainty is not required. If there is no, or not considerable scientific uncertainty, the second condition precedent is not satisfied and even though there is a threat of serious or irreversible environmental damage (that is, the first condition precedent is satisfied) the precautionary principle will not apply. The threat of serious irreversible environmental damage can be classified as relatively certain because it is possible to establish a causal link between an action or event and environmental damage, to calculate the probability of their occurrence, and to insure against them. Measures will still need to be taken but these will be preventative measures to control or regulate the relatively certain threat of serious or irreversible environmental damage, rather than precautionary measures which are appropriate in relation to uncertain threats.
  • If each of the two conditions precedent is satisfied the precautionary principle will be activated. At this point the evidentiary burden of proof shifts. A decision–maker must assume that the threat of serious or irreversible environmental damage is no longer uncertain but is a reality. The burden of showing that the threat does not exist or is negligible reverts to the proponent of the development. The rationale for requiring this shift of the burden of proof is to ensure preventative anticipation; to act before scientific certainty of cause and effect is established. The preference is to prevent environmental damage rather than to remediate it.
  • The function of the precautionary principle is, therefore to require the decision-maker to assume that there is or there will be a serious or irreversible threat of environmental damage and to take this into account, notwithstanding that there is a degree of scientific uncertainty about whether the threat exists.
  • There is nothing in the formulation of the precautionary principle which requires the decision-maker to give the assumed factor (the serious or irreversible environmental damage) overriding weight compared to the other factors required to be considered, such as social and economic factors, when deciding how to proceed. The effect of the shift in the evidentiary burden of proof simply means that, in making the final decision, the decision-maker must assume that there will be serious or irreversible environmental damage. That factor must be taken into account in the calculus which decision-makers are instructed to apply under environmental legislation.
  • The precautionary principle should not be used to try to avoid all risks. Rationality also dictates that the precautionary principle and any preventative measure cannot be based on a purely hypothetical approach to the risk, founded on mere conjecture which has not been scientifically verified.
  • The type and level of precautionary measures that will be appropriate will depend on the combined effect of the degree of seriousness and the irreversibility of the threat and the degree of uncertainty. This involves assessment of risk, namely the probability of the event occurring and the seriousness of the consequences should it occur. The more significant and more uncertain the threat, the greater the degree of caution required.
  • Prudence also suggests that some margin for error should be retained until all the consequences of the decision to proceed with the development are known. One means of retaining a margin for error is to implement a step-wise or adaptive management approach, whereby uncertainties are acknowledged and the area affected by the development plan, program or project is expanded as the extent of uncertainty is reduced. An adaptive management approach might involve the following core elements:
➢
monitoring impacts of management or decisions based on agreed indicators;
➢
promoting research, to reduce key uncertainties;
➢
ensuring periodic evaluation of the outcomes of implementation, drawing lessons, and review or adjustment, as necessary, of the measures or decisions adopted;
➢
establishing an efficient and effective compliance system.
  • The precautionary principle embraces the concept of proportionality, that is that measures should not go beyond what is appropriate and necessary in order to achieve the objectives in question. A reasonable balance must be struck between the stringency of the precautionary measures, which may have associated costs, such as financial, livelihood and opportunity costs and the seriousness and irreversibility of the potential threat.
  • The precautionary principle, where triggered, does not necessarily prohibit carrying out the development plan, program or project until full scientific certainty is attained. The solution is to assess the risk-weighted consequences of various options and select the option that affords the appropriate degree of precaution for the set of risks associated with the option.
  • The precautionary principle is but one of the sets of principles of ecologically sustainable development. It should not be viewed in isolation, but rather as part of the package. This means that the precautionary measures that should be selected must not only be appropriate having regard to the precautionary principle itself, but also in the context of the other principles of ecologically sustainable development, including inter-generational and intra-generational equity and the conservation of biological diversity and ecological integrity.

Intergenerational equity

[38] In relation to the principles of equity, Preston CJ said that there is a need for inter-generational equity and intra-generational equity. He explained that inter-generational equity means that the present generation should ensure that the health, diversity and productivity of the environment are maintained or enhanced for future generations. This is the definition contained in s.3.5.2 in the Schedule to the IGAE. Preston CJ said that intra-generational equity involves considerations of equity within the present generation, such as uses of natural resources by one nation-state (or sectors or classes within a nation-state) needing to take account of the needs of other nation-states (or sectors or classes within a nation-state).

Conservation of biological diversity and ecological integrity

[39] In Bentley v BGP Properties Pty Ltd Preston CJ said:

“Maintaining ecological integrity involves maintaining ecosystem health. Ecosystems become unhealthy if their community structure (species richness, species composition or food web architecture) or ecosystem functioning (productivity, nutrient dynamics, decomposition) has been fundamentally upset by human pressures …

The conservation of threatened species is an essential action in the conservation of species diversity, and hence of biological diversity and ecological integrity.” (citations omitted)

  1. [90]
    In the present case, the evidence which has been provided to the Court establishes that the quality requirements imposed for the discharge of water into the Mary River are such that the release does not pose a threat of serious or irreversible environmental damage. There is therefore no basis upon which the precautionary principle could operate in this case. The Court has not accepted the evidence of Mr Winders in relation to the matters already referred to so this conclusion is inevitable on the basis of the remaining evidence. No evidence was led in regard to inter or intra-generational equity beyond the concerns already addressed. The reference to fisheries resources by Mr Winders was based on exhibit 58, the letter dated 13 December 2015 from the Queensland Seafood Industry Association. It states that the mining operation would put the fisheries resource at risk. It does not contain scientific evidence to advance the claim made. Matters of biological diversity and ecological integrity, also first raised by Mr Winders in Court, are not accepted for the same reasons as his other items of oral evidence, first raised in Court.
  1. [91]
    The matters set out in (b), (c), and (e) of the standard criteria have been considered in the evidence given at the hearing to the extent to which the parties directed attention to them. This may be found principally in the oral evidence and the implications of these matters were explored in that evidence. There was no environmental impact study in this case.
  1. [92]
    The character, resilience and values of the receiving environment were considered in the evidence which has been referred to above. All of the submissions have been taken into account and best practice environmental management is incorporated into the draft EA.
  1. [93]
    In Adani Mining Pty Ltd v Land Services of Coast and Country Inc. & Ors,[74] President MacDonald considered the adaptive management approach. That approach is incorporated into the draft EA. The learned President considered that approach warranted in the case before her. The learned President said:[75]

“Preston CJ said, in Telstra, such an approach might involve the following core elements:

  • monitoring impacts of management or decisions based on agreed indicators;
  • promoting research to reduce any uncertainties;
  • ensuring periodic evaluation of the outcomes of implementation, drawing lessons and review or adjustments of the measures or decisions adopted;
  • establishing an efficient and effective compliance system.”
  1. [94]
    The monitoring of management decisions will be based on compliance with the draft EA conditions. There is a compliance system which, if operated efficiently and effectively, is capable of properly supervising compliance. ADAAM submitted that there ought to be a condition that the applicant provides reports that it may have from time to time to the statutory party, and that the statutory party approve designs. This differs from the regulatory regime that has been adopted by the statutory party. The Court is not able to be satisfied by evidence that this is likely to lead to any improved outcomes so is not satisfied that such a condition should be recommended. ADAAM has, in submissions, provided a number of amendments that it suggests be included in the EA in the event that the proposed project is to proceed. The proposed amendments reflect the areas of concern dealt with at the hearing. They are not supported by the other parties. In no case was a proposed condition, when foreshadowed to a witness whose evidence the Court has accepted, agreed to by the witness as being necessary. Since the evidence before the Court did not demonstrate that the draft EA is deficient, except in relation to the need for some revised noise conditions, the Court is not satisfied that there is a need for any other amendments to the draft EA. The Court is accordingly unable, on the basis of the evidence, to recommend any of these amendments.
  1. [95]
    The evidence is that the financial implications of the regulatory regime would not be beyond the resources of the proponent of the project, in view of its position in its corporate structure.
  1. [96]
    The public interest, as the learned President pointed out in Adani Mining Pty Ltd v Land Services of Coast and Country Inc. & Ors:

“… involves a discretionary balancing exercise of the widest import confined only so far as the subject matter and the scope and purpose of the statute may enable.”[76] (citations omitted)

  1. [97]
    The economic benefits of the proposed mine have been referred to, and they are considerable. Weighing against this is the evidence presented to the Court by the experts. The evaluation of that evidence shows that the precautionary principle does not apply and there is no acceptable evidence upon which to base a rational concern that would weigh against the benefits of the proposed project when properly regulated.
  1. [98]
    The planned development and management of the project site and the environmental management system reflected in the draft EA have been taken into account. The Court has not been referred to any other matter prescribed under a regulation which would call for consideration beyond the examination which has been conducted. The evidence does not support a need for sampling and testing of rainwater tanks or for real-time noise monitoring.

Conclusion

  1. [99]
    As has already been referred to, the noise limits in Table D1 of the draft EA need to be revised. They should follow Table 1 on page 4 of exhibit 110, which was set out in [62] above.
  1. [100]
    In accordance with section 222(1)(b) of the EP Act, the Court recommends to the EPA Minister that the application be granted, but on stated conditions that are different to the conditions in the draft.

ORDERS:

  1. In accordance with s 269 of the Mineral Resources Act 1989, the Court recommends to the Honourable the Minister administering the Mineral Resources Act 1989 that the applications be granted in whole.
  1. In accordance with s 222(1)(b) of the Environmental Protection Act 1994, the Court recommends to the Honourable the Minister administering the Environmental Protection Act 1994 that the application be granted, but on stated conditions that are different to the conditions in the draft environmental authority issued on 1 September 2014 to the extent that Table D1 – Noise limits referred to in Condition D1 be replaced with the following revised table:

Table D1 – Noise limits

Colton Coal Pty Ltd v Aldershot and District Against Mining Inc. [2016] QLC 73

WA ISDALE

MEMBER OF THE LAND COURT

Footnotes

[1]Ex 110, pages 7 and 8.

[2]T 2-25, lines 10-31.

[3]Ex 108, pages 5, para 17.

[4]T 2-40, line 23.

[5]T 2-40, line 24.

[6]T 2-42, lines 8-9.

[7]T 2-42, lines 15-16.

[8]T 2-44, lines 1-35.

[9]T 2-54, lines 12-28.

[10]T 2-60, lines to T 44-61 lines 1-2.

[11]T 2-62, lines 12-18.

[12]T 2-65, lines 35-40.

[13]T 2-65, lines 37.

[14]Ex 9, page 18, F10.

[15]Ex 9, page 14, Table F1.

[16]T 2-66, lines 20-23.

[17]T 2-76, lines 45-46.

[18]T 3-14, lines 30-34.

[19]T 3-16, lines 26-27.

[20]T 3-32, line 41 to T 3-33, line 2.

[21]T 3-29, lines 35-37.

[22]T 3-25, lines 20-21.

[23]T 3-31, line 35 to T 3-32, line 6.

[24]T 4-33, line 35.

[25]T 3-44, lines 13-14.

[26]T 3-47, line 17.

[27]T 3-47, lines 29-30.

[28]T 3-52, lines 23-25.

[29]T 3-54, lines 14-15.

[30]T 3-53, lines 23-25.

[31]T 3-58, lines 8-9.

[32]T 3-62, lines 27-28.

[33]T 3-62, line 30 to T 3-63, line 2.

[34]T 3-64, lines 17 to T 3-65, line 11.

[35]T 3-68, lines 35-36.

[36]T 4-3, lines 45-46.

[37]T 4-5, lines 3-5.

[38]T 4-5, lines 11-12.

[39]T 4-13, lines 18-36.

[40]T 4-15, lines 19-46.

[41]T 4-16, lines 4-8.

[42]T 4-17, lines 38-46.

[43]T 4-23, lines 14-16.

[44]T 4-23, lines 30-44.

[45]T 4-23, lines 38-39.

[46]T 4-23, line 46 to T 4-25, line 22.

[47]T 4-25, line 18.

[48]T 4-26, lines 30-36.

[49]T 4-24, lines 20-21.

[50]T 4-23, line 46 to T 4-24, line 2 to T 3-70, lines 23-24.

[51]T 4-31, lines 40-43.

[52]T 4-31, lines 37-38.

[53]T 4-44, lines 1-2 to T 4-44, lines 30-33.

[54]T 4-46, lines 32-37.

[55]T 4-47, lines 7-11.

[56]T 4-47, lines 13-14.

[57]T 4-47, line 7 to T 4-49, line 5 to T 4-50 lines 3-13.

[58]T 4-53, lines 1-3.

[59]T 4-57, lines 37-40.

[60]T 4-75, line 47 to T 4-76, line 2.

[61]T 4-76, lines 4-14.

[62]T 4-76, line 23.

[63]T 4-76, lines 20-21.

[64]T 4-76, lines 35-46.

[65]T 4-77, lines 1-11.

[66]T 4-80, lines 40-42.

[67]T 4-81, lines 44-45 to T 4-82, lines 12-13 to T 4-83, lines 6-14.

[68]T 4-83, lines 9-14.

[69]T 2-76, lines 45-46.

[70][2014] QLC 54.

[71](2009) 30 QLCR 57.

[72](2012) 33 QLCR 79 at [255].

[73][2015] QLC 48.

[74][2015] QLC 48.

[75]Ibid, [268].

[76][2015] QLC 48, [43].

Close

Editorial Notes

  • Published Case Name:

    Colton Coal Pty Ltd v Aldershot and District Against Mining Inc. & Ors

  • Shortened Case Name:

    Colton Coal Pty Ltd v Aldershot and District Against Mining Inc.

  • MNC:

    [2016] QLC 73

  • Court:

    QLC

  • Judge(s):

    Member Isdale

  • Date:

    17 Nov 2016

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Adani Mining Pty Ltd v Land Services of Coast and Country Inc [2015] QLC 48
5 citations
Jump To
Cite 1 - [2015] QLC 48
Cite 2 - [2015] QLC 48
Cite 3 - [2015] QLC 48
Cite 4 - [2015] QLC 48
Cite 5 - [2015] QLC 48
Endocoal Limited v Glencore Coal Queensland Pty Ltd [2014] QLC 54
2 citations
Jump To
Cite 1 - [2014] QLC 54
Cite 2 - [2014] QLC 54
Lacey & Anor v Kagara Pty Ltd (2009) 30 QLCR 57
2 citations
Jump To
Cite 1 - (2009) 30 QLCR 57
Cite 2 - (2009) 30 QLCR 57
Xstrata Coal Queensland Pty Ltd v Friends of the Earth - Brisbane Co-Op Ltd (2012) 33 QLCR 79
2 citations
Jump To
Cite 1 - (2012) 33 QLCR 79
Cite 2 - (2012) 33 QLCR 79

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.