CITATION: | Cement Australia (Exploration) Pty Ltd & Anor v East End Mine Action Group Inc & Anor (No 4) [2021] QLC 22 |
PARTIES: | Cement Australia (Exploration) Pty Ltd ACN 009 800 355 (applicant) Cement Australia (Queensland) Pty Ltd ACN 009 658 520 (applicant) |
v | |
East End Mine Action Group Inc (active objector) Jim Elliott, Maurice James Elliott, Frank Lenz, Anne Patricia Kelly, Robert Geaney, Ross Rideout, Paula Rideout, Theresa May Derrington, Tom Chapman, Lynne Chapman, Philip Mann, Claire Mann, Brent Lashford, Gladstone Regional Council (non-active objectors) and Chief Executive, Department of Environment and Science (statutory party) | |
FILE NOs: | MRA241-18 (ML 80156) EPA242-18 (EPML 000658113) |
DIVISION: PROCEEDING: | General Division Objections to application for mining lease and amended environmental authority |
DELIVERED ON: | 30 June 2021 |
DELIVERED AT: | Brisbane |
HEARD ON: | 21, 22, 23 & 24 July 2020; 27, 28 & 29 July 2020 |
HEARD AT: | Gladstone |
MEMBER: | JR McNamara |
ORDERS: |
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CATCHWORDS: | ENERGY AND RESOURCES – MINERALS – COURTS OR TRIBUNALS EXERCISING JURISDICTION IN MINING MATTERS – QUEENSLAND – application to extend the mine – application for mining lease – application to amend environmental authority – where there were objections to applications – where objections raised issues regarding geology, groundwater, surface water impacts, groundwater to surface water interactions, flooding, noxious weeds and subsoil moisture ENERGY AND RESOURCES – MINERALS – COURTS OR TRIBUNALS EXERCISING JURISDICTION IN MINING MATTERS – QUEENSLAND – where the Court considered the standard criteria in s 269(4) of the Mineral Resources Act 1989 – where the criteria have been met – where the Court accepted that there would be an acceptable level of development and utilisation of the mineral resources within the area applied for – where the size and shape of the surface area is appropriate – where the applicants have the necessary financial and technical capability to undertake the proposed mining operations – where the past performance of the applicants have been satisfactory – where the operations to be carried out under the proposed mining lease conform with sound land use management – where there will be some groundwater drawdown impacts but where the surface water impacts will not be significant and the salinity of surface water beyond the mine should remain unchanged – where the applicants’ approach to avoid, minimise or mitigate adverse impacts mean the public right and interest will not be prejudiced – where there are no good reasons to refuse the grant of the MLA – where the proposed mining operation is an appropriate use of the land applied for ENERGY AND RESOURCES – MINERALS – COURTS OR TRIBUNALS EXERCISING JURISDICTION IN MINING MATTERS – QUEENSLAND – where the Court considered the standard criteria in schedule 4 of the 2013 Environmental Protection Act 1994 – where the Court was required to consider the National Strategy for Ecologically Sustainable Development – where the threats of environmental damage and scientific uncertainty are mitigated through adaptive management and government regulation – where the Court considered the s 233 criteria of the 2013 reprint of the Environmental Protection Act 1994 – where the application documents and regulatory requirements are met – where the standard criteria were considered including the character, resilience and values of the receiving environment, the best practice environmental management, and the public interest – where the Court considered each current objection HUMAN RIGHTS – JURISDICTION AND PROCEDURE – QUEENSLAND – whether the Court has jurisdiction to consider the Human Rights Act 2019 in the absence of objections – where the Land Court has jurisdiction and a duty to consider human rights in the absence of submissions – where s 24(2) of the Human Rights Act 2019 was considered – where the human right to property would not be prejudiced – where the proposed expansion is proportionate to the public interest Acts Interpretation Act 1954 (Qld) sch 1 Charter of Human Rights and Responsibilities Act 2006 (Vic) s 20 Environmental Protection Act 1994, as at 14 March 2013 sch 4, s 3, s 4, s 150, s 197, s 217, s 222, s 223, s 251, s 559, s 559 Environmental Protection Act 1994 s 683 Human Rights Act 2019 s 2, s 8, s 13, s 24, s 58, s 59 Land Court Rules 2000 r 24F Mineral Resources Act 1989 s 235, s 265(2), s 268(3), s 269, s 276, s 334ZP, s 391A Water Act 2000 ch 3, s 839 ACI Operations Pty Ltd v Quandamooka Lands Council Aboriginal Corporation [2002] 1 Qd R 347; [2001] QCA 119, cited Adani Mining Pty Ltd v Land Services of Coast and Country Inc & Ors [2015] QLC 48, followed Alexandria Landfill Pty Ltd v Transport for NSW (2020) 103 NSWLR 479; [2020] NSWCA 165, considered Aurukun Shire Council v CEO Office of Liquor, Gaming and Racing in the Dept of Treasury [2012] 1 Qd R 1; (2010) 265 ALR 536, considered Cement Australia (Exploration) Pty Ltd & Anor v East End Mine Action Group Inc & Anor [2019] QLC 18, cited Cement Australia (Exploration) Pty Ltd & Anor v East End Mine Action Group Inc & Anor (No 2) [2020] QLC 25, cited Cement Australia (Exploration) Pty Ltd & Anor v East End Mine Action Group Inc & Anor (No 3) [2021] QLC 15, cited Certain Children v Minister for Families and Children (No 2) (2017) 52 VR 441; [2017] VSC 251, considered Coast and Country Association of Queensland Inc v Smith & Ors [2016] QCA 242, applied Environment East Gippsland Inc v VicForests (2010) 30 VR 1; [2010] VSC 335, considered Friends of Leadbeater’s Possum Inc v VicForests (No 4) [2020] FCA 704, cited Hail Creek Holdings Pty Ltd & Ors v Michelmore [2020] QLC 16, cited Lee v Kokstad Mining Pty Ltd [2008] 1 Qd R 65; [2007] QCA 248, cited Mabo v Queensland (1988) 166 CLR 186; (1988) 83 ALR 14, cited Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; (2001) 25 NSWCCR 218, applied Minogue v Dougherty [2017] VSC 724, cited Mt Ruby Mines Pty Ltd v Dunn [2019] QLC 46, cited New Acland Coal Pty Ltd v Ashman and Chief Executive, Department of Environment and Heritage Protection (No 4) [2017] QLC 24, considered New Acland Coal Pty Ltd v Smith & Ors (2018) 230 LGERA 88; [2018] QSC 88, distinguished Oakey Coal Action Alliance Inc v New Acland Coal Pty Ltd & Ors (2019) 2 QR 271; [2019] QCA 184, cited Pembroke Olive Downs Pty Ltd v Sunland Cattle Co Pty Ltd & Ors [2020] QLC 27, applied PJB v Melbourne Health and Another (Patrick’s Case) (2011) 39 VR 373; [2011] VSC 327, followed Symbolic Resources Pty Ltd v Kingham & Ors (2020) 5 QR 155; [2020] QSC 193, applied Telstra Corporation Ltd v Hornsby Shire Council (2006) 67 NSWLR 256; (2006) 146 LGERA 10, applied Waratah Coal Pty Ltd v Youth Verdict Ltd & Ors (No 2) [2021] QLC 4, applied Waratah Coal Pty Ltd v Youth Verdict Ltd & Ors [2020] QLC 33, applied |
APPEARANCES: | D Kelly QC, with J O'Connor (instructed by Carter Newell) for the applicants A Lucke (advocate) for the active objector, with Mr Brady (agent, for a limited purpose) K McAuliffe-Lake (instructed by Litigation Unit, Department of Environment and Science) for the statutory party |
Table of Contents
Introduction9
Background10
The nature and scope of the hearing11
Court Managed Expert Evidence12
Pre-hearing12
Submissions and pre-hearing issues13
The hearing16
The applicable legislation16
MRA16
EPA17
Water Act18
HRA21
The objections24
Geology26
‘Karst explained’27
‘Karst features’29
Local aquifers30
Core samples and drill logs32
Modelling34
Pumping of sinkholes36
Conclusions38
Groundwater40
Quantity41
Drawdown41
Environmental impacts45
Quality47
Conclusions50
Surface water impacts51
Quality51
Quantity55
Conclusions56
Groundwater to surface water interactions57
Conclusion61
Grout curtain62
Conclusion64
Flooding64
Conclusion66
Noxious weeds66
Conclusion68
Subsoil moisture68
Conclusion69
The statutory criteria69
MRA70
Section 269(4)(a) - Have the provisions of this Act been complied with?70
Section 269(4)(b) - Is the area mineralised, or are the other purposes for which the lease is sought appropriate?70
Section 268(4)(c) - If the area is mineralised, will there be an acceptable level of development and utilisation of the mineral resources within the area applied for?71
Section 269(4)(d) - Is the land and the surface area of the land applied for of an appropriate size and shape?72
Section 269(4)(e) - Is the term applied for appropriate?72
Section 269(4)(f) - Do the applicants have the necessary financial and technical capabilities to carry on mining operations under the proposed mining lease?73
Section 269(4)(g) - Has the past performance of the applicants been satisfactory?73
Section 269(4)(h) - Is there any disadvantage to existing holders or applicants for exploration permits or mineral development licences?76
Section 269(4)(i) - Will the operations to be carried on under the authority of the proposed mining lease conform with sound land use management?77
Section 269(4)(j) - Will the operations cause any adverse environmental impact and, if so, to what extent?79
Section 269(4)(k) - Will the public right and interest be prejudiced?81
Section 269(4)(l) - Has any good reason been shown for refusing the application?83
Section 269(4)(m) - Taking into account the current and prospective uses of the land, is the proposed mining operation an appropriate land use?84
2013 EP Act84
Standard Criteria (a) – National Strategy for Ecologically Sustainable Development85
Precautionary principle86
Intergenerational equity91
Conclusion93
2013 EP Act – Section 223 criteria94
Section 223(a) – The application documents for the application94
Section 223(b) – Any relevant regulatory requirement96
Section 223(c) – The standard criteria96
Standard Criteria (a) - National Strategy for Ecologically Sustainable Development96
Standard Criteria (b) - Any applicable environmental protection policy97
Standard Criteria (c) - Any applicable Commonwealth, State or local government plans, standards, agreements or requirements97
Standard Criteria (d) - Any applicable environmental impact study, assessment or report97
Standard Criteria (e) - The character, resilience and values of the receiving environment98
Standard Criteria (f) - All submissions made by the applicants and submitters99
Standard Criteria (g) - The best practice environmental management for activities under any relevant instrument or proposed instrument, as follows an environmental authority99
Standard Criteria (h) - Financial implications of the requirements under an environmental authority as they would relate to the type of activity or industry carried out, or proposed to be carried out, under the instrument99
Standard Criteria (i) - The public interest100
Standard Criteria (k) - Any relevant integrated environmental management system or proposed integrated environmental management system100
Standard Criteria (l) - Any other matter prescribed under a regulation101
Conclusion101
Section 223(d) – Wild River declaration for the area101
Section 223(e) – Each current objection101
Section 223(f) – Any suitability report for the application101
Section 223(g) – The status of any application under the MRA for each tenement102
HRA102
Engagement – What rights might the objector seek to invoke?102
Limitation - How might the alleged rights be limited?103
Justification – Are the limitations reasonable and demonstrably justified, in accordance with procedural requirements, not arbitrary and proportionate to other competing private and public interests?104
Are the limitations reasonable and demonstrably justified?104
Is the limitation in accordance with procedural requirements proportionate to other competing rights and not arbitrary?106
Proper consideration – Even if the limits are lawful and proportionate has the decision given proper consideration to the rights engaged?106
Inevitable infringement – Does a statutory provision or law prescribe a different decision?107
Conclusion on human rights107
Conclusions107
Orders110
Introduction
Background
The nature and scope of the hearing
Court Managed Expert Evidence
Pre-hearing
“In Makita v Sprowles, Heydon JA described six expert opinion admissibility requirements:
Rule 24F provides that an expert’s report must, inter alia, give details of qualifications; detail literature or other material relied on in making report; and, where there is a range of opinion on the matters dealt with in the report, summarise the range of opinions and give reasons for the experts own opinion.”[9] (citations omitted)
Submissions and pre-hearing issues
“There are also some matters of relevant [sic] that we take the objection because we say it’s beyond the terms of this hearing and the jurisdiction conferred upon this court by way of statute, by way of processes that it follows. We don’t ask the court to waste valuable time ruling on those objections at the outset. We take the objections now in writing for the record, and we will, in our written closing submissions, deal with the objections to the extent we need to. And if it becomes necessary for the court to have to deal with the objections by way of a final decision we are content for that to occur in the reasons.
What effect that has on documents being tendered and how they are treated by way of exhibit we will provide a solution for your Honour in terms of whether it’s given an exhibit number subject to an objection being taken. So can I hand up the applicant’s objections to the EEMAG Group’s lay evidence. Now, as I said, I don’t intend for time to be wasted dealing with those objections. Can I say something more briefly about objections, your Honour. I apprehend the reality of the way this case will run is that there may be questions put – I don’t say this in a pejorative sense. But there may be questions put that are irrelevant or which are not properly put or which are potentially unfair to the witness.
My side of the record is very conscious of the agreed trial plan, the need for this court sitting effectively on circuit to adhere to the trial plan, the fact that expert witnesses are flying in. We want the proceeding to run efficiently. Where necessary – my approach to objections will be I will tend to take objections if I think it’s necessary to take them. It may ultimately be that evidence is not objected to but which is actually irrelevant to your statutory function, in which case it would appear to me to be appropriate or possible for that evidence to be noted in closing written submissions to your Honour if it is considered by either side to be irrelevant as a matter of jurisdiction. Even though it’s given an exhibit number it still seems to me to be appropriate that, by the party’s conduct, they can’t expand a jurisdiction that is given to this court under statute. That’s all I wish to say about objections.”[17]
“tutored, mentored as participants with top of the tree educationalists, Karst aquifer specialists, Smith … Finlayson … Volker and also Dr James; some EEMAG members were treated as equals in group discussions and communications … thus taking the comprehension of such individuals far beyond raw amateur status.”[18]
The hearing
The applicable legislation
MRA
“…The constraint also extends to the making of submissions on an issue that is not within the scope of an objectors’ objections. Further, where the objections are made in broad terms, the Court may only look to the facts and circumstances as stated in the objections for guidance as to whether an issue (or evidence) is or is not within the scope of an objection. As was found in Symbolic Resources Pty Ltd v Kingham & Ors [2020] QSC 193, it is not sufficient for an objector to make objections “on a fairly basic level” and then lead evidence that is not fairly raised either by the grounds of objections themselves or on the facts and circumstances stated within their duly lodged objection.”[23] (citations omitted)
EPA
Water Act
“The separation of the consideration of issues concerning groundwater from other environmental issues relating to an intended mining project was inconvenient. For this reason, amendments have been enacted so that interference with groundwater is now one of the rights of the holder of a mining lease. The consequence is that interference with underground water, of the kind in issue in this case, now constitutes part of the “operations to be carried on under the authority of the proposed mining lease” and is, for that reason, a matter to be taken into account by the decision maker. However, those amendments do not apply to this case.”[30] (citations omitted)
“24. While the Applicants did (and do) propose to take or interfere with underground water in the area of its proposed mining lease, prior to 6 December 2016, it was not necessary for the Applicants to apply for a water licence or water permit under the 2016 Water Act before they could take or interfere with that water as part of the mining activities to be conducted under the proposed mining lease. This is because:
24.1 While section 808(1) of the 2016 Water Act made it an offence to take or supply water to which the Act applied, the section also provided that no offence was committed if the taking or interference was authorised under that Act;
24.2 “Water” was defined under the 2016 Water Act to include “underground water”, while “underground water” was defined to include both “artesian” and “subartesian” water. Relevantly, “subartesian water” was defined as “water that occurs naturally in, or is introduced artificially into, an aquifer, which, if tapped by a bore, would flow naturally to the surface”;
24.3 “Artesian” and “Subartesian” underground water was treated differently under the 2016 Water Act. Section 20(2)(c) granted a general authorisation to a person to “take or interfere with subartesian water” for any purpose. There were three exceptions to this:
24.4 The consequence was that, a person did not have to apply for a water entitlement (such as a water licence or a water permit) before the person was able to interfere with underground water if the underground water was “subartesian water” (within the meaning of that term under the 2016 Water Act) and none of the three exceptions applied;
24.5 The underground water that the Applicants proposed (and still propose) to interfere with as a consequence of their proposed mining lease is “subartesian” groundwater for the reasons set out in the Affidavit of Noel Merrick affirmed 6 July 2020 particularly at [12] to [15]; and
24.6 None of the three exceptions set out in paragraph 24.3 apply because prior to 6 December 2016:
“In conclusion, it is my opinion that the groundwater that enters the East End Mine pit and is then pumped out is “subartesian water”. This is the only groundwater that is proposed to be taken or interfered with by the Applicants’ mining lease application 80156, and it is the impact from the taking of or interference with that groundwater that is addressed in my previous statements of evidence.”[32]
HRA
“…There is no dispute the Minister and the Chief Executive of the statutory party are each subject to s 58 when they make their final decision on the relevant application. To avoid acting unlawfully, they must not act or make a decision that is not compatible with human rights, and in making their decision, they must properly consider relevant human rights. If the question of compatibility with human rights is beyond this Court’s jurisdiction, the Minister and the Chief Executive of the statutory party will not have the benefit of a recommendation made after consideration of the engaged human rights. Both decision makers would likely have to develop some additional process to comply with s 58(1). Given the role the Court’s recommendation plays in the decision making process for both applications, as a matter of policy, an interpretation that avoids that burden better achieves the purpose of the HR Act.”[36]
An act, decision or statutory provision is compatible with human rights if the act, decision or provision—
“(1) Section 58(1)(a) – ‘Engagement’: whether the prospective decision is relevant to a human right (and which right)…;
The objections
Objector | Objection under MRA s 265(2) | Objection under EPA s 683 |
Jim and Maurice Elliot | X | X |
Frank Lenz |
| X |
Anne Patricia Kelly | X | X |
Robert Geaney | X | X |
Ross and Paula Rideout | X | X |
East End Mine Action Group Inc | X | X |
Theresa Mary Derrington |
| X |
Tom and Lynne Chapman |
| X |
Philip and Claire Mann |
| X |
Brent Lashford | X | X |
Gladstone Regional Council |
| X |
Total | 6 | 11 |
Geology
‘Karst explained’
“The general term karst is applied to landscapes composed of limestone and similar rocks their special property is their solubility.
Karst explained
…
Rainwater enters limestone through bedding planes, fractures and faults in the rock. The nature of these lines of weakness are complex and dependent on the type of limestone, the way it was originally deposited, e.g. thick beds or thin beds, and the way it has been broken and deformed by earth movements. This means that no two areas of limestone are identical so each case must be examined individually. As water flows along these planes and fractures it takes the CaC03 into solution leaving behind a small amount of residue and a space, which provides a 'pathway' through the rock.
…
Why Karst is so special
Karst and non-karst aquifers
There are significant differences between karst aquifers and non-karst or ‘normal’ aquifers… These differences affect the extent to which it is possible to predict how these aquifers will react to outside interference, such as the dewatering of a mine. In a ‘normal’ aquifer, dewatering of a mine will cause the water table to be lowered adjacent to the mine; the amount of lowering and the distance away from the mine that it can be observed depends on the permeability of the aquifer. This is a measure of the ease with which water can flow through the rock and can be measured in boreholes.
…
In the case of karst aquifers, the effect of the mine will depend on which and how many of the solution pipes in the rock are intercepted by the mine. Finding out how the aquifer behaves, and working out the details of the pipe network, is a time consuming exercise which involves tracing water flow through the pipes. This is usually done using dyes which fluoresce or emit light when ultraviolet light is shone on them. Each connection has to be painstakingly identified with a dye trace, which may take weeks or months to complete.” [56]
“… it is important to distinguish between the morphological and functional recognition of karst. Many landscapes continue to display karst landforms developed in earlier phases of landscape development, even though the groundwater systems underlying them no longer function in a karstic manner. For instance, in the Carboniferous Limestone of south-west England and Wales, caves developed when the limestones were first exposed sub-aerially in the Triassic are often intercepted in quarries and other excavations. It is often found that the caves have been occluded by sediment fill, and in some cases mineralisation, and that they are no longer conduits for groundwater flow. Such fossil karst terrains are termed paleokarst. They are the result of major changes in the boundary conditions for karst development, caused by changes in climate, sea level, and patterns of sediment supply (Osborne 2000). Thus, although the presence of a distinctive karst morphology may indicate that the associated aquifer is actively karstic, this need not necessarily be the case. However, the precautionary principle should again be applied, with the aquifer assumed to be actively karstic unless it can be shown that it is not.”[58]
“... At the smallest scale is matrix porosity, comprising intercrystalline and inter-granular pores of small diameter (50-500 μm). At the intermediate scale are fractures that have experienced little or no dissolutional enlargement and have typical widths of <1 mm. Because of their small apertures, flow is laminar in both these types of opening. However, at the largest scale of dissolutional channels, apertures range from several millimetres in dissolutional fissures to metres in cave conduits, and under most head conditions flow is turbulent. The development of turbulent flow in karstic channels is important because it allows sediment transport by groundwater flow, which may impact upon water quality. More significantly, flow can no longer be described using Darcy’s Law (which applies only to laminar flow) and conventional approaches to groundwater flow modelling are inappropriate.”[59]
‘Karst features’
“Due to the importance of groundwater flow to the Project, the karst features in the area and the type of karstification in the East End limestone is an important consideration. The limestone in the area is ancient (380-430 Ma) and, due to subsequent processes (e.g. orogenesis, dissolution, brecciation, faulting and plutonic activity), is much altered from its original orientation and composition.
Exposed limestone boulders occurring to the immediate west of the Project Area have weathering patterns characteristic of karstification. Rillenkarren (closely spaced solution channels) has formed on their surfaces with rill spacings of 2-3 cm. The underlying unexposed rock surfaces form smoother rundkarren which may include solution holes.
A few sinkholes (dolines) occur to the immediate west of the Project Area. The locations of these sinkholes are marked by the presence of fig trees that send long tap roots along vertical fissures in the limestone. The sinkholes have a clay base 1-2 m below the ground surface. In the marble pit excavation (ML 80009), a relict subterranean cave with a smooth horizontal roof occurs 3 m below the surface of the limestone deposit. This relict cave has a depth of 0.3 m and is filled with fine-grained material.
On the higher benches in the existing mine pit, the older faces on the eastern side of the pit adjacent to the crusher have been exposed for many decades. Extensive vertical fissures characteristic of epikarst are apparent in these older faces. Most of the fine-grained sediment originally present in these fissures has been eluted after exposure. As a result, the macroporosity of these pit faces does not give a true indication of the extent of secondary porosity in the unexcavated limestone aquifers surrounding the mine. The more recently exposed faces in the north, south and west of the existing mine display fissures with fine-grained sediment still intact.
The variety of clay infill in the relict fissures, caves and chambers indicates various sediment sources, and modes of deposition and alteration. The depth of clay overburden is greatest to the north of the existing pit. As seen in the higher benches, well-weathered consolidated rocks occur as “floaters” within this clay matrix.
Below a certain depth, massive limestone occurs. No caves or other dissolution features are present in this limestone.
There are many types of karst; the type of karst described above falls within the category of paleokarst or buried karst. Buried karst is typically infilled by unconsolidated younger sediments. This infilling has significance for its hydraulic properties.”[60]
Local aquifers
“At the end of Professor Merrick's "Statement of Evidence" there are a number of photographs that make the present East End mine look as though it is located in a semi-desert region - when it pumps out water at an exorbitant rate. Poignant attention is also drawn to the fact that the photographs reveal dry limestone faces of the mine. Such dryness is quite typical of the steep slopes of open cut mines, particularly when pumping is used at the base and draws down the outlet of groundwater. Further, it does not necessarily mean a complete of absence of water at the higher levels of an open pit, only that water seeping out to such (often hot) rock faces is quickly evapourated [sic].”[66]
“I’ve always said never have I deviated from the fact that East End is paleo cast. It doesn’t function as a cast. When an alec – if you let me explain, when you look at the walls of the pit, so the – your Honour, the big south wall of the pit. I don’t know if you’re familiar with that. There’s no casting structures in it. There’s no deep-seated casting structures. I’ve been in the bottom of that pit and watched how the water inflows because it – I’m interested in it too and it’s actually fascinating. And you see the upper length by a fractured rock acquifier Darcian flow. That’s all that it is. It’s a paleo cast. You can see quasi-casting development in the upper benches. I absolutely agree with that. But you also see now they’re limited in depth to the extent they’ve been in-filled with clays. We’ve tested that clay. That clay is semi- pervious to impervious. We use it for lining the dams for lining the diversion drain, for that very purpose. So when those channels have been filled with clay, they’re in – largely have tendered the minus 9 perviousness. They’ve – they’re very very slow at transmitting [indistinct].”[68]
“…There is absolute karst at Bracewell. Totally agree with that; totally agree. But in the East End proximity of the mine and the Schultz MLA, to the best of my knowledge and understanding, it’s, very clearly, paleokarst. You can see that in the benches. I’ve never veered from thinking it’s anything else. If it was karst, the mine, your Honour, was flooded for five years. It was flooded. If it was karst and there were sinkholes everywhere, the water would have disappeared.”[70]
Core samples and drill logs
“… I have examined a number of the drillhole reports, and for the East End the key geotechnical findings show that geotechnical conditions within the massive limestone and marble improve at depth, with only one significant cavity intersected within drillhole EED13-01 at 15 m depth (CEM4126, page 1), which resulted in significant core loss (4.5 metres) associated with clay infill within the cavity as shown in figure 15. The occurrence of any minor cavities within the marble appears to decrease with depth as the marble becomes more massive and less weathered in nature.
I note that most of the drilling undertaken has been for the purposes of estimating mineral content and resource evaluation, rather than for geotechnical purposes. Hence, there are generally no records of RQD (Rock Quality Designation) or fracture spacing indices, nor water injection (Packer Tests). However, the geotechnical behaviour of batter slopes is generally well understood from previous workings of the existing limestone mine.
Nevertheless, it is apparent from the core photos that the rock is characterised by fractures and shear zones, and zones of locally more weathered material.”[72]
Modelling
“DR MERRICK: You’re assuming that discontinuation of the model implies failure. I don’t accept that at all. There is nothing wrong with the Kalf models, with the second model – the second model, which was an improvement of the first model. All it means is that he – he ceased to be engaged to develop the model further for whatever reason. It does not imply failure. I still regard the second model of Kalf as the best model. It is better than the ones that have been done recently; why? Because it includes Bracewell. The two more recent models don’t include Bracewell, and the Kalf model is very well-calibrated dynamically against groundwater hydrographs; the two most recent models are not. There is nothing wrong with the Kalf model. It is not a failed model, so it’s wrong to draw the conclusion that discontinuation means failure.”[82]
“MR LUCKE: And have you ever had any experience where a karst aquifer was modelled as a karst aquifer?
DR MERRICK: Yes, I have.
MR LUCKE: And - - -
DR MERRICK: Last year, I did a model. I did it both ways, as a porous medium and as a karstified system with contiguous channelling and it made very little difference to the results. The karstified assumption was less consistent with the observed groundwater contours, the porous medium system was – matched the groundwater contours better and was a better conceptualisation, even though it was known that this particular area was definitely karstified.”[84]
Pumping of sinkholes
Conclusions
Groundwater
“(a) Nine objections in relation to the potential depletion of groundwater levels reducing the availability of water in private bores for stock watering, irrigation of crops or pastures, and domestic use;
Quantity
Drawdown
Environmental impacts
“52. In the Statutory Party’s submission, the following provisions of the draft EA sufficiently protect GDE’s from environmental harm posed by the expansion, and that no amendment is necessary:
a. Condition D18 and Table D5: prohibits groundwater extraction activities from causing any environmental harm to the GDEs inside or outside the zone of influence.
b. Condition D22, Table D6, D27, and Table D8: additional monitoring locations conditioned in the draft EA are expected to manage areas where the zone of influence is predicted to extend as a result of the proposed amendment.
c. Condition D19, D20 and D21: requires EA holders to develop, implement and regularly review for effectiveness a monitoring and management system for identified risks to groundwater quality and levels and to analyse monitoring data against the objectives set within the conditions.
d. Condition D27: requires the EA holder to investigate and notify the Department if the water level of groundwater drops below the historical observed minimum and ensure compliance with condition D18.
e. Condition D28, D29, D30: requires the EA holder to ensure monitoring is undertaken appropriately and that the monitoring bores are adequate and targeting the appropriate aquifers.
f. Condition D31: requires a program for monitoring and management of subterranean fauna to ensure the environmental values of groundwater are protected. Due to the limited scientific knowledge of subterranean fauna and that they have been detected within the project area, a program is required to establish appropriate monitoring and management practices for the specific project area.
g. Condition D32: sets the protocol and minimum requirements for the Subterranean Fauna Monitoring and Management Program required by condition D31 to ensure EVs of groundwater associated with subterranean fauna are protected.
h. Condition D33 and Table D9: if the standing water level of groundwater measured at any compliance bore is less than the corresponding trigger levels in Table D9, the EA holder must notify DES and review the Subterranean Fauna Monitoring and Management Program. Trigger levels are considered necessary and desirable to ensure that lack of current scientific knowledge on GDE's does not result in the activities causing an impact on groundwater levels and subsequently GDE's (i.e. stygofauna).
i. Any further lowering of groundwater levels from historical levels will require a review of the program required by condition D32.
j. Condition D22, D24, D25, D26, D27: require monitoring of groundwater to verify predicted impacts.”[123] (citations omitted)
Quality
“The application did not determine that there will be an impact to the groundwater quality within the zone of influence. The application raised that the drawdown of groundwater has the potential to affect the groundwater quality, however did not sufficiently determine the likely impact. A review of groundwater data within the zone of influence, undertaken by the administering authority, did not identify any significant historical deterioration of groundwater quality. Therefore, the assessment is based on the assumption that there will be no deterioration in current groundwater quality as a result of the proposed amendment and the administering authority has imposed condition D23 of the draft EA which prohibits the deterioration of groundwater quality.”[124]
“During the period of mining when stream losses are induced, particularly from Schultz Lagoon and Larcom Creek, groundwater quality is likely to improve marginally by mixing of innate groundwater and introduced surface water.
After mining has finished, a pit lake maintained by the balance between rainfall and evaporation is expected to act as a flow-through system with continual flushing so that no salinity impacts to Larcom Creek are likely.”[126]
“The answer is – the answer is yes. So what is of importance is the behaviour of the entire groundwater system and that consists of limestone, volcaniclastics and alluvium, so you need monitoring bores in all three types of pathologies, If we had no bores in the volcaniclastics, we couldn’t draw those groundwater contour maps, so you do have bores in all types.”[129]
“63. The Statutory Party rejects that the classification of any of the bores in the draft EA is inaccurate, and submits that compliance with the conditions of the draft EA will address and adequately protect against the concerns raised in the objections of the Respondents in relation to groundwater quality, and that no amendment is necessary:
a. Condition D23: prohibits the deterioration of groundwater quality.
b. Condition D18: prohibits groundwater extraction activities from causing any environmental harm to the GDEs inside or outside the zone of influence.
c. Condition D23, D24, D25 and D26: “are expected to ensure the proposed activity is managed appropriately to meet the relevant water quality objections to protect environmental values of groundwater.”
d. Table D7: Groundwater quality limits derived from the 80th and 95th percentiles of historical data for the individual bores.61 A deviation/increase of these percentiles will indicate that a degradation of water quality may be occurring and requires investigation.
e. Condition D24: requires that the EA holder meet the quality limits in Table D7. The limits are expected to protect the EVs of groundwater.
f. Consecutive exceedances have been included in conditions D24 and D25 to account for statistically valid variation. The statistical probability of multiple exceedances is very low and therefore is considered to be an actual change in groundwater quality.
g. Conditions D24, D25, and D26 are expected to ensure no degradation to the groundwater quality outside of the modelled zone of influence.
h. Condition D26 requires resampling of groundwater if it exceeds certain limits: a quality assurance measure to reduce the likelihood that the initial exceedance of the limit was because of a sampling or laboratory error.”[131] (citations omitted)
Conclusions
Surface water impacts
“68. The relevant objections are as follows:
a. Six objections raised in relation to potential impacts to surface water quality resulting from the discharge of contaminated water from the project to Larcom Creek, including impacts to: land, livestock and crops in Larcom Creek and ecosystems and environmental values in Larcom Creek.
b. One objection in relation to the potential for evapotranspiration effects in the settling ponds such as to increase salinity of the water for discharge.
c. One objection in relation to surface water monitoring locations within Scrub Creek.”[132]
Quality
“Potential impacts including the potential reduction of base flow and desiccation of waterholes in Machine Creek, Larcom Creek, and Scrub Creek were considered in the assessment of the application as they relate to environmental values and were conditioned in the draft EA to protect identified environmental values.”[133]
“In addition, maximum dewatering rates have been 30 ML/day, which is in accordance with current EA conditions after extended periods of rainfall. In terms of infiltration, based on my inspection of the pit and also on long term monitoring data since 1997, there is only minor groundwater flow infiltrating into the pit, which I estimate to be between 1 and 2.5 ML/day. With the proposed mine expansion, I expect long term dewatering rates similar to those occurring over the last 10 years.”[140]
“MR COLLINS: I can’t comment on the models, but I can comment on the data, and my figure 4-2 and also reference to dewatering average rates on page 20 of my surface water statement of evidence show, in fact, that the dewatering rates, which represent the inflow rates, have stabilised, and if they’re doing anything, they’re going down very, very slightly over time once you take out the large rainfall events.
MR LUCKE: Good.
MR COLLINS: It’s quite clear to me from that analysis.
MR LUCKE: Yes. Okay. But just using your point, when you say that the discharges have stabilised, I mean, this is the biggest volume of water that’s been discharged from the mine in the decade – in the last decade, and obviously it comes about because of those extraordinary rainfall tallies in 2010 and in 2013, and good seasons persisting until 2016, which were below average, and 2017 being reasonable again. I’ve never seen any figures like that that were pumped out during that period from 2010 onwards for those, say, five years, so any claim that the volume from – discharged from the mine has stabilised doesn’t conform with the past history, where there’s also been levels sometimes where it’s got down to less, possibly, than two metres a day – megalitres, I mean. So we’re just going through a cycle again where rainfall – the mine’s so well-connected that you’re getting inflows to the mine to a much greater degree than they’ve ever had, and now volume’s being pumped out again, and mine discharge is falling in proportion.
MR COLLINS: Well - - -
MR LUCKE: And that’s not stabilisation in my book.
MR COLLINS: Well, the numbers are very clear to me. Once you take off the rainfall events, it has stabilised. And I agree, two-thousand – 1997 to 2010, it averaged seven megalitres a day, and then 2011 to 2018 – sorry, I should start again. Nineteen-ninety-seven to 2010, 2.3 megalitres a day average, and then 2011 to 2018, seven megalitres a day solely because of the increased rainfall.
MR LUCKE: Absolutely.
MR COLLINS: But if you actually look at the base numbers in those graphs – that graph that I’m referring to, figure 4-2, you can see very clearly the upper and lower limits of what the pumping lines are for the groundwater, and it’s on the lower end, around one to 2.45, when there’s no rainfall, and it could be as much as 5 in other periods, but it’s not going higher than five; it’s actually dropping below five megalitres a day.”[141]
“The authority defines the two key release points in terms of mine dewatering at release points A (weir 1) and (weir 6).
In terms of water quality, contaminant release limits specified (Table D2) are:
Electrical conductivity (salinity measure) of 5000μs/cm
pH between 6.5 and 8.5
Turbidity limit of 20 NTU
Annual Monitoring Reports by Groundwork Plus from 2010 to 2018, show that the existing mine complies with these requirements. Given that I conclude above, that no significant changes will occur due to the mine expansion in terms of water quality, I further conclude that these requirements are suitable and can be complied with and that the draft EA contains sufficient requirements to ensure that no significant off site environmental harm will occur.
I also note that monthly ongoing monitoring is required, with daily additional monitoring for discharges greater than 6 ML/day, ensuring that future compliance can be adequately demonstrated.”[142]
“The REMP should provide for the existing mine water release rates. I consider that the existing mine water release rates should be adopted in the REMP i.e. to a minimum of 8.1 ML/day up to a maximum of 30 ML/day.
I note that these requirements have generally been met over the last 10 years for the existing mine, and with no significant change in release rates or quality, these criteria will be met in the future with the expanded mine.”[143]
“75. The Statutory Party submits that compliance with the conditions of the draft EA will address and adequately protect against the concerns raised in the objections of the Respondents in relation to mine water discharge.
a. Conditions D1 to D10: regulate the release of contaminated water.
b. Condition D4: requires that the release of certain contaminants to water must not exceed the release limits stated in the draft EA. The release concentrations are expected to meet the objectives of the Curtis Island, Calliope River and Boyne River Basins Environmental Values and Water Quality Objectives.
c. The draft EA has been conditioned to ensure that water quality objectives for the protection of environmental values in the receiving environment are met. The EA holder is required to ensure releases do not result in an exceedance of receiving environment limits in Condition D12, D13 and Table D4.
d. Condition D5: requires that the release of contaminants to waters must only take place during natural low in Larcom Creek.
e. Conditions D3, D8 and D11: requirements for monitoring of streamflow, authorised releases and receiving environment to determine compliance with EA conditions, for monitoring the characteristics of the receiving environment, and determining the potential impact on the receiving environment from releases.
f. Conditions D14 to D16: requirement to monitor, identify and describe any adverse impacts to surface water EVs, quality and flows, and groundwater due to mining activity.
g. Condition D10, A11 and A12: requires EA holder to notify DES and investigate contraventions of the EA. Should a non-compliance with a condition or an offence against the EP Act be identified, the Statutory Party can pursue enforcement action.”[144] (citations omitted) (emphasis in original)
Quantity
“80. The relevant objections are as follows:
a. Five objections in relation to potential depletion of surface water in Larcom Creek.
b. The objections raise concern that groundwater drawdown and interactions between the mine pit and the Creek will result in loss of permanent and reliable waterholes resulting in the following impacts:
i. Reduction of adequate and reliable water supplies for stock and domestic purposes.
ii. The need to construct and maintain fencing.
iii. Impacts to aquatic ecosystems, flora and fauna.
iv. Impacts to the character, resilience, and values of the receiving environment.
81. EEMAG in its submissions maintains that the drawdown expected from the expansion will be higher than stated by the expert evidence, premised upon the asserted presence of a karst aquifer.”[145]
“Potential impacts including the potential reduction of base flow and desiccation of waterholes in Machine Creek, Larcom Creek, and Scrub Creek were considered in the assessment of the application as they relate to environmental values and were conditioned in the draft EA to protect identified environmental values.”[146]
“MS McAULIFFE-LAKE: … Just for the benefit of the court, could you very briefly describe what an REMP is?
MR COLLINS: It’s a monitoring plan, an environmental management plan that has in it the ability for adaptation, I suppose, would be one word for it, in that what we’ve attempted to do in the past with the old style environmental authorities is set of numbers and then the casting stone, and that’s the numbers you’ve got to meet forever and a day. But what the department does these days generally is say, “Well, here’s a set of numbers that are based on what we think, but we’re going to go and do a lot of monitoring and we’re going to potentially change those numbers depending upon what we find.” So it’s a much more sensible approach, in my view, because it actually takes account of real data as it comes in. So you could vary the flow rates; you could vary the water quality requirements and you could make them more stringent, if you had to. So they actually lead to a better environmental outcome.”[147]
“Condition D14 and D15: the EA holder must develop and implement a REMP to monitor, identify and describe any adverse impacts to surface water EVs, quality and flows: and groundwater due to mining activity.” (emphasis in original)
Conclusions
Groundwater to surface water interactions
“My view from a surface water management consideration is that it is apparent from long term mine surface water discharge records that any changes to groundwater levels in the immediate vicinity of the mine due to previous mining activity have stabilised, with only low levels of infiltration into the pit which I estimate to be between 1 and 2.5 ML/day due to groundwater, with the pit dewatering requirements dominated by rainfall / surface water capture.
Given that the mine expansion is down gradient from the existing draw-down groundwater surface, provided the geology of the materials to be mined remain consistent with the previously mined geology, I would not expect major changes in mine pit infiltration as mining progressively moves to the south, but I defer to the groundwater experts to confirm this.
Irrespective, with the requirement as discussed above in Chapter 7.1.6 to limit maximum releases of surface waters from the mine to 30 ML/day, this will create a regulatory regime that can be monitored and administered by the relevant State Authority to ensure compliance; if mine pit seepage rates were to increase significantly, this would progressively result in more flooding of the pit, to the point that any further expansion would become unviable. This also applies to any excavation to lower levels than the base of the existing pit, which is not planned in the next 25 years of proposed operations.
For these reasons, from a surface water management perspective, I believe that any impacts to surrounding streams from mine water discharges can be adequately managed through Environmental Authority conditions, through the current mine Water Management Plan and through the proposed expansion Stormwater Management Plan as part of the mine expansion to ensure no unacceptable adverse impacts will occur.”[154]
“MR LUCKE: Now, at item 515 you’ve identified the likely daily loss of 5.6 megalitres a day of stream flow – this is to do with the new project. Do you see the creeks having the capacity to support that?
DR MERRICK: Well, yes, they do…
…
MR COLLINS: If you go to page 25 of my statement of evidence in relation to surface water, …Page 25, figure 10. [CEM8002]
…
So, in terms of capacity of creeks, any additional water that’s coming out of that mine void over current dewatering is being discharged directly back into a system with significant capacity, which is both Schultz Lagoon and, of course, Larcom Creek.
And I note that Dr Merrick pointed out that the estimate of 5.6 megalitres a day is likely to be a significant overestimation, one of the modelling scenarios – that was the dewatering with a minus 90-metres AHD pit and that the actual dewatering will be less. And in terms of the ability to pump it, the actual pumps that are currently in place, by my calculation, if you crank them are capable of 41 megalitres a day they’re never going to get to that because there’s a license condition in place; maximum pumping after flood events of 30 megalitres a day. I’ve recommended that also be used in the interim until the REMP is – work has been done, just limit to 30 megalitres a day.
But my point is, current dewatering’s at the rate between two and a-half and five megalitres a day, typically when it’s not a rainfall event an extra five, well within the capacity of the pumping. And in relation to your question of the capacity of the streams to handle that; we’re not discharging to the smaller streams, we’re discharging to Schultz Lagoon direct or Larcom Creek. And in any case, it’s a – it’s, to a degree, it’s a closed circuit because you’re pumping it out, it’s going to the creek, the groundwater’s coming back in underneath at the 5.6. So, that’s – that’s my view on that question.
…
DR MERRICK: Mr Collins is right in saying that the estimate is an overestimate, and I give my reasons in the statement of evidence. One, that the pit in the simulation by Pacific Environment has gone deeper than planned. And also that the way the model was set up with only one layer, it meant that the increase in predicted pumping rate from the mine was linear and that won’t happen. So, the predicted pump out was at least two times what it should be, so the take from the water courses is probably about in error by the similar factor, maybe double. So – so, yes, the estimations in that model are overestimates.”[155]
“MS McAULIFFE-LAKE: CEM8003, table 1, p34:
… So looking at table 1 on that page, there was quite a bit of discussion earlier on about lowering of various creeks in and around the mine, and I believe that the estimate given at the moment is that a loss of some 5.6 megalitres per day from all of those creeks. Is that correct in both of your opinions?
DR MERRICK: That’s the estimate of the Pacific Environment model and each of us has said that it’s an overestimate.
MS McAULIFFE-LAKE: Okay. And I understand that that 5.6 megalitres per day is spread across all of those creeks and across some expanse of those creeks; is that correct?
DR MERRICK: Yeah, that’s right according to the individual watercourses in that table.
MR COLLINS: The biggest loss, though, is Schultz’s Lagoon and Larcom Creek.
MS McAULIFFE-LAKE: Yes. I pose the question to you both: can you comment on – and I appreciate neither of you are ecologists, but can you comment on what practically that might look like?
MR COLLINS: In terms of the Larcom Creek and Schultz Lagoon, whilst there’s a loss, there’s an immediate top-up because that’s where the mine dewatering is going back. So if anything, it’s going to be – it’s like more water in that system than now because it’s discharging the water in one place, whereas there are losses that are predicted in the modelling from a variety of places. But the losses in many of the streams are fairly small numbers: .02 megalitres a day for Machine Creek, for example, and .04 for East End Creek. And East End Creek, effectively, will get backwater flow from Schultz’s Lagoon so I don’t see it’s going to have any dramatic effect either.
MS McAULIFFE-LAKE: Do you have any comment to make, Dr Merrick?
DR MERRICK: Yes. I think the only – the only stream that has a risk of some impact is Larcom Creek, and I base that on the statistics which are actually in table 2 of this document which documents the median, minimum and maximum flows in Larcom Creek. And the minimum flow is .86 megalitres per day. So that’s of the same water as the take estimated by the Pacific Environment model, remembering though that it is an overestimate. So I think – I think that the low flow characteristics of Larcom Creek could be affected by the expansion of mining.
MR COLLINS: Could I just add - - -
DR MERRICK: Now, whether that has an effect on ecology, I can’t answer that one.
MR COLLINS: Could I just add to that, Dr Merrick, that just bear in mind that if it is 5.6 megalitres per day average dewatering additional over existing mine, that means we’re putting out between seven and 10 megalitres a day sump discharge straight back to Schultz Lagoon and then to Larcom Creek. So that should diminish that effect, and that’s a daily exercise which then should counteract any effect on low flows, in my view. The other thing I can add in relation to the ecology, is the ecology of Larcom Creek and Schultz’s – Schultz Lagoon – and I’m not an expert ecologist, but I’ll say this from a hydrologic viewpoint – is entirely artificial in that it’s dependent entirely on the mine dewatering that’s been going on for the last 40 years. Without that mine dewatering, that environment wouldn’t exist. So if there’s similar amounts of water to be discharged or more, one would think that might be more tolerable for the receiving environment and ecology than if you turned off the tap, so to speak.
MS McAULIFFE-LAKE: So would it be correct to say that the issue is this, that it’s not so much the volume of water, but perhaps the redirection of that water which might have environmental impacts in terms of creeks being – seeing less flow than they have previously?
MR COLLINS: Well, that is a consequence of the proposed dewatering system and, presumably, that was a perceived problem in the EIS. It could have done a distributive discharge to multiple locations. It’s just a matter of pump lines. It’s certainly engineeringly feasible but I don’t – I assume that was dismissed because it was not perceived that there was environmental ecological risks. But that’s an assumption on my part.”[156]
“MR COLLINS: The reporting requirements under the environmental authority, in my view, are good practice, and I believe that if they’re – the mine is in breach of those requirements at any time, there’s a requirement to notify the department in any case, and, for example, if there was excessive pumping, they’d have to notify the department. So the annual reporting is looking back over the last 12 months to verify they’re complying with, you know, conditions, but if things are going off the rails for whatever reason, there’s an obligation and, I think, an intent anyway from Cement Australia that those non-compliances would be reported.”[157]
Conclusion
Grout curtain
Conclusion
Flooding
“…can go from a static creek to a roaring torrent in four to six hours… but that flood always gets away because at present there is no impediment at the bottom end of the boundary that we don’t have this bund wall that they’re proposing and that water gets away without any hold up which will cause not only damage to the fencing but cause sedimentation to the flats and also increased weed problems.”[171]
“Results from the flood impact maps indicate a maximum flood level increase at the Site of approximately 180mm decreasing to 2mm at the Bruce Highway for the 1 in 100-year AEP; however, the highway is flooded during this event irrespective. Flood impacts of up to 54mm are noted in rural areas outside of the immediate MLA development area in the 100 yr ARI, but these areas are predicted to be flooded irrespective of the proposed mine expansion.”
“No increase in flood level to Deadman’s Creek has been predicted. While an increase in flood level from Larcom Creek as described by the Rideout’s has the potential to increase flood levels within Deadman’s Creek (i.e. located behind their dwelling) the resulting flood level increase for the 1 in 100 year AEP flood event for Larcom Creek is less than a10mm at the confluence of these two creeks.”[173]
Conclusion
“Whilst some localised flood level increases due to the proposed mine expansion levee bank will occur, these occur over grazing land that is flood affected currently, and velocities are such that scouring (i.e. the loss of soil and vegetation) of the grazing land soils and grasses is not predicted to occur.”[177]
Noxious weeds
“The control of the current crop of weeds will take at least 2 growing seasons to reduce the infestation to a level that can be routinely managed (for example by targeted spot spraying and/or grazing management). Extinction of these weeds in the short term is highly unlikely given that the extent of soil seed stores from the current population will ensure seasonal flushes of weed growth.”[188]
Conclusion
Subsoil moisture
“When we bought the farm the creek flats had a shallow water table and lucerne could be grown with minimal irrigation because of the sub soil moisture. Once water depletion became more entrenched and the creek went dry we suffered a loss of this sub soil moisture, causing vegetation growth to be reduced and the pasture and crops to dry out faster. This sub soil water loss is an economic and an environmental impact.”[193]
“Both the historical data and the modelling work do identify declines in ground water levels over time up to 2017, however, there is no data on changes in subsoil moisture levels associated with these declines.
The groundwater modelling also shows that the zone of influence will not substantially change following mine expansion.
Irrespective of any impacts on subsoil moisture storage from historical declines in groundwater levels up to 2017, direct impacts of future mine expansion are likely to be insignificant because there will be no significant change in the zone of influence.”[196]
“The decline in depth to water tables since pit dewatering started is evident from the various bore hydrographs in the Pacific Environment and Merrick reports. The 5 m drawdown line as modelled will not substantially change under an MLA approval scenario, hence there will be no change in subsoil moisture status with approval. Given that dewatering continues in a without MLA approval scenario, subsoil moisture levels should not change significantly.”[197]
Conclusion
The statutory criteria
MRA
Section 269(4)(a) - Have the provisions of this Act been complied with?
Section 269(4)(b) - Is the area mineralised, or are the other purposes for which the lease is sought appropriate?
“Mr Davies’ confirmation that the current mine extracts around 2.4 million tonnes of raw material each year and that the current mine is located adjacent to MLA 80156;[202]
Mr Frost’s summary of the drilling campaigns conducted by, and on behalf of, Cement Australia to determine the composition of the limestone and other resources;[203] and
Mr Huntley’s evidence that, whilst there is no threshold as to quantity or quality to make a mining operation viable, in his view, and as confirmed in the JORC report he prepared, there is over 80 million tonnes of raw material in the MLA 80156 area with 60 million tonnes being potentially extractable.[204]”[205]
Section 268(4)(c) - If the area is mineralised, will there be an acceptable level of development and utilisation of the mineral resources within the area applied for?
Section 269(4)(d) - Is the land and the surface area of the land applied for of an appropriate size and shape?
Section 269(4)(e) - Is the term applied for appropriate?
Section 269(4)(f) - Do the applicants have the necessary financial and technical capabilities to carry on mining operations under the proposed mining lease?
Section 269(4)(g) - Has the past performance of the applicants been satisfactory?
“The report includes, amongst other things, details of any non-compliance with Mining Lease or EA conditions, legislative amendments and environmental health and safety incidents. Reports are presented to the Cement Australia executive committee each month. The report that is prepared in December provides an overview of the entire year.”[229]
“48. Since I commenced my employment at Cement Australia in March 2009, one Penalty Infringement Notice (PIN) has been issued to Cement Australia (Exploration) Pty Ltd (CEM3999). That PIN related to a failure to provide further financial assurance to the Department of Natural Resources and Mines in April 2013. The matter was later resolved with the Department and I understand that financial assurance was provided in September 2015.
49. During the term of my employment at Cement Australia, I have reported incidents of potential non-compliance with the Current EA conditions to the regulatory environmental authority, as required by those conditions. These incidents have related primarily to over pumping of water at the mine, elevated levels of suspended solids in discharged water or elevated pH levels in water samples. To the best of my knowledge, no enforcement action has been taken by the regulatory environmental authority in relation to those reports.
50. Further, during the term of my employment at Cement Australia, and to the best of my knowledge Cement Australia has not been subject to any enforcement action for any non-compliance with Mining Lease conditions. To confirm this position, on or around 25 June 2018, I telephoned the DNRME Mineral Hub and enquired as to whether DNRME had any record of non-compliances at the mine. I was informed that there were no mine non-compliances identified in DNRME's records.”[230]
Section 269(4)(h) - Is there any disadvantage to existing holders or applicants for exploration permits or mineral development licences?
Section 269(4)(i) - Will the operations to be carried on under the authority of the proposed mining lease conform with sound land use management?
“The relevant limitation in s 269(4)(j) is not found in the word “impact” alone but in the composite expression “impact caused by those operations” to be carried on under the authority of the proposed mining lease. In the context of s 269(4)(i), s 269(4)(j) allows consideration only of impacts caused by “operations to be carried on under the authority of the proposed mining lease”. The relevant operations in this case are confined to mining coal within the boundaries of the proposed mining lease. Each preceding paragraph of s 269(4) is similarly directed to the regulation of that proposed use.
…as MacDonald P also concluded in Xstrata, it is outside the Land Court’s jurisdiction under s 269(4)(j) to consider the impact of activities which would not be carried out under the authority of the proposed mining lease.”[239]
“The concept of sound land use management is somewhat nebulous. The phrase is not defined in the MRA and I was not referred to, and am not aware of, any judicial interpretation of the phrase in Queensland or of an objective standard to apply.”[241]
“The conditions of mining leases include general conditions imposed by the MRA. In large part these are not directed to land use management. They address access to the lease area, and payment of compensation, rental, royalties and local government rates and charges.
The Minister for NRME cannot grant an MLA unless an EA has issued for all activities to be authorised under the mining lease.
The Minister can impose further conditions on a mining lease, including about compliance with specific codes or industry agreements, as long as they are not the same, substantially the same, or inconsistent with, a relevant condition of the EA for the mining lease.”[245]
Section 269(4)(j) - Will the operations cause any adverse environmental impact and, if so, to what extent?
Section 269(4)(k) - Will the public right and interest be prejudiced?
“Although the broad public interest may be served by this new project, the private right and public interest of local landholders will be prejudiced. If the project proceeds it will have a wider environmental footprint upon other users of waters that have to date escaped impacts, and on the environmental values of Larcom, Hut, Scrub and Jacob’s Creeks. The methodology used to underpin the groundwater assessment is inadequate because local aquifers are not correctly categorised as karst. See separate report, Karst Portfolio Folder that brings together all karst advocates and evidence of Karst. Thus we are alleging the EIS risk assessment is invalid.”[255]
Section 269(4)(l) - Has any good reason been shown for refusing the application?
Section 269(4)(m) - Taking into account the current and prospective uses of the land, is the proposed mining operation an appropriate land use?
2013 EP Act
“…EEMAG’s representation in this court are virtually concentrated on the science, which is the geology and the hydrogeology. We haven’t done very much at all in relation to the environmental authority, because we don’t see that as having an influence on the decision of the court. Now, we’re not saying it’s unimportant….”[262]
“Section 223 provides that in making the objections decision for the application, the Land Court must consider the following –
Standard Criteria (a) – National Strategy for Ecologically Sustainable Development
“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:
The Guiding Principles are:
Precautionary principle
…In the application of the precautionary principle, public and private decisions should be guided by:
“I respectfully accept the careful analysis of the precautionary principle by Preston CJ in Telstra Corporation Limited v Hornsby Shire Council. I accept his Honour’s fundamental conclusion:
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.”[272] (citations omitted)
“At [199], his Honour said (quoting Telstra at [150]-[151]):
If the conditions precedent are satisfied, the burden of showing the threat of serious or irreversible environmental damage will not occur effectively shifts to VicForests to show that the threat does not exist or is negligible.
If each of the two conditions precedent or thresholds are satisfied — that is, there is a threat of serious or irreversible environmental damage and there is the requisite degree of scientific uncertainty — the precautionary principle will be activated. At this point, there is a shifting of an evidentiary burden of proof. 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 this threat does not in fact exist or is negligible effectively reverts to the proponent of the economic or other development plan, programme or project.
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. It may be too late, or too difficult and costly, to change a course of action once it is proven to be harmful. The preference is to prevent environmental damage, rather than remediate it. The benefit of the doubt is given to environmental protection when there is scientific uncertainty. To avoid environmental harm, it is better to err on the side of caution.”[273] (citations omitted)
“Groundwater and surface water triggers and limits have been recommended taking in to consideration these principles of the standard criteria. Interim limits and triggers have been determined and recommended for inclusion in the draft EA taking in to consideration the precautionary principle as a result of the variances in the data available. The requirement to monitor also considers the precautionary principle and the conservation of diversity and ecological integrity to ensure that any unexpected changes to the environment are detected and investigated, and appropriate management intervention can occur to limit impacts. The indication that the upstream surface monitoring site is potential influenced by releases of mine pit dewatering prompts the consideration in applying the precautionary principle to source an [sic] alternative locations (also considers the conservation of ecological integrity). Groundwater level triggers and surface and groundwater quality limits considers the intergenerational equity principle by ensuring the natural environment and resources are maintained for future generations.”[277]
Intergenerational equity
“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).”[289]
Conclusion
2013 EP Act – Section 223 criteria
Section 223(a) – The application documents for the application
Section 223(b) – Any relevant regulatory requirement
Section 223(c) – The standard criteria
Standard Criteria (a) - National Strategy for Ecologically Sustainable Development
Standard Criteria (b) - Any applicable environmental protection policy
“The Environmental Protection Policies (EPP) for water, noise and air were considered in the identification of environmental values and the protection of these identified environmental values through the establishment of management measures within the EMP and expert reporting. I also understand that these policies were also considered by DES in preparing the draft EA…”[304]
Standard Criteria (c) - Any applicable Commonwealth, State or local government plans, standards, agreements or requirements
Standard Criteria (d) - Any applicable environmental impact study, assessment or report
Standard Criteria (e) - The character, resilience and values of the receiving environment
“The Draft EA conditions also require the preparation of the Receiving Environment Monitoring Program (REMP) (Condition F15). I am working with Tegan Smith of Groundwork Plus to finalise a REMP in accordance with the requirements of the Draft EA. The REMP will include a consideration of the necessary monitoring for and identification of any potentially adverse impacts to the following waterways in the vicinity of the mine:
Standard Criteria (f) - All submissions made by the applicants and submitters
Standard Criteria (g) - The best practice environmental management for activities under any relevant instrument or proposed instrument, as follows an environmental authority
Standard Criteria (h) - Financial implications of the requirements under an environmental authority as they would relate to the type of activity or industry carried out, or proposed to be carried out, under the instrument
Standard Criteria (i) - The public interest
Standard Criteria (k) - Any relevant integrated environmental management system or proposed integrated environmental management system
Standard Criteria (l) - Any other matter prescribed under a regulation
Conclusion
Section 223(d) – Wild River declaration for the area
Section 223(e) – Each current objection
Section 223(f) – Any suitability report for the application
Section 223(g) – The status of any application under the MRA for each tenement
HRA
Engagement – What rights might the objector seek to invoke?
Any legal or equitable estate or interest (whether present or future, vested or contingent, or tangible or intangible) in real or personal property of any description (including money), and includes things in action.[324]
Limitation - How might the alleged rights be limited?
Justification – Are the limitations reasonable and demonstrably justified, in accordance with procedural requirements, not arbitrary and proportionate to other competing private and public interests?
Are the limitations reasonable and demonstrably justified?
“compliance with the Part 5 (Make good obligations for water bores); these make good provisions in Part 5 include a requirement for a resource tenure holder to comply with the ‘make good obligations’ as defined, which include obligations to enter into and comply with a make good agreement, as defined, with the owners of relevant affected bores… a process for resolution of disputes about make good agreements by negotiation, arbitration, or reference to the Land Court.”[336]
Is the limitation in accordance with procedural requirements proportionate to other competing rights and not arbitrary?
Proper consideration – Even if the limits are lawful and proportionate has the decision given proper consideration to the rights engaged?
Inevitable infringement – Does a statutory provision or law prescribe a different decision?
Conclusion on human rights
Conclusions
Orders
[1] Cement Australia (Exploration) Pty Ltd & Anor v East End Mine Action Group Inc & Anor [2019] QLC 18 [1].
[2] Applicants’ Closing Submissions filed 21 September 2020 [9].
[3] Ibid [165].
[4] Ibid [7].
[5] Land Court of Queensland, Practice Direction No 6 of 2020 – Expert Evidence in The Land Court, 14 December 2020 [41].
[6] Land Court of Queensland, Practice Direction No 6 of 2020 – Expert Evidence in The Land Court, 14 December 2020 [42].
[7] Cement Australia (Exploration) Pty Ltd & Anor v East End Mine Action Group Inc & Anor (No 2) [2020] QLC 25.
[8] Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705.
[9] Cement Australia (Exploration) Pty Ltd & Anor v East End Mine Action Group Inc & Anor (No 2) [2020] QLC 25 [42]-[43].
[10] Applicants’ Closing Submissions filed 21 September 2020 [138].
[11] Ibid [122].
[12] Ex 35, EEM0230.
[13] Ex 42, EEM0228.
[14] Applicants’ Closing Submissions filed 21 September 2020 [175].
[15] Ibid [127].
[16] Applicants’ Closing Submissions filed 21 September 2020 [106]; Ex MFI A.
[17] T 1-13, lines 15 to 44.
[18] EEMAG’s Closing Submissions filed 21 September 2020 [118]-[131].
[19] Cement Australia (Exploration) Pty Ltd & Anor v East End Mine Action Group Inc & Anor (No 3) [2021] QLC 15.
[20] [2002] 1 Qd R 347.
[21] [2008] 1 Qd R 65.
[22] (2020) 5 QR 155.
[23] Applicants’ Closing Submissions filed 21 September 2020 [99].
[24] Ibid [100].
[25] Applicants’ Opening Submissions filed 10 July 2020 [35].
[26] Applicants’ Closing Submissions filed 21 September 2020 [48].
[27] Environmental Protection Act 1994 s 251(5), as at 14 March 2013.
[28] (2018) 230 LGERA 88.
[29] New Acland Coal Pty Ltd v Smith & Ors (2018) 230 LGERA 88, per Sofronoff P (with whom Philippides JA and Burns J agreed) confirmed her Honour’s findings.
[30] Oakey Coal Action Alliance Inc v New Acland Coal Pty Ltd & Ors (2019) 2 QR 271 [114].
[31] Written Submissions of the Applicants Regarding Jurisdiction as to Groundwater Impacts filed 7 July 2020 [2.4].
[32] Statement of Evidence of Noel Merrick filed 7 July 2020 [15].
[33] [2020] QLC 33.
[34] Waratah Coal Pty Ltd v Youth Verdict Ltd & Ors [2020] QLC 33 [92].
[35] Ibid [90].
[36] Ibid [53].
[37] Human Rights Act 2019 (Qld) s 2.
[38] Waratah Coal Pty Ltd v Youth Verdict Ltd & Ors [2020] QLC 33.
[39] Human Rights Act 2019 (Qld) s 8.
[40] Ibid ss 8, 13.
[41] [2021] QLC 4.
[42] Human Rights Act 2019 (Qld) s 58.
[43] Explanatory Notes, Human Rights Bill 2018 (Qld), 34; Human Rights Act 2019 (Qld) s 58(1)(a).
[44] Explanatory Notes, Human Rights Bill 2018 (Qld), 34; Human Rights Act 2019 (Qld) s 58(1)(b).
[45] Waratah Coal Pty Ltd v Youth Verdict Ltd & Ors [2020] QLC 33 [24]-[26].
[46] Waratah Coal Pty Ltd v Youth Verdict Ltd & Ors (No 2) [2021] QLC 4 [9]; See also, Minogue v Dougherty [2017] VSC 724 [74]; Certain Children v Minister for Families and Children (No 2) [2017] VSC 251.
[47] Minogue v Dougherty [2017] VSC 724; Certain Children v Minister for Families and Children (No 2) (2017) 52 VR 441.
[48] Applicants’ Closing Submissions filed 21 September 2020 [8].
[49] See eg, Mt Ruby Mines Pty Ltd v Dunn [2019] QLC 46.
[50] Ex 12, Ex 71, EEM0014; Ex 13, EEM0002.
[51] Applicants’ Closing Submissions filed 21 September 2020 [153]; Statutory party Closing Submissions filed 19 October 2020 [108].
[52] Applicants’ Closing Submissions filed 21 September 2020 [156].
[53] Symbolic Resources Pty Ltd v Kingham & Ors (2020) 5 QR 155.
[54] EEMAG Closing Submissions filed 18 September 2020, page 8.
[55] Ex 42, EEM0228; Ex 41, EEM0229; Ex 35, EEM0230.
[56] Ex 88, EEM0106.
[57] Ex 16, EEM0105.
[58] Ex 16, EEM0105.
[59] EEMAG Closing Submissions filed 18 September 2020, page 14.
[60] Ex 4, Ex 5, Ex 46, Ex 58, CEM0022, page 4-20.
[61] T 1-19, lines 4 to 5.
[62] T 1-19, lines 4 to 5.
[63] T 6-19, lines 5 to 15.
[64] Ex 58, CEM8003, lines 49-52.
[65] EEMAG Closing Submissions filed 18 September 2020, page 10.
[66] Ex 42, EEM0228, page 9.
[67] T 2-61, lines 37 to 47; T 2-62, lines 1 to 4.
[68] T 2-61, lines 36 to 47; T 2-62, lines 1 to 4.
[69] T 2-84, lines 16 to 30.
[70] T 2-84, lines 31 to 36.
[71] Ex 46, CEM8004.
[72] Statement of Evidence of David Clark Starr in relation to Geology Issues – East End Mine Expansion Proposal filed 6 May 2020 s 3.3.
[73] Ex 46, CEM8004, page 15.
[74] Ex 47, CEM8009, page 6.
[75] Ex 5, Ex 46, CEM4124.
[76] T 5-71, line 11.
[77] T 5-72, lines 41 to 43.
[78] T 5-83, lines 2 to 4.
[79] T 1-17, lines 18 to 22; Ex 3, Ex 58, CEM0084.
[80] T 1-17, line 30.
[81] T 6-49, lines 41 to 42.
[82] T 6-50, lines 10 to 20.
[83] T 6-77, lines 24 to 47; T 6-78, lines 1 to 8.
[84] T 6-78, lines 35 to 47.
[85] T 3-5, lines 7 to 12
[86] Ex 59, EEM0117.
[87] Ex 59, EEM0117.
[88] Ex 14, EEM0027.
[89] Ibid page 3.
[90] Ibid.
[91] T 2-84, lines 31 to 33.
[92] T 5-67, lines 1 to 5.
[93] T 5-67, lines 18 to 19.
[94] T 5-67, lines 43 to 44.
[95] EEMAG Closing Submissions filed 18 September 2020, page 8, lines 257-258.
[96] Applicants’ Closing Submissions filed 21 September 2020 [177].
[97] Statutory party Closing Submissions filed 19 October 2020 [37].
[98] (2020) 103 NSWLR 479.
[99] Statutory party Closing Submissions filed 19 October 2020 [40].
[100] Ibid [43].
[101] Statutory party Closing Submissions filed 19 October 2020 [48]; Ex 34, DES0037, paras 27, 31.
[102] Statutory party Closing Submissions filed 19 October 2020 [49].
[103] Ibid [50].
[104] Applicants’ Closing Submissions filed 21 September 2020 [183].
[105] Ibid [178]-[192].
[106] Ex 58, CEM8003.
[107] Ex 58, CEM8003, lines 45-47.
[108] T 6-19, lines 5 to 15.
[109] Ex 58, CEM8003, lines 53-54.
[110] T 6-93, lines 5 to 7.
[111] Ex 28, Ex 65, EEM0128.
[112] Applicants’ Closing Submissions filed 21 September 2020 [188](f).
[113] T 6-69, line 32.
[114] T 6-43, lines 40 to 41.
[115] Ex 35, EEM0230.
[116] Ex 59, CEM8007.
[117] Ex 60, CEM8010, where Dr Merrick considered the Dudgeon 1980 report.
[118] Applicants’ Closing Submissions filed 21 September 2020 [185]; T 6-72, lines 17 to 28.
[119] Statutory party Closing Submissions filed 19 October 2020 [46].
[120] Ex 4, CEM0206; Ex 1, Ex 34, DES0009.
[121] Ex 1, Ex 34, DES0037, paras 22-26.
[122] Ex 34, DES0037, para 31.
[123] Statutory party Closing Submissions filed 19 October 2020 [52](a)-(j).
[124] Affidavit of Feliz Tansley filed 20 September 2018 [49].
[125] Statutory party Closing Submissions filed 19 October 2020 [60]; T 5-53, lines 43 to 46; T5-54, lines 1 to 2.
[126] Ex 58, CEM8003, page 35.
[127] T 6-86, lines 40 to 47; T 6-87, lines 1 to 7.
[128] T 6-82, lines 35 to 38.
[129] T 6-82, lines 39 to 43.
[131] Statutory party Closing Submissions filed 19 October 2020 [63](a)-(h).
[132] Statutory party Closing Submissions filed 19 October 2020 [68](a)-(c).
[133] Ex 34, DES0037, para 80.
[134] Ibid para 82.
[135] Ibid para 67.
[136] Ibid para 69.
[137] Ex 56, CEM8002, page 3.
[138] Ibid page 28.
[139] Ex 56, CEM8002, page 3.
[140] Ex 56, CEM8002, lines 430-434.
[141] T 6-62, lines 29 to 47; T 6-63, lines 1 to 35.
[142] Ex 56, CEM8002, lines 484-497.
[143] Ex 56, CEM8002, pages 4 to 5.
[144] Statutory party Closing Submissions filed 19 October 2020 [75](a)-(g).
[145] Ibid [80]-[81].
[146] Ex 34, DES0037, para 81.
[147] T 6-91, lines 14 to 28.
[148] T 6-71, lines 20 to 40.
[149] Ex 1, Ex 34, DES0022.
[150] Ex 59, CEM8007, pages 515-525.
[151] Ibid lines 532-535.
[152] Ibid lines 536-544.
[153] Ibid lines 550-560.
[154] Ex 56, CEM8002, lines 510-533.
[155] T 6-53, lines 35 to 47; T 6-55, lines 1 to 2.
[156] T 6-87, lines 9 to 47; T 6-88, lines 1 to 34.
[157] T 6-18, lines 31 to 38.
[158] T 2-57, lines 32 to 37.
[159] Applicants’ Closing Submissions filed 21 September 2020 [213].
[160] EEMAG Closing Submissions filed 18 September 2020, page 4.
[161] Ibid page 20.
[162] Ex 70, EEM0224.
[163] T 7-4, lines 30 to 31.
[164] T 7-5, lines 1 to 3.
[165] Applicants’ Closing Submissions filed 21 September 2020 [215].
[166] T 2-64, lines 1 to 5.
[167] T 2-64, lines 27 to 35.
[168] T 2-61, lines 5 to 17.
[169] T 3-48, lines 14 to 23.
[170] T 3-48, lines 43 to 46.
[171] T 4-29, lines 21 to 27.
[172] T 6-7, lines 24 to 25.
[173] Ex 55, CEM8000, lines 335-405.
[174] T 6-8, lines 34 to 38.
[175] T 6-8, lines 40 to 47.
[176] Ex 55, CEM8000, lines 410-435.
[177] Ex 55, CEM8000, page 2.
[178] Ex 1, Ex 34, DES0022.
[179] Statutory party Closing Submissions filed 19 October 2020 [107]-[108].
[180] Ex 24, Ex 71, EEM0011, page 2.
[181] Ex 26, Ex 71, EEM0004, page 3.
[182] T 4-18, lines 13 to 15.
[183] T 4-37, lines 10 to 12.
[184] Ex 71, CEM8001.
[185] Ibid page 5.
[186] Ibid page 8.
[187] Ibid page 11.
[188] Ex 71, CEM8001, page 11, lines 344-350.
[189] Ex 71, CEM8001, page 16.
[190] Ex 8, CEM7006, para 4; Ex 3, Ex 71, CEM7003, paras 80-81.
[191] Ex 1, Ex 34, DES0029.
[192] Ex 1, Ex 34, DES0021.
[193] Ex 1, Ex 34, DES0029, page 3.
[194] Statutory party Closing Submissions filed 19 October 2020 [105].
[195] Ex 72, CEM8005.
[196] Ex 72, CEM8005, lines 166-176.
[197] Ex 72, CEM8005, lines 271-277.
[198] EEMAG Closing Submissions filed 18 September 2020; Concerning s 269(4)(g), the Applicants say that past performance has not been argued and therefore there is no valid objection.
[199] Applicants’ Closing Submissions filed 21 September 2020 [240]-[244].
[200] Ex 3, Ex 71, CEM7003.
[201] Ex 4, CEM7001.
[202] Ex 2, CEM7000, paras 31, 51.
[203] Ex 7, CEM7002, paras 11, 17, 20, 23.
[204] Ex 5, CEM7004, paras 10-22, 34-38.
[205] Applicants’ Closing Submissions filed 21 September 2020 [247].
[206] Ex 7, CEM7002, para 18.
[207] Ex 2, CEM7000, paras 42-44.
[208] Applicants’ Closing Submissions filed 21 September 2020 [255].
[209] Ex 3, Ex 71, CEM7003, paras 17, 19(h); Ex 3, Ex 4, Ex 7, CEM0757, page 5.
[210] Ex 5, CEM7004, para 37.
[211] Applicants’ Closing Submissions filed 21 September 2020 [71](b), [71](c).
[212] Ex 3, Ex 71, CEM7003, para 19(j); Ex 3, Ex 4, Ex 7, CEM0757, page 5.
[213] Ex 5, CEM7004, para 47; Report of exploration results, mineral resources and ore reserves.
[214] T 1-63.
[215] Applicants’ Closing Submissions filed 21 September 2020 [266].
[216] Applicants’ Closing Submissions filed 21 September 2020 [27].
[217] Ibid [28].
[218] [2017] QLC 24.
[219] Applicants’ Closing Submissions filed 21 September 2020 [31].
[220] Ibid [34].
[221] [2020] QLC 16.
[222] Ibid [18].
[223] Ex 2, Ex 3, CEM4063.
[224] Ex 3, CEM4061.
[225] Ex 3, CEM4067.
[226] Ex 3, CEM4068.
[227] Ex 3, CEM4069; Ex 3, Ex 71, CEM7003.
[228] Ex 3, Ex 71, CEM7003, para 47(f).
[229] Ibid.
[230] Ex 3, Ex 71, CEM7003, paras 48-50.
[231] T 2-28, lines 20 to 30.
[232] T 2-34, lines 31 to 34.
[233] EEMAG Closing Submissions filed 18 September 2020, pages 6-7, lines 156-223
[234] Ibid lines 213-215.
[235] Ibid lines 218-220.
[236] Applicants’ Closing Submissions filed 21 September 2020 [275]; Ex 5, CEM7004, paras 49-50.
[237] Applicants’ Closing Submissions filed 21 September 2020 [36].
[238] [2016] QCA 242.
[239] Coast and Country Association of Queensland Inc v Smith & Ors [2016] QCA 242 [31]-[33].
[240] [2020] QLC 27.
[241] Pembroke Olive Downs Pty Ltd v Sunland Cattle Co Pty Ltd & Ors [2020] QLC 27 [91].
[242] Ex 4, CEM7001, para 58.
[243] Ex 4, CEM7001, para 61.
[244] Ex 4, CEM7001, para 63.
[245] Pembroke Olive Downs Pty Ltd v Sunland Cattle Co Pty Ltd & Ors [2020] QLC 27 [99]-[101].
[246] Statutory party Closing Submissions filed 19 October 2020 [126]-[127].
[247] EEMAG Closing Submissions filed 18 September 2020, lines 253-255.
[248] Applicants’ Closing Submissions filed 21 September 2020 [285]; Ex 4, CEM7001, paras 64-67.
[249] T 6-18, lines 6 to 10.
[250] T 6-72, lines 26 to 28.
[251] Ex 58, CEM8003, lines 49-52.
[252] Applicants’ Closing Submissions filed 21 September 2020 [198]; Ex 56, CEM8002.
[253] Ex 56, CEM8002, page 30.
[254] T 6-70, lines 31 to 39.
[255] EEMAG Closing Submissions filed 18 September 2020, lines 252-258.
[256] Ibid lines 284-288.
[257] Chief Executive Officer and Managing Director of Cement Australia.
[258] Ex 2, CEM7000, para 33-41.
[259] Ex 7, CEM7002, para 74-87.
[260] Ex 2, CEM7000, para 42.
[261] Ex 4, CEM7001, paras 64-70.
[262] T 3-51, lines 6 to 14.
[263] Environmental Protection Act 1994 s 150, as at 14 March 2013; Application documents include, amongst other things, the application, the draft environmental authority, the EM Plan, an assessment report for the EM Plan, the EIS and the EIS assessment report.
[264] Council of Australian Governments, The National Strategy for Ecologically Sustainable Development (7 December 1992), pages 2-3.
[265] Applicants’ Closing Submissions filed 21 September 2020 [324].
[266] (2006) 67 NSWLR 256.
[267] [2020] FCA 704.
[268] Friends of Leadbeater’s Possum Inc v VicForests (No 4) [2020] FCA 704 [801].
[269] Council of Australian Governments, The National Strategy for Ecologically Sustainable Development (7 December 1992), pages 2-3.
[270] Ex 1, Ex 34, DES0014, page 35.
[271] (2010) 30 VR 1.
[272] Environment East Gippsland Inc v VicForests (2010) 30 VR 1 [188].
[273] Friends of Leadbeater’s Possum Inc v VicForests (No 4) [2020] FCA 704 [816].
[274] Applicants’ Closing Submissions filed 21 September 2020 [325].
[275] Applicants’ Closing Submissions filed 21 September 2020 [326]-[329].
[276] Statutory party Closing Submissions filed 19 October 2020 [17]-[18].
[277] Ex 1, Ex 34, DES0014, page 35.
[278] Ex 27, EEM0049, page 1; EEMAG Closing Submissions filed 18 September 2020, page 21.
[279] Applicants’ Closing Submissions filed 21 September 2020 [67].
[280] Telstra Corporation Ltd v Hornsby Shire Council (2006) 67 NSWLR 256 [140]-[149].
[281] Ex 4, CEM7001, para 100; Applicants’ Closing Submissions filed 21 September 2020 [327](e).
[282] Ex 4, CEM7001, paras 96-100.
[283] Ibid para 98.
[284] Ibid.
[285] Ex 4, CEM7001, paras 96-100.
[286] Ex 4, CEM7001, para 99.
[287] Statutory party Closing Submissions filed 19 October 2020 [18].
[288] [2015] QLC 48.
[289] Adani Mining Pty Ltd v Land Services of Coast and Country Inc & Ors [2015] QLC 48 [38].
[290] EEMAG Closing Submissions filed 18 September 2020, page 21.
[291] Ex 27, EEM0049, page 1.
[292] EEMAG Closing Submissions filed 18 September 2020, lines 787-789.
[293] EEMAG Closing Submissions filed 18 September 2020, lines 886-888.
[294] T 6-43, lines 37 to 41.
[295] Ex 58, CEM8003, pages 6-7.
[296] Ex 56, CEM8002, pages 2-4.
[297] Applicants’ Closing Submissions filed 21 September 2020 [334](d); T 6-69, lines 13 to 15.
[298] Applicants’ Closing Submissions filed 21 September 2020 [67]; Statutory party Closing Submissions filed 19 October 2020 [18]; Ex 4, CEM7001, paras 96-100.
[299] New Acland Coal Pty Ltd v Ashman and Chief Executive, Department of Environment and Heritage Protection (No 4) [2017] QLC 24.
[300] Environmental Protection Act 1994 s 222, as at 14 March 2013.
[301] Ex 1, Ex 34, DES0004.
[302] Ex 4, CEM7001; Ex 34, DES0037.
[303] Applicants’ Closing Submissions filed 21 September 2020 [317].
[304] Ex 4, CEM7001, para 84.
[305] Ex 1, Ex 34, DES0014, page 36.
[306] Ex 4, CEM7001, paras 88-89.
[307] Ex 56, CEM8002.
[308] T 6-70, lines 32 to 34.
[309] T 6-71, lines 1 to 2.
[310] T 6-71, line 23.
[311] T 6-70, lines 31 to 47; T 6-71, lines 26 to 27.
[312] Ex 3, Ex 71, CEM7003, para 69.
[313] Ex 1, Ex 34, DES0014.
[314] Ex 1, Ex 34, DES0014.
[315] Ex 1, Ex 34, DES0014.
[316] Ex 1, Ex 34, DES0014.
[317] Ex 3, Ex 71, CEM7003, paras 25-29.
[318] Ex 4, CEM7001, para 94.
[319] Ex 1, Ex 34, DES0014.
[320] Ex 34, DES0037.
[321] Environmental Protection Act 1994 s 559, as at 14 March 2013.
[322] Universal Declaration of Human Rights, GA Res 217A (III), UN GAOR, UN Doc A/810 (10 December 1948).
[323] Explanatory Notes, Human Rights Bill 2018 (Qld), 22; Human Rights Act 2019 (Qld) s 24(2).
[324] Acts Interpretation Act 1954 (Qld) sch 1.
[325] Mabo v Queensland (1988) 166 CLR 186, 217.
[326] PJB v Melbourne Health and Another (Patrick’s Case) (2011) 39 VR 373 [85].
[327] Aurukun Shire Council v CEO Office of Liquor, Gaming and Racing in the Dept of Treasury [2012] 1 Qd R 1 [49].
[328] Charter of Human Rights and Responsibilities Act 2006 (Vic) s 20.
[329] Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, 213 UNTS 221 (entered into force 3 September 1953) article 1, protocol 1.
[330] Human Rights Act 1998 (UK) first protocol, article 1.
[331] Charter of Human Rights and Responsibilities Act 2006 (Vic) s 20.
[332] (2011) 39 VR 373.
[333] Human Rights Act 2019 (Qld) s 24(2).
[334] T 4-20, lines 7 to 9.
[335] Waratah Coal Pty Ltd v Youth Verdict Ltd & Ors [2020] QLC 33 [35].
[336] Applicants’ Closing Submissions filed 21 September 2020 [85](c).
[337] Ex 8, CEM7006.
[338] Ex 2, CEM7000.
[339] Waratah Coal Pty Ltd v Youth Verdict Ltd & Ors (No 2) [2021] QLC 4 [76].
