We need to talk about groundwater: New Acland expansion rejected by Land Court
Jun 2017 |
After a 10 year application process and the longest case in Land Court history, the court this week recommended that the applications for permits associated with the $900 million New Acland Stage 3 expansion be refused.
The decision turned primarily on the potential impacts of the project on groundwater resources, with Member Smith stating clearly:
'Groundwater considerations are such that the revised Stage 3 project should not proceed given the risks to the surrounding landholders and the poor state of the current model.'1
Groundwater considerations have certainly been front of mind for proponents, given the recent legislative changes in this space (for further detail, please see previous Carter Newell Energy & Resources newsletters, including ‘Water reforms now in full swing – are you compliant?’). This decision draws these issues into clearer focus for those directly affected and particularly those facing impending approval processes where groundwater impacts are to be addressed.
The particular focus of the court was on the concept of intergenerational equity, as it applies to groundwater impacts:
'I am satisfied, given the totality of the groundwater evidence before me in this case, that there is a real possibility of landholders proximate to Stage 3 suffering a loss or depletion of groundwater supplies because of the interaction between the revised Stage 3 mining operations and the aquifers. I am also convinced that the potential for that loss or interference with water continues at least hundreds of years into the future, if not indefinitely.'2
This calls into question the ‘make good’ process in the context of its recent extended application to mining projects. The court ultimately considered that the obligation to enter into a make good agreement between the tenure holder and current landholders does not effectively compensate future generations for a loss that will be ‘indefinite’.3
The consequences of these findings are potentially further reaching than its application to just this project; however, the questioning of the effectiveness of this process does need to be considered in the context of the case as a whole and in particular the weight the court placed on the apparent uncertainty of the groundwater evidence.
It was submitted by the major objectors in the case that the groundwater modelling had significant uncertainty in its impact predictions. Member Smith ultimately agreed and therefore determined that the make good process is flawed when attempting to rely on models that may not give an accurate assessment of the impacts caused by mining activities.
Due to an apparent failure to collect sufficient local data, at least one of the hydrogeology experts had to concede that they did not have full confidence in the model used as the basis for NAC’s evidence, which caused the court 'considerable concern'.4
In closing comments in relation to the groundwater issue, Member Smith urged New Hope, as the project proponent, if it wished to have the expansion approved, to:
'...take a corporate deep breath, and have the expert scientific modelling and other scientific data that it is now promising to prepare properly undertaken and prepared and resubmitted.'5
Despite the Land Court’s recommendation, the Department may proceed with approval of the project.
The Minister is now entitled to refuse the application, approve it with or without further conditions, or refer particular issues back to the Land Court to be reconsidered.
It will now be for New Hope to satisfy the Minister that the Land Court’s concerns can be addressed. New Hope has publicly confirmed their commitment to progress through the final stages of approval for the project, so all eyes will be on Minister Lynham in the coming weeks.
Even if the project obtains grant of tenure against the Land Court’s recommendation, it will still face the new associated water licence approval process, which, given the findings of the court here, will no doubt be rigorous.
Way forward
Proponents now, more than ever, need to be confident in their groundwater modelling and ensure they have reliable experts to stand behind it. This article provides a high level and general overview of the decision of the Land Court in this matter; it should not be relied upon for any specific matter or project. Please contact us if you require further information about how the decision may impact your project.
1 New Acland Coal Pty Ltd v Ashman & Ors and Chief Executive, Department of Environment and Heritage Protection (No. 4) [2017] QLC 24, [16].
2 Ibid [1337].
3 Ibid [1334].
4 Ibid [1557].
5 Ibid [1681].
This article may provide CPD/CLE/CIP points through your relevant industry organisation.
