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Resolving the CSG crisis through proper public participation

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The parties in the dispute over coal seam gas (CSG) have never seemed further apart. Distinguished environmental lawyer Dr Ted Christie, the author of 'Finding Solutions for Environmental Conflicts: Power and Negotiation', suggests a better way — a public participation process using multi-disciplinary problem-solving.

COAL SEAM GAS, AGRICULTURE AND THE ENVIRONMENT: IS CO-EXISTENCE IMPOSSIBLE OR INEVITABLE?

by Dr Ted Christie

 

In an earlier article published on 1 June 2010, the author argued that if a sustainable land use balance for the CSG and agricultural sectors to co-exist was the goal sought by the Queensland Government, an effective public participation process was the key for determining whether this could be achieved.

The form of the public participation process and the role provided to participants was a decision for government. Public trust and confidence in the process was absolutely vital.

Probably the clearest description for the meaning of an “effective participation process” was contained in the statement made by a former Governor-General of Australia, Bill Hayden, when opening the ‘Public Interest Dispute Resolution Conference’ that was part of the “Fitzgerald Commission of Inquiry into Fraser Island” in 1991:

“How can we best resolve issues of major controversy between groups holding opposing, yet sincerely held, opinions in ways that most nearly satisfy the principles of the democratic ordeal … solutions from which all parties can emerge with some sense of gain and certainly with the knowledge that their views have properly been taken into account by the ultimate decision-maker, where responsibilities are to the general public interest and not merely to a sectional group.”


Fast forward to March 2011 and we find that the Queensland Government announcing the establishment of the ‘Surat Basin Engagement Committee’. The Premier acknowledged that people had questions about CSG and stated that this Committee was established to ensure that “the community, industry and the Government have an on-going and high-level capability to consult, progress and resolve CSG-related issues”.

 

 

Running parallel to the Queensland Government’s community consultation and engagement processes is the investment in local communities by the CSG industry aimed at maintaining open landholder relations and improving community understanding of CSG-related issues. Community engagement programmes include discussions with landholders, community meetings and setting up CSG -->

 

That the public participation processes set up by the Queensland Government and the CSG industry are positive steps for managing conflict is not in dispute. But are they “effective” processes for finding a land use balance for the competing land use interests to co-exist?

In all likelihood, the most problematic areas in deciding what form an effective public participation process should take for resolving CSG–related issues are ‘the level of power available to the participants in the community consultation and engagement processes’; ‘multi-stakeholder participation and balanced representation’; and ‘managing information conflicts’ related to community concerns over potential environmental impacts.

The level of power available to participants that would apply in any community consultation and engagement process or committee established to investigate CSG-related issues would most likely be one of the following options. The most limited option is to simply respond – or to give advice – to Government, or the energy industry, on CSG-related issues? Other possible options include making submissions on issues in dispute when public comment is sought by Government; or to make recommendations to Government on a preferred decision for future land use in the region?

 

The Queensland Government said resources company Arrow had shown "contempt" in taking too long to report a leaking gas well on the Darling Downs

 

Negotiating outcomes is not part of community consultation and engagement processes.

A scenario that must be avoided is where the ultimate decision by Government collides with the results of the community consultation and engagement processes. The perception of the participants would be that they had wasted their time and resources. In these circumstances, trust in Government would decline as the process would be seen as neither transparent nor responsive to the needs of the participants.

This problem reflects the fact that while Government may have a legal obligation to consult with the community — there is no legal obligation to agree with the results of the consultation. The exception would be where such a legal obligation is provided for in the statute — but this does not, generally, occur.

For a community consultation or engagement process to effectively reflect the public interest in the multi-stakeholder ‘CSG-agriculture-environment conflict’, all participants having an interest in the conflict must be represented. Balanced representation is equally important to ensure all participants have an equal opportunity to ensure that their views are properly taken into account in the ultimate decision.

Problems on representativeness can arise if Government discriminates in deciding who is to be invited to participate in any public participation process that is set up e.g. by not selecting those who may be critical of the proposed development.

An assessment of the media release announcing the membership of the Surat Basin Engagement Committee gives some idea of how Government addressed the question of balanced representation for this Committee. There are three categories with fairly equal member numbers in each category:

  • 8 “Industry” (6 CSG; 2 Farming Sector)members;

  • 7 “Government” (3 Regional Council; 4 QG Departments) members; and

  • 5 “Community/Landholders” members.


Following the first meeting of the Surat Basin Engagement Committee in April 2011, the Mining Minister said that the Committee would help the Queensland Government ensure that development of the CSG industry was balanced with agricultural industries: “mining and agriculture can co-exist and this Committee will help strike the right balance”.

 

But there is another model used in environmental and planning conflicts for achieving balanced representation. Three broad groups of interests are recognized: “Economic”, “Special” (i.e. other than economic)” and “Community” (i.e. those who live in the area who have to live with the ultimate decision). Where the interests of a party overlap, the dominant one becomes that party’s interest.

Using this model for achieving balanced representation, an initial assessment of the interests of the members of the Surat Basin Engagement Committee can be made:-

  • Economic Interests: AgForce, Queensland Farmers Federation, Queensland Resources Council, APPEA, Santos, Queensland Gas Company, Origin Energy, Arrow Energy, Maranoa Regional Council, Western RC, Toowoomba RC, QDEEDI, Co-ordinator General ( 13 members)

  • Special Interests: QDERM; Queensland Water Commission, Queensland Murray-Darling Committee, Queensland Great Artesian Basin Advisory Committee, Basin Sustainability Alliance ( 5 members)

  • Community Interests: -

  • Uncertain (Economic or Community?): Concerned Landholders Roma North, Jimbour Action Group (2 members)


Based on the ‘Environmental and Planning Model’ for balanced representation, the following observations could be made on the composition of the Surat Basin Engagement Committee:

  1. The Committee is heavily weighted in favour of economic interests and so is not balanced;

  2. Affected community interests are poorly represented; and

  3. If sustainability is a goal for co-existence, then it would have been prudent to include, under the “Special Interests” category, direct representation of Indigenous Interests (Significant Places, Natural and Cultural Heritage), “Conservation/NGO Interests” (Biodiversity), the “Australian Institute of Agricultural Science” (Food Security and Arable Lands) and the “Public Health Association of Australia” (Environmental Health).


Information conflicts have arisen because of scientific uncertainty as to whether the processes used to extract coal seam gas are environmentally sound. The complexity of, and controversy over, potential environmental impacts has led to polarized and divergent opinions over CSG developments.

 

At the core are community concerns over the CSG industry and potential environmental impacts on surface and ground-water systems, the Great Artesian Basin, food security and loss of agricultural land, threatened species, public health through to safety issues from gas releases.

The CSG industry has counterclaimed that it operates sustainably under strict environmental conditions and regulatory control; and that the issues in dispute between the industry and the community have been addressed in the 1500 conditions imposed on the CSG project approvals.

But, there are other dimensions to environmental concerns: the question of “cumulative impacts” and how “sustainability”, a matter arising as a legal obligation under Queensland’s Environmental Protection Act, has been taken into account?

Cumulative impacts can result from individually minor but collectively significant actions over time. In the case of CSG developments, the potential environmental impacts from one site may be minor. But, the additive effect of all similar minor impacts, taking place over a period of time at other CSG sites throughout Queensland, may have the potential to result in a “reasonably foreseeable” adverse cumulative environmental impact.

The difficulty for decision-making is how far into the future, similar and connected CSG actions and their cumulative effects should be – and have been – considered in order to decide whether a cumulative impact is speculative or reasonably foreseeable?

Under Chapter 5A of Queensland’s Environmental Protection Act 1994, a CSG activity requires an “environmental authority” before proceeding. This Act imposes a legal obligation on any decision made to grant an environmental authority to not only protect Queensland’s environment, but also to allow for development in a way thatmaintains “ecologically sustainable development”. A sustainable outcome under this Act is required to provide for a strong, growing and diversified economy that enhances environmental protection.

The legal meaning for “ecologically sustainable development” in Queensland’s Environmental Protection Act is in the form of seven guiding principles. Two of these guiding principles require decision-making to effectively integrate both long and short-term economic, environmental, social and equity considerations; and to use a precautionary approach to deal with risk and scientific uncertainty.

 

Achieving both these elements will require mathematical (computer) modelling to predict long-term economic, environmental, and social impacts, equitably. A precautionary approach calls for environmental and health risk assessments to be undertaken.

Traditionally, this has been done separately by each specific stakeholder interest group – or through a reference Committee set up by Government. Scientific reports on the key environmental issues in dispute are prepared by Government Agencies, or outsourced to specialist scientific experts and environmental consultants. Transparency is also an issue, as is the need to ensure that all scientific information is both relevant and reliable and readily available to, and understood by, the community.

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