Just as Queensland considers some of the biggest mining proposals in its history, a midnight amendment has taken away community rights to object, right after promising the opposite. Stephen Keim SC and Alex McKean report.
AFTER QUEENSLAND PREMIER Campbell Newman’s Government suffered a second stunning by-election defeat in late July in the electorate of Stafford, he apologised to the voters, promised again to listen more and even said he would rectify some of the worst legislative acts of his recent past.
Premier Newman effectively promised that the spots which adorned him and his government, and with which voters had become much too familiar, would be changed beyond recognition.
Subsequent events have shown that nothing has changed.
The Newman Government has a track record where donations to the Liberal National Party have been closely followed by Government actions favouring the donor. Not so mysteriously, this convergence of interest has often involved mining interests as the beneficiary donor.
The latest event, however, takes the subversion of Parliamentary process to a new and bewildering level. Premier Newman’s Government has used the minutes before midnight to force unheralded amendments through the Parliament to make the already undemocratic legislation far worse.
And who benefits? The proponents of huge mining developments.
The Mineral and Energy Resources (Common Provisions) Bill 2014 (Qld) was introduced into the Parliament by the Minister for Mines, Andrew Cripps, in June 2014 — about six weeks before Newman’s famous promise to be better.
From the beginning of the ‘consultation process’, it was clear that the Bill would remove a large swathe of existing rights to object to mining proposals and to pursue those objections through a quasi-judicial process in the Land Court.
There was, however, one saving grace.
Objection rights would be retained with regard to the biggest and ugliest mining proposals — the so-called site specific applications.
The explanatory notes to the Bill promised that it would retain the
‘… right to lodge a submission, under the Environmental Protection Act 1994 for site-specific application environmental authorities for higher impact and intensive activities.’
The Bill was referred to the Agriculture, Resources and Environment Committee. The Committee received an astonishing 288 submissions about the Bill from a broad range of interested parties.
State Mining Minister Andrew Cripps tacks on last-minute amendments to new laws, curbing objections to big mines http://t.co/L7sRRVoE63— John McCarthy (@Johnsmccarthy) September 12, 2014
On 5 September 2014, the Committee delivered its Report on the Bill. The documents suggest that, for the Government members on the Committee, the content of the Report was results, as opposed to evidence, driven.
By way of example, the Report contained an approving reference to the claim by the Queensland Resources Council that
‘… there was evidence to suggest that public objection processes in some cases were being abused to delay projects.’
There were, of course, competing submissions from impeccable sources ‒ including Queensland Government departments ‒ to rebut the Resources Council claim.
The Land Court stated that, in its experience, there was no evidence to suggest the court’s processes were being used to delay project approvals.
In a similar vein, the Department of Environment and Heritage Protection stated that there was little evidence to support the claims of the Queensland Resources Council.
Of the competing views of reality, the Government members chose the unsubstantiated claims of the Resources Council and supported the Bill in its already objectionable form.
Worse was to come, however — although Andrew Cripps, the minister, was using his most soothing tones to point in a direction far from where the even greater danger lay in wait.
Mines Minister Cripps began the debate on the second reading of the Bill late in the afternoon of Tuesday 9 September 2014.
In his speech, he repeated and confirmed the previous assurances in the following terms:
“EAs for proposed mines which may have environmental impacts on people some distance from a proposed mine, such as coal mines, will always be publicly notified, so anyone, including landholders, local councils, adjoining landholders and the community can lodge a submission about a site specific application for an EA on environmental grounds.”
Clearly nothing to worry about, then!
As the night wore on, Minister Cripps, on a number of occasions, repeated, without qualification, that “anyone” would still have an opportunity to
“… object to an application for an environmental authority associated with a mining lease where that EA is going to be site specific.”
Then, at five minutes to midnight, the leopard revealed its old familiar spots.
Minister Cripps moved the amendment removing the right of anyone to object to an environmental authority for a mining project where the Coordinator-General is satisfied the environmental effects have been adequately addressed.
Site specific environmental authorities were no longer sacred.
The Coordinator-General now has the power for the highest impact mining proposals, those that are coordinated projects, to remove the scrutiny of the Land Court for environmental authorities. All those assurances, from the explanatory memorandum, the second reading speech and, repeatedly, from the Minister’s own mouth, flew together out the Parliamentary windows.
The nasty reality they were hiding was revealed.
After all those assurances, objection rights would not be preserved for the largest and most potentially damaging mining projects.
Procedural subterfuge is nearly always accompanied by substantive disgrace, because Governments proud of their legislative reforms are usually happy to debate them up hill and down dale and in the clear light of day.
And there is reason to believe that this particular set of changes strikes deeply into the vital organs of our still (but barely) breathing democracy.
No less an authority than the New South Wales Independent Commission Against Corruption identifies community involvement in planning projects, such as the right to object to mining, as one of the six key corruption prevention measures.
In a recent report, ICAC noted:
‘Community participation and consultation requirements also act as a counter balance to corrupt influences. The erosion of these requirements in the planning system reduces scrutiny of planning decisions and makes it easier to facilitate a corrupt decision.’
Queensland’s analogous agency, the Crime and Corruption Commission, did not make a submission to the Committee concerning this Bill.
The ability of Queensland’s anti-corruption agency to display the necessary independence has been thrown into great doubt by the appointment of a seemingly perennial acting chair, Dr Ken Levy, cuts to its funding and various other structural changes including having its research role restricted to those areas approved by the Attorney-General.
So, what were some of the precursors to this removal of community rights to participate in decisions about future land use and natural resource extraction?
Sibelco, a Belgian mining giant, made undisclosed donations of $90,000, which were used to fund a bogus letter-writing campaign in Mr Newman’s electorate of Ashgrove prior to the 2012 election.
After the election, a series of meetings took place between Sibelco executives and Government representatives, culminating in the Newman Government passing legislation which will allow Sibelco, in 2019 ‒ if the legislation is not repealed before the lease options are exercised ‒ to extend its sand mining leases on Stradbroke Island until 2035.
The extensions will increase Sibelco’s net worth by $1.5 billion.
Meanwhile, a company, Karreman Quarries, had made a donation of $75,000 to the LNP. Subsequently, an amendment was quietly snuck into a Bill which dealt with other matters. The amendment, when it became law, after being hurried through the Parliament by Premier Newman’s parliamentary troops, saved Karremans from having to face criminal prosecution in the Courts.
The amendment declared Karreman’s quarrying activities, then under investigation, to be legal and
‘… to always have been legal.’
The Deputy Premier, Jeff Seeney, appears to have been influential in negotiating the very favourable legislative treatment.
By stripping away rights of the community to object to mining projects, Premier Newman has chosen to benefit big mining interests at the expense of traditional National Party supporters, Queensland’s farmers and graziers.
The reality is echoed by the language.
The highly respected rural lobby group, AgForce, one of the stakeholders who objected to the Bill, found itself pilloried by Minister Cripps in his speech in the second reading debate, along with all the other adverse submitters, as being ‒ absurdly ‒ among the “radical greenie groups” who opposed the legislation.
The midnight destruction of community objection rights is significant in its timing. The Queensland polity faces important decisions about mining proposals for mines of a scale rarely, if ever, seen before.
In 2013, Greenpeace published a report naming the proposed coal mining projects in Queensland’s Galilee Basin as comprising one of the 14 dirtiest resource proposals in the entire world. Greenpeace warned that, if all the proposals went ahead, they would produce a 5-6 degree increase in average global temperature.
Just two of the nine mega-mines proposed for the Galilee Basin will have a combined output four times that of the biggest mine currently operating in Australia.
It could readily have been anticipated by Newman and Cripps that the community would have concerns about coal mining on such a massive scale. The concern would be aggravated by the associated proposals to build rail and port facilities to take the coal to China and India. The community would, no doubt, have concerns about the massive contribution the burning of that coal would make to catastrophic climate change, as well as the likely increase in deaths due to air pollution, which already number in the hundreds of thousands every year.
But Minister Cripps’ midnight amendment gave the most powerful public servant in Queensland, the Coordinator General, more power to remove the Land Court’s ability to scrutinise matters of concern raised by the community about these massive mining projects in the Galilee Basin and, indeed, anywhere else.
Ironically, back in December 2012, the then Crime and Misconduct Commission published a report on political donations in Queensland. That report concluded that Queensland had some of the most stringent electoral donation laws, including the lowest caps on reportable donations, in the country.
Newman’s Government also reversed that position, legislating to reduce transparency and accountability around political donations in Queensland, thereby creating conditions conducive to corruption.
The spurious justification for the increase in non-reportable donations ‒ from $1,000 to $12,400 for individual donations ‒ was that Queensland had to be brought into line with the Commonwealth donation limits. No other State of Territory has felt the need for such a move and Queensland now shares the highest reportable threshold of any jurisdiction.
In the wake of these changes, the public may never know whether or how much the mining interests who stand to benefit from the midnight amendment donated to the LNP either before or after the changes.
But one thing is clear, Campbell Newman, whose government moved and passed the midnight amendment, is the same Mr. Newman against whom the people of Redcliffe and Stafford voted in such large numbers.
Those old familiar spots are in plain view. For all to see.
A much abridged version of this article appeared in The Australian on 25 September 2014.
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