Queensland moves to remove rights to object to mining projects

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The Queensland Government is moving quietly to take away the rights of people and groups to object to mining projects, writes Jo-Anne Bragg.

IF YOU ARE a Queensland community organisation, or catchment group, or individual concerned about protecting the local community, environment and economy – or even if you are a neighbour of land possibly to be subject to a mining lease – take notice!

Because Natural Resources and Mines Minister Andrew Cripps, on behalf of the Queensland Government, is proposing to remove most long established rights for any person or group to make a formal objection about any proposed mine to the Queensland Land Court. Those changes are set out in the Minerals and Energy (Common Provisions) Bill 2014 introduced to Queensland Parliament on 5 June 2014.

Risks of mining projects and public scrutiny

As a public interest environmental lawyer of over 20 years’ experience, I am gravely concerned about the proposed reduction in community objection rights.

As many of us know, mining projects and infrastructure pose grave risks to the environment. This is true whether they are a massive 60,000 hectare lease area like the proposed Alpha Coal mine or a small mine. Once approved, such mines may operate for decades.

In Queensland, it is often the public purse that bears the cost of rehabilitating abandoned mine sites. So it is in the public interest that there is the widest possible community scrutiny of such proposals to identify and properly consider such serious potential impacts.

Public objection rights a deterrent to corruption

Public objection rights enable the costs and benefits of proposed mines to be debated openly and transparently in the Land Court.

While not everyone has equal access due to resourcing issues, community rights to go to Court – be they third party appeals or similar hearings such as objections – are recognized as a valuable deterrent to corruption.

In New South Wales, the Independent Commission Against Corruption found:

'The absence of third party appeals creates an opportunity for corrupt conduct to occur, as an important disincentive for corrupt decision-making is absent from the planning system.'

Yet, the Queensland Government does not acknowledge that deterrent, instead talking up the benefits of streamlining mining approvals and alleging that  individuals and groups have been deliberately lodging objections to delay or obstruct mining projects, rather than for valid relevant grounds under law.

Our legal office researched this last claim — and found there is no evidence of such deliberate delay or disruption by community group objectors using the Land Court mining objection process.

Community objectors use Land Court responsibly

In fact, the opposite is true — Land Court objectors are an impressive, hardworking and responsible bunch.

For example, in 2013, the Alpha Coal case was heard in the Land Court. The objectors included local landholders – the Andersons, the Curries and Paola Cassoni – concerned citizen Katheryn Kelly and conservation group Coast and Country Association of Queensland (this last group represented by solicitors EDO Qld).

These objectors raised legitimate, immensely important and professionally presented issues, including the potential impact of the massive coal mine on local economies and regional groundwater.

On 8 March, this year the Land Court agreed with the objectors that

'... there is insufficient hard data to have a sufficient level of confidence that groundwater impacts will be as predicted by the model.'

Operation of the current Queensland Law

Under present Queensland law, for all mining proposals, such as the Alpha Coal proposal, mining companies require both a mining lease and an environmental authority to start their operations. The mining lease gives the company the right to access the land and the minerals, whilst the environmental authority – which is a separate approval from the State Environment and Heritage Department – sets out the environmental conditions for the project.

Queensland law also states that anyone (person or group) can object to an application for a mining lease as well as an application for an environmental authority. (For an objection to a mining lease, see S260 Mineral Resources Act 1989 (Qld), with the definition of entity in Schedule 1 Acts Interpretation Act 1954 (Qld). For the right to make a submission on environmental authority, and the right to make an objection after a submission, see s160 and s182(2), respectively, of Environmental Protection Act 1994 (Qld).)

An objection is a powerful entitlement under legislation to go to Court, not to be confused with the public having a say in a survey or at a public meeting or in a submission. Any such objections to the mining lease or environmental authority are dealt with in the same formal objections hearing at the Land Court.

Only limited public objection rights would be left

In this Bill, the Queensland Government proposes to reduce public rights to object to the grant of a mining lease, so that only ‘affected persons’ would be entitled to object.

This new term includes only those landowners whose land would be subject to the proposed mining lease or whose land would be necessary for access to the land subject to the proposed lease or the relevant local government (s420 of the Bill, replacing s260 of the Mineral Resource Act 1989 (Qld)).

For the environmental authority application, which deals largely with the environmental impacts, the Bill proposes that only ‘site specific’ applications will be publicly notified for public objection (Section 245 of the Bill, amending s149 of the Environmental Protection Act 1994 (Qld)).

Public objection rights are being removed in other cases.

The Queensland Government says that out of about 100 mining lease applications each year, only about 10 per cent are declared to be site specific (Mining lease notification and objection initiative discussion paper – including regulatory assessment, page 7). That means that for 90 per cent of mining projects in Queensland, there would be no community objection rights at all.

What’s more, there will be no public notification of these so called ‘lower risk’ projects. So, even if you are a near neighbor or a local catchment group, you may not even be aware the mine is underway until the excavator starts work or you notice your watercourse is full of sediment from upstream.

Qld Government confusing the debate on the laws

By failing to acknowledge the Bill would remove 90 per cent of public objection rights, the Queensland Government is resisting democratic debate on these proposed changes in a unacceptable way.

In a 5 June press release, Minister Cripps says the Bill

‘... amends the notification and objection process for a mining lease application to create a more streamlined and efficient process.'

His release fails to communicate to people that the Bill would strip the community of most existing rights to go to the Land Court on the proposed mining lease or environmental authority.  

Moreover, EDO Qld received and read copies of 106 of the 176 submission lodged on the Discussion Paper; as over 100 submitters supported keeping existing objection rights, we can conclude clear majority of those 176 public submissions which supporting keeping existing objection rights. Minister Cripps also fails to mention in his press release, or elsewhere, that a clear majority of 176 community submissions on the Mining Notification and Objection discussion paper earlier this year – from both rural and urban submitters – strongly opposed these changes.

An additional example of the Government resisting democratic debate is demonstrated by the Minister introducing the Bill to Parliament during budget week, when non-budget news struggles to get into the media.

With an election now looming, we can only hope Premier Newman decides it is politically wiser to backflip on this controversial issue.

Disclosure: Jo-Anne Bragg has acted as a solicitor for community groups in litigation regarding mining projects. In 2008 and 2010 she ran as a candidate for the Green Party.

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