Chapter 3
Discussion of key issues
3.1
The proposed establishment of an Independent Expert Scientific Committee
(IESC) drew comment from environmental organisations, agricultural bodies, mining
organisations, community action groups and government.[1]
3.2
Environmental organisations, agricultural bodies and community groups
were generally supportive of the establishment on the IESC.[2]
The IESC was seen as a way of providing greater information about coal seam gas
(CSG) mining and creating a more transparent and thorough approval process for
CSG and large coal mining developments.
3.3
Mining companies and peak bodies were opposed to the establishment of
the IESC because in their opinion, it would create additional regulatory burden
in the environmental approval process and delay significant projects.[3]
3.4
A number of key issues were raised by submitters regarding the bill,
including the definitions of key terms contained in the bill, the independence
and expertise of the IESC's members, and the 'stop the clock' provisions.
Support for decision making to be based on evidence
3.5
There was broad support from submitters for environmental decision
making in respect to CSG and large coal mining developments to be based on
scientific evidence.[4]
It was argued that not enough is known about CSG mining and its potential
impact on people, the environment and regional communities. According to the
Friends of Felton:
CSG is often touted as cleaner than coal and an ideal pathway
for transitioning from coal to renewable; this is accepted as a "given"
by virtually everyone. In truth we don't yet know enough about the life cycle
of CSG to say anything definitive about its relative cleanliness.[5]
3.6
Australian Pork held similar concerns over the unknown impacts of CSG
mining on agricultural and water resources, stating:
...the approach of State and Federal Governments to implement
adaptive management regimes for CSG projects in the absence of sufficient
science may have irreversible environmental, economic and social impacts on
rural communities. It may be decades before the current and cumulative impacts
of CSG activity on our water resources is fully understood. By this time it
will be too late to reverse these impacts through 'make good' or other
legislative provisions.[6]
3.7
In light of the lack of research and understanding of CSG mining, many
submitters felt that the establishment of the IESC would help ensure future
decision making is based on the best available scientific evidence.[7]
For example, the Basin Sustainability Association submitted that it:
...supports the principles behind the EPBC amendment because
of the urgent need for independent scientific investigation into the numerous
serious environmental concerns held by rural and regional communities about the
long term cumulative impact of the massive scale of the CSG industry.[8]
3.8
Similarly the Australian Lot Feeders' Association stated that it:
...believes that the proposal for the Committee to be able to
provide advice to the Minister about research priorities will improve
scientific understanding of the impacts of coal seam gas and/or coal mining
developments on water resources.[9]
Failure of the current regulatory approach
3.9
It was the opinion of community groups and environmental organisations
that the current state regulation of CSG and large coal mining developments is
not working.[10]
For example the Friends of the Earth informed the committee that:
We believe very strongly that the status quo, which is the
state based approvals, is simply not working at present. In Victoria our
government has a very cavalier and piecemeal approach to approvals. Industry
complains around the so-called green tape and the need to consult with multiple
departments, yet what we are finding is that it is a very piecemeal process
which does not adequately assess in particular the impacts on food security,
ground water, surface water and greenhouse gases.[11]
3.10
The Wilderness Society and the Northern Inland Council for the
Environment concurred:
...the development assessment process for mining in New South
Wales can probably best be described as a juggernaut—it rolls across our
communities and seems to quash our legitimate concerns with the power, money
and influence of mining companies, the sheer volume of environmental assessment
reports which they produce and an unbalanced planning system that is heavily
weighted towards approval. In New South Wales, something like 99 per cent of
proposed large mining developments are approved.[12]
3.11
These submitters felt that the establishment of the IESC by the
Commonwealth government would give more transparency to the environmental
approvals process. The greater involvement of the Commonwealth in the area of
CSG mining and large coal mining was seen to be a positive step.[13]
Duplication of regulation
3.12
Concerns were raised by mining companies and peak bodies that the
proposed legislation will duplicate regulation in the environmental approval
process.[14]
For example the Association of Mining and Exploration Companies (AMEC)
submitted that the bill '...effectively adds another regulatory layer to the
environmental approvals and assessment [process]'.[15]
3.13
The industry submitted that the requirements placed on proponents to
obtain environmental approvals for mining and CSG extraction in Australia is
already extensive. According to mining company Santos, '...CSG would be one of
the most highly regulated industries in Australia.'[16]
3.14
The Minerals Council of Australia similarly argued that there is a
significant potential risk of duplication between Commonwealth and state or
territory processes in the assessment of water impacts.[17]
For example, it was noted that a number of jurisdictions have developed, or are
developing, new approaches to the assessment of water resource impacts (such as
the New South Wales Draft Aquifer Inference Policy).[18]
3.15
The duplication between state or territory and Commonwealth assessment
processes is an area of ongoing concern for the mining industry.[19]
The industry argued that the bill contradicts the commitment made by Australian
governments through the Council of Australian Governments (COAG) Business
Advisory Forum to address duplicative and cumbersome environment regulation and
to streamline the process for approvals of major projects.[20]
3.16
The Minerals Council of Australia informed the committee that:
...there is always an opportunity for continuous improvement
in the way in which regulation is applied and that there are real opportunities
to remove some of the duplication and inefficiency. If that were to occur, that
would potentially free resources to be used to improve the scientific
information base on which decisions are made.[21]
3.17
In response to the possible duplication of Commonwealth and state and territory
approvals the Minerals Council of Australia did note that the Commonwealth
government '...should be the standard setter and the state governments should
be responsible for the implementation of those standards.'[22]
Committee comment
3.18
Mining and coal seam gas extraction is primarily licensed and regulated
by the states and territories. The Commonwealth government is only involved
where an action may have a significant impact on a matter of national
environmental significance (MNES) under the EPBC Act.
3.19
The committee believes that the National Partnership Agreement signed by
the Commonwealth government and the governments of New South Wales, Queensland,
Victoria, South Australia and the Northern Territory recognises the mutual
interest of all governments in the long term health, quality and viability of
Australia's water resources and the sustainable development of CSG and coal
mining industries.
3.20
The National Partnerships Agreement and the establishment of the IESC
will go some way to ensuring that all governments signed up to the agreement
will receive consistent independent and expert advice on CSG and large coal
mining developments.
3.21
The National Partnerships Agreement and the IESC provide a solid
framework for greater cooperation between the governments in the environmental
approval of CSG and coal mining developments and the streamlining of
regulation.
Definitions
3.22
There was some discussion by submitters concerning the definition of
terms contained in the bill and how these would be applied.[23]
In particular submitters called for clarity about the definition of the terms 'large
coal mining' and 'significant impact' in relation to water resources.
Large coal mining
3.23
The National Environmental Law Association (NELA) opined that the
definitions of 'coal seam gas development' and 'large coal mining development'
'...are very broad and are capable of different interpretations resulting in
potential uncertainty of application.'[24]
According to the NELA, the use of the word 'large' in relation to coal mines is
'...misleading as the definition includes no qualifiers on the size of the
proposed mine.'[25]
3.24
The NSW Irrigators Council and the National Farmers' Federation (NFF)
requested that the definitions of large coal mining development and coal seam
gas development be supplemented to include all forms of mining or sub-surface
activity that could impact on water.[26]
The Irrigators Council strongly advocated for the protection of all water
resources and '...hence proposes that the scope of responsibilities for the Committee
is extended to include all Coal Seam Gas and Mining activities.'[27]
3.25
The NFF shared this view:
...it should be noted that while the coal seam gas and coal
mining industries are the targets, other energy and mining sectors might also
have similar impacts. For example it is understood that geothermal energy
production will use significantly more water than may be extracted by the coal
seam gas industry.[28]
Significant impact on water
resources
3.26
The term 'significant impact' in relation to water resources drew
comment from submitters over its definition and how it would be applied. The
AMEC put to the committee that:
The term 'significant impact' relating to water resources is
not defined. AMEC has long advocated for a clearer definition of significant
impact in order to provide increased clarity and certainty to proponents on
their environmental responsibilities.[29]
3.27
The Australian Network of Environmental Defender's Offices (ANEDO) suggested
that:
...further detail could be provided to clarify what
constitutes a 'significant impact' on water resources. The current Significant
Impact Guidelines apply to current listed matters of national environmental
significance and not specifically water resources. We submit that a new
Significant Impact Guideline be developed to clarify this. This could be a
priority task for the new Committee.[30]
3.28
Although the bill itself does not contain a definition of 'significant
impact' in relation to water resources, the National Partnership Agreement (the
framework between the Commonwealth government and the signatory state and
territory governments allowing them to seek the advice of the IESC) does
contain a lengthy definition.[31]
However The National Partnership Agreement does not have legal status.[32]
3.29
According to the Department of Sustainability, Environment, Water,
Population and Communities (the department) the definition of 'significant
impact' as it relates to the bill is expected to be developed over time:
The definition of 'significant impact' in the EPBC Act
probably has a long history in itself. When we went back and reviewed the EPBC
Act and how it has evolved, there is actually no definition of significant
impact for other issues in relation to the EPBC Act. Over time there has been
experience built up in terms of the actual specific assessments about
particular projects—for example, on threatened species, wetlands and World
Heritage areas—that has enabled a body of work to be developed that can provide
a really sound basis for coming up with a detailed definition of 'significant
impact' for those specific things, and some significant impact guidelines have
subsequently been released to help make better assessments about whether
something is likely to be significant or not. I guess we are expecting that in
this field the same thing will happen. At the moment there have been very few
decisions and assessments taken that can help inform a very robust and
defensible definition of 'significant impact' in every single circumstance, so
the objective here is to try to use the national partnership agreement
definition of 'significant impact' as the initial filter. Then, through the
body of work that is built up as individual projects come through, as advice is
provided and as we get some practical experience in the actual impact of coal
seam gas and coalmining operations when they are in place, you can start to
have a much more informed view about that and start to produce some public
information that would help clarify that in much more detail. I do not think
the science is there yet to be able to definitively say one way or another in
every circumstance that something is going to be significant or not, so we are
probably trying to take a bit more of a cautious, risk-averse approach at the
moment.[33]
Committee comment
3.30
The definition of significant impact in the EPBC Act has been
established over time and in relation to specific assessments.
3.31
The committee recognises that the department intends to base the
definition of significant impact on the definition agreed by the Commonwealth
government and signatory governments in the National Partnership Agreement
until such a time as a body of evidence is sufficiently established as to
clarify the definition.
3.32
The committee notes that as research and the assessment of individual
projects provides sufficient evidence on the impact of coal seam gas and coal
mining operations, the department will produce public information clarifying
the definition.
The independence and expertise of IESC members
3.33
There was discussion by submitters over the independence of members
appointed to the IESC and their expertise. Some submitters were of the belief
that scientists appointed to the IESC should in no way be affiliated with or
receive funding from mining companies.[34]
The Wilderness Society and Northern Inland Council for the Environment stated:
We believe it is absolutely crucial that the Committee
members are fully independent from coal and gas companies. Such independence
can only be guaranteed if the members and/or their organisations do NOT receive
research funding or other funding from such companies and do not have
representatives from such companies on the board.[35]
3.34
The Northern Inland Council for the Environment informed the committee
that community confidence in some academic research has been tarnished by the
links between universities and mining companies. According to Ms Carmel Flint:
...community perception out in rural communities is that this
is already another kind of stitch up, having seen that. There is already a lot
of disappointment already. So I think the make-up of the final committee is
going to be incredibly important in how the community views it and whether it
has standing.[36]
3.35
Other submitters argued that having previously worked for or received
funding from mining companies does not mean that the experts lack
independence. Mr Timothy Duddy from the Caroona Coal Action Group remarked:
...the fact that someone has done some work for the mining
industry does not mean they are not independent...You want people who actually
love science and who are genuinely interested in what is going on. The fact
someone has worked for a particular employer that does not mean they are
necessarily its greatest advocate; what you want is someone is very smart as to
what they can do and how they can model things. You want the best people in
their field. Who they have worked for is completely irrelevant.[37]
3.36
The Minerals Council of Australia went further and suggested that
members of the IESC should be required to have had experience working with the
mining industry. The Minerals Council stated:
We think that is what makes someone an expert—having worked
in the context in which they are seeking to provide their expert advice. There
is a natural tension when some people perceive that having worked with the
minerals industry somehow removes your independence. I think those
professionals—and, similarly, organisations like the CSIRO that have
historically partnered with the minerals industry on a number of research
projects and that have produced a large body of research—have very strong
methods of work and very strong scientific values that mean they are quite
capable of doing research work and maintaining a very independent view.[38]
3.37
In responding to the issue of independence and expertise of IESC
members, the department advised that the method used in appointing members of
the Interim IESC, and the way the appointment process is intended to work with
the IESC, was done in two stages:
- firstly to find a group of individuals that had the scientific
expertise in hydrology and geology and who also understood how mining interacts
with those systems; and
-
secondly to ensure that those people were able to provide
independent advice by going through a process of due diligence and putting in
place strict probity and conflict of interest arrangements prior to their appointment.[39]
3.38
According to the department:
In that process, we found that it is hard in this field,
particularly in the coal seam gas area, to find people who actually understand
the science around the potential implications of how the coal seam gas
operations work and their interactions with underground aquifers and water
systems, unless you found people who had some interactions with industry. The
view was that it is much better to have people who do have that—both the
scientific understanding, credibility and expertise and the understanding of
how the industry works—and manage any risks associated with that through proper
conflict of interest and governance arrangements. We could not find anybody to
be honest who had no linkages at all and had the right science. If you are
trying to get an expert advisory committee, you want people who are experts not
people who are learners in the whole area.[40]
3.39
The department also informed the committee that IESC members must adhere
to strict conflict of interest guidelines and probity protocols that have been approved
by the Australian Government Solicitor.[41]
IESC members are also required to declare any conflict of interest arrangements
against every agenda item for each IESC meeting. Details of these conflicts are
recorded and made public in the meeting's minutes.[42]
Committee comment
3.40
It is the opinion of the committee that members appointed to the IESC should
be experts in the impacts of CSG extraction and coal mining on water resources.
This may include scientists that have worked or received funding from mining
organisations.
3.41
The committee is reassured by the department's comments regarding probity
and conflict of interest guidelines to ensure the independence of the IESC. The
approval of these by the Australian Government Solicitor reinforces the
independence and transparency of the IESC.
Public notification
3.42
Numerous submitters raised the matter of publication of the IESC's
assessments. Some submitters sought to ensure that these assessments are made
public at the same time as the information is provided to the Commonwealth or
state or territory minister.[43]
3.43
The Northern Inland Council for the Environment raised concerns that
'...as it stands now, there is nothing to suggest the community will see this
information before decisions are made.'[44]
3.44
The NSW Irrigators Council likewise stated:
I would struggle to see any circumstances where the
suppression of the information would prove useful to anyone other than
potentially the proponent. In particular, I would have thought it would be a
protection on the minister to have that information publicised before a decision
was made—and I suspect that there are possibly other legal frameworks that
could be put in place to protect that information if it was vitally necessary
for some other reason.[45]
3.45
In responding to these concerns, the department stated that the current
procedure for the Interim IESC, and other statutory committees operating under
the EPBC Act, is that:
...it is appropriate to give the decision maker the
opportunity to consider the advice from the committee before it is made
publicly available. We have been publishing the advice from the committee
pretty much at the same time as or just after the decision has been made, so
there is not a long delay between when the minister makes the decision, or the
decision makers make the decision, and when that advice becomes available.[46]
Committee comment
3.46
The current practice of the interim IESC, and of other statutory
committees established under the EPBC Act, has been to publish material at the
same time, or just after, the minister has made a decision. This practice provides
the minister, as the decision maker, adequate time to review and consider the
advice given by the expert committee. The committee supports this practice.
3.47
The committee also welcomes statements in the minister's second reading
speech on the bill that the IESC will to provide regular public updates of its
work on a dedicated website.
'Stop the clock'
3.48
In situations where the Commonwealth minister has requested advice from
the IESC, a 'stop the clock' provision would be applied to pause the prescribed
time in which the minister is required to make a decision on approving a CSG or
large coal mining development.[47]
The aim of this provision is to ensure the IESC has adequate time to consider
proposed actions and prepare relevant and useful advice.[48]
In effect the 'stop the clock' provisions would pause the approval process by
up to two months (the maximum amount of time the IESC is allowed to conduct an
assessment).
3.49
Mining and petroleum peak bodies opposed this provision arguing that
delays in development due to environmental regulation are already significant.[49]
The Australian Petroleum Production and Exploration Association (APPEA)
submitted that:
The result of this provision is to add up to two months onto
the already lengthy approval processes for major CSG projects as a result of
the Committee's deliberations. Should the Committee's advice lead to
substantial revisions of pending approvals and/or project requirement there
would be additional and considerable delays.
...
APPEA instead considers that the Committee should be brought
in at an early stage of the approvals process to avoid the potential for
Committee advice at a late stage of the process delaying approvals being
issued.[50]
3.50
The Minerals Council of Australia similarly agreed that the work of the
IESC should continue concurrently with the normal assessment process and that
'...the decisions to refer a development proposal to the Committee should be
undertaken early in the assessment process...to allow for concurrent assessment
activities to be undertaken.'[51]
3.51
Other submitters, particularly community groups and environmental
organisations, believed that the two month 'stop the clock' provision did not
allow enough time for the IESC to conduct thorough assessments.[52]
For example, The Wilderness Society informed the committee that:
The two-month time frame for decisions does not allow time
for the committee to commission the independent baseline analysis necessary to
inform their recommendations. While it is likely that they will be expected to
assess a large number of projects concurrently, time pressures lead to rushed
decisions and a failure to deliver on the robust scientific assessments
expected by government and community. We recommend an extension of this time
frame from two months to up to six months.[53]
3.52
There was concern that if the IESC is burdened with a significant number
of assessments, particularly early on in the IESC's operation, a bottle-neck
could emerge in providing advice to the minister. According to the NELA, this
would impact on the minister's ability to grant approvals as the minister is
prevented from making a decision without considering the advice of the IESC.[54]
3.53
The ANEDO noted that whilst two months is a reasonable period '...in the
event that the Committee is provided with insufficient information to advise
upon (and where the proponent may need to gather more data), there may need to
be a mechanism for time extensions.'[55]
Committee comment
3.54
In order for the IESC to conduct a thorough examination of a proposed
CSG or large coal mining development and prepare advice for the minister, an
appropriate amount of time must be allowed. The committee believes that two
months provides sufficient time for the IESC to conduct their work, whilst also
avoiding undue delay in the environmental approvals process.
3.55
Development of CSG and large coal mining projects requires considerable
research, investment and planning on behalf of the proponent and takes
significant time to complete. In light of this, the committee does not believe
that a two month pause to conduct an independent scientific assessment of a development's
impact on water resources would cause undue delay.
3.56
The committee recommends that the bill, as amended in the House of
Representatives, be passed.
Recommendation 1
3.57
The committee recommends that the bill, as amended in the House of
Representatives, be passed.
Senator Doug Cameron
Chair
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