Cement Australia (Exploration) Pty Ltd & Anor v East End Mine Action Group Inc & Anor (No 4) [2021] QLC 22

1 LAND COURT OF QUEENSLAND CITATION: Cement Australia (Exploration) Pty Ltd & Anor v East End Mine Action Group Inc & Anor (No 4) [2021] QLC 22 PARTIES: Cement Australia (Exploration) Pty Ltd ACN 009 800 355 (applicant) Cement Australia (Queensland) Pty Ltd ACN 009 658 520 (applicant) v East End Mine Action Group Inc (active objector) Jim Elliott, Maurice James Elliott, Frank Lenz, Anne Patricia Kelly, Robert Geaney, Ross Rideout, Paula Rideout, Theresa May Derrington, Tom Chapman, Lynne Chapman, Philip Mann, Claire Mann, Brent Lashford, Gladstone Regional Council (non-active objectors) and Chief Executive, Department of Environment and Science (statutory party) FILE NOs: MRA241-18 (ML 80156) EPA242-18 (EPML 000658113) DIVISION: PROCEEDING: General Division Objections to application for mining lease and amended environmental authority DELIVERED ON: 30 June 2021 DELIVERED AT: Brisbane HEARD ON: 21, 22, 23 & 24 July 2020; 27, 28 & 29 July 2020 HEARD AT: Gladstone -- 1 of 112 -- 2 MEMBER: JR McNamara ORDERS: 1. Pursuant to s 269(1) of the Mineral Resources Act 1989, I recommend to the Honourable Minister for Resources that Mining Lease 80156 be granted over the application area. 2. Pursuant to the Environmental Protection Act 1994, I recommend to the administering authority that the Environmental Authority EPML 000658113 be issued in terms of the draft amended Environmental Authority without amendment. 3. Within 28 days of the publication of these reasons any application for a costs order in this matter, supported by a statement of facts, matters and contentions, must be filed in the Land Court Registry and served on the party or parties against whom costs are sought. 4. Within 14 days of the service of any costs application and statement of facts, matters and contentions, the party or parties against whom any costs order is sought must file in the Land Court Registry and serve on the party seeking the costs order a statement of facts, matters and contentions in reply, if any. 5. Unless the parties otherwise request in writing, the costs application will be determined on the filed material, without an oral hearing not before 14 days of the filing of the material referred to in Order 4. CATCHWORDS: ENERGY AND RESOURCES – MINERALS – COURTS OR TRIBUNALS EXERCISING JURISDICTION IN MINING MATTERS – QUEENSLAND – application to extend the mine – application for mining lease – application to amend environmental authority – where there were objections to applications – where objections raised issues regarding geology, groundwater, surface water impacts, groundwater to surface water interactions, flooding, noxious weeds and subsoil moisture ENERGY AND RESOURCES – MINERALS – COURTS OR TRIBUNALS EXERCISING JURISDICTION IN MINING MATTERS – QUEENSLAND – where the Court considered the standard criteria in s 269(4) of the Mineral Resources Act 1989 – where the criteria have been met – where the Court accepted that there would be an acceptable level of development and utilisation of the mineral resources within the area applied for – where the size and shape of the surface area is appropriate – where the -- 2 of 112 -- 3 applicants have the necessary financial and technical capability to undertake the proposed mining operations – where the past performance of the applicants have been satisfactory – where the operations to be carried out under the proposed mining lease conform with sound land use management – where there will be some groundwater drawdown impacts but where the surface water impacts will not be significant and the salinity of surface water beyond the mine should remain unchanged – where the applicants’ approach to avoid, minimise or mitigate adverse impacts mean the public right and interest will not be prejudiced – where there are no good reasons to refuse the grant of the MLA – where the proposed mining operation is an appropriate use of the land applied for ENERGY AND RESOURCES – MINERALS – COURTS OR TRIBUNALS EXERCISING JURISDICTION IN MINING MATTERS – QUEENSLAND – where the Court considered the standard criteria in schedule 4 of the 2013 Environmental Protection Act 1994 – where the Court was required to consider the National Strategy for Ecologically Sustainable Development – where the threats of environmental damage and scientific uncertainty are mitigated through adaptive management and government regulation – where the Court considered the s 233 criteria of the 2013 reprint of the Environmental Protection Act 1994 – where the application documents and regulatory requirements are met – where the standard criteria were considered including the character, resilience and values of the receiving environment, the best practice environmental management, and the public interest – where the Court considered each current objection HUMAN RIGHTS – JURISDICTION AND PROCEDURE – QUEENSLAND – whether the Court has jurisdiction to consider the Human Rights Act 2019 in the absence of objections – where the Land Court has jurisdiction and a duty to consider human rights in the absence of submissions – where s 24(2) of the Human Rights Act 2019 was considered – where the human right to property would not be prejudiced – where the proposed expansion is proportionate to the public interest Acts Interpretation Act 1954 (Qld) sch 1 Charter of Human Rights and Responsibilities Act 2006 (Vic) s 20 Environmental Protection Act 1994, as at 14 March 2013 sch 4, s 3, s 4, s 150, s 197, s 217, s 222, s 223, s 251, s 559, s 559 Environmental Protection Act 1994 s 683 -- 3 of 112 -- 4 Human Rights Act 2019 s 2, s 8, s 13, s 24, s 58, s 59 Land Court Rules 2000 r 24F Mineral Resources Act 1989 s 235, s 265(2), s 268(3), s 269, s 276, s 334ZP, s 391A Water Act 2000 ch 3, s 839 ACI Operations Pty Ltd v Quandamooka Lands Council Aboriginal Corporation [2002] 1 Qd R 347; [2001] QCA 119, cited Adani Mining Pty Ltd v Land Services of Coast and Country Inc & Ors [2015] QLC 48, followed Alexandria Landfill Pty Ltd v Transport for NSW (2020) 103 NSWLR 479; [2020] NSWCA 165, considered Aurukun Shire Council v CEO Office of Liquor, Gaming and Racing in the Dept of Treasury [2012] 1 Qd R 1; (2010) 265 ALR 536, considered Cement Australia (Exploration) Pty Ltd & Anor v East End Mine Action Group Inc & Anor [2019] QLC 18, cited Cement Australia (Exploration) Pty Ltd & Anor v East End Mine Action Group Inc & Anor (No 2) [2020] QLC 25, cited Cement Australia (Exploration) Pty Ltd & Anor v East End Mine Action Group Inc & Anor (No 3) [2021] QLC 15, cited Certain Children v Minister for Families and Children (No 2) (2017) 52 VR 441; [2017] VSC 251, considered Coast and Country Association of Queensland Inc v Smith & Ors [2016] QCA 242, applied Environment East Gippsland Inc v VicForests (2010) 30 VR 1; [2010] VSC 335, considered Friends of Leadbeater’s Possum Inc v VicForests (No 4) [2020] FCA 704, cited Hail Creek Holdings Pty Ltd & Ors v Michelmore [2020] QLC 16, cited Lee v Kokstad Mining Pty Ltd [2008] 1 Qd R 65; [2007] QCA 248, cited Mabo v Queensland (1988) 166 CLR 186; (1988) 83 ALR 14, cited Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; (2001) 25 NSWCCR 218, applied Minogue v Dougherty [2017] VSC 724, cited Mt Ruby Mines Pty Ltd v Dunn [2019] QLC 46, cited New Acland Coal Pty Ltd v Ashman and Chief Executive, Department of Environment and Heritage Protection (No 4) [2017] QLC 24, considered New Acland Coal Pty Ltd v Smith & Ors (2018) 230 LGERA 88; [2018] QSC 88, distinguished Oakey Coal Action Alliance Inc v New Acland Coal Pty Ltd & Ors (2019) 2 QR 271; [2019] QCA 184, cited Pembroke Olive Downs Pty Ltd v Sunland Cattle Co Pty Ltd -- 4 of 112 -- 5 & Ors [2020] QLC 27, applied PJB v Melbourne Health and Another (Patrick’s Case) (2011) 39 VR 373; [2011] VSC 327, followed Symbolic Resources Pty Ltd v Kingham & Ors (2020) 5 QR 155; [2020] QSC 193, applied Telstra Corporation Ltd v Hornsby Shire Council (2006) 67 NSWLR 256; (2006) 146 LGERA 10, applied Waratah Coal Pty Ltd v Youth Verdict Ltd & Ors (No 2) [2021] QLC 4, applied Waratah Coal Pty Ltd v Youth Verdict Ltd & Ors [2020] QLC 33, applied APPEARANCES: D Kelly QC, with J O’Connor (instructed by Carter Newell) for the applicants A Lucke (advocate) for the active objector, with Mr Brady (agent, for a limited purpose) K McAuliffe-Lake (instructed by Litigation Unit, Department of Environment and Science) for the statutory party -- 5 of 112 -- 6 Table of Contents Introduction ............................................................................................................................ 10 Background ............................................................................................................................ 11 The nature and scope of the hearing .................................................................................... 12 Court Managed Expert Evidence ..................................................................................... 13 Pre-hearing ....................................................................................................................... 13 Submissions and pre-hearing issues................................................................................. 14 The hearing ...................................................................................................................... 17 The applicable legislation ...................................................................................................... 17 MRA .................................................................................................................................... 17 EPA...................................................................................................................................... 18 Water Act ............................................................................................................................ 19 HRA..................................................................................................................................... 22 The objections......................................................................................................................... 25 Geology................................................................................................................................ 27 ‘Karst explained’ .............................................................................................................. 28 ‘Karst features’................................................................................................................. 30 Local aquifers................................................................................................................... 31 Core samples and drill logs .............................................................................................. 33 Modelling ......................................................................................................................... 35 Pumping of sinkholes ....................................................................................................... 38 Conclusions ...................................................................................................................... 39 Groundwater ...................................................................................................................... 41 Quantity............................................................................................................................ 42 Drawdown .................................................................................................................... 42 Environmental impacts ................................................................................................ 46 Quality.............................................................................................................................. 48 Conclusions ...................................................................................................................... 51 Surface water impacts ....................................................................................................... 52 Quality.............................................................................................................................. 52 Quantity............................................................................................................................ 56 Conclusions ...................................................................................................................... 57 Groundwater to surface water interactions .................................................................... 58 Conclusion ....................................................................................................................... 62 Grout curtain ...................................................................................................................... 63 -- 6 of 112 -- 7 Conclusion ....................................................................................................................... 65 Flooding .............................................................................................................................. 65 Conclusion ....................................................................................................................... 67 Noxious weeds..................................................................................................................... 67 Conclusion ....................................................................................................................... 69 Subsoil moisture ................................................................................................................. 69 Conclusion ....................................................................................................................... 70 The statutory criteria ............................................................................................................. 71 MRA .................................................................................................................................... 71 Section 269(4)(a) - Have the provisions of this Act been complied with? ...................... 71 Section 269(4)(b) - Is the area mineralised, or are the other purposes for which the lease is sought appropriate? ...................................................................................................... 71 Section 268(4)(c) - If the area is mineralised, will there be an acceptable level of development and utilisation of the mineral resources within the area applied for?......... 72 Section 269(4)(d) - Is the land and the surface area of the land applied for of an appropriate size and shape? ............................................................................................. 73 Section 269(4)(e) - Is the term applied for appropriate?.................................................. 73 Section 269(4)(f) - Do the applicants have the necessary financial and technical capabilities to carry on mining operations under the proposed mining lease? ................ 74 Section 269(4)(g) - Has the past performance of the applicants been satisfactory? ........ 75 Section 269(4)(h) - Is there any disadvantage to existing holders or applicants for exploration permits or mineral development licences? ................................................... 78 Section 269(4)(i) - Will the operations to be carried on under the authority of the proposed mining lease conform with sound land use management? ............................... 78 Section 269(4)(j) - Will the operations cause any adverse environmental impact and, if so, to what extent?............................................................................................................ 80 Section 269(4)(k) - Will the public right and interest be prejudiced? ............................. 83 Section 269(4)(l) - Has any good reason been shown for refusing the application? ....... 84 Section 269(4)(m) - Taking into account the current and prospective uses of the land, is the proposed mining operation an appropriate land use?................................................. 85 2013 EP Act ........................................................................................................................ 85 Standard Criteria (a) – National Strategy for Ecologically Sustainable Development .... 87 Precautionary principle ................................................................................................ 88 Intergenerational equity ............................................................................................... 93 Conclusion ................................................................................................................... 95 2013 EP Act – Section 223 criteria ................................................................................... 95 Section 223(a) – The application documents for the application .................................... 96 Section 223(b) – Any relevant regulatory requirement ................................................... 97 Section 223(c) – The standard criteria ............................................................................. 98 -- 7 of 112 -- 8 Standard Criteria (a) - National Strategy for Ecologically Sustainable Development 98 Standard Criteria (b) - Any applicable environmental protection policy .................... 98 Standard Criteria (c) - Any applicable Commonwealth, State or local government plans, standards, agreements or requirements.............................................................. 98 Standard Criteria (d) - Any applicable environmental impact study, assessment or report ............................................................................................................................ 99 Standard Criteria (e) - The character, resilience and values of the receiving environment ................................................................................................................. 99 Standard Criteria (f) - All submissions made by the applicants and submitters ........ 100 Standard Criteria (g) - The best practice environmental management for activities under any relevant instrument or proposed instrument, as follows an environmental authority ..................................................................................................................... 100 Standard Criteria (h) - Financial implications of the requirements under an environmental authority as they would relate to the type of activity or industry carried out, or proposed to be carried out, under the instrument ........................................... 101 Standard Criteria (i) - The public interest .................................................................. 101 Standard Criteria (k) - Any relevant integrated environmental management system or proposed integrated environmental management system .......................................... 101 Standard Criteria (l) - Any other matter prescribed under a regulation ..................... 102 Conclusion ................................................................................................................. 102 Section 223(d) – Wild River declaration for the area .................................................... 102 Section 223(e) – Each current objection ........................................................................ 103 Section 223(f) – Any suitability report for the application ............................................ 103 Section 223(g) – The status of any application under the MRA for each tenement ...... 103 HRA....................................................................................................................................... 103 Engagement – What rights might the objector seek to invoke? .................................. 103 Limitation - How might the alleged rights be limited?................................................. 105 Justification – Are the limitations reasonable and demonstrably justified, in accordance with procedural requirements, not arbitrary and proportionate to other competing private and public interests? ........................................................................ 105 Are the limitations reasonable and demonstrably justified? .......................................... 105 Is the limitation in accordance with procedural requirements proportionate to other competing rights and not arbitrary? ............................................................................... 107 Proper consideration – Even if the limits are lawful and proportionate has the decision given proper consideration to the rights engaged? ........................................ 108 Inevitable infringement – Does a statutory provision or law prescribe a different decision? ............................................................................................................................ 108 Conclusion on human rights ............................................................................................... 108 Conclusions ........................................................................................................................... 108 Orders ................................................................................................................................... 111 -- 8 of 112 -- 9 -- 9 of 112 -- 10 Introduction [1] The applicants (collectively, Cement Australia) operate the East End limestone mine near Gladstone. It wants to extend the mine, and has applied for a mining lease and to amend its environmental authority for that purpose. [2] The town of Mt Larcom is roughly 30 kilometres WNW of Gladstone. Mt Larcom is a mountain, a town, and a locality. Bracewell is a locality approximately 14 km SW of Mt Larcom. Both Mt Larcom and Bracewell are historically farming communities. Between Bracewell and the town of Mt Larcom and a little to the east, is East End, the location of the East End mine and the adjacent proposed mine expansion area. The material filed indicates that there are two aquifers in the district, the East End aquifer and the Bracewell aquifer. The geological nature of the aquifers, the connection between the aquifers, and the impact the extension of the mine might have on either or both aquifers are key issues. [3] More than a dozen objections were made to the mining lease application and/or the draft amended environmental authority. The making of the objections led to the referral of the applications to the Land Court for consideration and recommendation. Only one objector, the East End Mine Action Group (EEMAG), elected to take an active role in the hearing.1 [4] Mr Alec Lucke is the Research and Communications Officer for EEMAG. He now lives in NSW having retired from his family property at Bracewell. He is not an objector in his own right but was the advocate for EEMAG at all stages of this matter. [5] As noted in the applicants’ closing submissions the issues raised by EEMAG were broadly the same as those raised by the non-active objectors and concerned noxious weeds, groundwater and surface water impacts associated with the proposed expansion of the mine. The non-active objectors also raised flooding and sub-soil moisture. [6] Because objections were made to the draft amended environmental authority, the Chief Executive, Department of Environment and Science (the statutory party), was also a party to the proceedings. The matter was heard in Gladstone between 20 and 29 July 2020. [7] Cement Australia submits that none of the objections raised any matter of substance that will not be appropriately managed and mitigated by the measures put in place by the 1 Cement Australia (Exploration) Pty Ltd & Anor v East End Mine Action Group Inc & Anor [2019] QLC 18 [1]. -- 10 of 112 -- 11 environmental authority or the proposals already adopted by Cement Australia. In Cement Australia’s submission, they argue that the evidence that has been adduced overwhelmingly demonstrates that a positive recommendation should be made to grant the proposed mining lease and the amendment to the environmental authority.2 [8] The statutory party says that it has reviewed the draft amended environmental authority in light of the evidence adduced in the proceedings, the written submissions of EEMAG and the applicants, and submits that no changes to the draft amended environmental authority are necessary. [9] Although there are a number of grounds of objection to the mining lease application and the draft amended environmental authority, it is the factual assertion of the objectors as to the existence of a karst aquifer system in the mine expansion area which dominated the proceedings.3 Background [10] Cement Australia is the largest manufacturer of cement in Australia and owns and operates the East End mine at Mt Larcom. Approximately 40% of the cement sold by Cement Australia is made from the limestone and clay extracted from the East End Mine. [11] While Cement Australia holds a number of mining leases in the area, open cut mining predominately takes place on mining lease (ML) 3631 - but also ML 7629, ML 80002 and ML 80127. Excavation has followed a north-west to south-east direction and Cement Australia wishes to extend its operations further to the south-east into mining lease application (MLA) 80156. MLA 80156 is the mining lease application which is the subject of these proceedings. [12] The process leading to this point has been protracted. The MLA and the application to amend the environmental authority were lodged in November 2008. The applications and objections were referred to the Land Court of Queensland on 26 June 2018. 2 Applicants’ Closing Submissions filed 21 September 2020 [9]. 3 Ibid [165]. -- 11 of 112 -- 12 [13] As the applicants’ chronology would attest, the path from application to issue of an environmental authority for a project of this scale, or in this case an amended environmental authority, is multifarious.4 [14] Key milestones were: • 14 August 2009 - the commencement of the Environmental Impact Statement (EIS) process with the notification of the publication of the Terms of Reference; • 20 December 2012 - submission of the initial draft EIS; • 1 August 2014 - lodgement of a supplementary EIS responding to submissions made on the EIS; • 15 September 2014 - the statutory party provided notice to the applicants to allow the submitted EIS to proceed, requiring the applicants to prepare and submit an Environmental Management Plan; • 18 January 2018 – the statutory party provided the applicants notice that the Environmental Management Plan met the requirements of the Environmental Protection Act 1994 (Qld) (EPA); • 30 April 2018 – certificate of public notice issued for the MLA and application for an environmental authority; • 18 May to 12 June 2018 – public notification period, objections lodged to both MLA and amended environmental authority; and • 26 June 2018 – the applications and objections were referred to the Land Court. [15] A number of these stages allowed for public notification, the making of submissions, and the consideration, amendment and supplementation of material relevant to the assessment of key documents. The nature and scope of the hearing [16] The statutory framework within which this proceeding takes place is the Mineral Resources Act 1989 (Qld) (MRA), the EPA and the Water Act 2000 (Qld) (Water Act). Given the nature of the objections it was clear that much would turn on expert evidence, particularly relating to water issues and the nature of the aquifer. 4 Ibid [7]. -- 12 of 112 -- 13 [17] Grounds of objection based on the Human Rights Act 2019 (Qld) (HRA) were not raised in the hearing. The HRA commenced in full on 1 January 2020, after the objections were made but before the hearing of the matter. I will address this in detail shortly. Court Managed Expert Evidence [18] By order of President Kingham dated 24 January 2019 the matters were directed to Court Managed Expert Evidence (CMEE). CMEE allows the Court to supervise the briefing and meeting of expert witnesses and production of their joint expert reports.5 The Court’s objective in directing a case to CMEE is to promote an effective, efficient, and fair process for expert evidence.6 A signed list of expert issues was produced and provided to the CMEE experts. By order dated 3 March 2020, the CMEE process was terminated effective Friday 21 February 2020 without the production of joint expert reports. Pre-hearing [19] Ahead of the hearing and pursuant to Orders of 24 June 2020, the parties filed an agreed hearing plan, an agreed index to hearing bundle, and an agreed site inspection plan (subsequently modified). Annexure A to the agreed hearing plan identified all (and the only) witnesses the parties intended to call to give evidence. The agreed hearing plan allowed for up to three full days of groundwater and surface water evidence from the nominated experts engaged by the applicants and by EEMAG to be conducted concurrently. As is the practice of the Court, orders provided that the statement of evidence sworn or affirmed by the relevant expert or lay witness would be their evidence in chief at the hearing. [20] Prior to the hearing, EEMAG had nominated four expert witnesses – Dr James (geology, groundwater and surface water), Mr Leggate (past performance), Professor Roberts (precautionary principle and intergenerational equity) and Mr Bruce (grout curtain). [21] On 15 June 2020 the applicants filed an application (pursuant to order 8 of 3 March 2020) proposing that certain expert reports filed by EEMAG, be struck out in whole, and those experts not be permitted to give evidence as to those reports. On 3 July 2020 I delivered a 5 Land Court of Queensland, Practice Direction No 6 of 2020 – Expert Evidence in The Land Court, 14 December 2020 [41]. 6 Land Court of Queensland, Practice Direction No 6 of 2020 – Expert Evidence in The Land Court, 14 December 2020 [42]. -- 13 of 112 -- 14 written decision where I dismissed the strike out application but said that if the relevant witnesses (Roberts and Leggate) were to appear at the hearing, their evidence would be treated as lay evidence unless some greater clarity regarding the quality of their evidence emerged at that time.7 At [42]-[43] I set out the expert evidence admissibility requirements as described in Makita v Sprowles (Makita),8 and the content of Land Court Rules 2000 (Qld) r 24F as follows: “In Makita v Sprowles, Heydon JA described six expert opinion admissibility requirements: (a) The opinion has to be on an area that the court accepts is an area of specialist knowledge; (b) The witness must demonstrate that by reason of specified training, study or experience they are expert in that area; (c) The opinion must be confined to matters within that area of expertise; (d) The expert must state, and the person calling the expert must prove, the facts on which the expert opinion is based; (e) If any facts relevant to the opinion are assumed they must be identified and proved in some other way; and (f) The expert must explain how the opinion expressed was reached. Rule 24F provides that an expert’s report must, inter alia, give details of qualifications; detail literature or other material relied on in making report; and, where there is a range of opinion on the matters dealt with in the report, summarise the range of opinions and give reasons for the experts own opinion.”9 (citations omitted) [22] In the context of these requirements, the deficiencies in the reports of Mr Leggate and Professor Roberts were not addressed nor was their content improved in the course of the evidence. I agree with the contentions of Cement Australia that properly construed, the reports comprised for the most part submissions.10 Accordingly, as forecast on 3 July 2020 I treat their evidence as lay evidence. The subject matter will of course be addressed in this decision. Submissions and pre-hearing issues [23] The Court was informed at the hearing that Dr James was unable to ‘participate further’ due to ill health. Accordingly, Dr James was unavailable for cross examination. The applicants in closing submissions identified 13 reports and other documents in evidence prepared by Dr James, or where he appears to be the author, between 1 July 1997 and 5 7 Cement Australia (Exploration) Pty Ltd & Anor v East End Mine Action Group Inc & Anor (No 2) [2020] QLC 25. 8 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705. 9 Cement Australia (Exploration) Pty Ltd & Anor v East End Mine Action Group Inc & Anor (No 2) [2020] QLC 25 [42]-[43]. 10 Applicants’ Closing Submissions filed 21 September 2020 [138]. -- 14 of 112 -- 15 May 2020.11 Of those documents, two (and an addendum) were prepared for the purpose of these proceedings. These include an addendum to East End Mine history filed 11 May 202012 and his response to Dr Merrick dated 5 May 2020.13 [24] It is unfortunate that Dr James was unable to appear. I cannot speculate as to what might have resulted had he appeared. The applicants submit that the orthodox course is to give his evidence little weight.14 The fact that he did not appear deprived the applicants and the statutory party from testing his evidence. As noted in their closing submissions, the applicants’ experts’ criticism of Dr James’ views and opinions are as a result unanswered.15 [25] By 9 April 2019 the Court had made orders which resulted in an agreed list of both non- expert and expert issues.16 Written objection was taken by the applicants at the commencement of the hearing to lay and expert evidence filed as outside the agreed scope. Annexure 3 to the applicants’ closing submissions is a schedule of objections to EEMAG’s lay oral evidence on the basis it is outside the scope of the objector’s objection, or that they relate to issues not raised in any objection. [26] Senior Counsel for the applicants in his opening statement said: “There are also some matters of relevant [sic] that we take the objection because we say it’s beyond the terms of this hearing and the jurisdiction conferred upon this court by way of statute, by way of processes that it follows. We don’t ask the court to waste valuable time ruling on those objections at the outset. We take the objections now in writing for the record, and we will, in our written closing submissions, deal with the objections to the extent we need to. And if it becomes necessary for the court to have to deal with the objections by way of a final decision we are content for that to occur in the reasons. What effect that has on documents being tendered and how they are treated by way of exhibit we will provide a solution for your Honour in terms of whether it’s given an exhibit number subject to an objection being taken. So can I hand up the applicant’s objections to the EEMAG Group’s lay evidence. Now, as I said, I don’t intend for time to be wasted dealing with those objections. Can I say something more briefly about objections, your Honour. I apprehend the reality of the way this case will run is that there may be questions put – I don’t say this in a pejorative sense. But there may be questions put that are irrelevant or which are not properly put or which are potentially unfair to the witness. 11 Ibid [122]. 12 Ex 35, EEM0230. 13 Ex 42, EEM0228. 14 Applicants’ Closing Submissions filed 21 September 2020 [175]. 15 Ibid [127]. 16 Applicants’ Closing Submissions filed 21 September 2020 [106]; Ex MFI A. -- 15 of 112 -- 16 My side of the record is very conscious of the agreed trial plan, the need for this court sitting effectively on circuit to adhere to the trial plan, the fact that expert witnesses are flying in. We want the proceeding to run efficiently. Where necessary – my approach to objections will be I will tend to take objections if I think it’s necessary to take them. It may ultimately be that evidence is not objected to but which is actually irrelevant to your statutory function, in which case it would appear to me to be appropriate or possible for that evidence to be noted in closing written submissions to your Honour if it is considered by either side to be irrelevant as a matter of jurisdiction. Even though it’s given an exhibit number it still seems to me to be appropriate that, by the party’s conduct, they can’t expand a jurisdiction that is given to this court under statute. That’s all I wish to say about objections.”17 [27] In closing submissions EEMAG address broadly a response to the issue of admissibility of evidence under the heading: “Attitude and Conduct of the applicants and their legal team Carter Newell.” They say that the applicants “virtually opposed everything EEMAG attempted.” They say that the applicants’ objections to EEMAG’s lay evidence “continues the strategy to disrupt and render ineffective” their witness statements. They concede that “some affidavit content not adequately supported by objections being legitimately struck out.” [28] I am precluded from hearing submissions or evidence from an objector on issues outside the scope of the objection. As noted by Senior Counsel for the applicants, while a list of objections was handed up at the outset of the hearing, the applicants did not press for each objection to be determined prior to the hearing proceeding. Rather, objections were raised when it was thought necessary to do so. There is an acceptance in this approach of the reality of a hearing such as this. [29] In their closing submissions EEMAG say that some of the lay witnesses they called had been: “tutored, mentored as participants with top of the tree educationalists, Karst aquifer specialists, Smith … Finlayson … Volker and also Dr James; some EEMAG members were treated as equals in group discussions and communications … thus taking the comprehension of such individuals far beyond raw amateur status.”18 [30] The particular witnesses referred to in this category are some of the non-active objectors who are current or former long term residents of the Mt Larcom and Bracewell area, many of whom are members of EEMAG, and all who have been immersed in issues arising from the current East End Mine over many years. 17 T 1-13, lines 15 to 44. 18 EEMAG’s Closing Submissions filed 21 September 2020 [118]-[131]. -- 16 of 112 -- 17 [31] There is no challenge to their knowledge and appreciation of their landscape; their obvious concern for their land, businesses and lifestyle; and their attention to climate and to the perceived impact of activities in and around their community. There are areas of expertise for which a formal tertiary qualification either does not exist or does not outrank the lived experience. While I accept the perceived physical effects and observations over a timespan can inform the science, that of itself is insufficient to afford the witness the label of expert. An ‘expert’ is, on the basis of the principles set out in Makita, accepted by the legal system as privileged to have greater weight attached to their opinion. That status however does not mean that their opinions should not be open to challenge. The hearing [32] The hearing, preceded by a site inspection on Monday 20 July 2020, commenced in Gladstone on Tuesday 21 July 2020 and concluded on 29 July 2020. Written submissions followed, closing on 30 October 2020. The conduct of the hearing largely aligned with the hearing plan. [33] On 15 February 2021 a general application to reopen the hearing was filed on behalf of EEMAG. The application was heard on 23 March 2021 and on 29 March 2021 I dismissed the application and published my reasons.19 The applicable legislation MRA [34] The applicable version of the MRA for consideration of this application is, with some exceptions, the version currently in force. As noted by the parties the general entitlements of a holder of a mining lease are set out in s 235 MRA, and general conditions for each mining lease in s 276 of the MRA. [35] In opening submissions on the first day of the hearing and in closing submissions, the applicants noted the constraint imposed by s 268(3) of the MRA. The cases that have examined this constraint are referred to in the applicants’ opening submissions at [11] to [14], namely: ACI Operations Pty Ltd v Quandamooka Lands Council Aboriginal 19 Cement Australia (Exploration) Pty Ltd & Anor v East End Mine Action Group Inc & Anor (No 3) [2021] QLC 15. -- 17 of 112 -- 18 Corporation;20 Lee v Kokstad Mining Pty Ltd;21 and Symbolic Resources Pty Ltd v Kingham & Ors (Symbolic Resources).22 In closing submissions at [99] the applicants state: “…The constraint also extends to the making of submissions on an issue that is not within the scope of an objectors’ objections. Further, where the objections are made in broad terms, the Court may only look to the facts and circumstances as stated in the objections for guidance as to whether an issue (or evidence) is or is not within the scope of an objection. As was found in Symbolic Resources Pty Ltd v Kingham & Ors [2020] QSC 193, it is not sufficient for an objector to make objections “on a fairly basic level” and then lead evidence that is not fairly raised either by the grounds of objections themselves or on the facts and circumstances stated within their duly lodged objection.”23 (citations omitted) [36] The Court acknowledges and accepts the operation and effect of s 268(3) as described above. [37] The applicants also note in closing submissions that there is no express legislative constraint akin to s 268(3) MRA in the EPA.24 EPA [38] In both their opening and closing submissions, the applicants note that since their applications for a mining lease and to amend its environmental authority was lodged in 2008, the EPA was significantly amended. Those amendments commenced on 31 March 2013. The effect of transitional provision s 683 is such that the processing of the application and all matters incidental to the processing must proceed as if the amending Act had not been enacted. The EPA which applied prior to the legislative amendments is the EPA as at 14 March 2013 (2013 EP Act). The statutory party in their oral opening submissions adopted the relevant aspects of the applicants’ written submissions in this regard and EEMAG at no point contested this interpretation. [39] The uncontested “practical effect of this regime”25 is that if the holder of a mining lease has already applied for and been granted an environmental authority for a lease, and wishes to apply for a further mining lease, it must apply to amend its existing environmental authority in support of its proposed mining lease. 20 [2002] 1 Qd R 347. 21 [2008] 1 Qd R 65. 22 (2020) 5 QR 155. 23 Applicants’ Closing Submissions filed 21 September 2020 [99]. 24 Ibid [100]. 25 Applicants’ Opening Submissions filed 10 July 2020 [35]. -- 18 of 112 -- 19 [40] As a matter of fact, and noted by the applicants in their closing submissions,26 the administering authority decided that the level of environmental harm caused by the proposed lease was likely to be significantly increased and that an EIS was required for the proposed amendment. As a non-code compliant environmental authority application, the regime in chapter 5, part 6 of the 2013 EP Act applied. The four stages summarised at s 197 are: • the completion of the EIS process; • a decision by the administering authority whether to refuse or allow the application to proceed; • the issue of a draft environmental authority or draft amended EA (draft amended EA); and • public notification of the application documents and the receipt of objections. [41] Importantly, when an application is to amend an EA, the objection is limited in scope. Section 251(4) of the 2013 EP Act provides that an objection may be made about an existing provision of the EA only to the extent the provision is proposed to be amended, and cannot be made about mining activities carried out under the EA before the deciding of the application. The applicants accept that in making an objections decision of an application to amend an EA, the Court may have regard to an existing provision of the EA (whether or not it is proposed to be amended), and any mining activities carried out under the EA before deciding the application.27 Water Act [42] At the review hearing on 24 June 2020, I raised a question of jurisdiction in relation to groundwater impacts which arose in New Acland Coal Pty Ltd v Smith & Ors (New Acland).28 In written submissions the applicants summarise that the effect of changes as a result of 2016 amendments to the MRA and the Water Act was to introduce a new regime, whereby the right to take or interfere with groundwater was a right incidental to the grant of a mining lease. This raised a question in relation to applications made before the commencement date and the operation of the transitional provisions. 26 Applicants’ Closing Submissions filed 21 September 2020 [48]. 27 Environmental Protection Act 1994 s 251(5), as at 14 March 2013. 28 (2018) 230 LGERA 88. -- 19 of 112 -- 20 [43] The consequences in New Acland were significant. Justice Bowskill found that on the facts in that matter it was not within the jurisdiction of the Land Court to consider and base its recommendation on the potential of groundwater impacts as that was not an activity that New Acland Coal (NAC) was entitled to undertake under the proposed mining lease. Justice Bowskill further held that there was no jurisdiction conferred on the Land Court under the Water Act.29 [44] The Court of Appeal noted: “The separation of the consideration of issues concerning groundwater from other environmental issues relating to an intended mining project was inconvenient. For this reason, amendments have been enacted so that interference with groundwater is now one of the rights of the holder of a mining lease. The consequence is that interference with underground water, of the kind in issue in this case, now constitutes part of the “operations to be carried on under the authority of the proposed mining lease” and is, for that reason, a matter to be taken into account by the decision maker. However, those amendments do not apply to this case.”30 (citations omitted) [45] Is Cement Australia in the same position as NAC? The applicants say that despite the application having been made but not decided in the relevant period, they were, prior to 6 December 2016, not required to hold a water licence or water permit before taking or interfering with groundwater in the area of the proposed mining lease. It is necessary to set out the basis of the applicants’ submission in support of a conclusion that the application is not captured by s 839: “24. While the Applicants did (and do) propose to take or interfere with underground water in the area of its proposed mining lease, prior to 6 December 2016, it was not necessary for the Applicants to apply for a water licence or water permit under the 2016 Water Act before they could take or interfere with that water as part of the mining activities to be conducted under the proposed mining lease. This is because: 24.1 While section 808(1) of the 2016 Water Act made it an offence to take or supply water to which the Act applied, the section also provided that no offence was committed if the taking or interference was authorised under that Act; 24.2 “Water” was defined under the 2016 Water Act to include “underground water”, while “underground water” was defined to include both “artesian” and “subartesian” water. Relevantly, “subartesian water” was defined as “water that occurs naturally in, or is introduced artificially into, an aquifer, which, if tapped by a bore, would flow naturally to the surface”; 29 New Acland Coal Pty Ltd v Smith & Ors (2018) 230 LGERA 88, per Sofronoff P (with whom Philippides JA and Burns J agreed) confirmed her Honour’s findings. 30 Oakey Coal Action Alliance Inc v New Acland Coal Pty Ltd & Ors (2019) 2 QR 271 [114]. -- 20 of 112 -- 21 24.3 “Artesian” and “Subartesian” underground water was treated differently under the 2016 Water Act. Section 20(2)(c) granted a general authorisation to a person to “take or interfere with subartesian water” for any purpose. There were three exceptions to this: (a) if there was a relevant alteration or limitation prescribed under a water resource plan (s 20(2)); (b) if there was a moratorium notice issued that altered or limited the person’s right to take or interfere with subartesian water (s 20(2) and 20(3)(b)); or (c) if a regulation was made under section 1046 of the 2016 Water Act regulating the taking or interference with subartesian water (s 20(3)(a)); 24.4 The consequence was that, a person did not have to apply for a water entitlement (such as a water licence or a water permit) before the person was able to interfere with underground water if the underground water was “subartesian water” (within the meaning of that term under the 2016 Water Act) and none of the three exceptions applied; 24.5 The underground water that the Applicants proposed (and still propose) to interfere with as a consequence of their proposed mining lease is “subartesian” groundwater for the reasons set out in the Affidavit of Noel Merrick affirmed 6 July 2020 particularly at [12] to [15]; and 24.6 None of the three exceptions set out in paragraph 24.3 apply because prior to 6 December 2016: (d) while the proposed mining lease area was located in an area covered by a water resource plan, that water resource plan (Water Resource (Calliope River Basin) Plan 2006 (Qld)) did not apply to underground water (or to subartesian water) 6. As such, there was no water resource plan prior to 6 December 2016 that altered or limited the right to interfere with subartesian water in the area of the proposed mining lease application; (e) to the best of the Applicants’ knowledge, no moratorium notice had been issued that altered or limited the right to interfere with subartesian water; and (f) to the best of the Applicants’ knowledge and consistent with the position previously taken by the Statutory Party, a regulation had not been made under section 1046 of the 2016 Water Act regulating the subartesian water in the area of the Applicants’ mining lease application.”31 (citations omitted) [46] The applicants conclude that the 2016 amendments to the MRA include the introduction of s 334ZP which has the effect that the taking or interference with groundwater now constitutes operations to be carried on under the authority of a mining lease within the meaning of ss 269(4)(i) and 269(4)(j). They say that the taking or interference with groundwater as a consequence of the proposed mining lease is a matter that can be taken into account in the objections proceedings. 31 Written Submissions of the Applicants Regarding Jurisdiction as to Groundwater Impacts filed 7 July 2020 [2.4]. -- 21 of 112 -- 22 [47] The applicants’ submission was supported by the affidavit of Dr Merrick, hydrologist and geophysicist, who at [15] says: “In conclusion, it is my opinion that the groundwater that enters the East End Mine pit and is then pumped out is “subartesian water”. This is the only groundwater that is proposed to be taken or interfered with by the Applicants’ mining lease application 80156, and it is the impact from the taking of or interference with that groundwater that is addressed in my previous statements of evidence.”32 [48] I accept the expert evidence of Dr Merrick on this important issue. I accept the submission of the applicants that in contrast to New Acland, the applicants are not required to hold a separate water licence or water permit before taking or interfering with groundwater in the area of the proposed mining lease. In opening submissions, Counsel for the statutory party informed the Court that the statutory party agreed with the submissions made by the applicants. The active objector did not contest this conclusion. HRA [49] It was established in Waratah Coal Pty Ltd v Youth Verdict Ltd & Ors (Waratah (No 1))33 that: • the Land Court is subject to s 58(1) of the HRA in fulfilling its function under the MRA and EPA because it is a public entity for that purpose, and in making its recommendation on the applications, the Court will ‘act or make a decision’ within the meaning of that section;34 and • if s 58(1) applies to the Court in its administrative function, there need be no mover to raise human rights issues because that section requires the Court to properly consider engaged human rights and to not act or make a decision that is not compatible with human rights.35 [50] In the course of President Kingham’s reasoning in Waratah (No 1), her Honour said: “…There is no dispute the Minister and the Chief Executive of the statutory party are each subject to s 58 when they make their final decision on the relevant application. To avoid acting unlawfully, they must not act or make a decision that is not compatible with human rights, and in making their decision, they must properly consider relevant human rights. If the question of compatibility with human rights is beyond this Court’s jurisdiction, the Minister and the Chief Executive of the statutory party will not have the 32 Statement of Evidence of Noel Merrick filed 7 July 2020 [15]. 33 [2020] QLC 33. 34 Waratah Coal Pty Ltd v Youth Verdict Ltd & Ors [2020] QLC 33 [92]. 35 Ibid [90]. -- 22 of 112 -- 23 benefit of a recommendation made after consideration of the engaged human rights. Both decision makers would likely have to develop some additional process to comply with s 58(1). Given the role the Court’s recommendation plays in the decision making process for both applications, as a matter of policy, an interpretation that avoids that burden better achieves the purpose of the HR Act.”36 [51] In this matter the HRA had not commenced when the relevant opportunity for lodging objections ended. Accordingly, no HRA based objection was made. However, a failure to consider the HRA would mean that the relevant Minister would not have the benefit of a recommendation made after consideration of the engaged human rights. [52] The HRA aims to ensure that public powers and functions are exercised in a principled way and that public power is not misused, in accordance with the main objects of the Act.37 Section 58 of the HRA places an obligation on a public entity when acting in an administrative capacity, to act in a way which is compatible with human rights.38 The term ‘compatible with human rights’ is defined in s 8 of the HRA as:39 An act, decision or statutory provision is compatible with human rights if the act, decision or provision— (a) does not limit a human right; or (b) limits a human right only to the extent that is reasonable and demonstrably justifiable in accordance with section 13. [53] Section 8 of the HRA acknowledges that human rights are not absolute and may be subject to limitations. Any limitations on the rights must have a clear legal basis and must be reasonable and demonstrably justifiable in the circumstances.40 In Waratah Coal Pty Ltd v Youth Verdict Ltd & Ors (No 2) (Waratah (No 2)),41 President Kingham accepted that the Land Court is required to consider the HRA and is subject to the obligations under s 58 which provides that:42 (1) It is unlawful for a public entity— (a) to act or make a decision in a way that is not compatible with human rights; or (b) in making a decision, to fail to give proper consideration to a human right relevant to the decision. 36 Ibid [53]. 37 Human Rights Act 2019 (Qld) s 2. 38 Waratah Coal Pty Ltd v Youth Verdict Ltd & Ors [2020] QLC 33. 39 Human Rights Act 2019 (Qld) s 8. 40 Ibid ss 8, 13. 41 [2021] QLC 4. 42 Human Rights Act 2019 (Qld) s 58. -- 23 of 112 -- 24 [54] The obligations under s 58(1) of the HRA are both substantive and procedural. The substantive obligation under s 58(1)(a) makes it unlawful for a public entity to act or make a decision in a way that is incompatible with a human right.43 In contrast, the procedural obligation in s 58(1)(b) notes that it would be unlawful for a public entity in making a decision to fail to give proper consideration to a relevant human right.44 President Kingham in Waratah (No 1) discusses the distinction between these obligations at length.45 [55] In Waratah (No 2), the statutory party, the Department of Environment and Science (DES), identified five steps in applying human rights obligations placed on public entities under s 58: “(1) Section 58(1)(a) – ‘Engagement’: whether the prospective decision is relevant to a human right (and which right)…; (2) Section 58(1)(a) – ‘Limitation’: if a right is relevant, is that right limited by the decision. This is part of the compatibility question…; (3) Section 13 – ‘Justification’: whether such limits as do exist are reasonable and can be demonstrably justified (the second part of the compatibility question: HRA s 8 and s 13). There are two overlapping requirements within this ‘step’: i. Legality: this encompasses both procedure and substance. Any limitation must be in accordance with the procedure prescribed by law (the procedural requirements) and compatible with the rule of law (that is, sufficiently certain, accessible and nonarbitrary) (the substantive requirement); ii. Proportionality: human rights, not being absolute, must be balanced against one another (because they may conflict with each other) and against other competing private and public interests. There may be a need to limit those rights to achieve other legitimate purposes; (4) Section 58(1)(b) – ‘proper consideration’: even if the limits be lawful and proportionate, the decision made must give proper consideration to the rights said to be engaged; (5) Section 58(2)- ‘inevitable infringement’: this operates where the Court could not reasonably act differently or make a different decision because of a statutory provision or under law.”46 (citations omitted) (emphasis in original) 43 Explanatory Notes, Human Rights Bill 2018 (Qld), 34; Human Rights Act 2019 (Qld) s 58(1)(a). 44 Explanatory Notes, Human Rights Bill 2018 (Qld), 34; Human Rights Act 2019 (Qld) s 58(1)(b). 45 Waratah Coal Pty Ltd v Youth Verdict Ltd & Ors [2020] QLC 33 [24]-[26]. 46 Waratah Coal Pty Ltd v Youth Verdict Ltd & Ors (No 2) [2021] QLC 4 [9]; See also, Minogue v Dougherty [2017] VSC 724 [74]; Certain Children v Minister for Families and Children (No 2) [2017] VSC 251. -- 24 of 112 -- 25 [56] The five steps are an adaptation of the five-stage roadmap for assessing incompatibility under similar provisions of the Charter of Human Rights and Responsibilities Act 2006 (Vic) (the Charter).47 [57] In addressing these five steps, the questions which I will elaborate on will be: 1. Engagement: which rights might the objector seek to invoke? 2. Limitation: how might it be alleged that the rights are limited? 3. Justification: if the rights are limited, is/are the limitation/s reasonable and demonstrably justified? Is the limitation in accordance with procedural requirements and not arbitrary? Is the limitation on the human rights proportionate to other competing private and public interests? 4. Proper consideration: even if the limits are lawful and proportionate has the decision given proper consideration to the rights engaged? 5. Inevitable infringement: Does a statutory provision or law prescribe a different decision? [58] It is convenient to provide my deliberation on these issues after my consideration of the objections relevant to the MRA and 2013 EP Act. The objections [59] Objections were lodged to both Cement Australia’s application for a mining lease and its associated application for an amended environmental authority. As noted already, the issues raised by EEMAG covered the same broad matters as those raised by the non- active objectors and concerned noxious weeds, groundwater and surface water impacts associated with the proposed expansion of the mine. The non-active objectors raised two further matters – flooding and sub-soil moisture.48 [60] For the purposes of this proceeding, the Court must only consider the following objectors’ objections: 47 Minogue v Dougherty [2017] VSC 724; Certain Children v Minister for Families and Children (No 2) (2017) 52 VR 441. 48 Applicants’ Closing Submissions filed 21 September 2020 [8]. -- 25 of 112 -- 26 Objector Objection under MRA s 265(2) Objection under EPA s 683 Jim and Maurice Elliot X X Frank Lenz X Anne Patricia Kelly X X Robert Geaney X X Ross and Paula Rideout X X East End Mine Action Group Inc X X Theresa Mary Derrington X Tom and Lynne Chapman X Philip and Claire Mann X Brent Lashford X X Gladstone Regional Council X Total 6 11 [61] I note that two objections were lodged outside of the objections period. The late objector (the Gladstone Regional Council) lodged objections under the MRA and the 2013 EP Act. The objection lodged under the 2013 EP Act was accepted by the administering authority pursuant to s 217(3) of the 2013 EP Act. The objection lodged under the MRA was not accepted.49 [62] EEMAG is the only objector that elected to be active in the proceeding. Of the non-active objectors, Mrs Derrington, Mr Elliot, Mr Lenz and Mr Lashford gave evidence at hearing. Two objectors, Mr Geaney and Mrs Kelly had both passed away prior to the hearing. Their sworn affidavits were tendered at the hearing.50 [63] I accept the applicants’ summary of the objections as grouped into one or more of the following categories, with the addition of grout curtain per the statutory party’s summary:51 • Geology (specifically, the appropriate geological model to assess groundwater and surface water impacts) • Groundwater impacts • Surface water impacts • Groundwater to surface water interactions • Grout curtain 49 See eg, Mt Ruby Mines Pty Ltd v Dunn [2019] QLC 46. 50 Ex 12, Ex 71, EEM0014; Ex 13, EEM0002. 51 Applicants’ Closing Submissions filed 21 September 2020 [153]; Statutory party Closing Submissions filed 19 October 2020 [108]. -- 26 of 112 -- 27 • Flooding • Noxious weeds • Sub-soil moisture • Past performance of Cement Australia [64] I accept that save for subsoil moisture and flooding, EEMAG’s objections raise all these issues. In relation to past performance the applicants say that EEMAG’s objections did not contain any particulars.52 Therefore, pursuant to s 268(3) as recently considered in Symbolic Resources,53 past performance is not a ground of objection for the purpose of this proceeding. However, see the discussion at [253] – [262] below concerning s 269(4)(g). [65] I will consider each category in turn. Geology [66] EEMAG contend that the EIS, which preceded the draft amended EA, was based on an incorrect groundwater methodology which infected everything that follows. They say that because local aquifers are not correctly categorised as karst the risk assessment is invalid.54 This conclusion they say is supported by the work of Dr James (1997), Associate Professor Findlayson (2002), Associate Professor Smith (2003), Dr Eberhard (2010) and Dr Dudgeon (1980). Non-active objectors Mr Geaney (deceased), Mrs Derrington and Mr Lenz assert that the evidence of a karst aquifer is compelling. [67] The material exhibited by EEMAG to their submissions and tendered at the hearing included a range of letters, reports, logs, hydrographs, studies, figures, papers, articles, photographs, and correspondence of mixed provenance and created over an extended period. Some of this material is referenced in these reasons. [68] The witnesses who provided expert reports to the Court relevant to geology, groundwater, surface water and flooding, and who appeared at the hearing together with their area of expertise were Mr Starr (geotechnical engineer – geology), Mr Collins (hydraulic and 52 Applicants’ Closing Submissions filed 21 September 2020 [156]. 53 Symbolic Resources Pty Ltd v Kingham & Ors (2020) 5 QR 155. 54 EEMAG Closing Submissions filed 18 September 2020, page 8. -- 27 of 112 -- 28 water resource engineer – surface water, groundwater to surface water interaction, flooding) and Dr Merrick (hydrogeologist and geophysicist – groundwater modelling). [69] Mr Huntley (Principal Resource Consultant, Groundworks Plus) and Mr Frost (Mine Manager) also provided affidavits and were called by the applicants and gave evidence relevant to these subjects. [70] There were numerous reports and statements of Dr PM James (Consulting Geological/Geotechnical Engineer) tendered by EEMAG. Three in particular were prepared for these proceedings and were largely responsive to the expert witness reports of Dr Merrick, although the document described as an Addendum, addresses geology, groundwater impacts, and groundwater to surface water impacts.55 As noted earlier, due to health reasons Dr James was unable to appear at the hearing. [71] As noted at [9] the factual assertion of the objectors as to the existence of a karst aquifer system dominated the proceedings. It is useful to extract from the material filed some explanation of ‘karst’ to provide context. ‘Karst explained’ [72] A number of documents tendered by EEMAG provide information regarding the meaning and nature of karst. In a 2002 paper by Dr Brian Findlayson headed ‘The Karst Conundrum’ written in the context of the existing mine, the following explanation appears: “The general term karst is applied to landscapes composed of limestone and similar rocks their special property is their solubility. Karst explained … Rainwater enters limestone through bedding planes, fractures and faults in the rock. The nature of these lines of weakness are complex and dependent on the type of limestone, the way it was originally deposited, e.g. thick beds or thin beds, and the way it has been broken and deformed by earth movements. This means that no two areas of limestone are identical so each case must be examined individually. As water flows along these planes and fractures it takes the CaC03 into solution leaving behind a small amount of residue and a space, which provides a 'pathway' through the rock. … Why Karst is so special Karst and non-karst aquifers 55 Ex 42, EEM0228; Ex 41, EEM0229; Ex 35, EEM0230. -- 28 of 112 -- 29 There are significant differences between karst aquifers and non-karst or ‘normal’ aquifers… These differences affect the extent to which it is possible to predict how these aquifers will react to outside interference, such as the dewatering of a mine. In a ‘normal’ aquifer, dewatering of a mine will cause the water table to be lowered adjacent to the mine; the amount of lowering and the distance away from the mine that it can be observed depends on the permeability of the aquifer. This is a measure of the ease with which water can flow through the rock and can be measured in boreholes. … In the case of karst aquifers, the effect of the mine will depend on which and how many of the solution pipes in the rock are intercepted by the mine. Finding out how the aquifer behaves, and working out the details of the pipe network, is a time consuming exercise which involves tracing water flow through the pipes. This is usually done using dyes which fluoresce or emit light when ultraviolet light is shone on them. Each connection has to be painstakingly identified with a dye trace, which may take weeks or months to complete.” 56 [73] Further definitions are found in a document tendered in the hearing by EEMAG,57 identified as Appendix 3 to a Science Report produced by Professor Peter Smart (School of Geographical Sciences, University of Bristol) and Boak. This document was not prepared for the purposes of any representations relevant to the existing mine or the proposed mining lease. [74] Under the heading ‘What is karst?’ is the following explanation: “… it is important to distinguish between the morphological and functional recognition of karst. Many landscapes continue to display karst landforms developed in earlier phases of landscape development, even though the groundwater systems underlying them no longer function in a karstic manner. For instance, in the Carboniferous Limestone of south-west England and Wales, caves developed when the limestones were first exposed sub-aerially in the Triassic are often intercepted in quarries and other excavations. It is often found that the caves have been occluded by sediment fill, and in some cases mineralisation, and that they are no longer conduits for groundwater flow. Such fossil karst terrains are termed paleokarst. They are the result of major changes in the boundary conditions for karst development, caused by changes in climate, sea level, and patterns of sediment supply (Osborne 2000). Thus, although the presence of a distinctive karst morphology may indicate that the associated aquifer is actively karstic, this need not necessarily be the case. However, the precautionary principle should again be applied, with the aquifer assumed to be actively karstic unless it can be shown that it is not.”58 [75] A passage from the same Appendix cited in EEMAG’s closing submissions at page 14 is as follows: “... At the smallest scale is matrix porosity, comprising intercrystalline and inter-granular pores of small diameter (50-500 μm). At the intermediate scale 56 Ex 88, EEM0106. 57 Ex 16, EEM0105. 58 Ex 16, EEM0105. -- 29 of 112 -- 30 are fractures that have experienced little or no dissolutional enlargement and have typical widths of <1 mm. Because of their small apertures, flow is laminar in both these types of opening. However, at the largest scale of dissolutional channels, apertures range from several millimetres in dissolutional fissures to metres in cave conduits, and under most head conditions flow is turbulent. The development of turbulent flow in karstic channels is important because it allows sediment transport by groundwater flow, which may impact upon water quality. More significantly, flow can no longer be described using Darcy’s Law (which applies only to laminar flow) and conventional approaches to groundwater flow modelling are inappropriate.”59 ‘Karst features’ [76] These (features) are described at page 4-20 of the EIS as follows: “Due to the importance of groundwater flow to the Project, the karst features in the area and the type of karstification in the East End limestone is an important consideration. The limestone in the area is ancient (380-430 Ma) and, due to subsequent processes (e.g. orogenesis, dissolution, brecciation, faulting and plutonic activity), is much altered from its original orientation and composition. Exposed limestone boulders occurring to the immediate west of the Project Area have weathering patterns characteristic of karstification. Rillenkarren (closely spaced solution channels) has formed on their surfaces with rill spacings of 2-3 cm. The underlying unexposed rock surfaces form smoother rundkarren which may include solution holes. A few sinkholes (dolines) occur to the immediate west of the Project Area. The locations of these sinkholes are marked by the presence of fig trees that send long tap roots along vertical fissures in the limestone. The sinkholes have a clay base 1-2 m below the ground surface. In the marble pit excavation (ML 80009), a relict subterranean cave with a smooth horizontal roof occurs 3 m below the surface of the limestone deposit. This relict cave has a depth of 0.3 m and is filled with fine-grained material. On the higher benches in the existing mine pit, the older faces on the eastern side of the pit adjacent to the crusher have been exposed for many decades. Extensive vertical fissures characteristic of epikarst are apparent in these older faces. Most of the fine-grained sediment originally present in these fissures has been eluted after exposure. As a result, the macroporosity of these pit faces does not give a true indication of the extent of secondary porosity in the unexcavated limestone aquifers surrounding the mine. The more recently exposed faces in the north, south and west of the existing mine display fissures with fine-grained sediment still intact. The variety of clay infill in the relict fissures, caves and chambers indicates various sediment sources, and modes of deposition and alteration. The depth of clay overburden is greatest to the north of the existing pit. As seen in the higher benches, well-weathered consolidated rocks occur as “floaters” within this clay matrix. 59 EEMAG Closing Submissions filed 18 September 2020, page 14. -- 30 of 112 -- 31 Below a certain depth, massive limestone occurs. No caves or other dissolution features are present in this limestone. There are many types of karst; the type of karst described above falls within the category of paleokarst or buried karst. Buried karst is typically infilled by unconsolidated younger sediments. This infilling has significance for its hydraulic properties.”60 [77] As noted at [66] EEMAG assert that the EIS was based on an incorrect groundwater methodology which infected everything that followed. Local aquifers [78] There are two aquifers – the East End aquifer and the Bracewell aquifer. EEMAG say that if conduits from Bracewell connect to any part of the ‘depleted East End aquifer’ then Bracewell is affected by mine pit drawdown.61 EEMAG maintain the linkage is in the Machine Creek saddle “in the line of volcaniclastic hills between the two aquifers.”62 [79] Drawdown (mine-caused water depletion) at East End as a result of the existing mining activities is accepted, and in the view of the applicants and the statutory party ongoing impacts are sufficiently addressed in the draft amended EA. If the expansion proceeds, continued drawdown at East End is expected. As to the Bracewell aquifer, the evidence of Dr Merrick is that the only tenable pathway for propagation of drawdown from the East End aquifer system to the Bracewell aquifer system is the narrow connective path along Machine Creek.63 Dr Merrick concludes that there was no evidence that drawdown effects had propagated along this linkage to affect groundwater levels at Bracewell.64 [80] If the aquifer is karst, the extent of the impact at Bracewell, according to EEMAG, cannot be assessed based on Darcian flow models. New models would need to be developed. EEMAG assert that Darcian flow methodology cannot model a karst aquifer. If the aquifer is karst, a question arises as to whether the conditions in the draft amended EA are adequate in those circumstances. [81] There appears to be no dispute about the characteristics of a karst aquifer of the kind EEMAG describe, that is: they are variously described as allowing fast underground 60 Ex 4, Ex 5, Ex 46, Ex 58, CEM0022, page 4-20. 61 T 1-19, lines 4 to 5. 62 T 1-19, lines 4 to 5. 63 T 6-19, lines 5 to 15. 64 Ex 58, CEM8003, lines 49-52. -- 31 of 112 -- 32 flows; they can contain solutionally-widened fissures, fracture and solution channels; they have open channels and pipes; they can exist at quite deep levels; and they may contain open areas such as caves. [82] EEMAG quote Dr James as observing in 1997 that “karst activity in the form of open channels and pipes can be observed to quite deep levels within the open pit.”65 [83] In his 5 May 2020 statement ‘Response to Dr Merrick’ Dr James says: “At the end of Professor Merrick's "Statement of Evidence" there are a number of photographs that make the present East End mine look as though it is located in a semi-desert region - when it pumps out water at an exorbitant rate. Poignant attention is also drawn to the fact that the photographs reveal dry limestone faces of the mine. Such dryness is quite typical of the steep slopes of open cut mines, particularly when pumping is used at the base and draws down the outlet of groundwater. Further, it does not necessarily mean a complete of absence of water at the higher levels of an open pit, only that water seeping out to such (often hot) rock faces is quickly evapourated [sic].”66 [84] Because Dr James was unable to appear and give evidence at the hearing his evidence was not heard nor tested. [85] In contrast to the observations of Dr James and the content of his response statement, in evidence Mr Huntley was unequivocal in expressing his view that the East End aquifer is paleokarst and that it does not function as karst.67 Mr Huntley holds a Bachelor of Science, a Masters in Applied Science (Mining and Economic Geology), and a Masters in Engineering (Rock Mechanics). He confirmed in re-examination that the geological features of the mine pit are matters of opinion for a geotechnical engineer or geologist. Nevertheless, he said: “I’ve always said never have I deviated from the fact that East End is paleo cast. It doesn’t function as a cast. When an alec – if you let me explain, when you look at the walls of the pit, so the – your Honour, the big south wall of the pit. I don’t know if you’re familiar with that. There’s no casting structures in it. There’s no deep-seated casting structures. I’ve been in the bottom of that pit and watched how the water inflows because it – I’m interested in it too and it’s actually fascinating. And you see the upper length by a fractured rock acquifier Darcian flow. That’s all that it is. It’s a paleo cast. You can see quasi-casting development in the upper benches. I absolutely agree with that. But you also see now they’re limited in depth to the extent they’ve been in-filled with clays. We’ve tested that clay. That clay is semi- pervious to impervious. We use it for lining the dams for lining the diversion drain, for that very purpose. So when those channels have been filled with clay, they’re in – largely have tendered 65 EEMAG Closing Submissions filed 18 September 2020, page 10. 66 Ex 42, EEM0228, page 9. 67 T 2-61, lines 37 to 47; T 2-62, lines 1 to 4. -- 32 of 112 -- 33 the minus 9 perviousness. They’ve – they’re very very slow at transmitting [indistinct].”68 [86] In re-examination Mr Huntley was asked about his reasons for disagreeing with the proposition that features in the mine pit are karstic. After describing his professional experience in limestone resources in other locations in Australia, New Guinea, China, Fiji and Africa,69 Mr Huntley said: “…There is absolute karst at Bracewell. Totally agree with that; totally agree. But in the East End proximity of the mine and the Schultz MLA, to the best of my knowledge and understanding, it’s, very clearly, paleokarst. You can see that in the benches. I’ve never veered from thinking it’s anything else. If it was karst, the mine, your Honour, was flooded for five years. It was flooded. If it was karst and there were sinkholes everywhere, the water would have disappeared.”70 Core samples and drill logs [87] Mr Huntley also rested his conclusion that the geology at East End was paleokarst on drill core samples. He said that if it was karst you would encounter large cavities all through the core. He accepted that there were some cavities in the core in the upper bench but that the formation was paleokarst, that is, karst which no longer functions as karst – karst which has been buried and channels infilled. [88] Mr Starr is the Principal Geotechnical Engineer with Golder Associates Pty Ltd. He holds a M. Sc Soil Mechanics & Engineering Geology, and a B. Sc Hons Geology, Physics, Mathematics. His resume outlines his employment history and extensive experience. He provided an expert opinion to the Court about geological issues in relation to these proceedings associated with a proposed expansion of the East End mine.71 His statement includes a number of figures (photographs) of the mine pit walls. In particular, figure 5 is described as a close view of the pit wall showing evidence of groundwater inflow from highly weathered and fractured limestone; and, figure 6 is described as evidence of clay- filled void in the limestone face. At section 3.3 he says: “… I have examined a number of the drillhole reports, and for the East End the key geotechnical findings show that geotechnical conditions within the massive limestone and marble improve at depth, with only one significant cavity intersected within drillhole EED13-01 at 15 m depth (CEM4126, page 1), which resulted in significant core loss (4.5 metres) associated with clay infill within the cavity as shown in figure 15. The occurrence of any minor 68 T 2-61, lines 36 to 47; T 2-62, lines 1 to 4. 69 T 2-84, lines 16 to 30. 70 T 2-84, lines 31 to 36. 71 Ex 46, CEM8004. -- 33 of 112 -- 34 cavities within the marble appears to decrease with depth as the marble becomes more massive and less weathered in nature. I note that most of the drilling undertaken has been for the purposes of estimating mineral content and resource evaluation, rather than for geotechnical purposes. Hence, there are generally no records of RQD (Rock Quality Designation) or fracture spacing indices, nor water injection (Packer Tests). However, the geotechnical behaviour of batter slopes is generally well understood from previous workings of the existing limestone mine. Nevertheless, it is apparent from the core photos that the rock is characterised by fractures and shear zones, and zones of locally more weathered material.”72 [89] Figure 15 referred to by Mr Starr is described as a “Core photo from drillhole EED13-01 showing the only significant (clay-filled) cavity encountered during the approximately 1500 m of core drilling undertaken for the 2013-2014 resource drilling program.”73 The drilling involved 14 cored drill holes to depths of up to 90 metres below the 2014 pit floor level. Based on this Mr Starr expressed his opinion that karst features are exceptionally rare in the mine area. [90] In his report under the heading ‘5.1.2.1 Karst features’, Mr Starr says that apart from (the aforementioned) surface features which may be viewed as similar to epi-karst, the existing faces in the mine workings show little or no evidence of karst features. He further expresses his opinion: • at 5.1.3 that the geology of the expansion area is likely to be consistent with the local geology of the East End mine; • at 5.1.5 that the aquifer system is a fractured system; and • at 5.1.5 that it was apparent from his observations of the pit walls and the core drilling data that karst features are rare in the limestone and therefore groundwater flow via connected cavities in the limestone is likely negligible. [91] In his statement of evidence dated 4 June 2020 filed in response to the May 2020 expert report of Dr James,74 Mr Starr said at page 6 that he disagreed with conclusions about karstic conditions stating that there appears to be no significant karst features in the existing extensive mine workings and therefore he “would expect the geological model in 72 Statement of Evidence of David Clark Starr in relation to Geology Issues – East End Mine Expansion Proposal filed 6 May 2020 s 3.3. 73 Ex 46, CEM8004, page 15. 74 Ex 47, CEM8009, page 6. -- 34 of 112 -- 35 the proposed new mine to be similar to that observed over the period of the existing mine workings.” [92] In cross examination Mr Starr was directed to document CEM4124,75 a Groundworks Plus 2014 Resource Review and Update. At electronic page 41, section 4.1.2 there is a reference to 2006 drilling data which referred to weathered limestone with cavities intersected at depths in excess of 60 m below 0 m AHD in the eastern sector of the ML. Mr Starr could not recall seeing the document and was unable to comment on it in the absence of context. [93] Mr Starr was asked in cross-examination by Mr Lucke for EEMAG about drill logs in the Bracewell area, Scrub Creek and Cedar Vale, which reference cavities and caves in a “20 to 30 metre zone.”76 He considered that there was insufficient explanation provided for him to understand the conclusion. At greater depths a drill log records ‘limestone’ at 41.1 to 61 m. Mr Starr said he was unable to draw a conclusion without any supporting information – he said he would generally expect to see a description of the core “and a description of the discontinuities and … other features … relevant to the engineering properties.”77 [94] There is a difference between a drill log and a core sample. Drill logs appear to be recordings of bore drilling – while a core sample, as the name suggests, removes a complete tube of material which can be studied to assess mineral content of the material they were encountering as well as fracture spacing.78 Modelling [95] In his opening address Mr Lucke referred to the Groundworks Plus Groundwater study (SEIS Appendix 9) at page 39 which refers to the karst present as paleokarst or buried karst,79 typically infilled by unconsolidated younger sediments – which Mr Lucke suggested (in his view, incorrectly) allowed for the contention that the local karst could be modelled by Darcian flow. EEMAG says this results in severely understated dewatering impacts. EEMAG contend that Darcian flow models were “deemed unfit for the 75 Ex 5, Ex 46, CEM4124. 76 T 5-71, line 11. 77 T 5-72, lines 41 to 43. 78 T 5-83, lines 2 to 4. 79 T 1-17, lines 18 to 22; Ex 3, Ex 58, CEM0084. -- 35 of 112 -- 36 purpose”80 by DES and DNRME however, the appropriateness of Darcian flow methodology was not revisited. [96] When questioning Dr Merrick and Mr Collins (Principal Hydraulic and Water Resource Engineer, BMT), Mr Lucke suggested that there was “a succession of models that had been discontinued”81 noting in particular the Kalf model which he observed Dr Merrick supported. Mr Lucke was in possession of a letter addressed to him from Dr Kalf which stated that the model had been discarded. [97] The suggestion from Mr Lucke that the fact that the Kalf model was ‘discontinued’ was because it was unfit for purpose, was put to Dr Merrick. In response Dr Merrick said: “DR MERRICK: You’re assuming that discontinuation of the model implies failure. I don’t accept that at all. There is nothing wrong with the Kalf models, with the second model – the second model, which was an improvement of the first model. All it means is that he – he ceased to be engaged to develop the model further for whatever reason. It does not imply failure. I still regard the second model of Kalf as the best model. It is better than the ones that have been done recently; why? Because it includes Bracewell. The two more recent models don’t include Bracewell, and the Kalf model is very well-calibrated dynamically against groundwater hydrographs; the two most recent models are not. There is nothing wrong with the Kalf model. It is not a failed model, so it’s wrong to draw the conclusion that discontinuation means failure.”82 [98] Fundamental to the conclusions reached by EEMAG is the understanding that there was a succession of “discontinued Darcian flow models despite evidence to the contrary,” and that the EIS is based on assumptions that the local limestone aquifers are: 1. paleokarst type 1 – that is, buried karst with solution channels and conduits infilled with sediment with reduced permeability at depth; and 2. a fractured rock mass that behaves reasonably as an equivalent porous medium. [99] It was repeatedly asserted on behalf of EEMAG throughout the proceeding that it was inappropriate to use Darcian flow methodology to model a karstic aquifer system. Dr Merrick in evidence at the hearing (without accepting the premise of the question) categorically dismissed that assertion.83 He said that even if East End was full of conduits, which he did not think it was, he would still model it as a porous medium because you cannot model at the microscopic level. He stated that no professional modeller would say 80 T 1-17, line 30. 81 T 6-49, lines 41 to 42. 82 T 6-50, lines 10 to 20. 83 T 6-77, lines 24 to 47; T 6-78, lines 1 to 8. -- 36 of 112 -- 37 that it was not proper to model a karst system using porous medium. In cross examination the following exchange occurred: “MR LUCKE: And have you ever had any experience where a karst aquifer was modelled as a karst aquifer? DR MERRICK: Yes, I have. MR LUCKE: And - - - DR MERRICK: Last year, I did a model. I did it both ways, as a porous medium and as a karstified system with contiguous channelling and it made very little difference to the results. The karstified assumption was less consistent with the observed groundwater contours, the porous medium system was – matched the groundwater contours better and was a better conceptualisation, even though it was known that this particular area was definitely karstified.”84 [100] Mr Lucke during his questioning of Mr Frost, Mine Manager, made a statement that “it doesn’t really matter too much whether you’re getting this rate of flow from fractures … or whether it’s coming from conduits,” he said “the point of the matter is it’s inflowing at that rate, and just purely laminar flow can’t attain that rate of inflow.”85 While there was no question attached to this statement, the nature of the questions generally suggest that the fact the draft amended EA would permit a pump out rate up to 30 ML/day is suggestive of an increasing rate of groundwater inflow. The evidence does not support that suggestion. As noted at [167] and [188] below, Mr Collins’ evidence is that infiltration into the mine pit due to groundwater is estimated to be between 1 and 2.5 ML/day, not groundwater inflows up to 30 ML/day. [101] Again, in relation to the nature of the geology (permeability) Mr Lucke referred to a statement in a 2002 letter from the then Minister for Natural Resources and Mines to Mrs Lucke,86 which stated that because of the low permeability geology between Bracewell and East End it would take a number of years for a dye tracer deployed at Bracewell to arrive at the East End mine. EEMAG assert that the Minister’s statement was rebuffed by David Ingle Smith (Emeritus Faculty Australian National University, Former Senior Fellow Centre for Resource & Environmental Studies ANU, ‘karst expert’ ) in reply correspondence to the Minister on the basis that the aquifer was karst, despite acknowledging that karst limestone can have intergranular flow, which is slow, because “superimposed on the 84 T 6-78, lines 35 to 47. 85 T 3-5, lines 7 to 12 86 Ex 59, EEM0117. -- 37 of 112 -- 38 slower flow is a network of fast flowing pathways (conduits).”87 The statement did not result in a question to Mr Frost, nor to any of the witnesses. Pumping of sinkholes [102] In his cross examination of Mr Starr, Mr Lucke refers to an assessment, in or around 2005 by the Department of Natural Resources in relation to sinkholes in the Bracewell area which “declared the sinkholes to be blind and terminating at very shallow depth with earthen floors.” This conclusion, which EEMAG contests, has been understood by EEMAG to mean that as a result (in the view of those who conducted the assessment) the sinkholes have no capacity to link to the aquifer. [103] EEMAG say that this conclusion has been disproven and points to examples of experimentation at Bracewell where large volumes of water were pumped into sinkholes with little or no pooling, and the draining of ‘a lake’ into a sinkhole close to ‘Lucke farm’ (the property formerly owned by the Lucke family) after significant rains. [104] In a document created by Mr Lucke in 2005 it states that the Mt Larcom limestone deposits “fit within karst type 2 deposits.”88 Referencing the deposits as karst type 2 seems to align with the “largest scale of dissolutional channels” which allow for turbulent flow as described above. At page 3 he says, “viable sinkholes are a feature of karst aquifer type 2 and where they survive intact they channel overland flow and serve as an example of surface and underground interconnectivity.”89 [105] The evidence said to support this conclusion includes tests conducted in 2005 where water was pumped into a number of sinkholes in and around Lucke farm – and where the volumes were absorbed, or pooled and absorbed over a number of hours.90 [106] The applicants do not dispute that there is karst at Bracewell. Mr Huntley in re- examination said, “There is absolute karst at Bracewell. Totally agree with that, totally agree. But in the East End proximity of the mine and the Schultz MLA, to the best of my knowledge and understanding, it’s very clearly paleokarst.”91 87 Ex 59, EEM0117. 88 Ex 14, EEM0027. 89 Ibid page 3. 90 Ibid. 91 T 2-84, lines 31 to 33. -- 38 of 112 -- 39 [107] Mr Lucke in cross examination asked Mr Starr if he assumed that local sinkholes mostly terminated at shallow depth by earthen floors.92 Mr Starr said that he had observed some local sinkholes but that he didn’t think they were very prevalent in the area of interest, that is in or around the proposed mine expansion area. Mr Starr said that there are ways of looking at the absorption of particular sinkholes but that he did not consider that would provide “a lot of data of use for the hydrogeologists modelling the site.”93 [108] When Mr Starr was asked what conclusion he would draw from the sinkhole pumping exercise in terms of the groundwater connections from sinkholes, Mr Starr said that he did not know and it was not his area of expertise but that “the testing of surface sinkholes is not necessarily going to provide the data that the modellers require for their water model.”94 [109] I can accept that a sinkhole pumping exercise might disprove an assumption that the particular sinkhole at Bracewell was terminative with an earthen floor however, it is not apparent to me how that would necessarily prove a karstic link to the East End aquifer. Conclusions [110] The unambiguous position of EEMAG is that the methodology used to underpin the groundwater assessment is inadequate because local aquifers are not correctly categorised as karst.95 EEMAG explain the reason this is so important is because the mine is located among the lowest elevations in the district and mining could proceed to -90 m AHD. Bracewell is upstream to a rising topology of 135 m AHD with a gradient to the mine. If the karst solution channel is intercepted by the mine pit it will drain that channel and any connections that lay above the level of the pit – that is Bracewell. All mine discharges go downstream. EEMAG do not contemplate a scenario where the aquifer is not karst. [111] The applicants submit that the weight of evidence favours a finding that the local geology of the area is structurally complex, characterised by faulting, folding and uplift of the geological sequence resulting in limestone belts of different geological ages abutting relatively impermeable volcaniclastics.96 92 T 5-67, lines 1 to 5. 93 T 5-67, lines 18 to 19. 94 T 5-67, lines 43 to 44. 95 EEMAG Closing Submissions filed 18 September 2020, page 8, lines 257-258. 96 Applicants’ Closing Submissions filed 21 September 2020 [177]. -- 39 of 112 -- 40 [112] The statutory party says that having regard to the evidence concerning karst adduced for the hearing the Court can comfortably find that there are no, or there are very likely to be no significant karst features present in the aquifer which would necessitate an amendment to the draft amended EA.97 At [129] below Dr Merrick’s evidence is that there is only a narrow corridor of low permeability volcanic rocks which would allow transmission between the Bracewell area and the East End area. [113] In submissions in reply EEMAG reject the conclusions of the statutory party and repeat the basis for claiming an actively karstic aquifer. Some assertions by EEMAG are in my view ‘a stretch’. For example where it is asserted that because a statement does not say “all cavities (or solution features) were clay filled” (infilling being an indication of paleokarst) means that it is more likely the aquifer functions as karst. [114] In a recent NSW Court of Appeal case, Alexandria Landfill Pty Ltd v Transport for NSW,98 the Court considered the approach taken by the trial judge in assessing the differing views of experts. Basten JA stated his assumption that the trial judge had no relevant expertise in the area the subject of expert evidence and noted that in making findings the trial judge summarised the submissions of each party and then explained his decision. In doing so the trial judge noted the preferred expert’s superior qualifications and experience, the thoroughness of research, and the preferred expert’s reasoning and clear understanding and articulation of relevant information. [115] I have no relevant experience in geology or groundwater. I am reliant on the evidence presented to form a view. It is not incumbent on me, in indicating the opinion I prefer, to address all aspects of the evidence which I do not accept, so long as the reasons provide a sufficient basis to support my conclusions. [116] It is accepted that the local geology is complex. There was a significant amount of historical data available to the relevant experts in order to form their opinions. The experts were armed with the representations of the objectors, both active and non-active, and the papers and opinions of the persons who advocate views accepted by those objectors. The evidence of Mr Huntley, Dr Merrick and Mr Collins, based on their expertise, their experience and the observations, was compelling. I accept their conclusions that drilling results and observations from the walls of the existing mine pit demonstrate that karst 97 Statutory party Closing Submissions filed 19 October 2020 [37]. 98 (2020) 103 NSWLR 479. -- 40 of 112 -- 41 features at East End are ‘significantly rare’; that Darcian flow modelling is and was appropriate to predict groundwater impacts, even if the alternative view about the nature of the aquifer was accepted; and that the pumping of sinkholes at Bracewell does not necessarily inform “what is happening” at East End. [117] In summary the evidence presented is so strongly against the conclusions of EEMAG regarding the local geological nature of the aquifer that I conclude that there is little, if any, evidence of a functioning karst aquifer as submitted. Groundwater [118] Conclusions regarding the geological nature of the aquifer are relevant to my consideration of groundwater impacts. [119] Groundwater objections can be broadly considered as groundwater quantity and groundwater quality impacts. [120] Both the applicants and the statutory party in submissions note that groundwater quantity matters will also be addressed and managed through the requirements of chapter 3 of the Water Act. In particular, the applicants will be required to submit an Underground Water Impact Report (UWIR) prior to exercising water rights on MLA 80156, which would be assessed by the statutory party.99 [121] EEMAG in closing submissions say that it has not been adequately demonstrated that the project will not have an unacceptable adverse impact on groundwater. The impacts they say present serious and irreversible environmental damage. They say that there is not enough supporting information in respect of groundwater to allow the administering authority to decide the application. [122] The statutory party in closing submissions says that groundwater quantity was also in issue because of the impact it may have on Groundwater Dependent Ecosystems (GDEs). The applicants in closing submissions in reply to the statutory party say that this was not an issue raised in the proceeding by the objectors and therefore there was no obligation on them to produce an expert witness nor an onus to prove the applications should be granted despite that issue. Nevertheless, the applicants accept that the statutory party was obliged to consider the impact of the proposed expansion on the environment, which would 99 Statutory party Closing Submissions filed 19 October 2020 [40]. -- 41 of 112 -- 42 include consequential impacts on GDEs irrespective of the objections made. In that regard the applicants adopted the relevant submissions of the statutory party. [123] The statutory party summarise the groundwater objections as follows: “(a) Nine objections in relation to the potential depletion of groundwater levels reducing the availability of water in private bores for stock watering, irrigation of crops or pastures, and domestic use; (b) Two objections relate to the potential depletion of groundwater levels decreasing subsoil moisture; (c) Two objections in relation to potential impacts from the depletion of groundwater levels extending to off lease areas. The objectors requested the recognition and restriction of the groundwater drawdown zone.”100 [124] They note EEMAG’s written submissions maintain that both the drawdown and the environmental impacts are likely to be greater than anticipated. Quantity Drawdown [125] The statutory party maintain that the groundwater modelling provided by the applicants indicated that the expansion of the current drawdown zone from the proposed pit extension would be minimal; and that in any event the trigger levels and monitoring requirements in the draft amended EA will ensure that the zone of influence reflects what is actually occurring when the pit is expanded.101 [126] The statutory party makes no submissions regarding impacts to private water bores other than to say they will be addressed and managed through the requirements of the Water Act.102 As noted by the statutory party,103 the draft amended EA does not address grounds of objection that relate to the potential impact of taking or interfering with groundwater for the proposed expansion unless they relate to impacts to groundwater quality and environmental values. That is, the statutory party considered groundwater quantity insofar as declining water levels has the potential to impact GDEs. [127] The position as summarised by the applicants is that whilst the approval of the mining lease application would entitle Cement Australia to interfere with groundwater, the draft 100 Ibid [43]. 101 Statutory party Closing Submissions filed 19 October 2020 [48]; Ex 34, DES0037, paras 27, 31. 102 Statutory party Closing Submissions filed 19 October 2020 [49]. 103 Ibid [50]. -- 42 of 112 -- 43 amended EA and the Water Act will regulate the manner in which that interference can occur with a view to protecting the environment and the interests of stakeholders.104 [128] The applicants address groundwater impacts in closing submissions.105 Dr Merrick provided a statement of evidence to the Court on groundwater issues.106 His key skills are described as groundwater modelling and the assessment and modelling of groundwater/surface water interactions. For the purposes of his evidence he was asked to assume that the geology of the area is structurally complex, characterised by faulting, folding and tilting, resulting in limestone belts in different geological ages abutting relatively impermeable volcaniclastics. According to his statement groundwater levels are highest in the Bracewell area, around 100 mAHD maximum, and levels are lowest at the mine, typically about 30 mAHD. [129] Dr Merrick says in his first statement that the narrow connective path along Machine Creek provides the only tenable pathway for propagation of drawdown from the Bracewell aquifer system to the East End aquifer system due to the very low permeability of volcanic rocks separating the two limestone aquifers.107 In cross examination, Dr Merrick restated that there was a narrow corridor of permeable material that allows transmission between the Bracewell area and the East End area, and having examined the water levels at bores along the corridor he concluded that the drawdown was not propagating to Bracewell because the bores over the volcaniclastic section near Machine Creek weir 2 were not responding to pumping out of the mine.108 [130] Dr Merrick says that the groundwater levels in the Bracewell area have been shown to correlate strongly with rainfall residual mass but that that correlation weakens closer to the (mine) pit in the East End aquifer indicating mine effects at some bores.109 In re- examination Dr Merrick explained that the residual mass method is a tool that is regularly used by hydrologists and has been used for the last 60 years.110 He said that in some places there was no correlation, which tells you that rainfall recharge is not important to that aquifer system. When you get a very good correlation it indicates that rainfall is very 104 Applicants’ Closing Submissions filed 21 September 2020 [183]. 105 Ibid [178]-[192]. 106 Ex 58, CEM8003. 107 Ex 58, CEM8003, lines 45-47. 108 T 6-19, lines 5 to 15. 109 Ex 58, CEM8003, lines 53-54. 110 T 6-93, lines 5 to 7. -- 43 of 112 -- 44 important. In reference to the particular curve shown in the hydrograph shown in EEM0128,111 he said that a minimum level is reached and does not get any lower, despite a downward rainfall trend. He explains that this is due to an anchor point at Machine Creek at that minimum level which prevents it from tracking lower due to the gradient of flow from each bore to Machine Creek. [131] Dr Merrick identifies five groundwater models (A to E) developed between 1997 to 2018 to allow assessment of the effects of the East End Mine however, he notes that only one (Kalf 1999) includes the Bracewell area. He says that Model D considered the worst case of an ultimate pit floor at -90 mAHD in the existing pit and some of the expansion pit, while Model E (Pacific Environment 2018) reduced the existing pit floor to -45 mAHD by 2045 in parallel with the expansion pit being excavated down to -15 mAHD. Dr Merrick concludes that Models D and E would overestimate the impacts by simulating a pit that is too deep. In his view inflows should increase at a slower rate, or reach a stable value, as the pit is deepened on the basis of decreasing permeability with depth. He notes that Model E has an almost linear increase from 2020 to 2045 towards a maximum inflow of 12.5 ML/day – which he considers an overestimate due to assumptions on pit depth and lack of permeability with depth. He concluded that, despite his view that the Pacific Environment Model (E) is not completely appropriate for the stated purpose, it is not fatally flawed. [132] In terms of drawdown Dr Merrick says that Models D and E provide predictions of 5 m drawdown for the expansion pit. The Model E drawdown extent in his view is marginally larger than the MLA area. [133] The applicants in closing submissions say that Dr Merrick noted that the expansion of the mine would not result in any permanent depletion of the East End aquifer, rather the aquifer will be recharged or replenished with rainfall and will recover when the mine is closed.112 It was accepted by Mr Collins that while dewatering was occurring the aquifer would not recharge and that it was a very long term depletion.113 He said that ultimately there will be a recharge… “it may take a long time, hundreds of years. There will be recharge.”114 111 Ex 28, Ex 65, EEM0128. 112 Applicants’ Closing Submissions filed 21 September 2020 [188](f). 113 T 6-69, line 32. 114 T 6-43, lines 40 to 41. -- 44 of 112 -- 45 [134] In response to the statements of evidence and documents of Dr James filed by EEMAG,115 Dr Merrick provided a further statement of evidence filed 3 June 2020.116 Dr Merrick addressed criticisms advanced by Dr James concerning his (Dr Merrick’s) explanation of the mechanism linking the East End aquifer system with the Bracewell aquifer system; and his (Dr Merrick’s) views dismissing the suggestion that there was an “immediate substantial drawdown at Bracewell” when mining commenced in 1979. [135] In relation to the former, Dr Merrick says there is no reason why his view ought to be dismissed and he reaffirmed it. In relation to the latter, Dr Merrick refers to rainfall data in the relevant period to support his hypothesis. He expresses the view that Dr James “does not appear to have considered the past 25 years of data and had not offered any counter- explanation of why water levels have recovered back to pre-mine levels in the Bracewell area.” In yet a further statement from Dr Merrick he said Dr Dudgeon supports his conclusion that the decline in groundwater levels in May 1979 was due to lower rainfall and not mining as pit dewatering could not have commenced before March 1980 at the earliest (as only overburden stripping was occurring at that time).117 He noted that at the relevant time mapping indicates that drawdowns near the mine are smaller than those at Bracewell which is contrary to what would be expected if it was the result of mining. In his view pumping from private bores was the most likely explanation for the high drawdown. [136] In terms of his opinion as to the best regional model/s for elucidating the behaviour of the aquifer systems, Dr Merrick considers Kalf (1999) the most appropriate as it covers the Bracewell area in addition to the mine area. In terms of the model for addressing the question of impacts likely from the expansion of the mine into MLA 80156 Dr Merrick considers Model E (Pacific Environment 2018) the most appropriate. [137] As to drawdown impacts Dr James in his report expected drawdown impacts to extend further north. Dr Merrick says such a conclusion is not sensible for mining that is planned to extend south and is contrary to model predictions. [138] The views of Dr James were shown to be on many occasions in significant conflict or contrast to those of the experts who appeared and gave evidence at the hearing. The 115 Ex 35, EEM0230. 116 Ex 59, CEM8007. 117 Ex 60, CEM8010, where Dr Merrick considered the Dudgeon 1980 report. -- 45 of 112 -- 46 weight of his evidence is lessened by his non-appearance, despite the fact it was for reasons beyond his control. [139] The applicants in closing submissions point to the evidence of Dr Merrick at the hearing where he said that his analysis of “the entire period of record” leads him to the conclusion that mining effects are confined to the East End half of the groundwater system.118 [140] I found the evidence of Dr Merrick at [130] above and his conclusion at [131] regarding the correlation at Bracewell with rainfall residual mass which weakens closer to the existing mine pit credible. [141] Having considered all the evidence presented relevant to this issue I accept the conclusion of Dr Merrick at [132] of a 5 m drawdown for the expansion pit and that the drawdown extent is likely to be marginally larger than the MLA. I note that it is Dr Merrick’s view that this may overestimate the impact as the conclusion is based on simulating a pit that is deeper than expected. Environmental impacts [142] The statutory party in closing submissions say that while no expert was produced to speak specifically to ecological impacts at the hearing,119 Stygofauna was addressed comprehensively in FRC Environmental, Comprehensive Stygofauna Assessment and East End Mine Comprehensive Stygofauna Assessment, prepared for Groundworks Plus.120 [143] As noted already, the applicants say that the impact of groundwater depletion on GDEs was not an issue raised in the proceedings by the objectors, but accept that the statutory party was obliged to consider the impacts of the proposed expansion on the environment. They say that to the extent the Court is similarly required to independently assess such impacts regardless of the objections made, they agree with the statutory party submissions, including at [122] referred to above. [144] The decision to issue the draft amended EA was made by delegated officer Ms Filiz Tansley, Manager (Assessment) Minerals, DES. Ms Tansley gave evidence that aside 118 Applicants’ Closing Submissions filed 21 September 2020 [185]; T 6-72, lines 17 to 28. 119 Statutory party Closing Submissions filed 19 October 2020 [46]. 120 Ex 4, CEM0206; Ex 1, Ex 34, DES0009. -- 46 of 112 -- 47 from impacts upon GDEs any potential impacts on groundwater quantity are matters that sit outside the 2013 EP Act.121 Ms Tansley briefly stated that the taking of groundwater for the existing mine is authorised subject to special conditions under the MRA. It was also said that should the MLA be approved, the applicants will receive a statutory right under MRA s 334ZP to take associated water which will be subject to compliance with chapter 3 of the Water Act which requires the submission of a UWIR prior to the exercise of rights on the MLA. [145] The statutory party notes that EEMAG challenges the conclusion that the expansion of the current drawdown zone from the proposed pit expansion would be minimal but submits that in any event the trigger levels and monitoring requirements in the draft amended EA will ensure that the zone of influence reflects what is actually occurring when the pit is expanded.122 [146] As noted at [141] above I accept the evidence of Dr Merrick concerning the predicted drawdown and the drawdown extent. [147] In closing submissions, the statutory party identify the provisions of the draft EA they say sufficiently protect GDEs from environmental harm posed by the expansion. Those conditions are as follows: “52. In the Statutory Party’s submission, the following provisions of the draft EA sufficiently protect GDE’s from environmental harm posed by the expansion, and that no amendment is necessary: a. Condition D18 and Table D5: prohibits groundwater extraction activities from causing any environmental harm to the GDEs inside or outside the zone of influence. b. Condition D22, Table D6, D27, and Table D8: additional monitoring locations conditioned in the draft EA are expected to manage areas where the zone of influence is predicted to extend as a result of the proposed amendment. c. Condition D19, D20 and D21: requires EA holders to develop, implement and regularly review for effectiveness a monitoring and management system for identified risks to groundwater quality and levels and to analyse monitoring data against the objectives set within the conditions. d. Condition D27: requires the EA holder to investigate and notify the Department if the water level of groundwater drops below the historical observed minimum and ensure compliance with condition D18. 121 Ex 1, Ex 34, DES0037, paras 22-26. 122 Ex 34, DES0037, para 31. -- 47 of 112 -- 48 e. Condition D28, D29, D30: requires the EA holder to ensure monitoring is undertaken appropriately and that the monitoring bores are adequate and targeting the appropriate aquifers. f. Condition D31: requires a program for monitoring and management of subterranean fauna to ensure the environmental values of groundwater are protected. Due to the limited scientific knowledge of subterranean fauna and that they have been detected within the project area, a program is required to establish appropriate monitoring and management practices for the specific project area. g. Condition D32: sets the protocol and minimum requirements for the Subterranean Fauna Monitoring and Management Program required by condition D31 to ensure EVs of groundwater associated with subterranean fauna are protected. h. Condition D33 and Table D9: if the standing water level of groundwater measured at any compliance bore is less than the corresponding trigger levels in Table D9, the EA holder must notify DES and review the Subterranean Fauna Monitoring and Management Program. Trigger levels are considered necessary and desirable to ensure that lack of current scientific knowledge on GDE's does not result in the activities causing an impact on groundwater levels and subsequently GDE's (i.e. stygofauna). i. Any further lowering of groundwater levels from historical levels will require a review of the program required by condition D32. j. Condition D22, D24, D25, D26, D27: require monitoring of groundwater to verify predicted impacts.”123 (citations omitted) [148] I am satisfied that the conditions of the draft amended EA sufficiently take account of and address the potential ecological impacts identified. Quality [149] The statutory party submit that compliance with the conditions of the draft EA will address and adequately protect against the concerns raised in the objections in relation to groundwater quality. [150] The potential depletion of groundwater levels raises the concern of reduced groundwater quality and the productivity and growth of plants and pastures and the use for irrigation. Ms Tansley identifies objections by Mr Lenz, Mr Geaney and Mr and Mrs Chapman in relation to groundwater quality. She says at [48] that the characteristics of groundwater that have the potential to be impacted by the dewatering activities are salinity, and to a lesser extent, pH altering characteristics and at [49]: “The application did not determine that there will be an impact to the groundwater quality within the zone of influence. The application raised that 123 Statutory party Closing Submissions filed 19 October 2020 [52](a)-(j). -- 48 of 112 -- 49 the drawdown of groundwater has the potential to affect the groundwater quality, however did not sufficiently determine the likely impact. A review of groundwater data within the zone of influence, undertaken by the administering authority, did not identify any significant historical deterioration of groundwater quality. Therefore, the assessment is based on the assumption that there will be no deterioration in current groundwater quality as a result of the proposed amendment and the administering authority has imposed condition D23 of the draft EA which prohibits the deterioration of groundwater quality.”124 [151] As noted in closing submissions,125 the draft EA proposes the monitoring of groundwater quality using a number of bores in the vicinity of the East End Mine with trigger levels specific to each bore based on historic data. As identified in submissions Dr Merrick in his report to the Court stated: “During the period of mining when stream losses are induced, particularly from Schultz Lagoon and Larcom Creek, groundwater quality is likely to improve marginally by mixing of innate groundwater and introduced surface water. After mining has finished, a pit lake maintained by the balance between rainfall and evaporation is expected to act as a flow-through system with continual flushing so that no salinity impacts to Larcom Creek are likely.”126 [152] The placement and number of monitoring bores are identified in the draft amended EA and in evidence Dr Merrick said he considered them well distributed and noted they are supported by another 24 bores which he considered “a good network.”127 [153] In the hearing there was some discussion about the mix of monitoring bores, that is, some into limestone and some into volcaniclastic formations. In cross examination Dr Merrick was asked whether the volcaniclastic bores were able to provide the water monitoring data that would be able to supply the information needed about the behaviour of the limestone.128 In response Dr Merrick said: “The answer is – the answer is yes. So what is of importance is the behaviour of the entire groundwater system and that consists of limestone, volcaniclastics and alluvium, so you need monitoring bores in all three types of pathologies, If we had no bores in the volcaniclastics, we couldn’t draw those groundwater contour maps, so you do have bores in all types.”129 [154] In closing submissions EEMAG maintain that 12 of the 24 monitoring bores are in volcaniclastic strata and a number of others “in mixed provenance” that includes 124 Affidavit of Feliz Tansley filed 20 September 2018 [49]. 125 Statutory party Closing Submissions filed 19 October 2020 [60]; T 5-53, lines 43 to 46; T5-54, lines 1 to 2. 126 Ex 58, CEM8003, page 35. 127 T 6-86, lines 40 to 47; T 6-87, lines 1 to 7. 128 T 6-82, lines 35 to 38. 129 T 6-82, lines 39 to 43. -- 49 of 112 -- 50 volcaniclastics that are unsuited for monitoring drawdown of the limestone as they have lower permeability that cannot gauge limestone aquifer trends. In their submissions in reply to the statutory party, there is a broad statement at lines 670-678 that in a “worst case scenario”130 there is no means of rectification if bores fall below set trigger levels. They argue it is not an effective remedy. I do not believe it is argued that trigger levels are intended to have remedial effect, they are, as the title suggests intended to limit further declines. [155] The statutory party submits that compliance with the conditions of the draft amended EA will address and adequately protect against the concerns raised in the objections in relation to groundwater quality as follows: “63. The Statutory Party rejects that the classification of any of the bores in the draft EA is inaccurate, and submits that compliance with the conditions of the draft EA will address and adequately protect against the concerns raised in the objections of the Respondents in relation to groundwater quality, and that no amendment is necessary: a. Condition D23: prohibits the deterioration of groundwater quality. b. Condition D18: prohibits groundwater extraction activities from causing any environmental harm to the GDEs inside or outside the zone of influence. c. Condition D23, D24, D25 and D26: “are expected to ensure the proposed activity is managed appropriately to meet the relevant water quality objections to protect environmental values of groundwater.” d. Table D7: Groundwater quality limits derived from the 80th and 95th percentiles of historical data for the individual bores.61 A deviation/increase of these percentiles will indicate that a degradation of water quality may be occurring and requires investigation. e. Condition D24: requires that the EA holder meet the quality limits in Table D7. The limits are expected to protect the EVs of groundwater. f. Consecutive exceedances have been included in conditions D24 and D25 to account for statistically valid variation. The statistical probability of multiple exceedances is very low and therefore is considered to be an actual change in groundwater quality. g. Conditions D24, D25, and D26 are expected to ensure no degradation to the groundwater quality outside of the modelled zone of influence. h. Condition D26 requires resampling of groundwater if it exceeds certain limits: a quality assurance measure to reduce the likelihood that the initial exceedance of the limit was because of a sampling or laboratory error.”131 (citations omitted) 130 131 Statutory party Closing Submissions filed 19 October 2020 [63](a)-(h). -- 50 of 112 -- 51 [156] I am satisfied that the conditions of the draft amended EA sufficiently and adequately protect against the concerns raised in the objections in relation to groundwater quality. Conclusions [157] I accept the conclusion of Dr Merrick at [132] of a predicted 5 m drawdown for the expansion pit and that the drawdown extent is likely to be marginally larger than the MLA. I note also that it is Dr Merrick’s view that this may overestimate the impact as the conclusion is based on simulating a pit that is deeper than expected. [158] In relation to groundwater environmental impacts, I again note my conclusions regarding the predicted drawdown of 5 m; and that the applicants will be subject to compliance with ch 3 of the Water Act which requires the submission of a UWIR prior to the exercise of rights on the MLA. Accepting that the expansion of the drawdown zone is minimal, and the trigger levels and monitoring requirements in the draft amended EA, as noted I am satisfied that the conditions of the draft amended EA sufficiently take account of and address the potential ecological impacts identified. [159] In relation to groundwater quality I note that the draft EA proposes the monitoring of groundwater quality using a number of bores in the vicinity of the East End Mine with trigger levels specific to each bore based on historic data. [160] The placement and number of monitoring bores are identified in the draft amended EA and in evidence Dr Merrick said he considered them well distributed and noted they are supported by another 24 bores which he considered “a good network”. It was Dr Merrick’s view noted at [151] that during the period of mining when stream losses are induced, particularly from Schultz Lagoon and Larcom Creek, groundwater quality is likely to improve marginally by mixing of innate groundwater and introduced surface water. Further, he opined that after mining has finished, a pit lake maintained by the balance between rainfall and evaporation is expected to act as a flow-through system with continual flushing so that no salinity impacts to Larcom Creek are likely. -- 51 of 112 -- 52 [161] I accept the opinion of Dr Merrick as described at [153] that the mix of bores in both volcaniclastic formations and into limestone provides information about the behaviour of the entire groundwater system. Surface water impacts [162] The statutory party summarise the relevant objections as follows: “68. The relevant objections are as follows: a. Six objections raised in relation to potential impacts to surface water quality resulting from the discharge of contaminated water from the project to Larcom Creek, including impacts to: land, livestock and crops in Larcom Creek and ecosystems and environmental values in Larcom Creek. b. One objection in relation to the potential for evapotranspiration effects in the settling ponds such as to increase salinity of the water for discharge. c. One objection in relation to surface water monitoring locations within Scrub Creek.”132 Quality [163] In relation to the possible impact on local creeks, Ms Tansley in her affidavit at [80] said: “Potential impacts including the potential reduction of base flow and desiccation of waterholes in Machine Creek, Larcom Creek, and Scrub Creek were considered in the assessment of the application as they relate to environmental values and were conditioned in the draft EA to protect identified environmental values.”133 [164] At [82] Ms Tansley says, “Receiving Environment Monitoring Program (REMP) conditions will require the monitoring of potential impacts to environmental values in Larcom Creek.”134 [165] The statutory party says that notwithstanding the fact that the expansion was not expected to have any significant impact upon the receiving environment insofar as it concerned releases to surface waters,135 the draft amended EA contains conditions expected to ensure releases from the activity do not adversely affect the environmental values of the 132 Statutory party Closing Submissions filed 19 October 2020 [68](a)-(c). 133 Ex 34, DES0037, para 80. 134 Ibid para 82. 135 Ibid para 67. -- 52 of 112 -- 53 receiving environment.136 They say that Mr Collins held a similar view saying that in relation to pit void management there should be no significant change in flow regime or water quality,137 and the quality of surface waters beyond the mine should remain unchanged. Mr Collins also said that the salinity of mine water to be dewatered should remain unchanged.138 [166] In regard to water release rates, Mr Collins says that flow duration beyond the site will not change significantly. He said the draft EA conditions require allowable release rates to be determined by the Receiving Environment Monitoring Program (REMP). He said he considered the existing mine release rates should be adopted in the REMP which would effectively restrict mine expansion if discharge rates from dewatering exceed specific limits.139 [167] The applicants summarise aspects of the evidence of Mr Collins: that diversion drains, current and proposed, will ensure ‘external’ catchments are diverted around the mine with no significant surface water capture; the diversion drains will not impact water quality of surface water and will not have a significant effect on the downstream receiving environment; and that the current mine dewatering system operates effectively within the existing EA conditions noting that long term dewatering rates have stabilised. In that regard in his statement of evidence Mr Collins said: “In addition, maximum dewatering rates have been 30 ML/day, which is in accordance with current EA conditions after extended periods of rainfall. In terms of infiltration, based on my inspection of the pit and also on long term monitoring data since 1997, there is only minor groundwater flow infiltrating into the pit, which I estimate to be between 1 and 2.5 ML/day. With the proposed mine expansion, I expect long term dewatering rates similar to those occurring over the last 10 years.”140 [168] This was explored further in cross examination: “MR COLLINS: I can’t comment on the models, but I can comment on the data, and my figure 4-2 and also reference to dewatering average rates on page 20 of my surface water statement of evidence show, in fact, that the dewatering rates, which represent the inflow rates, have stabilised, and if they’re doing anything, they’re going down very, very slightly over time once you take out the large rainfall events. MR LUCKE: Good. 136 Ibid para 69. 137 Ex 56, CEM8002, page 3. 138 Ibid page 28. 139 Ex 56, CEM8002, page 3. 140 Ex 56, CEM8002, lines 430-434. -- 53 of 112 -- 54 MR COLLINS: It’s quite clear to me from that analysis. MR LUCKE: Yes. Okay. But just using your point, when you say that the discharges have stabilised, I mean, this is the biggest volume of water that’s been discharged from the mine in the decade – in the last decade, and obviously it comes about because of those extraordinary rainfall tallies in 2010 and in 2013, and good seasons persisting until 2016, which were below average, and 2017 being reasonable again. I’ve never seen any figures like that that were pumped out during that period from 2010 onwards for those, say, five years, so any claim that the volume from – discharged from the mine has stabilised doesn’t conform with the past history, where there’s also been levels sometimes where it’s got down to less, possibly, than two metres a day – megalitres, I mean. So we’re just going through a cycle again where rainfall – the mine’s so well-connected that you’re getting inflows to the mine to a much greater degree than they’ve ever had, and now volume’s being pumped out again, and mine discharge is falling in proportion. MR COLLINS: Well - - - MR LUCKE: And that’s not stabilisation in my book. MR COLLINS: Well, the numbers are very clear to me. Once you take off the rainfall events, it has stabilised. And I agree, two-thousand – 1997 to 2010, it averaged seven megalitres a day, and then 2011 to 2018 – sorry, I should start again. Nineteen-ninety-seven to 2010, 2.3 megalitres a day average, and then 2011 to 2018, seven megalitres a day solely because of the increased rainfall. MR LUCKE: Absolutely. MR COLLINS: But if you actually look at the base numbers in those graphs – that graph that I’m referring to, figure 4-2, you can see very clearly the upper and lower limits of what the pumping lines are for the groundwater, and it’s on the lower end, around one to 2.45, when there’s no rainfall, and it could be as much as 5 in other periods, but it’s not going higher than five; it’s actually dropping below five megalitres a day.”141 [169] In terms of contaminant release limits the statutory party note Dr Merrick’s evidence that annual monitoring reports show the existing mine complies and that no significant changes will occur due to the mine expansion in terms of water quality. [170] In his statement Mr Collins says: “The authority defines the two key release points in terms of mine dewatering at release points A (weir 1) and (weir 6). In terms of water quality, contaminant release limits specified (Table D2) are: Electrical conductivity (salinity measure) of 5000μs/cm pH between 6.5 and 8.5 Turbidity limit of 20 NTU 141 T 6-62, lines 29 to 47; T 6-63, lines 1 to 35. -- 54 of 112 -- 55 Annual Monitoring Reports by Groundwork Plus from 2010 to 2018, show that the existing mine complies with these requirements. Given that I conclude above, that no significant changes will occur due to the mine expansion in terms of water quality, I further conclude that these requirements are suitable and can be complied with and that the draft EA contains sufficient requirements to ensure that no significant off site environmental harm will occur. I also note that monthly ongoing monitoring is required, with daily additional monitoring for discharges greater than 6 ML/day, ensuring that future compliance can be adequately demonstrated.”142 [171] Mr Collins in his statement also says: “The REMP should provide for the existing mine water release rates. I consider that the existing mine water release rates should be adopted in the REMP i.e. to a minimum of 8.1 ML/day up to a maximum of 30 ML/day. I note that these requirements have generally been met over the last 10 years for the existing mine, and with no significant change in release rates or quality, these criteria will be met in the future with the expanded mine.”143 [172] The statutory party in closing submissions identify the relevant conditions in the draft EA as follows: “75. The Statutory Party submits that compliance with the conditions of the draft EA will address and adequately protect against the concerns raised in the objections of the Respondents in relation to mine water discharge. a. Conditions D1 to D10: regulate the release of contaminated water. b. Condition D4: requires that the release of certain contaminants to water must not exceed the release limits stated in the draft EA. The release concentrations are expected to meet the objectives of the Curtis Island, Calliope River and Boyne River Basins Environmental Values and Water Quality Objectives. c. The draft EA has been conditioned to ensure that water quality objectives for the protection of environmental values in the receiving environment are met. The EA holder is required to ensure releases do not result in an exceedance of receiving environment limits in Condition D12, D13 and Table D4. d. Condition D5: requires that the release of contaminants to waters must only take place during natural low in Larcom Creek. e. Conditions D3, D8 and D11: requirements for monitoring of streamflow, authorised releases and receiving environment to determine compliance with EA conditions, for monitoring the characteristics of the receiving environment, and determining the potential impact on the receiving environment from releases. 142 Ex 56, CEM8002, lines 484-497. 143 Ex 56, CEM8002, pages 4 to 5. -- 55 of 112 -- 56 f. Conditions D14 to D16: requirement to monitor, identify and describe any adverse impacts to surface water EVs, quality and flows, and groundwater due to mining activity. g. Condition D10, A11 and A12: requires EA holder to notify DES and investigate contraventions of the EA. Should a non-compliance with a condition or an offence against the EP Act be identified, the Statutory Party can pursue enforcement action.”144 (citations omitted) (emphasis in original) Quantity [173] The statutory party summarise the relevant objections in closing submissions as follows: “80. The relevant objections are as follows: a. Five objections in relation to potential depletion of surface water in Larcom Creek. b. The objections raise concern that groundwater drawdown and interactions between the mine pit and the Creek will result in loss of permanent and reliable waterholes resulting in the following impacts: i. Reduction of adequate and reliable water supplies for stock and domestic purposes. ii. The need to construct and maintain fencing. iii. Impacts to aquatic ecosystems, flora and fauna. iv. Impacts to the character, resilience, and values of the receiving environment. 81. EEMAG in its submissions maintains that the drawdown expected from the expansion will be higher than stated by the expert evidence, premised upon the asserted presence of a karst aquifer.”145 [174] The statutory party notes the evidence of Ms Tansley: “Potential impacts including the potential reduction of base flow and desiccation of waterholes in Machine Creek, Larcom Creek, and Scrub Creek were considered in the assessment of the application as they relate to environmental values and were conditioned in the draft EA to protect identified environmental values.”146 [175] The statutory party notes the conclusions of Mr Collins that he did not believe that there would be any significant changes to flow rates as a result of the proposed expansion and 144 Statutory party Closing Submissions filed 19 October 2020 [75](a)-(g). 145 Ibid [80]-[81]. 146 Ex 34, DES0037, para 81. -- 56 of 112 -- 57 no significant impacts upon the downstream receiving environment due to management of rainfall or infiltration into the pit. They refer again to Mr Collins evidence concerning the REMP, said to effectively restrict mine expansion if discharge rates exceed specified limits, and the utility and practicality of the REMP: “MS McAULIFFE-LAKE: … Just for the benefit of the court, could you very briefly describe what an REMP is? MR COLLINS: It’s a monitoring plan, an environmental management plan that has in it the ability for adaptation, I suppose, would be one word for it, in that what we’ve attempted to do in the past with the old style environmental authorities is set of numbers and then the casting stone, and that’s the numbers you’ve got to meet forever and a day. But what the department does these days generally is say, “Well, here’s a set of numbers that are based on what we think, but we’re going to go and do a lot of monitoring and we’re going to potentially change those numbers depending upon what we find.” So it’s a much more sensible approach, in my view, because it actually takes account of real data as it comes in. So you could vary the flow rates; you could vary the water quality requirements and you could make them more stringent, if you had to. So they actually lead to a better environmental outcome.”147 [176] Accordingly, the statutory party submit that compliance with the conditions of the draft EA will address and adequately protect against the concerns in relation to surface water quantity raised. They point specifically to Condition D14 and D15 as follows: “Condition D14 and D15: the EA holder must develop and implement a REMP to monitor, identify and describe any adverse impacts to surface water EVs, quality and flows: and groundwater due to mining activity.” (emphasis in original) [177] In their submissions in reply to the statutory party, apart from the broadest of statements EEMAG did not clearly address these issues or reference evidence which would support a contrary conclusion. Conclusions [178] The applicants in closing submissions note a response by Mr Collins to a question in cross examination that touches on the veracity of his evidence.148 Without repeating the passage here it does support a conclusion that Mr Collins is independent and thorough in his work, and in providing evidence to the Court and advice to the applicants. [179] I note and accept the evidence of Mr Collins (described at [165]) that in relation to pit void management: there should be no significant change in flow regime or water quality; that the quality of surface water beyond the mine should remain unchanged; that water 147 T 6-91, lines 14 to 28. 148 T 6-71, lines 20 to 40. -- 57 of 112 -- 58 release rates will not change significantly; and that REMP conditions will require monitoring of potential impacts to environmental values in Larcom Creek. Further, that diversion drains will ensure external catchments do not result in significant surface water capture and will not have a significant effect on the downstream receiving environment. I note also the operation of the current dewatering system, and that maximum dewatering rates have been set which is not a prediction of inflows, rather a measure to restrict mine expansion if discharge rates from dewatering exceeds specific limits. [180] I am satisfied that the conditions in the draft amended EA, which amongst other things, regulates the release of contaminated water, requires the monitoring of stream flow releases and the receiving environment, and requires the notification of adverse impacts due to mining activity are appropriate. [181] I am satisfied that there will be no significant impacts upon the downstream receiving environment due to the measures which will be in place. In my view the evidence of Mr Collins, concerning the way the REMP is intended to operate to restrict mine expansion if certain limits are exceeded, renders proposed conditions D14 and D15 sufficient in the circumstances. Groundwater to surface water interactions [182] The applicants describe this category of objections being broadly concerned with the impact of the mine expansion on surrounding streams due to groundwater losses and on water interactions. [183] Again as noted by the applicants, objections in this category are premised on the assumption that the aquifers are karst and that: “The groundwater assessments and management plans done for the project were inadequate to appropriately determine and manage the full extent of those impacts due to selective data use, methodology and screening of dissenting professional opinion.”149 [184] My understanding of Dr James’ evidence is that he anticipated ‘major changes’ for Scrub Creek and ‘some reactions’ for Larcom Creek. The applicants in closing submissions refer at length to the evidence of Dr Merrick and Mr Collins. 149 Ex 1, Ex 34, DES0022. -- 58 of 112 -- 59 [185] In relation to the impact on streams Dr Merrick’s evidence was that the modelling he relied upon predicted that the proposed expansion of the mine would, towards the end of planned mining in 2045, cause about 5.6 ml extra losses per day from the simulated streams.150 As noted already that prediction was considered an overestimate due to the simulation of a pit deeper than planned and ignoring the likely reduction of permeability at depth (and overestimated pit inflows). [186] In relation to Larcom Creek, in Dr Merrick’s opinion based on Pacific Environment (2018), the extension of the mine is likely to cause about 2.1 M/L per day extra leakage from Larcom Creek – much of which would be captured by the mine pit and recirculated to Schultz Lagoon.151 He further opines that the extension of the mine would result in minor changes for Scrub Creek.152 [187] On the impact on water interactions Dr Merrick considered groundwater quality is likely to improve marginally by the mixing of innate groundwater and introduced surface water, and after mining has ended a pit lake is expected to act as a flow through system with continual flushing and no impacts to Larcom Creek.153 [188] Mr Collins’ evidence was as follows: “My view from a surface water management consideration is that it is apparent from long term mine surface water discharge records that any changes to groundwater levels in the immediate vicinity of the mine due to previous mining activity have stabilised, with only low levels of infiltration into the pit which I estimate to be between 1 and 2.5 ML/day due to groundwater, with the pit dewatering requirements dominated by rainfall / surface water capture. Given that the mine expansion is down gradient from the existing draw-down groundwater surface, provided the geology of the materials to be mined remain consistent with the previously mined geology, I would not expect major changes in mine pit infiltration as mining progressively moves to the south, but I defer to the groundwater experts to confirm this. Irrespective, with the requirement as discussed above in Chapter 7.1.6 to limit maximum releases of surface waters from the mine to 30 ML/day, this will create a regulatory regime that can be monitored and administered by the relevant State Authority to ensure compliance; if mine pit seepage rates were to increase significantly, this would progressively result in more flooding of the pit, to the point that any further expansion would become unviable. This also applies to any excavation to lower levels than the base of the existing pit, which is not planned in the next 25 years of proposed operations. 150 Ex 59, CEM8007, pages 515-525. 151 Ibid lines 532-535. 152 Ibid lines 536-544. 153 Ibid lines 550-560. -- 59 of 112 -- 60 For these reasons, from a surface water management perspective, I believe that any impacts to surrounding streams from mine water discharges can be adequately managed through Environmental Authority conditions, through the current mine Water Management Plan and through the proposed expansion Stormwater Management Plan as part of the mine expansion to ensure no unacceptable adverse impacts will occur.”154 [189] As noted by the applicants in closing submissions the likely loss of 5.6 ml per day of stream flow was explored in the concurrent evidence session. The relevant passages from the transcript were reproduced in their closing submissions as follows: “MR LUCKE: Now, at item 515 you’ve identified the likely daily loss of 5.6 megalitres a day of stream flow – this is to do with the new project. Do you see the creeks having the capacity to support that? DR MERRICK: Well, yes, they do… … MR COLLINS: If you go to page 25 of my statement of evidence in relation to surface water, …Page 25, figure 10. [CEM8002] … So, in terms of capacity of creeks, any additional water that’s coming out of that mine void over current dewatering is being discharged directly back into a system with significant capacity, which is both Schultz Lagoon and, of course, Larcom Creek. And I note that Dr Merrick pointed out that the estimate of 5.6 megalitres a day is likely to be a significant overestimation, one of the modelling scenarios – that was the dewatering with a minus 90-metres AHD pit and that the actual dewatering will be less. And in terms of the ability to pump it, the actual pumps that are currently in place, by my calculation, if you crank them are capable of 41 megalitres a day they’re never going to get to that because there’s a license condition in place; maximum pumping after flood events of 30 megalitres a day. I’ve recommended that also be used in the interim until the REMP is – work has been done, just limit to 30 megalitres a day. But my point is, current dewatering’s at the rate between two and a-half and five megalitres a day, typically when it’s not a rainfall event an extra five, well within the capacity of the pumping. And in relation to your question of the capacity of the streams to handle that; we’re not discharging to the smaller streams, we’re discharging to Schultz Lagoon direct or Larcom Creek. And in any case, it’s a – it’s, to a degree, it’s a closed circuit because you’re pumping it out, it’s going to the creek, the groundwater’s coming back in underneath at the 5.6. So, that’s – that’s my view on that question. … DR MERRICK: Mr Collins is right in saying that the estimate is an overestimate, and I give my reasons in the statement of evidence. One, that the pit in the simulation by Pacific Environment has gone deeper than planned. And also that the way the model was set up with only one layer, it meant that the increase in predicted pumping rate from the mine was linear and that won’t happen. So, the predicted pump out was at least two times what it should be, so the take from the water courses is probably about in error by the similar factor, 154 Ex 56, CEM8002, lines 510-533. -- 60 of 112 -- 61 maybe double. So – so, yes, the estimations in that model are overestimates.”155 [190] Again, the applicants and the statutory party in closing submissions noted that further questions were directed to Dr Merrick and Mr Collins in relation to this issue. The relevant passages from the evidence are reproduced as follows: “MS McAULIFFE-LAKE: CEM8003, table 1, p34: … So looking at table 1 on that page, there was quite a bit of discussion earlier on about lowering of various creeks in and around the mine, and I believe that the estimate given at the moment is that a loss of some 5.6 megalitres per day from all of those creeks. Is that correct in both of your opinions? DR MERRICK: That’s the estimate of the Pacific Environment model and each of us has said that it’s an overestimate. MS McAULIFFE-LAKE: Okay. And I understand that that 5.6 megalitres per day is spread across all of those creeks and across some expanse of those creeks; is that correct? DR MERRICK: Yeah, that’s right according to the individual watercourses in that table. MR COLLINS: The biggest loss, though, is Schultz’s Lagoon and Larcom Creek. MS McAULIFFE-LAKE: Yes. I pose the question to you both: can you comment on – and I appreciate neither of you are ecologists, but can you comment on what practically that might look like? MR COLLINS: In terms of the Larcom Creek and Schultz Lagoon, whilst there’s a loss, there’s an immediate top-up because that’s where the mine dewatering is going back. So if anything, it’s going to be – it’s like more water in that system than now because it’s discharging the water in one place, whereas there are losses that are predicted in the modelling from a variety of places. But the losses in many of the streams are fairly small numbers: .02 megalitres a day for Machine Creek, for example, and .04 for East End Creek. And East End Creek, effectively, will get backwater flow from Schultz’s Lagoon so I don’t see it’s going to have any dramatic effect either. MS McAULIFFE-LAKE: Do you have any comment to make, Dr Merrick? DR MERRICK: Yes. I think the only – the only stream that has a risk of some impact is Larcom Creek, and I base that on the statistics which are actually in table 2 of this document which documents the median, minimum and maximum flows in Larcom Creek. And the minimum flow is .86 megalitres per day. So that’s of the same water as the take estimated by the Pacific Environment model, remembering though that it is an overestimate. So I think – I think that the low flow characteristics of Larcom Creek could be affected by the expansion of mining. 155 T 6-53, lines 35 to 47; T 6-55, lines 1 to 2. -- 61 of 112 -- 62 MR COLLINS: Could I just add - - - DR MERRICK: Now, whether that has an effect on ecology, I can’t answer that one. MR COLLINS: Could I just add to that, Dr Merrick, that just bear in mind that if it is 5.6 megalitres per day average dewatering additional over existing mine, that means we’re putting out between seven and 10 megalitres a day sump discharge straight back to Schultz Lagoon and then to Larcom Creek. So that should diminish that effect, and that’s a daily exercise which then should counteract any effect on low flows, in my view. The other thing I can add in relation to the ecology, is the ecology of Larcom Creek and Schultz’s – Schultz Lagoon – and I’m not an expert ecologist, but I’ll say this from a hydrologic viewpoint – is entirely artificial in that it’s dependent entirely on the mine dewatering that’s been going on for the last 40 years. Without that mine dewatering, that environment wouldn’t exist. So if there’s similar amounts of water to be discharged or more, one would think that might be more tolerable for the receiving environment and ecology than if you turned off the tap, so to speak. MS McAULIFFE-LAKE: So would it be correct to say that the issue is this, that it’s not so much the volume of water, but perhaps the redirection of that water which might have environmental impacts in terms of creeks being – seeing less flow than they have previously? MR COLLINS: Well, that is a consequence of the proposed dewatering system and, presumably, that was a perceived problem in the EIS. It could have done a distributive discharge to multiple locations. It’s just a matter of pump lines. It’s certainly engineeringly feasible but I don’t – I assume that was dismissed because it was not perceived that there was environmental ecological risks. But that’s an assumption on my part.”156 [191] In cross examination Mr Collins was asked his view on the adequacy of the annual water monitoring reporting. He answered: “MR COLLINS: The reporting requirements under the environmental authority, in my view, are good practice, and I believe that if they’re – the mine is in breach of those requirements at any time, there’s a requirement to notify the department in any case, and, for example, if there was excessive pumping, they’d have to notify the department. So the annual reporting is looking back over the last 12 months to verify they’re complying with, you know, conditions, but if things are going off the rails for whatever reason, there’s an obligation and, I think, an intent anyway from Cement Australia that those non-compliances would be reported.”157 Conclusion 156 T 6-87, lines 9 to 47; T 6-88, lines 1 to 34. 157 T 6-18, lines 31 to 38. -- 62 of 112 -- 63 [192] The statutory party submits that the concerns raised in EEMAG’s objections in relation to groundwater to surface water interactions are adequately addressed by the conditions imposed in the draft EA. [193] The evidence does not bear out the concerns expressed by Dr James. In relation to Larcom Creek and Schultz Lagoon where there is loss there is an immediate ‘top up’ as a result of the recirculation of mine dewatering. Although there will be losses to Scrub Creek and Machine Creek these are described as minor. I note that in evidence Mr Huntley said he was supportive of “pumping water back to Machine Creek and/or other affected stakeholders… [as a] tangible, practical viable response from the East End mine.”158 These comments were made in response to a question from Mr Lucke asking whether the installation of a grout curtain would improve community relations. [194] The applicants submit, and I accept, that from a surface water management perspective, any impacts to surrounding streams from mine water discharges can be adequately managed through EA conditions, the current mine Water Management Plan and through the proposed expansion of the Stormwater Management Plan. Grout curtain [195] Objectors raised the prospect of the installation of a grout curtain as a condition of any approval. In closing submissions the applicants say that there is no reliable or cogent body of evidence on the basis of which such a condition could be reasonably and logically imposed.159 A grout curtain was not proposed by the applicants in the Environmental Management Plan. The installation of a grout curtain was referred to in EEMAG’s closing submissions under the heading ‘Solutions’ which they say is “most likely to bring relief to the greatest number of stakeholders and benefit the mine through reduced pumping…”160 and which they say is their preferred remediation option.161 [196] In his statement prepared at the request of EEMAG, Dr Bruce identified himself as President of Geosystems LP, a consultancy based near Pittsburgh, PA USA, and described himself as a grouting specialist.162 He says that he has been kept abreast of the legal 158 T 2-57, lines 32 to 37. 159 Applicants’ Closing Submissions filed 21 September 2020 [213]. 160 EEMAG Closing Submissions filed 18 September 2020, page 4. 161 Ibid page 20. 162 Ex 70, EEM0224. -- 63 of 112 -- 64 processes involved in the proposed East End Mine extension by Mr Lucke on behalf of EEMAG. In evidence he said that he had been in contact with Mr Lucke regarding the proposed East End extension since early 2018.163 [197] The purpose of his report was to express his views “on aspects of the design, construction and estimated cost of a grout curtain which may be judged necessary (by others) to mitigate the impacts on the local groundwater regime as a result of the proposed Extension.” [198] In evidence at the hearing, Dr Bruce agreed that he was not expressing his view about whether a grout curtain was actually necessary and appropriate in the circumstances of this case. He said this was so because “we don’t have, in my opinion, a viable hydrological model that I could then take the development of the grout curtain further.”164 [199] Dr Bruce says that the second goal of his report is to help inform parties regarding developments in the field of rock mass grouting which have occurred in recent years – such that that earlier opinions of Connell Wagner (1997) and Groundworks Plus (2014) can be put in perspective. [200] The applicants submit that there is no other evidence suggesting that a grout curtain was required, practical or economically feasible, noting the evidence of Mr Huntley to the effect that a grout curtain was likely to be a prohibitive cost and was neither desirable or required.165 In cross examination Mr Huntley said that he was not biased against grout curtaining but that there were more effective, tangible solutions.166 He went on to describe complex engineering aspects relevant to the structural integrity of a grout curtain, land access and other possible impacts on surrounding landholders that grout curtaining may cause. He expressed the view that the processes currently followed involving replacement supplies of water works, which he said is tangible and practical.167 [201] Mr Huntley was the author of a 2014 Groundworks Plus memorandum of grout curtain evaluation and cost of which Dr Bruce had expressed criticism, particularly in relation to references and terminology. Some of the criticisms were put to Mr Huntley in evidence 163 T 7-4, lines 30 to 31. 164 T 7-5, lines 1 to 3. 165 Applicants’ Closing Submissions filed 21 September 2020 [215]. 166 T 2-64, lines 1 to 5. 167 T 2-64, lines 27 to 35. -- 64 of 112 -- 65 which he described as unjustified. Mr Lucke for EEMAG questioned Mr Huntley about his 2014 memorandum which was premised on a grout curtain to a depth of 60 m, in contrast to that opined by Connell Wagner in 1997 at 30 m. Mr Huntley explained that a number of considerations had changed in the intervening period including the depth and extent of the mine, and what I might summarise as future proofing the investment.168 [202] It was accepted by Mr Lucke in cross examination by Counsel for the statutory party that Mrs Derrington,169 a non-active objector and member of EEMAG, would be adversely affected (receive less water) if a grout curtain was installed as her property would be ‘inside’ the relevant area. Mr Lucke said that he did not disagree that there might be other adverse consequences arising from a grout curtain but said “that’s not a reason to do nothing.”170 Conclusion [203] It is clear from Dr Bruce’s evidence that the utility of a grout curtain cannot be determined in the absence of location specific hydrological circumstances which would render it most effective in mitigating otherwise adverse consequences. The issue was not contemplated in the assessment of the conditions of the draft amended EA. I have no basis upon which to make any recommendation in that regard. Flooding [204] As noted in the applicants’ closing submissions the active objector did not raise flooding issues. Non-active objectors Mr Elliot, Mr and Mrs Rideout, and the Gladstone Regional Council did raise flooding. Mr Elliot was called by EEMAG and appeared and gave evidence at the hearing to the effect that Larcom Creek: “…can go from a static creek to a roaring torrent in four to six hours… but that flood always gets away because at present there is no impediment at the bottom end of the boundary that we don’t have this bund wall that they’re proposing and that water gets away without any hold up which will cause not only damage to the fencing but cause sedimentation to the flats and also increased weed problems.”171 [205] As part of the mine expansion it is proposed that a bund/levy wall be built around the pit to prevent inflow into the pit in times of flood. 168 T 2-61, lines 5 to 17. 169 T 3-48, lines 14 to 23. 170 T 3-48, lines 43 to 46. 171 T 4-29, lines 21 to 27. -- 65 of 112 -- 66 [206] In evidence Mr Collins was taken to the relevant objections and to his report Exhibit 55 (CEM8000) at 4.3.1 where it says: “Results from the flood impact maps indicate a maximum flood level increase at the Site of approximately 180mm decreasing to 2mm at the Bruce Highway for the 1 in 100-year AEP; however, the highway is flooded during this event irrespective. Flood impacts of up to 54mm are noted in rural areas outside of the immediate MLA development area in the 100 yr ARI, but these areas are predicted to be flooded irrespective of the proposed mine expansion.” [207] Mr Collins explained that the bund/levy is needed to “truncate floodwaters that would otherwise enter the pit expansion area.”172 In relation to Mr Elliot’s objection he identified a 1 in 100 year AEP flood extent of 20 to 40 millimetres along the south-western boundary adjacent to Larcom Creek, and a flood level increase adjacent to Mr Elliot’s dwelling of less than 10 mm. [208] In relation to the objections of Mr and Mrs Rideout, Mr Collins expressed the view: “No increase in flood level to Deadman’s Creek has been predicted. While an increase in flood level from Larcom Creek as described by the Rideout’s has the potential to increase flood levels within Deadman’s Creek (i.e. located behind their dwelling) the resulting flood level increase for the 1 in 100 year AEP flood event for Larcom Creek is less than a10mm at the confluence of these two creeks.”173 [209] He further expects no appreciable change in the time of the flood flows between pre and post-developed MLA and that the floodplain will drain in an identical timeframe for post- developed flood flows. [210] As to any impact on fencing Mr Collins was of the view that no appreciable impact on fencing is expected as velocities are low. [211] Mr Collins’ evidence was that while the mine expansion area sits adjacent to the flood plain, there is an upstream constriction immediately north of the Larcom Creek main channel which is why there is not expected to be “massive increases in flood level” and which is why Mr Collins considers the proposed levy is acceptable. He said, “…if you are in an urban development, those level increases wouldn’t be acceptable, but my view is that they are acceptable’.174 172 T 6-7, lines 24 to 25. 173 Ex 55, CEM8000, lines 335-405. 174 T 6-8, lines 34 to 38. -- 66 of 112 -- 67 [212] Mr Collins said that while the bund/levy would further constrict the floodplain he noted, “it’s more forgiving… it’s already in an area that has considerable pondage… it isn’t a strong flow path because of the downstream restriction.”175 [213] In relation to the GRC objections as noted by the applicants in closing submissions these were addressed by Mr Collins to the effect that no adverse flood impacts are expected in the greater Larcom Creek floodplain.176 Conclusion [214] The modelling undertaken to assess the potential impacts of the proposed mine expansion was extensive and comprehensive. I accept the expert evidence of Mr Collins that in terms of potential flooding on land in the vicinity of the mine, including on land held by the objectors who have raised flooding as an issue, the flood modelling demonstrates no significant adverse effect on these properties. I further accept the conclusion of Mr Collins in the executive summary to his Flood Assessment: “Whilst some localised flood level increases due to the proposed mine expansion levee bank will occur, these occur over grazing land that is flood affected currently, and velocities are such that scouring (i.e. the loss of soil and vegetation) of the grazing land soils and grasses is not predicted to occur.”177 Noxious weeds [215] In their objection to the draft amended EA, EEMAG assert that “there are no conditions that sufficiently address (the) control of noxious weeds prevalent on and around the site.”178 [216] In closing submissions, the statutory party says that to the extent that the proposed expansion may impact upon noxious weeds the statutory party does not consider that any environmental value will be adversely affected by the proposed extension to the mine. The statutory party says that as noxious weeds are a matter that sits outside the 2013 EP Act, they are not required to consider this ground of objection.179 175 T 6-8, lines 40 to 47. 176 Ex 55, CEM8000, lines 410-435. 177 Ex 55, CEM8000, page 2. 178 Ex 1, Ex 34, DES0022. 179 Statutory party Closing Submissions filed 19 October 2020 [107]-[108]. -- 67 of 112 -- 68 [217] In her affidavit non-active objector Mrs Derrington spoke of noxious weeds “prevalent on Cement Australia’s land adjoining (our) property.”180 A similar claim was made by Mr Lashford.181 In cross examination by counsel for the applicants it was accepted by Mrs Derrington that in the case of noxious weeds “it’s not a case of completely eradicating them but controlling them over time,”182 and by Mr Lashford that “the best method of control of those types of weeds is to monitor their locations and to treat them with chemicals on a regular basis.”183 [218] The noxious weeds identified by the objectors include Giant Rat’s Tail, Parthenium and Lantana. [219] Mr Thompson on instructions of the legal representative of the applicants provided a statement of evidence and appeared at the hearing.184 Site inspections were conducted by Mr Thompson in 2019 and 2020. A table of “weeds observed or likely to be found on public and private land in the area”185 includes Giant Rats Tail, Parthenium/ragweed and Lantana. The types of land management practices, methods or measures available to control or exterminate these weeds are described as chemical control measures often in conjunction with physical control and grazing management.186 [220] Mr Thompson expressed the view in his statement that “it is highly likely that most of these weeds on the site were present under past ownership and management, but the recent extended drought masked their appearance.”187 In terms of weed management Mr Thompson said: “The control of the current crop of weeds will take at least 2 growing seasons to reduce the infestation to a level that can be routinely managed (for example by targeted spot spraying and/or grazing management). Extinction of these weeds in the short term is highly unlikely given that the extent of soil seed stores from the current population will ensure seasonal flushes of weed growth.”188 [221] Mr Thompson outlined a three part approach to address the weed situation on the proposed mining lease area. He concluded that the objector’s concerns about the lack of a 180 Ex 24, Ex 71, EEM0011, page 2. 181 Ex 26, Ex 71, EEM0004, page 3. 182 T 4-18, lines 13 to 15. 183 T 4-37, lines 10 to 12. 184 Ex 71, CEM8001. 185 Ibid page 5. 186 Ibid page 8. 187 Ibid page 11. 188 Ex 71, CEM8001, page 11, lines 344-350. -- 68 of 112 -- 69 weed management plan and the movement of weeds across property boundaries have a degree of validity.189 In cross examination Mr Thompson confirmed that a weed management plan was under development. [222] Both Ms Jefferies and Mr Frost referred to the preparation of a weed management plan for the East End Mine.190 Mr Frost’s evidence was that he as the Site Senior Manager of the East End Mine caused steps to be taken to give effect to the recommendations made by Mr Thompson. Those steps are outlined at [9] to [23] of his statement of evidence and include a statement that the Land Management Plan had been updated to include an East End Weed Management Plan and targeted treatment for particular species. It further mentioned that the weed management contractor had been provided with the recommendations in Mr Thompson’s report and instructed to treat identified infestations. Mr Frost says that those activities were completed by the contractor in April 2020 and subsequently thereafter. Conclusion [223] The actions taken by the applicants in response to Mr Thompson’s report and recommendations are comprehensive. The evidence included photographs of the results of treatment. I am satisfied that the concerns expressed by objectors have been and are being addressed and that the implementation of the Weed Management Plan will manage ongoing concerns. Subsoil moisture [224] It is the objections of Mrs Derrington (to the draft EA) and Mr Lashford (to the MLA) which raised issues of subsoil moisture.191 The active objector did not raise subsoil moisture issues as a ground of objection to either the MLA or the draft amended EA. [225] Mrs Derrington asserted that, “sub soil moisture will be further affected due to lowering of the water table resulting in a much drier environment and greater drought affects.”192 [226] Relevantly, Mr Lashford claimed that: 189 Ex 71, CEM8001, page 16. 190 Ex 8, CEM7006, para 4; Ex 3, Ex 71, CEM7003, paras 80-81. 191 Ex 1, Ex 34, DES0029. 192 Ex 1, Ex 34, DES0021. -- 69 of 112 -- 70 “When we bought the farm the creek flats had a shallow water table and lucerne could be grown with minimal irrigation because of the sub soil moisture. Once water depletion became more entrenched and the creek went dry we suffered a loss of this sub soil moisture, causing vegetation growth to be reduced and the pasture and crops to dry out faster. This sub soil water loss is an economic and an environmental impact.”193 [227] The statutory party says that the draft amended EA does not deal with subsoil moisture as a discrete environmental value or performance measure on the basis that subsoil moisture is not likely to be affected by the expansion, and will otherwise be practically protected by conditions relating to groundwater and surface water quantity.194 [228] Mr William Thompson provided a statement of evidence on instructions from the legal representative of the applicants.195 Mr Thompson conducted site inspections in the vicinity of the mine – but not to the objector’s properties. He notes that both properties fall within the zone of influence. [229] In considering the potential impacts of the proposed expansion on subsoil moisture Mr Thompson says: “Both the historical data and the modelling work do identify declines in ground water levels over time up to 2017, however, there is no data on changes in subsoil moisture levels associated with these declines. The groundwater modelling also shows that the zone of influence will not substantially change following mine expansion. Irrespective of any impacts on subsoil moisture storage from historical declines in groundwater levels up to 2017, direct impacts of future mine expansion are likely to be insignificant because there will be no significant change in the zone of influence.”196 [230] Mr Thompson also expressed his opinion as to the potential subsoil moisture impacts with the MLA approval, and without the MLA approval. He said: “The decline in depth to water tables since pit dewatering started is evident from the various bore hydrographs in the Pacific Environment and Merrick reports. The 5 m drawdown line as modelled will not substantially change under an MLA approval scenario, hence there will be no change in subsoil moisture status with approval. Given that dewatering continues in a without MLA approval scenario, subsoil moisture levels should not change significantly.”197 Conclusion 193 Ex 1, Ex 34, DES0029, page 3. 194 Statutory party Closing Submissions filed 19 October 2020 [105]. 195 Ex 72, CEM8005. 196 Ex 72, CEM8005, lines 166-176. 197 Ex 72, CEM8005, lines 271-277. -- 70 of 112 -- 71 [231] The evidence of Mr Thompson was not challenged in cross examination. I accept his conclusion that there is little likelihood of change in subsoil moisture should the MLA be approved. The statutory criteria [232] I will now turn to the statutory criteria I must consider in making my recommendations. In their closing submissions EEMAG say that the applicants are ‘prima facie’ in breach of ss 269(4)(g), (j), (k), and (l).198 MRA Section 269(4)(a) - Have the provisions of this Act been complied with? [233] As noted by the applicants in closing submissions,199 Ms Jefferies,200 Sustainability Specialist with Cement Australia, identified the steps taken by Cement Australia to comply with the requirements of the MRA when lodging the application for ML 80156. Ms Jefferies noted that the MLA was submitted by Ms Tegan Smith of Groundworks Plus. Ms Smith provided a chronology of the process followed to prepare and submit the application and identified the documents submitted.201 [234] The evidence of Ms Jeffries and Ms Smith was comprehensive and complete. The applicants note that matters concerning compliance with the relevant provisions of the MRA were not the subject of challenge at the hearing – nor the subject of criticism by any of the objectors, and the statutory party had not raised any issues in this regard. [235] I am satisfied that the provisions of the MRA have been complied with and s 269(4)(a) of the MRA has been satisfied. Section 269(4)(b) - Is the area mineralised, or are the other purposes for which the lease is sought appropriate? [236] The applicants are seeking approval to extend its current mining operations to the south- east into MLA 80156, between the eastern end of its current operation and Larcom Creek. 198 EEMAG Closing Submissions filed 18 September 2020; Concerning s 269(4)(g), the Applicants say that past performance has not been argued and therefore there is no valid objection. 199 Applicants’ Closing Submissions filed 21 September 2020 [240]-[244]. 200 Ex 3, Ex 71, CEM7003. 201 Ex 4, CEM7001. -- 71 of 112 -- 72 [237] In closing submissions, the applicants summarised the unchallenged evidence relevant to mineralisation of MLA 80156 as follows: “Mr Davies’ confirmation that the current mine extracts around 2.4 million tonnes of raw material each year and that the current mine is located adjacent to MLA 80156;202 Mr Frost’s summary of the drilling campaigns conducted by, and on behalf of, Cement Australia to determine the composition of the limestone and other resources;203 and Mr Huntley’s evidence that, whilst there is no threshold as to quantity or quality to make a mining operation viable, in his view, and as confirmed in the JORC report he prepared, there is over 80 million tonnes of raw material in the MLA 80156 area with 60 million tonnes being potentially extractable.204”205 [238] I consider the evidence of Messrs Davies, Huntley and Frost to have been clear and compelling and in the absence of contrary evidence I am satisfied that the purposes for which the mining lease is sought are appropriate and that the land over which MLA 80156 has applied for is mineralised. Accordingly, in my view s 269(4)(b) has been satisfied. Section 268(4)(c) - If the area is mineralised, will there be an acceptable level of development and utilisation of the mineral resources within the area applied for? [239] While none of the subparagraphs in s 269(4) expressly refer to an economic assessment of the project, s 269(4)(c) requires the Court to consider whether, if the land applied for is mineralised, there will be an acceptable level of development and utilisation of the mineral resources within the area applied for. [240] For the reasons outlined above I am satisfied that the area applied for is mineralised. [241] The proposed extraction area for the mine expansion covers approximately 60 hectares (of the mine lease application area of 86.64 ha), south-east and adjacent to the current mining operations. Mr Huntley’s evidence was to the effect that the extension of the mine into the MLA area will give the applicants access to resources required for their continued production of cement and will allow the reduction of wastage at the mine through “blending optimisation.” The evidence presented was to the effect that: 202 Ex 2, CEM7000, paras 31, 51. 203 Ex 7, CEM7002, paras 11, 17, 20, 23. 204 Ex 5, CEM7004, paras 10-22, 34-38. 205 Applicants’ Closing Submissions filed 21 September 2020 [247]. -- 72 of 112 -- 73 • the experience and learnings of the operation of the current mine provides a blueprint for the expansion should MLA 80156 be granted; • that the proposed expansion into MLA 80156 is the most efficient way for the applicants to access the additional resources it needs for the continued operation of the mine;206 and • allows for efficiencies (as opposed to commencing operations elsewhere) through the continued use of current infrastructure.207 [242] As noted by the applicants in closing submissions,208 the advantages and benefits were acknowledged by EEMAG. [243] I am satisfied that there will be an acceptable level of development and utilisation of the mineral resources within the area applied for and that s 269(4)(c) is satisfied. Section 269(4)(d) - Is the land and the surface area of the land applied for of an appropriate size and shape? [244] As noted above, the area of the mine lease application is 88.64 ha of which approximately 60 ha is to be utilised in the expansion. Ms Jefferies’ evidence was that the size and shape are determined by existing mining lease/property boundaries, the extent of the mineral resource, and negotiations and agreement with the landowners.209 Mr Huntley says that MLA 80156 was informed by drilling campaigns and a plan of development based on that data.210 [245] There was no specific challenge to the size and shape of the area applied for. I am satisfied that the size and shape of the surface area of MLA 80156 is appropriate. Section 269(4)(e) - Is the term applied for appropriate? [246] The applicants seek a 19 year term for MLA 80156. The term is to align with the expiry date of the adjoining MLs held by the applicants. The applicants in closing submissions refer to the affidavit of Ms Jefferies to this effect,211 and note that the resources of the 206 Ex 7, CEM7002, para 18. 207 Ex 2, CEM7000, paras 42-44. 208 Applicants’ Closing Submissions filed 21 September 2020 [255]. 209 Ex 3, Ex 71, CEM7003, paras 17, 19(h); Ex 3, Ex 4, Ex 7, CEM0757, page 5. 210 Ex 5, CEM7004, para 37. 211 Applicants’ Closing Submissions filed 21 September 2020 [71](b), [71](c). -- 73 of 112 -- 74 existing and proposed lease “are proven sufficient for in excess of 50 years at the current production rate.”212 Mr Huntley, having considered the JORC report, updated resource reports and the plan of development, considered that there are sufficient resources to be extracted from MLA 80156 to justify at least a 19 year term.213 [247] There has been no objection to the grant of the mining lease on the basis of the term applied for and no evidence has been adduced to suggest that the term was inappropriate. I am satisfied that the term sought for the mining lease is appropriate. Section 269(4)(f) - Do the applicants have the necessary financial and technical capabilities to carry on mining operations under the proposed mining lease? [248] Although now a little dated, Mr Davies in his affidavit refers to the Annual Financial Report for Cement Australia Holdings for the year ended 31 December 2018 which identified, amongst other things the Group’s financials over 2017 and 2018 which indicated a profit before tax. [249] Counsel for the statutory party asked Mr Davies if there had been any relevant impacts on the business position as a result of COVID-19 to which Mr Davies responded “not to date.”214 He went on to explain that, because government considered construction an essential business, the applicants as a mature business was in a position to maintain production and distribution such that supply chain issues were minimally impacted. [250] The applicants note in closing submissions that Cement Australia (or its predecessor) has operated the current mine,215 adjacent to MLA 80156 for more than 40 years – a testament to their technical capability to carry on mining operations under the proposed mining lease. [251] The evidence of Mr Davies, Ms Jefferies and Ms Smith regarding financial and technical capabilities of the applicants to carry on mining operations on MLA 80156 were not the subject of challenge at the hearing. [252] On the evidence before the Court I am satisfied that the applicants have the necessary financial and technical capability to undertake the proposed mining operations. 212 Ex 3, Ex 71, CEM7003, para 19(j); Ex 3, Ex 4, Ex 7, CEM0757, page 5. 213 Ex 5, CEM7004, para 47; Report of exploration results, mineral resources and ore reserves. 214 T 1-63. 215 Applicants’ Closing Submissions filed 21 September 2020 [266]. -- 74 of 112 -- 75 Section 269(4)(g) - Has the past performance of the applicants been satisfactory? [253] In closing submissions, the applicants: • state that in considering past performance the Land Court’s focus has been on historical non-compliances with the MRA or the EPA, and more specifically enforcement actions (if any) taken by the regulator against the applicants or its parent company;216 • cite a number of cases where established non-compliance did not lead the Court to find the performance of the applicants so unsatisfactory as to warrant the refusal of the application for a mining lease;217 and • note the approach taken by Member Smith (endorsed by Bowskill J) in New Acland Coal Pty Ltd v Ashman and Chief Executive, Department of Environment and Heritage Protection (No 4)218 was to focus on enforcement action, although Member Smith also considered performance factors which may impact on conditions that may be imposed – that is, the extent to which the applicants had appeared to comply with the conditions historically imposed under the EA as regards the likelihood the applicants will comply with conditions in the future.219 [254] The applicants say the ‘true test’ is to consider conduct, if it is relevant, with a view to assessing the risk of compliance with future mining lease conditions or environmental authority conditions or the type of conditions that may be necessary. In my view that is the correct approach. [255] The applicants say “… the Court is not called upon to engage in wide-ranging, irrelevant inquiries that are not contemplated by the MRA and the EPA.”220 They refer to Hail Creek Holdings Pty Ltd & Ors v Michelmore:221 “The Court’s function is not to undertake a broad administrative inquiry.”222 [256] In her affidavit Ms Jefferies describes in some detail Cement Australia’s ‘central hub’ system for Procedures and Policies which include documents such as a Safety, Health, 216 Applicants’ Closing Submissions filed 21 September 2020 [27]. 217 Ibid [28]. 218 [2017] QLC 24. 219 Applicants’ Closing Submissions filed 21 September 2020 [31]. 220 Ibid [34]. 221 [2020] QLC 16. 222 Ibid [18]. -- 75 of 112 -- 76 Environment and Quality (SHEQ) policy,223 a SHEQ Management System,224 an Air Quality procedure,225 a Water Conservation and Management procedure,226 and a Land Contamination Management procedure.227 Ms Jefferies is the person responsible for the upkeep, updating and development of the relevant procedures conscious of the conditions of the mining lease and EA applicable to the East End Mine. She says that she is aware that amendments will need to be made to give effect to the conditions identified in the draft EA before operations would commence under an amended EA. [257] Ms Jefferies says that Cement Australia's Group Safety and Sustainability team reports to the Cement Australia executive committee on a monthly basis.228 Although not typically involved in the preparation of these reports, Ms Jefferies is occasionally asked to provide information for inclusion in the report. She says: “The report includes, amongst other things, details of any non-compliance with Mining Lease or EA conditions, legislative amendments and environmental health and safety incidents. Reports are presented to the Cement Australia executive committee each month. The report that is prepared in December provides an overview of the entire year.”229 [258] Ms Jefferies also says that DES has a compliance team which conducts an annual audit of the mine, outlining matters they consider require further attention. [259] As to past compliance Ms Jefferies says: “48. Since I commenced my employment at Cement Australia in March 2009, one Penalty Infringement Notice (PIN) has been issued to Cement Australia (Exploration) Pty Ltd (CEM3999). That PIN related to a failure to provide further financial assurance to the Department of Natural Resources and Mines in April 2013. The matter was later resolved with the Department and I understand that financial assurance was provided in September 2015. 49. During the term of my employment at Cement Australia, I have reported incidents of potential non-compliance with the Current EA conditions to the regulatory environmental authority, as required by those conditions. These incidents have related primarily to over pumping of water at the mine, elevated levels of suspended solids in discharged water or elevated pH levels in water samples. To the best of my knowledge, no enforcement action has been taken by the regulatory environmental authority in relation to those reports. 50. Further, during the term of my employment at Cement Australia, and to the best of my knowledge Cement Australia has not been subject to any 223 Ex 2, Ex 3, CEM4063. 224 Ex 3, CEM4061. 225 Ex 3, CEM4067. 226 Ex 3, CEM4068. 227 Ex 3, CEM4069; Ex 3, Ex 71, CEM7003. 228 Ex 3, Ex 71, CEM7003, para 47(f). 229 Ibid. -- 76 of 112 -- 77 enforcement action for any non-compliance with Mining Lease conditions. To confirm this position, on or around 25 June 2018, I telephoned the DNRME Mineral Hub and enquired as to whether DNRME had any record of non- compliances at the mine. I was informed that there were no mine non- compliances identified in DNRME's records.”230 [260] In relation to what Ms Jefferies described as ‘potential non-compliance’ and ‘an infrequent occurrence’, in evidence she said an example of potential non-compliance she had observed was elevated pH and elevated suspended soils and to experiences of over- pumping prior to the installation of the automated pumping system.231 In the case of the over-pumping the applicants conducted an investigation, a report was prepared, DES was informed, and a warning letter was sent from DES to the applicants. As a result, the applicants installed automated systems and to Ms Jefferies knowledge she did not believe that there had been any potential instances of non-compliance since the installation and operation of the flow meters.232 [261] EEMAG in closing submissions address ‘past performance’. They lament what they see as a transition from Good Quality Agricultural Land supporting dairying, agriculture and cropping, to rural residential and grazing “due to numerous factors… exacerbated by loss of perennial streams and groundwater” such that “water security is no longer assured for traditional agricultural pursuits.”233 EEMAG say that “Cement Australia and the Regulators – must take responsibility to effectively repair or offset the cumulative depletion of water resources by conditioning the EA.”234 Further, they say that “unrestrained approval of further mining operations will not improve the situation, offering only the prospect of lowered expectations, worsening cumulative aquifer depletion, reduced productivity of land, aggravated drought, or extreme fire events and heightened danger to life and limb.”235 [262] The submissions and the evidence advanced by the active objector do not go to past conduct or compliance; to the risk of compliance with future mining lease conditions or environmental authority conditions; or to the type of conditions that may be necessary. The submissions are based on conclusions of the active objector regarding what they see as environmental changes in the region. In that regard, the grounds of objection do not 230 Ex 3, Ex 71, CEM7003, paras 48-50. 231 T 2-28, lines 20 to 30. 232 T 2-34, lines 31 to 34. 233 EEMAG Closing Submissions filed 18 September 2020, pages 6-7, lines 156-223 234 Ibid lines 213-215. 235 Ibid lines 218-220. -- 77 of 112 -- 78 weigh heavily when considering these criteria but will be further considered in the context of the standard criteria under the 2013 EP Act. Section 269(4)(h) - Is there any disadvantage to existing holders or applicants for exploration permits or mineral development licences? [263] I accept that there are no other holders of existing exploration permits, mineral development licences, applicants for exploration permits or mineral development licences whose rights may be disadvantaged by the approval of the MLA. I note the submission of the applicants that a mining lease was granted in respect of a property immediately adjacent to the eastern boundary of the MLA area, but Cement Australia is now the owner of that property.236 [264] There was no objection on this ground. There is no evidence any existing holder or applicants of an exploration permit or mineral development licence will be disadvantaged and accordingly, s 269(4)(h) of the MRA has been satisfied. Section 269(4)(i) - Will the operations to be carried on under the authority of the proposed mining lease conform with sound land use management? [265] EEMAG’s objection provided that the operations to be carried out under the authority of the proposed mining lease will not conform with sound land use management. No evidence was presented by EEMAG in support of this ground of objection. [266] As noted by the applicants regarding ss 269(4)(i) and (j),237 in Coast and Country Association of Queensland Inc v Smith & Ors238 Fraser JA (with whom Morrison JA and McMurdo P agreed) stated: “The relevant limitation in s 269(4)(j) is not found in the word “impact” alone but in the composite expression “impact caused by those operations” to be carried on under the authority of the proposed mining lease. In the context of s 269(4)(i), s269(4)(j) allows consideration only of impacts caused by “operations to be carried on under the authority of the proposed mining lease”. The relevant operations in this case are confined to mining coal within the boundaries of the proposed mining lease. Each preceding paragraph of s269(4) is similarly directed to the regulation of that proposed use. 236 Applicants’ Closing Submissions filed 21 September 2020 [275]; Ex 5, CEM7004, paras 49-50. 237 Applicants’ Closing Submissions filed 21 September 2020 [36]. 238 [2016] QCA 242. -- 78 of 112 -- 79 …as MacDonald P also concluded in Xstrata, it is outside the Land Court’s jurisdiction under s 269(4)(j) to consider the impact of activities which would not be carried out under the authority of the proposed mining lease.”239 [267] The applicants submit, and I accept, that the Court can only take into account operations under the pre-existing mining leases (and the impacts of those operations) to the extent that those operations and impacts are informative as to the impacts of activities under the proposed mining lease which is the subject of this application. [268] In Pembroke Olive Downs Pty Ltd v Sunland Cattle Co Pty Ltd & Ors (Pembroke Olive Downs)240 Kingham P said: “The concept of sound land use management is somewhat nebulous. The phrase is not defined in the MRA and I was not referred to, and am not aware of, any judicial interpretation of the phrase in Queensland or of an objective standard to apply.”241 [269] Ms Smith, Director and Principal, Planning and Environment at Groundworks Plus, says that she considers that operations to be carried on in connection with the mine extension will conform with sound land use management based on her review of the MLA, the draft amended EA, and having regularly observed operations at the existing East End mine.242 She notes that the Environmental Management Plan is focussed on how Cement Australia will manage the land,243 should the MLA and the draft amended EA be granted, and further expresses her view that Cement Australia will conduct the extension to mine operations in a sequential and progressive manner to ensure the environmental impacts of the operation are appropriately managed.244 [270] In Pembroke Olive Downs, when considering this criteria Kingham P said: “The conditions of mining leases include general conditions imposed by the MRA. In large part these are not directed to land use management. They address access to the lease area, and payment of compensation, rental, royalties and local government rates and charges. The Minister for NRME cannot grant an MLA unless an EA has issued for all activities to be authorised under the mining lease. The Minister can impose further conditions on a mining lease, including about compliance with specific codes or industry agreements, as long as they are not 239 Coast and Country Association of Queensland Inc v Smith & Ors [2016] QCA 242 [31]-[33]. 240 [2020] QLC 27. 241 Pembroke Olive Downs Pty Ltd v Sunland Cattle Co Pty Ltd & Ors [2020] QLC 27 [91]. 242 Ex 4, CEM7001, para 58. 243 Ex 4, CEM7001, para 61. 244 Ex 4, CEM7001, para 63. -- 79 of 112 -- 80 the same, substantially the same, or inconsistent with, a relevant condition of the EA for the mining lease.”245 [271] In this matter there are objections to the draft amended EA. The statutory party submits that some measure of environmental harm is inevitable from the applicants’ proposal but that the conditions imposed in the draft EA fulfill the object of the 2013 EP Act to protect Queensland’s environment while allowing for development that improves the total quality of life, both now and in the future.246 Objections concerning adverse environmental impact are addressed below and objections in relation to the draft EA will be addressed later in these reasons. [272] I accept the evidence of Ms Smith at [269] above and I am satisfied that the operations to be carried out under the proposed mining lease conform with sound land use management and that s 269(4)(i) of the MRA is satisfied. Section 269(4)(j) - Will the operations cause any adverse environmental impact and, if so, to what extent? [273] The objection lodged by EEMAG to the mining lease application asserts that there will be significant adverse environmental impacts caused by these mining operations. The grounds for the assertion are: • that there were inadequate groundwater assessments and management plans, and that the methodology used to underpin is inadequate “because the local aquifers are not correctly categorised as karst”; • inadequate surface water assessments because the “the proper nature of the aquifers have not been taken into account”; and • inadequate risk assessment process because of the choice of methodology (Darcian flow) and selective data use (the substitution of 1977 pre-mining data for measurements taken in 1996/1997). [274] In closing submissions EEMAG say, “If the project proceeds, it will have a wider environmental footprint upon other users of water that have to date escaped impacts, and on environmental values of Larcom, Hut, Scrub and Jacob’s Creeks.”247 Other objections 245 Pembroke Olive Downs Pty Ltd v Sunland Cattle Co Pty Ltd & Ors [2020] QLC 27 [99]-[101]. 246 Statutory party Closing Submissions filed 19 October 2020 [126]-[127]. 247 EEMAG Closing Submissions filed 18 September 2020, lines 253-255. -- 80 of 112 -- 81 concerned surface water monitoring locations within Scrub Creek, the potential depletion of surface water in Larcom Creek, surface water quality impacts from discharge of contaminated water, and increased salinity through evapotranspiration. [275] My conclusions concerning the nature of the aquifer are set out above at [110]-[117]. Issues concerning the impact on GDEs were also considered at [142]-[148] above and are further discussed in my consideration of the 2013 EP Act criteria below. [276] As noted by the applicants in closing submissions,248 in her affidavit, Ms Smith notes that the current mining activities are authorised and regulated by the existing EA and that the extension to the pit is not expected to change operations significantly, with no increase in production thresholds or intensity proposed. [277] The applicants noted the evidence of Dr Merrick regarding data accessed to form an opinion on how the groundwater system behaves.249 Dr Merrick in evidence said that he had completed a cause and effect analysis of the groundwater hydrographs from the 1970s. He concludes that mining effects in the region are “confined to the East End half of the groundwater system.”250 I accept that opinion. [278] A discussion of Dr Merrick’s opinion on drawdown and the various models is found at [129]-[141] above, as well as his opinion that the narrow connective path along Machine Creek provided the only tenable pathway to propagation of drawdown from the Bracewell aquifer system to the East End aquifer system. Importantly, Dr Merrick stated that there was no evidence that drawdown effects had propagated along this linkage to affect groundwater levels at Bracewell, and that groundwater levels at Bracewell correlate strongly with rainfall residual mass.251 He said the correlations are amongst the best he had ever seen which signifies rainfall recharge. I have accepted Dr Merrick’s opinion as the best evidence before me on this issue. Nothing in the evidence presented by EEMAG leads me to a different conclusion. [279] As to surface water impacts, the applicants state that the expert evidence of Mr Collins established that any surface water impacts caused by the expansion of the mine will not be significant. They identify diversion drains to ensure pit catchments are diverted around the 248 Applicants’ Closing Submissions filed 21 September 2020 [285]; Ex 4, CEM7001, paras 64-67. 249 T 6-18, lines 6 to 10. 250 T 6-72, lines 26 to 28. 251 Ex 58, CEM8003, lines 49-52. -- 81 of 112 -- 82 mine, and a proposed bund/levy into the Larcom Creek flood plain to prevent flood waters entering the mine pit, neither of which will impact water quality beyond the mine. They also note that the current mine dewatering system operates effectively within existing EA conditions.252 Mr Collins says that long term dewatering rates have stabilised at between 2.3 ML/day during the period 1997 to 2010, and 7 ML/day in the wetter 2011 to 2018 period, based on Annual Water Monitoring reporting by Groundwork Plus. [280] In relation to dewatering rates, Mr Collins says that based on his inspection of the pit and also on long term monitoring data since 1997, there is only minor groundwater flow infiltrating into the pit, which he estimated to be between 1 and 2.5 ML/day.253 With the proposed mine expansion, he expects long term dewatering rates similar to those occurring over the last 10 years. He concludes that in terms of impacts on surrounding waterways due to pit void management of rainfall and infiltration, there should be no significant change in flow regime or water quality to waterways beyond the site over what is currently occurring. [281] In terms of salinity, Mr Collins says that the water quality of surface water beyond the mine should remain unchanged, as the salinity of mine water to be dewatered should remain unchanged with an average of 3000μs/cm and a maximum of 3800μs/cm. [282] At the hearing there was some concern expressed about the increase in water release rates to a maximum of 30 ml per day adopted in the REMP. In evidence Mr Collins referred to this as a cap or ‘fall back’. I note that this is a maximum and I accept that the setting of upper limits restricts mine expansion if discharge rates exceeding the limit. Ongoing monitoring provides the mechanism to ensure that this occurs. Mr Collins said that he has analysed pumping records and in his view the applicants complied and are compliant with the current EA on discharge.254 [283] In addressing EEMAG’s criticism of the use of Darcian flow methodology to a karst aquifer, Dr Merrick expressed his view that it was ‘perfectly proper’ to apply the methodology and he rejected a view that it was not as the statement of a ‘non-modeller’. [284] I note the statement by the statutory party in its closing submissions provides that some measure of environmental harm is inevitable from the applicants’ proposal. In my view, 252 Applicants’ Closing Submissions filed 21 September 2020 [198]; Ex 56, CEM8002. 253 Ex 56, CEM8002, page 30. 254 T 6-70, lines 31 to 39. -- 82 of 112 -- 83 there will be some groundwater drawdown impacts confined to the East End half of the groundwater system; that surface water impacts will not be significant; and that the salinity of surface water beyond the mine should remain unchanged. Section 269(4)(k) - Will the public right and interest be prejudiced? [285] In closing submissions EEMAG say: “Although the broad public interest may be served by this new project, the private right and public interest of local landholders will be prejudiced. If the project proceeds it will have a wider environmental footprint upon other users of waters that have to date escaped impacts, and on the environmental values of Larcom, Hut, Scrub and Jacob’s Creeks. The methodology used to underpin the groundwater assessment is inadequate because local aquifers are not correctly categorised as karst. See separate report, Karst Portfolio Folder that brings together all karst advocates and evidence of Karst. Thus we are alleging the EIS risk assessment is invalid.”255 [286] The impacts EEMAG allege from the “new lease application” are both downstream, and “the upstream area may suffer deeper and broader depletion as the pit deepens to -90 AHD.”256 [287] My conclusions regarding the nature of the aquifer is found at [110]-[117] above. I am not satisfied that the methodology to underpin the groundwater assessment is inadequate, nor is the EIS risk assessment invalid as asserted. [288] I accept that in considering this criterion the focus is on the operations or activities the subject of the proposed mining lease. [289] Matters relevant to my consideration of the public right and interest were addressed specifically by Mr Davies257 and Mr Frost. [290] In his affidavit Mr Davies says:258 • that the current mine employs 35 people and a further 117 people are employed at the manufacturing plant at Fisherman’s Landing; • a range of consultants provide technical expertise, undertake short term maintenance work, perform maintenance work, and service equipment; 255 EEMAG Closing Submissions filed 18 September 2020, lines 252-258. 256 Ibid lines 284-288. 257 Chief Executive Officer and Managing Director of Cement Australia. 258 Ex 2, CEM7000, para 33-41. -- 83 of 112 -- 84 • the applicants own land parcels in and around the MLA area which is leased to local farmers for agistment; • the ongoing operation of the East End mine in extracting clinker for cement production is beneficial to the applicants and the Australian economy as a domestic product which competes with imported clinker; and • without continuing extraction (from the current mine and the proposed MLA), importation of clinker will increase, the mine would eventually become uneconomic and the broad local and national economic benefits it delivers would cease. [291] Mr Frost in his affidavit also refers to employment at the East End mine and Fisherman’s landing, as well as the role and cost of contractors in a range of activities including land management and weed control.259 Under the heading ‘Community Interactions’ Mr Frost discusses the support the applicants provide to local community organisations such as the rural fire service and the Mt Larcom agricultural show. [292] In closing submissions, the applicants note that pursuant to the MRA, each mining lease shall be subject to a condition that the holder pay the royalty as prescribed. As a contribution to the consolidated revenue of the State for the right to extract a State-owned product I accept that royalty payments are in the public interest. [293] While residual environmental impacts are relevant in considering whether the public right and interest will be prejudiced, my conclusions on matters concerning the geology, and of groundwater, surface water, groundwater to surface water, weeds, subsoil moisture and flooding; and the applicants’ approach to avoid, minimise or mitigate adverse impacts leads me to conclude that the public right and interest will not be prejudiced. Section 269(4)(l) - Has any good reason been shown for refusing the application? [294] As a ground of objection, EEMAG say that the mining lease application should be refused because good reason can be shown for a refusal to grant the mining lease. The facts and circumstances relied on in support of the ground include: inadequate groundwater and surface water assessments, an invalid risk assessment due to the choice of methodology 259 Ex 7, CEM7002, para 74-87. -- 84 of 112 -- 85 and the aquifers not correctly being categorised as karst; and the adverse environmental and related impacts to groundwater. [295] It is probably fair to say that EEMAG would submit that a favourable finding in respect of all or any of the issues they have raised is sufficient to support a conclusion that good reason has been shown for refusing the application. [296] Based on my conclusions regarding each of these issues as set out in detail earlier in these reasons I am not of the view that there are good reasons to refuse the grant of the MLA. Section 269(4)(m) - Taking into account the current and prospective uses of the land, is the proposed mining operation an appropriate land use? [297] The MLA area which is approximately 86.84 ha sits adjacent to the existing East End mine, along the south-east boundary.260 The extraction area of the proposed MLA will be approximately 60 ha. Mr Davies says that the extension of the East End mine, as proposed in MLA 80156 involves an expansion of the existing mine onto neighbouring land, which was purchased by the applicants in November 2017. The extension will, according to Mr Davies, extend the operational life of the existing mine which will generate a number of efficiencies for the applicants through blending optimisation. [298] Ms Smith in her affidavit says:261 that the extension seeks to extend the life of the existing mine temporally; that the intensity of operations at the mine is not intended to change if the extension is approved; that the land the subject of the MLA is zoned ‘rural’; that the closest residents are approximately 1.3 km to the north of the land; and that as a result of the land’s location it is ideally placed to allow the applicants to continue to utilise existing infrastructure. [299] Taking into account each of these matters, and the current and prospective uses of the land, I consider the proposed mining operation is an appropriate use of the land applied for. 2013 EP Act [300] It was apparent at the hearing that a number of the non-active objectors who had lodged objections to the draft amended EA had either not read it or could not recall if they had 260 Ex 2, CEM7000, para 42. 261 Ex 4, CEM7001, paras 64-70. -- 85 of 112 -- 86 read it. In relation to the active objector, Mr Lucke was asked by counsel for the statutory party if the changes he would suggest to the draft amended EA were to do with the placement of bores (in limestone rather than volcaniclastics). Mr Lucke agreed and said: “…EEMAG’s representation in this court are virtually concentrated on the science, which is the geology and the hydrogeology. We haven’t done very much at all in relation to the environmental authority, because we don’t see that as having an influence on the decision of the court. Now, we’re not saying it’s unimportant….”262 [301] This does not relieve the Court from considering the matters set out in s 223 of the 2013 EP Act. [302] The following is adapted from the applicants’ closing submissions at [56] to [58], is unchallenged, and accepted: “Section 223 provides that in making the objections decision for the application, the Land Court must consider the following – (a) the application documents for the application; (b) any relevant regulatory requirement (c) the standard criteria; (d) to the extent the application relates to mining activities in a wild river area – the wild river declaration for that area; (e) each current objection; (f) any suitability report obtained for the application; and (g) the status of any application under the Mineral Resources Act for each relevant mining tenement.”263 [303] The “standard criteria” is defined in schedule 4 to the 2013 EP Act as including relevantly: (a) the principles of ecologically sustainable development as set out in the ‘National Strategy for Ecologically Sustainable Development’; and (b) any applicable environmental protection policy; and (c) any applicable Commonwealth, State or local government plans, standards, agreements or requirements; and (d) any applicable environmental impact study, assessment or report; and (e) the character, resilience and values of the receiving environment; and (f) all submissions made by the applicant and submitters; and (g) the best practice environmental management for activities under any relevant instrument, or proposed instrument, as follows – (i) an environmental authority; (ii) … (h) the financial implications of the requirements under an instrument, or proposed instrument, mentioned in paragraph (g) as they would relate to the type of activity or industry carried out, or proposed to be carried out, under the instrument; and (i) the public interest; and 262 T 3-51, lines 6 to 14. 263 Environmental Protection Act 1994 s 150, as at 14 March 2013; Application documents include, amongst other things, the application, the draft environmental authority, the EM Plan, an assessment report for the EM Plan, the EIS and the EIS assessment report. -- 86 of 112 -- 87 (j) … (k) any relevant integrated environmental management system or proposed integrated environmental management system; and (l) any other matter prescribed under a regulation. Standard Criteria (a) – National Strategy for Ecologically Sustainable Development [304] The ‘National Strategy for Ecologically Sustainable Development’ is defined in schedule 4 to the 2013 EP Act as the ‘National Strategy for Ecologically Sustainable Development’ endorsed by the Council of Australian Governments on 7 December 1992 (the National Strategy). The National Strategy contains the following statement of Australia’s goal, core objectives and guiding principles: “The Goal is: Development that improves the total quality of life, both now and in the future, in a way that maintains the ecological processes on which life depends. The Core Objectives are: • to enhance individual and community well-being and welfare by following a path of economic development that safeguards the welfare of future generations • to provide for equity within and between generations • to protect biological diversity and maintain essential ecological processes and life-support systems The Guiding Principles are: • decision making processes should effectively integrate both long and short- term economic, environmental and equity considerations • where there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation • the global dimension of environmental impacts of actions and policies should be recognised and considered • the need to develop a strong, growing and diversified economy which can enhance the capacity for environmental protection should be recognised • the need to maintain and enhance international competitiveness in an environmentally sound manner should be recognised • cost effective and flexible policy instruments should be adopted, such as improved valuation, pricing and incentive mechanisms • decisions and actions should provide for broad community involvement on issues which affect them.”264 [305] The applicants note that the National Strategy confirms that the guiding principles and core objectives are to be considered in a way that no one principle takes precedence over another. They say in their closing submissions at [61] that in considering the standard criteria (and the principles therein) the Court should not give one criterion overriding 264 Council of Australian Governments, The National Strategy for Ecologically Sustainable Development (7 December 1992), pages 2-3. -- 87 of 112 -- 88 consideration. I accept that the standard criteria are one of a range of factors to be considered by the Court. [306] I noted earlier in these reasons that Professor Roberts was nominated by EEMAG as an expert witness on the subject of the precautionary principle and intergenerational equity. Precautionary principle [307] In closing submissions, the applicants say that the principle is engaged when two conditions are satisfied.265 The first is a threat of serious or irreversible environmental damage and the second is scientific uncertainty as to the environmental damage. The applicants refer to the leading case of Telstra Corporation Ltd v Hornsby Shire Council (Telstra).266 [308] In the recent case Friends of Leadbeater’s Possum Inc v VicForests (No 4) (VicForests)267 Mortimer J noted that there are various expressions of the precautionary principle and that the concept is given expression by different language in different sources.268 Her Honour further said that the different ways in which the precautionary principle is expressed may reflect different emphases arising from the context in which the term is used. [309] In VicForests the precautionary principle was a defined term in the relevant Code. In Telstra, Preston J referred to the formulation of the precautionary principle in s 6(2)(a) of the Protection of the Environment Administration Act 1991 (NSW) which contained a statement about how ecologically sustainable development can be achieved. Section 6(2)(a) states: …In the application of the precautionary principle, public and private decisions should be guided by: (i) careful evaluation to avoid, wherever practicable, serious or irreversible damage to the environment, and (ii) an assessment of the risk-weighted consequences of various options… [310] In this matter the expression of the precautionary principle is as referenced in the National Strategy.269 I was not directed to any other relevant expression of the principle, or any 265 Applicants’ Closing Submissions filed 21 September 2020 [324]. 266 (2006) 67 NSWLR 256. 267 [2020] FCA 704. 268 Friends of Leadbeater’s Possum Inc v VicForests (No 4) [2020] FCA 704 [801]. 269 Council of Australian Governments, The National Strategy for Ecologically Sustainable Development (7 December 1992), pages 2-3. -- 88 of 112 -- 89 procedure for its application. I note the assessment report regarding the draft amended EA outlines how the standard criteria were considered.270 [311] Consequently, noting the above, I accept that Preston J’s consideration of the precautionary principle is relevant to my consideration at a general level. [312] In Environment East Gippsland Inc v VicForests (Brown Mountain)271 (discussed at length in VicForests), Osborne J said: “I respectfully accept the careful analysis of the precautionary principle by Preston CJ in Telstra Corporation Limited v Hornsby Shire Council. I accept his Honour’s fundamental conclusion: The application of the precautionary principle and the concomitant need to take precautionary measures is triggered by the satisfaction of two conditions precedent or thresholds: a threat of serious or irreversible environmental damage and scientific uncertainty as to the environmental damage. These conditions or thresholds are cumulative. Once both of these conditions or thresholds are satisfied, a precautionary measure may be taken to avert the anticipated threat of environmental damage, but it should be proportionate.”272 (citations omitted) [313] In VicForests at [816], Mortimer J noted that Osborn J in Brown Mountain adopted the language of “conditions precedent” in his own analysis: “At [199], his Honour said (quoting Telstra at [150]-[151]): If the conditions precedent are satisfied, the burden of showing the threat of serious or irreversible environmental damage will not occur effectively shifts to VicForests to show that the threat does not exist or is negligible. If each of the two conditions precedent or thresholds are satisfied — that is, there is a threat of serious or irreversible environmental damage and there is the requisite degree of scientific uncertainty — the precautionary principle will be activated. At this point, there is a shifting of an evidentiary burden of proof. A decision-maker must assume that the threat of serious or irreversible environmental damage is no longer uncertain but is a reality. The burden of showing that this threat does not in fact exist or is negligible effectively reverts to the proponent of the economic or other development plan, programme or project. The rationale for requiring this shift of the burden of proof is to ensure preventative anticipation; to act before scientific certainty of cause and effect is established. It may be too late, or too difficult and costly, to change a course of action once it is proven to be harmful. The preference is to prevent environmental damage, rather than remediate it. The benefit of the doubt is given to environmental protection when there is scientific uncertainty. To 270 Ex 1, Ex 34, DES0014, page 35. 271 (2010) 30 VR 1. 272 Environment East Gippsland Inc v VicForests (2010) 30 VR 1 [188]. -- 89 of 112 -- 90 avoid environmental harm, it is better to err on the side of caution.”273 (citations omitted) [314] The applicants’ submissions proceed on the basis that the threat of serious or irreversible harm caused by the mine expansion is not significant. In that regard they rely on the evidence of Dr Merrick and Mr Collins in relation to the anticipated groundwater and surface water impacts of the proposed expansion.274 They assert there is scientific certainty regarding how the groundwater system behaves based on the evidence of Dr Merrick. However, to the extent issues of scientific uncertainty continue to exist, impacts associated with groundwater can be appropriately managed through adaptive management, regulation by government bodies, and chapter 3 of the Water Act.275 [315] EEMAG’s position is that the precautionary principle has been engaged, relying on the evidence of Mr Roberts. Presumably it is EEMAG’s view that the onus is on the applicants to show that the threat does not exist or is negligible, and/or there was no considerable scientific uncertainty. A conclusion on the latter (that there was no considerable scientific uncertainty) would presumably demand preventative (rather than precautionary) measures to control or regulate the (relatively) certain threat of serious or irreversible environmental damage. [316] The statutory party simply say that the precautionary principle was considered in the application process but in their view, it was not enlivened for the reasons set out in the applicants’ submissions.276 They say that ‘in any event’ the trigger levels and reporting requirements in the draft amended EA address the potential for any uncertainty around the modelled outcomes and any deviations that may occur from those outcomes. [317] The assessment report in relation to standard criteria (a) says: “Groundwater and surface water triggers and limits have been recommended taking in to consideration these principles of the standard criteria. Interim limits and triggers have been determined and recommended for inclusion in the draft EA taking in to consideration the precautionary principle as a result of the variances in the data available. The requirement to monitor also considers the precautionary principle and the conservation of diversity and ecological integrity to ensure that any unexpected changes to the environment are detected and investigated, and appropriate management intervention can occur to limit impacts. The indication that the upstream surface monitoring site is potential influenced by releases of mine pit dewatering prompts the 273 Friends of Leadbeater’s Possum Inc v VicForests (No 4) [2020] FCA 704 [816]. 274 Applicants’ Closing Submissions filed 21 September 2020 [325]. 275 Applicants’ Closing Submissions filed 21 September 2020 [326]-[329]. 276 Statutory party Closing Submissions filed 19 October 2020 [17]-[18]. -- 90 of 112 -- 91 consideration in applying the precautionary principle to source an [sic] alternative locations (also considers the conservation of ecological integrity). Groundwater level triggers and surface and groundwater quality limits considers the intergenerational equity principle by ensuring the natural environment and resources are maintained for future generations.”277 [318] In relation to the first condition precedent, EEMAG rely on the opinion of Professor Roberts. Professor Roberts’ report identifies a number of “risks to the approval of extension of the present mine lease and its attached draft amended EA.”278 The risks include: “catastrophic loss of groundwater”; “significant expansion of the surface area of influence”; “significant expansion of the land susceptible to reduced land use practices”; “a permanently blighted landscape”; and “reduced biodiversity, amenity, environmental and productivity losses.” [319] The risks identified by Professor Roberts are premised on conclusions concerning dewatering impacts, the geological nature of the aquifer and the term of the lease. [320] Professor Roberts in his statement also refers to twelve guidelines which can assist in the application of the Principle. These include: the establishment of clear and agreed obligations and responsibilities for each stakeholder group; transparent processes; the use of best evidence; the contribution of all stakeholders; a commitment to an adaptive management approach which includes monitoring impacts (using agreed indicators); research to reduce uncertainty; evaluation and review of decisions; and an effective compliance system. [321] In relation to the risks, the applicants contend that the threat of serious irreversible environmental damage of the proposed expansion is not significant. [322] In these reasons I have addressed in considerable detail the geological nature of the aquifer and dewatering impacts as a result of the proposed mine expansion. My conclusions are found at [110]-[117]. I also considered in detail issues of subsoil moisture and the impact on groundwater dependent ecosystems. While my conclusions are that the evidence does not support the catastrophic outcomes the objectors suggest, there will for example, be additional drawdown at East End. 277 Ex 1, Ex 34, DES0014, page 35. 278 Ex 27, EEM0049, page 1; EEMAG Closing Submissions filed 18 September 2020, page 21. -- 91 of 112 -- 92 [323] The applicants argue that to account for any risk, the proposed expansion will be the subject of adaptive management through the use of the applicants’ policies and procedures and the regulation of the mine by government bodies.279 [324] In relation to the second principle, there must be a lack of full scientific uncertainty. For this principle to apply, there must be ‘considerable’ scientific uncertainty as Preston CJ explained in Telstra.280 Ms Smith explains that through the adaptive management approach, there would not be considerable scientific uncertainty to the extent that issues of the kind continue to exist.281 The indicators of an adaptive management approach discussed in Adani and Telstra including monitoring impacts, promoting research and ensuring periodic evaluation of the outcomes of implementation, are present in the evidence of Ms Smith.282 [325] The adaptive management policies and procedures were described by Ms Smith. She says that there is a “significant volume of historical groundwater and surface water monitoring data associated with the current operation”;283 and that “additional monitoring associated with the proposed extension which has been assessed by the DES… to assist DES with the development of draft Environmental Authority conditions including the insertion of trigger compliance monitoring bore locations and associated parameters for each individual bore.”284 She concludes that the establishment of these conditions in the draft EA are such that the impacts of groundwater can be appropriately managed. [326] In the discussion below regarding the other standard criteria there is evidence of further layers of adaptive management described including: the REMP; the SHEQ policy and management system; the Air Quality Procedure; the Water Conservation and Management Procedure; and the Land Contamination Management Procedure. The further management procedures described include a Stormwater Management Plan, a Waste Management Plan, a Noise Management Plan, a Water Management Plan, and a Land Management Plan. [327] The applicants further rely on the expert evidence of Dr Merrick and Mr Collins who provide their expert opinions on the impacts of the proposed mine expansion generally, 279 Applicants’ Closing Submissions filed 21 September 2020 [67]. 280 Telstra Corporation Ltd v Hornsby Shire Council (2006) 67 NSWLR 256 [140]-[149]. 281 Ex 4, CEM7001, para 100; Applicants’ Closing Submissions filed 21 September 2020 [327](e). 282 Ex 4, CEM7001, paras 96-100. 283 Ibid para 98. 284 Ibid. -- 92 of 112 -- 93 and the anticipated groundwater and surface water impacts of the proposed expansion.285 Ms Smith states that this expert evidence supports an adaptive management approach.286 [328] As noted, the statutory party submit that the precautionary principle was not enlivened, and in any event the trigger levels and reporting requirements set out in the draft EA address the potential for any uncertainty in this area around the modelled outcomes and any deviations that may occur from these outcomes.287 Intergenerational equity [329] In Adani,288 President MacDonald considered the decision in Telstra: “In relation to the principles of equity, Preston CJ said that there is a need for inter-generational equity and intra-generational equity. He explained that inter- generational equity means that the present generation should ensure that the health, diversity and productivity of the environment are maintained or enhanced for future generations. This is the definition contained in s.3.5.2 in the Schedule to the IGAE. Preston CJ said that intra-generational equity involves considerations of equity within the present generation, such as uses of natural resources by one nation-state (or sectors or classes within a nation- state) needing to take account of the needs of other nation-states (or sectors or classes within a nation-state).”289 [330] I accept this to be the preferred articulation of the principle. [331] EEMAG rely on the evidence of Professor Roberts to explain how the expansion of the mine would breach the principle of intergenerational equity.290 Professor Roberts briefly contends that intergenerational equity will be “threatened due to reduced biodiversity, amenity, environmental and productivity losses.”291 [332] EEMAG say that intergenerational equity requires consideration of the cumulative impacts of proposed activities, including reference to pre-mining data, on the environment.292 They submit that by excluding input from karst experts the draft EA underestimates mine dewatering “to meet environmentally sustainable (ie 285 Ex 4, CEM7001, paras 96-100. 286 Ex 4, CEM7001, para 99. 287 Statutory party Closing Submissions filed 19 October 2020 [18]. 288 [2015] QLC 48. 289 Adani Mining Pty Ltd v Land Services of Coast and Country Inc & Ors [2015] QLC 48 [38]. 290 EEMAG Closing Submissions filed 18 September 2020, page 21. 291 Ex 27, EEM0049, page 1. 292 EEMAG Closing Submissions filed 18 September 2020, lines 787-789. -- 93 of 112 -- 94 intergenerational equity) standards.”293 My conclusions regarding the nature of geology and the nature of the aquifer are found at [110]-[117]. [333] In closing submissions at [73] the applicants say, “The consequences associated with the mine expansion (and not the East End Mine project more generally) are not as severe as to cause loss or interference with groundwater ‘hundreds of years into the future, if not indefinitely.’” In evidence in the context of cumulative depletion Mr Collins said, “I don’t take the view that it’s a permanent depletion;… there will be recharge after the mining ceases due to the fact that rainfall and infiltration to the pit void exceeds by a factor of two the evaporation rates. So ultimately, it may take a long, long time, hundreds of years. There will be recharge.”294 [334] The applicants’ submission appears to say that the evidence of Mr Collins, where he referred to the loss or interference with groundwater extending for hundreds of years, was in relation to the cumulative effect of the current mine and the proposed expansion, and not a consequence of the proposed expansion. That may be correct. What is not clear from the evidence is whether the proposed expansion ‘pushes the depletion over the edge’ in terms of long term depletion or whether it has minimal or no impact on the long term depletion resulting from current activities and the continued operation of the current mine. [335] The applicants submit that the evidence does not warrant a refusal of the Applicant’s application for an amended EA. My conclusions regarding groundwater and surface water are at [157]-[16] and [178]-[181]. [336] The applicants refer to the evidence of Dr Merrick, Mr Collins, Ms Tansley and Ms Smith to support their submission. They note that Dr Merrick considers the anticipated groundwater impacts of the proposed expansion.295 They further submit that the anticipated surface water impacts and flood impacts of the proposed expansion as expressed by Mr Collins do not suggest that the principle of intergenerational equity would be triggered.296 Mr Collins suggested that the expansion of the mine would result in a depletion of the East End aquifer however, he said that ultimately there will be a recharge. Moreover, the evidence of Dr Merrick supports the applicants’ propositions.297 293 EEMAG Closing Submissions filed 18 September 2020, lines 886-888. 294 T 6-43, lines 37 to 41. 295 Ex 58, CEM8003, pages 6-7. 296 Ex 56, CEM8002, pages 2-4. 297 Applicants’ Closing Submissions filed 21 September 2020 [334](d); T 6-69, lines 13 to 15. -- 94 of 112 -- 95 [337] The statutory party did not make submissions on intergenerational equity. Conclusion [338] In terms of the precautionary principle, I consider it a relevantly straightforward proposition that there are threats of environmental damage. I accept that those threats are mitigated through adaptive management and government regulation as expressed in the submissions of the applicants and the statutory party, and the evidence of Ms Smith.298 In accepting that there is an appropriate adaptive management system in place, I accept that, to the extent there is any, issues of scientific uncertainty will be appropriately managed. I note in particular the evidence summarised at [325]-[326] above and my conclusions on geology, groundwater, surface water, flooding, and subsoil moisture. For these reasons, it is my view that the precautionary principle has not been engaged. [339] However, as a result of the long term impacts on the aquifer at East End, there could be a basis upon which to conclude that the principle of intergenerational equity is enlivened. The basis upon which the principle may enlivened would be due to the consequences of a depletion of the East End aquifer for an extended period. Should the current mine extract product to the capacity and depth allowed under its existing tenements it may be that it would result in a similar outcome. The evidence in this regard was not clear. So, while the principle might be enlivened, it alone is not a basis for concluding that the grant of the mining lease and/or the draft amended EA should not be recommended. My decision must take into account all the criteria. It is well established that none of the principles of ecologically sustainable development should be viewed in isolation, nor should one of them be given overriding weight compared to other factors to be considered.299 2013 EP Act – Section 223 criteria [340] The objects of the 2013 EP Act are different from the objects of the MRA. The key object of the MRA is to facilitate the mining of the State’s resources, while the object of section 3 of the 2013 EP Act is to protect Queensland’s environment while allowing for development that improves the total quality of life, both now and in the future, in a way that maintains the ecological processes on which life depends. Section 4(1) of the 2013 EP 298 Applicants’ Closing Submissions filed 21 September 2020 [67]; Statutory party Closing Submissions filed 19 October 2020 [18]; Ex 4, CEM7001, paras 96-100. 299 New Acland Coal Pty Ltd v Ashman and Chief Executive, Department of Environment and Heritage Protection (No 4) [2017] QLC 24. -- 95 of 112 -- 96 Act provides for an integrated management program, which involves implementing environmental strategies and integrating them into efficient resource management. [341] The decision the Court may make in this matter is a recommendation to the EPA Minister that the application be granted on the basis of the draft amended EA, the application be granted on stated conditions different to the conditions in the draft amended EA, or the application be refused.300 Section 223 sets out the matters to be considered for an objections decision. Section 223(a) – The application documents for the application [342] As noted earlier this matter has had a protracted history. The application received and assessed by the statutory party is dated 26 November 2008.301 The application was to amend conditions of an existing EA, to add a new tenement to the existing EA. The ‘responsible person’ is identified as Ms Tegan Smith of Groundworks Plus. The application was assessed and approved by delegate of the Chief Executive, Ms Filiz Tansley. Both Ms Smith and Ms Tansley swore affidavits and appeared and gave evidence at the hearing.302 [343] Ms Smith, Director and Principal – Planning and Environment, Groundworks Plus, provided detail of the documentation prepared by Groundworks Plus on behalf of the applicants prior to the MLA being lodged, including the application for amendment of the draft EA, the draft terms of reference (TOR), the EIS, the supplementary EIS, the Environmental Management Plan (EMP), and responses to requests for information received as part of the draft EA amendment application process. Ms Smith provided a detailed account of the process including the provision of additional information and reports to the statutory party including a groundwater modelling report (18 January 2018) and programme (17 January 2018) prepared by Pacific Environment. [344] Ms Tansley, Manager (Assessment) Minerals DES, has the delegated power of the Chief Executive of the statutory party to make decisions in response to EA amendment applications. Ms Tansley made the decision to issue the draft amended EA in this matter, applying the 2013 EP Act. Ms Tansley in her affidavit identifies the documents provided 300 Environmental Protection Act 1994 s 222, as at 14 March 2013. 301 Ex 1, Ex 34, DES0004. 302 Ex 4, CEM7001; Ex 34, DES0037. -- 96 of 112 -- 97 as part of the application including the draft groundwater modelling report and programme. [345] Ms Tansley describes in some detail the assessment process as it was carried out noting the applicants complied with the 2013 EP Act because: • the application was made in the approved form; • it was supported by enough information to allow the administering authority to decide the application; and it was accompanied by the prescribed fee. She noted that the statutory party decided that the level of environmental harm is likely to be slightly increased if the amendments were made and that an EIS was required for the proposed amendment; • that various versions of the Environmental Management Plan were submitted and the application was ultimately permitted to proceed on 2 February 2018; • satisfied that the requirement of the 2013 EP Act were satisfied the draft EA was issued on 20 April 2018; • public notification occurred in the Gladstone Observer newspaper; • objections were received; • the environmental issues raised in the objections identified and considered; and • the conditions, responses and conclusions relevant to the grounds of objection identified. [346] The information provided by Ms Smith and Ms Tansley is comprehensive and complete. They have sworn to compliance with the relevant provisions of the 2013 EP Act, they were credible witnesses, their evidence in that regard was unchallenged, I accept that there has been compliance, and I am satisfied that that the requirements of s 223(a) of the 2013 EP Act have been met. Section 223(b) – Any relevant regulatory requirement [347] As noted above, Ms Tansley’s evidence was comprehensive concerning the matters the statutory party was required to consider under the relevant provisions of the 2013 EP Act and regulation. -- 97 of 112 -- 98 [348] The applicants note the evidence of Mr Davies that financial assurance has been provided by the applicants under the current EA in respect of the existing mine, and that further financial assurance will be lodged in accordance with legal and regulatory requirements if the application is approved.303 [349] I am satisfied that the requirements of s 223(b) of the 2013 EP Act have been met. Section 223(c) – The standard criteria [350] The standard criteria are defined in schedule 4 to the 2013 EP Act as set out at [303]-[304] above. Standard Criteria (a) - National Strategy for Ecologically Sustainable Development [351] The principles in the National Strategy identified and relied by EEMAG are the precautionary principle and intergenerational equity. Those matters have been discussed above at [304] – [339]. Standard Criteria (b) - Any applicable environmental protection policy [352] I note my conclusions above regarding the evidence of Ms Smith concerning the referral and Mr Tansley concerning the assessment of the application. Ms Smith in her affidavit at [84] says: “The Environmental Protection Policies (EPP) for water, noise and air were considered in the identification of environmental values and the protection of these identified environmental values through the establishment of management measures within the EMP and expert reporting. I also understand that these policies were also considered by DES in preparing the draft EA…”304 [353] This is confirmed in the affidavit of Ms Tansley. [354] There was no relevant challenge to this conclusion. I am satisfied that regard has been given to applicable environmental policy. Standard Criteria (c) - Any applicable Commonwealth, State or local government plans, standards, agreements or requirements 303 Applicants’ Closing Submissions filed 21 September 2020 [317]. 304 Ex 4, CEM7001, para 84. -- 98 of 112 -- 99 [355] In her affidavit at [85] Ms Smith says that the draft amended EA was referred to the Commonwealth Department of the Environment (the Department) under the Environment Protection and Biodiversity Act 1999 (Cth) (EPBC Act) and that on 23 December 2015, the Department issued a Notification of Referral Decision – not controlled action in respect of the mine extension. [356] In a table addressing the standard criteria in the assessment report,305 it is noted that the applicable standards and requirements such as the Calliope WQO's have been considered in the assessment. [357] I am unaware of any applicable government plans, standards, or agreements or requirements that have not been considered or met. Standard Criteria (d) - Any applicable environmental impact study, assessment or report [358] Again, I note my conclusions above regarding the evidence of Ms Smith concerning the referral and Mr Tansley concerning the assessment of the application. Ms Smith confirms that an EIS and supplementary EIS was prepared as part of the draft amended EA process and that various drafts of an EMP were prepared.306 Standard Criteria (e) - The character, resilience and values of the receiving environment [359] Issues regarding the receiving environment were the subject of considerable attention in the material filed and in the hearing. As noted in the applicants’ closing submissions the draft EA proposed a REMP, the conditions of which will require the monitoring of potential impacts to environmental values in Larcom Creek. [360] The evidence of Mr Collins was that any surface water impacts caused by the expansion of the mine would not be significant.307 In particular Mr Collins’ evidence was that diversion drains would ensure pit catchments are diverted around the mine; that the proposed bund/levy bank into the Larcom Creek floodplain is to ensure creek flow and flood waters do not enter the mine pit; and that the diversion drains and levees will cause no significant changes in flow and have no impact on water quality to the downstream receiving environment. 305 Ex 1, Ex 34, DES0014, page 36. 306 Ex 4, CEM7001, paras 88-89. 307 Ex 56, CEM8002. -- 99 of 112 -- 100 [361] In cross examination when discussing the potential impacts on the receiving environment, Mr Collins said with the protection of the environment in mind “it’s proposed a REMP, which then allows more monitoring, more assessment of the data over time to refine the licence conditions including pumping rates.”308 Dr Merrick said that the “actual maximum ever pumped in the last decade is 25 megalitres a day, so the cap has never been reached.”309 Mr Collins said that he had analysed in a lot of detail 20 years of pumping records, he reviewed “all the water quality testing done,”310 and he had conducted inspections, to conclude that “they have complied and they are compliant.”311 [362] In relation to the preparation of the REMP, Ms Jefferies says: “The Draft EA conditions also require the preparation of the Receiving Environment Monitoring Program (REMP) (Condition F15). I am working with Tegan Smith of Groundwork Plus to finalise a REMP in accordance with the requirements of the Draft EA. The REMP will include a consideration of the necessary monitoring for and identification of any potentially adverse impacts to the following waterways in the vicinity of the mine: (a) Larcom Creek; (b) East End Creek; (c) Machine Creek; (d) Jacobs Creek; (e) Scrub Creek; (f) Schulz Lagoon; and (g) Groundwater.”312 Standard Criteria (f) - All submissions made by the applicants and submitters [363] The assessment report (Attachment 12 to the Form 8 DEHP Report for the Land Court) states that: “The submissions made by the submitters to the EIS report and SEIS have been considered in the assessment and when recommending conditions for the EA.”313 Standard Criteria (g) - The best practice environmental management for activities under any relevant instrument or proposed instrument, as follows an environmental authority [364] The assessment report says: “The conditions recommended to be included or altered in the draft EA are considered best practice environmental management for the activities taking 308 T 6-70, lines 32 to 34. 309 T 6-71, lines 1 to 2. 310 T 6-71, line 23. 311 T 6-70, lines 31 to 47; T 6-71, lines 26 to 27. 312 Ex 3, Ex 71, CEM7003, para 69. 313 Ex 1, Ex 34, DES0014. -- 100 of 112 -- 101 into consideration the knowledge at the time. Ongoing monitoring and review conditions are recommended that ensure ongoing best practice environmental management.”314 [365] The applicants in closing submissions note the evidence of Mr Collins, which provides that the carrying out of a REMP is current best practice for licensing mine discharges, that they are designed to make sure environmental harm is not caused, and that the statutory party will take action in the case of non-compliance. Standard Criteria (h) - Financial implications of the requirements under an environmental authority as they would relate to the type of activity or industry carried out, or proposed to be carried out, under the instrument [366] The assessment report says: “The recommended conditions are not expected to disadvantage the proponent financially beyond what is current best practice environmental management. The proponent has had the opportunity to review the conditions prior to finalising the conditions.”315 Standard Criteria (i) - The public interest [367] The assessment report says: “This assessment and the recommended conditions are expected to meet the public interest, specifically in relation to the water and groundwater conditions. The Air and Noise sections have considered the public interest and the relevant environmental protection policies.”316 Standard Criteria (k) - Any relevant integrated environmental management system or proposed integrated environmental management system [368] There was no challenge to the following material at the hearing. [369] The evidence of Ms Jefferies addressed the applicants’ policies and procedures in its integrated safety, health, environment and quality management system.317 She says that the foundation for Cement Australia's policies and procedures is the integrated Safety, Health, Environment and Quality Management System which is certified to the 314 Ex 1, Ex 34, DES0014. 315 Ex 1, Ex 34, DES0014. 316 Ex 1, Ex 34, DES0014. 317 Ex 3, Ex 71, CEM7003, paras 25-29. -- 101 of 112 -- 102 international environmental management system standard, the international quality management system standard, and the Australian standard for safety management systems. [370] The structure of the system, Ms Jefferies says, provides for a central ‘hub’ of corporate procedures and policies which are developed at Cement Australia’s head office and which apply to all Cement Australia operations. These policy and procedure documents include a SHEQ policy, a SHEQ Management System, an Air Quality procedure, a Water Conservation and Management procedure, and a Land Contamination Management procedure. [371] Ms Jefferies also noted that each Cement Australia site also develops and maintains its own procedures, which are specific to that site and its operations. For the East End mine, these procedures include an Air Quality Management Plan, a Stormwater Management Plan, a Waste Management Plan, a Noise Management Plan, a Water Management Plan, and a Land Management Plan. [372] The applicants also noted that Ms Smith provided evidence of Condition A10 of the draft EA which requires a certified risk management system and confirms Cement Australia’s ISO14001 accreditation.318 Standard Criteria (l) - Any other matter prescribed under a regulation [373] The assessment report says: “All matters prescribed under the regulations relevant to this amendment application have been considered in the relevant sections in the assessment above.”319 Conclusion [374] Taking into account the evidence described above in relation to each of the standard criteria I am satisfied that the requirements of s 223(c) of the 2013 EP Act have been met. Section 223(d) – Wild River declaration for the area [375] The material confirms that the mining activities do not occur in a wild river area.320 The applicants also note that the Wild Rivers Act 2005 (Qld) was repealed in its entirety by 318 Ex 4, CEM7001, para 94. 319 Ex 1, Ex 34, DES0014. -- 102 of 112 -- 103 section 95 of the State Development, Infrastructure and Planning (Red Tape Reduction) and Other Legislation Amendment Act 2014 (Qld), with effect from 1 October 2014. They submit that it is not a relevant factor for consideration by the Court in these proceedings. I agree. Section 223(e) – Each current objection [376] The Court in making the objections decision must consider any current objection. [377] As noted in the table at [60] above, there were 11 objections lodged under the 2013 EP Act. [378] Those objections were considered by category, in detail, at [66]-[231]. Section 223(f) – Any suitability report for the application [379] A suitability report is a report about a person or entity prepared to help the Chief Executive decide whether the applicants are suitable to be an operator or if a disqualifying event has occurred.321 There is nothing in the material to indicate that a suitability report was prepared. Section 223(g) – The status of any application under the MRA for each tenement [380] The mining lease application is pending the recommendations of this Court. HRA [381] Having considered the criteria in the MRA and 2013 EP Act, I will now turn to the five human rights steps outlined at [55] above: engagement, limitation, justification, proper consideration, and inevitable infringement. Engagement – What rights might the objector seek to invoke? [382] Section 24(2) of the HRA states that a person must not be arbitrarily deprived of their property. This section is modelled on article 17 of the UDHR.322 The protection against being deprived of property is “internally limited to arbitrary deprivation of property.”323 320 Ex 34, DES0037. 321 Environmental Protection Act 1994 s 559, as at 14 March 2013. 322 Universal Declaration of Human Rights, GA Res 217A (III), UN GAOR, UN Doc A/810 (10 December 1948). -- 103 of 112 -- 104 [383] The HRA does not define the concepts of ‘property’, ‘arbitrariness’ or ‘deprivation’. The Acts Interpretation Act 1954 (Qld) defines ‘property’ as: Any legal or equitable estate or interest (whether present or future, vested or contingent, or tangible or intangible) in real or personal property of any description (including money), and includes things in action.324 [384] ‘Arbitrarily’ has been interpreted in the High Court to mean both ‘illegally’ and ‘unjustly’.325 ‘Arbitrary’ also concerns capricious, unpredictable and unreasonable conduct which is not proportionate to the legitimate aim sought.326 [385] ‘Deprivation’ of property is not arbitrary where there is an “appropriate relationship between the means and the ends.”327 [386] There are no authorities in Queensland which consider the human right to property. However, the Charter,328 the European Convention on Human Rights (ECHR),329 and the Human Rights Act 1998 (UK) (UK Act)330 contain similar provisions. There has been consideration of the related provisions in those jurisdictions. [387] The Charter is almost identical to the HRA, stating that “a person must not be deprived of his or her property other than in accordance with law.”331 Section 20 of the Charter was considered in PJB v Melbourne Health and Another (Patrick’s Case).332 [388] Three main principles can be distilled from Patrick’s Case. First, deprivation of property encompasses economic interests and deprivation in a broad sense. Second, formal expropriation is not required, and de facto expropriation of property is sufficient to breach the right. Finally, while it is not contained within the Charter or HRA, the right to ownership and peaceful enjoyment of property are key features of the common law. [389] If the East End mine expansion were to proceed, the human rights which might be impacted are property rights.333 The particular property rights are discussed below. 323 Explanatory Notes, Human Rights Bill 2018 (Qld), 22; Human Rights Act 2019 (Qld) s 24(2). 324 Acts Interpretation Act 1954 (Qld) sch 1. 325 Mabo v Queensland (1988) 166 CLR 186, 217. 326 PJB v Melbourne Health and Another (Patrick’s Case) (2011) 39 VR 373 [85]. 327 Aurukun Shire Council v CEO Office of Liquor, Gaming and Racing in the Dept of Treasury [2012] 1 Qd R 1 [49]. 328 Charter of Human Rights and Responsibilities Act 2006 (Vic) s 20. 329 Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, 213 UNTS 221 (entered into force 3 September 1953) article 1, protocol 1. 330 Human Rights Act 1998 (UK) first protocol, article 1. 331 Charter of Human Rights and Responsibilities Act 2006 (Vic) s 20. 332 (2011) 39 VR 373. -- 104 of 112 -- 105 Limitation - How might the alleged rights be limited? [390] The objections and evidence raise a number of interests relating to the objectors’ property which may be affected by the mine expansion. In particular, these objections include: that the additional depletion of groundwater would affect private bores for stock watering, irrigation of crops or pastures, and the domestic use of water; the potential for greater flood impacts on adjoining properties as a result of the construction of the bund/levy in the Larcom Creek flood plain; the loss of water from streams as a result of the deeper mine pit which would require landholders to construct additional fencing; and concerns that subsoil moisture will be adversely affected resulting in a much drier environment and greater drought affects. [391] My conclusions on the evidence are that additional groundwater losses as a result of the mine expansion might affect private bores in the East End. There was no evidence of the current use of bores for irrigation. [392] My conclusions concerning flood impacts were that the modelling demonstrated no significant adverse effects on the adjoining properties, and that velocities are such that scouring of the grazing land soils and grasses is not predicted to occur. In relation to stream losses, the evidence was that the recirculation of mine dewatering delivers an immediate ‘top up’ to the affected streams. [393] In evidence, Mrs Derrington described the view she enjoys from her house, watching cattle grazing on the land adjacent to her property with the Biloela Range in the background. Mrs Derrington says these views will be lost as a result of the mine expansion and construction of the bund/levy,334 which I accept may affect her common law right to peaceful enjoyment of property. Justification – Are the limitations reasonable and demonstrably justified, in accordance with procedural requirements, not arbitrary and proportionate to other competing private and public interests? Are the limitations reasonable and demonstrably justified? 333 Human Rights Act 2019 (Qld) s 24(2). 334 T 4-20, lines 7 to 9. -- 105 of 112 -- 106 [394] There are two elements to this step. First, the limitation must be in accordance with the procedure prescribed by law and compatible with the rule of law (that is, sufficiently certain, accessible and non-arbitrary). [395] The process of justification would usually rest with the party asserting the right however in this matter, no party has raised human rights. In the absence of objections, President Kingham in Waratah (No 2) said that the Court is required to consider a range of criteria identified by the governing legislation, regardless of whether they are raised in objections.335 The procedure prescribed by law which limits these rights have been considered in the statutory criteria analysis above. In that regard, they are demonstrably justified. [396] The grant of the MLA, compliance with chapter 3 of the Water Act, and the development of an UWIR will allow groundwater impacts to occur. The UWIR provisions under chapter 3, part 2 include requirements for content, consultation, public notice, the provision of UWIR copies, consideration of submissions, and a process for decision in relation to the approval of the UWIR. The applicants say that impacts from proposed dewatering activities were examined by DES through the EIS process. They note that the draft amended EA provides for additional monitoring locations and quality and quantity monitoring requirements. The applicants state that whilst the approval of the mining lease application would entitle them to interfere with groundwater, the draft amended EA and Water Act will regulate the manner in which the interference can occur with a view to protecting the environment and the interests of stakeholders. [397] In closing submissions, the applicants describe the requirements of the Water Act chapter 3 to include: “compliance with the Part 5 (Make good obligations for water bores); these make good provisions in Part 5 include a requirement for a resource tenure holder to comply with the ‘make good obligations’ as defined, which include obligations to enter into and comply with a make good agreement, as defined, with the owners of relevant affected bores… a process for resolution of disputes about make good agreements by negotiation, arbitration, or reference to the Land Court.”336 [398] Second, the limitation on the human rights must be proportionate to other competing private and public interests. The adaptive management measures, draft EA and mining 335 Waratah Coal Pty Ltd v Youth Verdict Ltd & Ors [2020] QLC 33 [35]. 336 Applicants’ Closing Submissions filed 21 September 2020 [85](c). -- 106 of 112 -- 107 lease all consider the rights of landholders. This has been considered above, where I conclude at [285]-[293] that the public right and interest will not be prejudiced. [399] In the evidence of Mr Frost, Mine Manger, he describes the special conditions attached to the East End mine mining lease. He describes the make good provisions and the supporting documentation which acknowledges that the mine had an effect on groundwater in the area around the mine and set out the processes by which affected landholders could seek to have their access to water restored. Mr Frost in his affidavit provides responsive information concerning the engagement with a number of landholders who raised concerns about how the make good provisions operated since 2006.337 It is apparent that there were issues which did not satisfy some landholders, although it appeared that the relationship in more recent times has improved. The applicants will have continuing obligations under the make good provisions. [400] It might be argued that the limitation (reduced landholder access to groundwater and visual amenity) is reasonable and demonstrably justified by the mitigation actions in the make good provisions and the public benefits arising from the East End mine. These mitigation actions and public benefits were articulated in Mr Frost’s affidavit at [74]-[79] regarding regional employment and community engagement and interactions, in the affidavit of Mr Davies at [33]-[41],338 and through royalties which accrue to the State. Is the limitation in accordance with procedural requirements proportionate to other competing rights and not arbitrary? [401] The element of arbitrariness corresponds with s 269(4)(k) of the MRA, which requires a consideration of whether the public right and interest will be prejudiced. I have considered s 269(4)(k) of the MRA at [285]-[293], where I conclude that the public right and interest will not be prejudiced and that the proposed extension is proportionate to the public interest. [402] The deprivation of property is not arbitrary because there is an appropriate relationship between the means of expanding the mine and the property rights which will be affected. There is a proportionate and appropriate relationship between the deprivation and the public interest served by the expansion of the East End mine as I have discussed above. 337 Ex 8, CEM7006. 338 Ex 2, CEM7000. -- 107 of 112 -- 108 Proper consideration – Even if the limits are lawful and proportionate has the decision given proper consideration to the rights engaged? [403] The fourth step described in Waratah (No 2) states that even if the limits are lawful and proportionate, the decision must give proper consideration to the rights engaged. [404] If the parties raised human rights in their objections, then the proper consideration step would be used as a response to the engagement and justification steps outlined in Waratah (No 2). However, as they were not raised the Court considered the human rights in deciding what recommendation to make in the initial engagement step. This step has been deliberated above where the human right to property was considered. Inevitable infringement – Does a statutory provision or law prescribe a different decision? [405] Finally, I must consider whether a statutory provision or law prescribes a different decision. While I might be precluded from hearing the objector, I am not precluded from considering human rights generally in making my recommendations, as discussed in Waratah (No 2).339 Conclusion on human rights [406] I accept that there will be property right impacts associated with the expansion of the East End mine. However, considering the elements of the human right to property, the deprivation of property is not arbitrary and is reasonable and demonstrably justifiable. I have considered the five steps in Waratah (No 2) and conclude that my recommendation would not differ based on my consideration of the human right to property. Conclusions [407] I have considered in detail the objections made, the evidence presented and the submissions of all parties. My conclusions on each of the categories of objection are found in the decision following my consideration of the evidence and submissions. [408] In the introduction to these reasons I said that it was the factual assertion of the objectors as to the existence of a karst aquifer system in the mine expansion area which dominated 339 Waratah Coal Pty Ltd v Youth Verdict Ltd & Ors (No 2) [2021] QLC 4 [76]. -- 108 of 112 -- 109 the proceedings. On that subject, having considered the evidence, I concluded that there was little, if any evidence of a functioning karst aquifer as submitted. This conclusion had a bearing on other categories of objection. I accepted the evidence that the connection between the Bracewell and East End aquifers would not result in the propagation of drawdown at Bracewell as a result of the mine, and that the methodology adopted to predict drawdown was appropriate. I was not satisfied that the pumping of sinkholes at Bracewell necessarily demanded a conclusion of a karstic link to the East End aquifer. [409] I accepted the evidence of a 5 m drawdown for the expansion pit and that the drawdown zone is likely to be marginally larger than the MLA. In relation to groundwater environmental impacts, I noted that the applicants will be subject to compliance with ch 3 of the Water Act which requires the submission of a UWIR prior to the exercise of rights on the MLA. Accepting that the expansion of the drawdown zone is minimal, and the trigger levels and monitoring requirements in the draft amended EA, I was satisfied that the conditions of the draft amended EA sufficiently take account of and address the potential ecological impacts identified. [410] In relation to groundwater quality, in my view the draft amended EA proposes the monitoring of groundwater quality using a number of bores in the vicinity of the East End Mine with trigger levels specific to each bore based on historic data. The evidence regarding the placement and number of monitoring bores was that they were well distributed and were part of “a good network”. [411] When stream losses are induced as a result of mining, particularly from Schultz Lagoon and Larcom Creek, the evidence was that groundwater quality is likely to improve marginally as a result of the mixing of innate groundwater and introduced surface water. [412] As to surface water impacts, the evidence was that there should be no significant change in flow regime or water quality, the quality of surface water should remain unchanged, water release rates will not change significantly, and REMP conditions will require monitoring of potential impacts to environmental values in Larcom Creek. I am satisfied that there will be no significant impacts upon the downstream receiving environment due to the measures which will be in place. The evidence concerning the way the REMP is intended to operate to restrict mine expansion if certain limits are exceeded, renders proposed draft amended EA conditions appropriate in the circumstances. -- 109 of 112 -- 110 [413] As to mine induced losses to Larcom Creek and Schultz Lagoon, the evidence was that there is an immediate ‘top up’ as a result of the recirculation of mine dewatering. The losses to Scrub Creek and Machine Creek were modelled as minor. I accepted, that from a surface water management perspective, any impacts to surrounding streams from mine water discharges can be adequately managed through EA conditions, the current mine Water Management Plan and through the proposed expansion of the Stormwater Management Plan. [414] As to what EEMAG described as a ‘solution’ I accepted the evidence of Dr Bruce that the utility of a grout curtain cannot be determined in the absence of location specific hydrological circumstances which would render it most effective in mitigating otherwise adverse consequences. As the issue was not contemplated in the assessment of the conditions of the draft amended EA, I have no basis upon which to make any recommendation in that regard. [415] Flooding was a significant and reasonable concern for objectors. In my view at [214], the modelling undertaken to assess the potential impacts due to the construction of a bund/levy was extensive and comprehensive. I accepted the evidence and the conclusion that while some localised flood level increases due to the proposed mine expansion levee bank will occur, it will be over grazing land that is currently flood affected, and velocities are such that scouring of the grazing land soils and grasses is not predicted to occur. [416] I was satisfied that EEMAG’s concerns regarding noxious weeds have been and are being addressed and that the implementation of the Weed Management Plan will manage ongoing concerns. In relation to subsoil moisture, I was satisfied with the evidence that the predicted 5 m drawdown modelled would not result in in a change to subsoil moisture status. [417] I considered s 269(4) MRA and found that the statutory criteria had been satisfied. I accept that the matters the Land Court must consider in making the objections decision under s 223 of the 2013 EP Act include the standard criteria. I concluded that in relation to the precautionary principle the threat to environmental damage is mitigated through the adaptive management policies and procedures described at [338]. In relation to intergenerational equity, the evidence of an extremely long term depletion of the East End aquifer would seemingly trigger the principle. The evidence was that the aquifer would -- 110 of 112 -- 111 recharge, however that would not happen for perhaps hundreds of years. The evidence was not clear however, whether the long term depletion would be exacerbated as a result of the mine expansion and if so, to what degree. In relation to the principles of ecologically sustainable development, it is well established that none should be viewed in isolation, nor should one be given overriding weight compared to other factors to be considered. [418] Accordingly, noting my conclusions throughout these reasons and taking into account all the evidence relevant to each criteria, my recommendations are as follows. Orders -- 111 of 112 -- 112 1. Pursuant to s 269(1) of the Mineral Resources Act 1989, I recommend to the Honourable Minister for Resources that Mining Lease 80156 be granted over the application area. 2. Pursuant to the Environmental Protection Act 1994, I recommend to the administering authority that the Environmental Authority EPML 000658113 be issued in terms of the draft amended Environmental Authority without amendment. 3. Within 28 days of the publication of these reasons any application for a costs order in this matter, supported by a statement of facts, matters and contentions, must be filed in the Land Court Registry and served on the party or parties against whom costs are sought. 4. Within 14 days of the service of any costs application and statement of facts, matters and contentions, the party or parties against whom any costs order is sought must file in the Land Court Registry and serve on the party seeking the costs order a statement of facts, matters and contentions in reply, if any. 5. Unless the parties otherwise request in writing, the costs application will be determined on the filed material, without an oral hearing not before 14 days of the filing of the material referred to in Order 4. -- 112 of 112 --