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National coal seam gas agreement an important step in protecting water

A new national agreement designed to protect water resources from coal seam gas extraction and coal mining could offer a level of protection so far unseen in Australian environmental legislation. Any states…

A new national partnership agreement could allay a lot of CSG worries, if the states sign up. kateausburn/Flickr

A new national agreement designed to protect water resources from coal seam gas extraction and coal mining could offer a level of protection so far unseen in Australian environmental legislation. Any states serious about protecting water for farming and the environment should be signing up.

The Prime Minister announced the National Partnership Agreement for the Regulation of Coal Seam Gas (NPACSG) on November 21, 2011. NPACSG has been set up to strengthen the environmental regulation of coal seam gas proposals and large coal mining developments which may have a significant impact on water resources. Farmers, in particular, are worried that the gas extraction process threatens their water supplies.

The introduction of the NPACSG is partly a reward for Independent MP Tony Windsor, who asked for it in exchange for his support for the Mineral Resources Rent tax.

Following the announcement of the NPACSG, the Prime Minister wrote to Queensland, Victoria, South Australia and the Northern Territory governments asking them to be signatories. The Queensland government signed up to the agreement in February this year and the signature of the New South Wales government appears to be imminent. The remaining states are yet to join.

One of the financial incentives for signing up is that participants may share in a fund of $50 million, which has been set aside as an incentive fund for contributing state and territory governments. The fund is one of the central elements of the NPACSG.

NPACSG rewards jurisdictions that deliver independent scientific research into the effects of CSG on water resources. The funds will be used to assist the signatory states in implementing the objectives of the NPACSG. The benchmarks that signatory states need to achieve to access these funds are set out in the implementation plans which are incorporated in the NPACSG. When a state or territory attains these benchmarks, it will trigger a payment from the Commonwealth.

NPACSG also creates an Independent Expert Scientific Committee. The committee members are determined by the Commonwealth Minister and will serve at the discretion of the minister. An Interim Expert Scientific Committee has already been appointed, chaired by Professor Craig Simmons, a Professor of Hydrogeology at Flinders University and the Director of the National Centre for Groundwater Research and Training.

The independent committee will give signatory governments expert scientific advice on coal seam gas and large coal mining development proposals likely to have a significant effect on water resources. The committee has the power to identify which water resources are a research priority. Priority water resources will include those that have been subject to a high level of community concern and/or those that host a significant eco-system.

Where the committee determines that the water resource is a research priority, it may commission a bio-regional water assessment. A water assessment will evaluate a range of scientific factors. These include the components and toxicity of fracking agents, the impact of the fracking process upon aquifers, groundwater and surface water, and the effectiveness of the water management and monitoring plan set out in the coal seam gas proposal. (Fracking is the process used to extract gas from coal seams: you can read more about it here.)

The aim of an assessment is to improve scientific knowledge and increase understanding of the impact these processes have upon water resources. All water assessments will produce an evidence-based scientific report, outlining any possible threat to the water resource from the coal seam gas proposal.

NPACSG’s importance in regulating coal seam gas proposals should not be under-estimated. The independent scientific panel has the specific job of evaluating how coal seam gas and large coal proposals will affect significant water resources: this goes well beyond any other environmental regulatory protection. Whilst the report is only advisory, it does mean that future decisions regarding CSG proposals will be informed by a substantially improved and independent scientific body.

In this respect, the NPACSG provides broader and more extensive protection than the provisions of the Environmental Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC).

The EPBC is a Commonwealth Act which is supposed to provide greater environmental regulation over matters of national environmental significance. The bilateral agreement mechanism in the EPBC allows the Commonwealth to delegate either the assessment process or both the assessment and approval process for projects coming within the scope of the EPBC to state or territory authorities where a bilateral agreement exists (the NPACSG could be defined as a ‘bilateral agreement’ under s45(2) of the EPBC).

There are two primary criticisms of the EPBC process itself. First, there are insufficient environmental triggers for an environmental impact assessment to be carried out. There are only seven environmental triggers in the EPBC and the absence of a specific “water resources trigger” means a coal seam gas proposal may potentially fall outside the Act’s scope. This would mean that no environmental assessment under the EPBC would be mandated and therefore no Commonwealth approval to the proposal would be required.

For example, it has been held that two Queensland coal mine proposals did not constitute “controlled actions” under the EPBC because the alleged potential for greenhouse gas emissions to adversely affect the Great Barrier Reef World Heritage area were vague and unspecified and therefore did not come within the scope of any of the existing environmental triggers.

Second, the process of environmental assessment under the EPBC is narrow and linear and there are lots of exemptions. The first stage of an EPBC assessment is the referral, where the Commonwealth Minister decides whether a proposal is a “controlled action” because of its likely effect on matters of national environmental significance.

If it is, the proposal will be subject to assessment. Where this occurs, specialist consultants on behalf of the proponent of the proposal (not an independently appointed scientific body) will undertake an environmental impact assessment. These provisions are, themselves, the subject of much controversy given the potential for a conflict of interest. They have encouraged the development of a new industry of privatised environmental impact assessment specialists.

Once the assessment report is received from the proponent, the minister will decide whether to approve, approve with conditions or disapprove the proposal.

The defined scope of the Act, its project-based focus and the absence of any mandate for independent scientific research, make it particularly unlikely that the cumulative environmental impact of a coal seam gas proposal upon a significant water resource will be comprehensively evaluated under the provisions of the EPBC.

In light of this, joining the NPACSG and in so doing, promoting directed, and independent evaluation of the effects of coal seam gas mining upon water resources in Australia, has become an environmental imperative for the remaining States and Territories.

Join the conversation

12 Comments sorted by

  1. Lorna Jarrett

    PhD, science educator and science advocate

    Samantha - can you please explain whether / how this will protect the Sydney water catchment. Seems to me that it certainly meets the criterion of "high level of community concern". But does this mean - assuming NSW signs up - that the drilling goes ahead and it's all about documenting the process of contamination rather than preventing it? Because if so, it really doesn't seem that useful.

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  2. Bernie Masters

    environmental consultant at FIA Technology Pty Ltd, B K Masters and Associates

    Australia is a federation of states where individual states have maintained legislative control over many aspects of their governmental operations and responsibilities with only occasional fights with centralist national governments. WA is the state I know best and it seems ironic that the state acknowledged as the mining powerhouse of the nation is not seen to be part of this new push by Canberra to take control of the coal seam gas approval process. The reasons for this are that:
    1. all mining…

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  3. Mark Graham

    Ecologist

    Bernie

    In NSW, the state I know best, private landowners have no power to stop mineral exploration and mining on and under their land. They can be forced into arbitration and ultimately have the resources extracted from around them even if they are entirely opposed to this. The only exceptions are the pitiful safeguards that prohibit these activities within (I understand) 200m of houses and 50m of gardens.

    It would be great if NSW legislation was amended to enable private landholders to stop…

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    1. Bernie Masters

      environmental consultant at FIA Technology Pty Ltd, B K Masters and Associates

      In reply to Mark Graham

      Mark, thanks for the comment. WA media contains regular articles about the problems you describe which I agree are serious, not just for landowners but for the environment. What I can't understand is why a NSW or Queensland government would prefer to hand over powers to Canberra rather than legislate within their own Parliaments so that landowners have the same rights as here in WA. I spent 8 years in the 1980s working for a mining company and negotiating with farmers and other landowners. They knew they had the whip hand over us but, without exception, they all signed agreements allowing us to mine because, through the agreements, they had set the conditions under which mining could proceed. It was a genuine win-win situation and it's a model which I believe should be exported around Australia.

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  4. Steve Gibbons

    Business Development Manager

    I note that WA wasn't invited to be a signatory.
    Following the announcement of the NPACSG, the Prime Minister wrote to Queensland, Victoria, South Australia and the Northern Territory governments asking them to be signatories. The Queensland government signed up to the agreement in February this year and the signature of the New South Wales government appears to be imminent. The remaining states are yet to join.

    Today.........
    Western Australian Environment Minister Bill Marmion has given the green light for fracking of shale gas wells after months of uncertainty for oil and gas companies.

    The minister has effectively backed the oil and gas industry and rejected the appeals against onshore gas exploration for four proof-of concept proposals that will use hydraulic fracturing to test the potential for commercial flows of gas from shale and tight gas resources in the State's Mid West region.

    Shame WA SHAME!!!!

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    1. Bernie Masters

      environmental consultant at FIA Technology Pty Ltd, B K Masters and Associates

      In reply to Steve Gibbons

      Steve, the WA EPA, a body independent of the WA government, assessed the fracking proposals as not requiring formal public assessment because they posed no unacceptable adverse environmental risks. I assume the proposals are to occur on public land, not private land, as the landowners could have used their power of veto to stop the proposals in their tracks if they were unhappy with what the company was hoping to undertake. So where is the problem in allowing fracking to occur in a way that does not harm the environment? Please explain!

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  5. Samantha Hepburn

    Professor, Faculty of Business and Law at Deakin University

    Hi Lorna,

    Thanks for your posting. If NSW signs up to the NPACSG then it would mean that the independent committee would prepare a report on the potential impact to significant water resources (as I mention, whether a NSW water resource fits this definition will be determined by a range of criteria including community concern and the existence of an eco-system). The importance of such a report lies in the fact that it is (a) prepared by an independent committee and (b) examined prior to any approval of a relevant CSG proposal under the NPACSG.

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    1. Lorna Jarrett

      PhD, science educator and science advocate

      In reply to Samantha Hepburn

      Hi Samantha,

      There's certainly community concern about development of CSG in Sydney water catchment - enough for ABC, channel 9 and channel 7 to send helicopters out to cover it.
      So I assume it would quality to be reported on but would the report have any impact in terms of halting the drilling?

      What's infuriating about all this is that if we don't extract the gas now, it won't disappear. It might be possible to extract it more cleanly in the future - and use it more wisely.

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  6. wilma western

    logged in via email @bigpond.com

    Yet another significant initiative that was largely ignored by the mainstream media which concentrated on political navel-gazing, not on government decisions and policies .

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  7. Stewart Macdonald

    Ecologist

    Just a minor thing. The E in EPBC stands for Environment, not Environmental.

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  8. Kerry Carrington

    Professor, Head of School of Justice at Queensland University of Technology

    Samantha,
    You make a very vital point in this article about the limits of regulatory instruments that rely on the proponents to produce their own scientific environmental assessments. The same can be said about the Qld Government's relatively new Social Impact Guidelines, which have also spawned an industry in privatised social impact assessments. These reports are not subject to peer review or any of the protocols required of independent research. The whole process is fraught with conflicts of interest and yet this is the process informing fundamental decisions about 60 billion worth of new resource extraction projects in Qld. The partnership agreement has improved the process for environmental impact, but not social impact and this is also urgent.

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    1. Samantha Hepburn

      Professor, Faculty of Business and Law at Deakin University

      In reply to Kerry Carrington

      Thanks for your comments Kerry,

      The extensive and emergent regulatory framework dealing with csg applications, especially in Queensland and NSW, whilst promoting greater opportunities for an interactive information network via the creation of an independent scientific body (NPACSG), codes of conduct (NSW) and regulatory controls at a state and federal level, remains unsatisfactory in many respects because the new mechanisms are defined in broad and non-specific terms, they are often advisory and in this respect, have a very limited power of veto. If regulators are striving to achieve a balance between economic, environmental and social objectives, I am not sure we are there yet.

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