On 9 November 2012, the Independent Expert Scientific Committee on Coal Seam Gas and Large Coal Mining Development (Committee) was established following the coming into force of amendments to the Environment Protection and Biodiversity Conservation 1999 (Cth) (EPBC Act).
These reforms require decision makers to obtain and take into account the Committee’s advice on the impacts of coal seam gas (CSG) and large coal mining (LCM) developments that are likely to have a significant impact on water resources before deciding whether or not to approve the development.
The amendments to the EPBC Act will affect those engaged in:
has, or is likely to have, a significant impact on water resources (including any impacts of associated salt production and salinity).
Such developments may have a significant impact either directly or cumulatively, when considered with other developments, whether past, present or reasonably foreseeable developments.
The EPBC Act adopts the definition of the term ‘water resource’ as set out in the Water Act 2007 (Cth), which means:
In circumstances where the Commonwealth Minister for Environment (Minister) forms the view that a CSG or LCM development:
the Minister must obtain advice from the Committee before deciding whether or not to approve the development (new section 131AB of the EPBC Act). The Committee must provide the advice within 2 months of the request by the Minister.
Once the Committee’s advice is provided, the Minister must consider the advice in deciding whether or not to approve the development (new section 136(2)(fa) of the EPBC Act).
The aim of the establishment of the Committee is to provide more certainty for regional communities around CSG and LCM developments, jobs and investment, and the protection of water resources.
The Committee will comprise of between 5 and 8 members appointed by the Minister on a part-time basis. Although the Minister may appoint members with expertise in other areas relevant to the performance of the Committee’s functions, the majority of the members must possess scientific qualifications in geology, hydrology, hydrogeology and/or ecology.
In addition to providing advice to the Minister under the new section 131AB of the EPBC Act, the Committee is responsible for:
The primary aims of the Agreement are to:
The Agreement commences on execution by the Commonwealth and any other party. On 14 February 2012, Queensland became the first signatory to the Agreement. The Agreement has now also been signed by New South Wales and South Australia.
The Agreement requires signatories to amend relevant laws, regulations and guidelines to provide the following outcomes:
Further, signatories must seek advice from the Committee at appropriate stages of the approvals process for CSG or LCM development proposals that are likely to have a significant impact on water resources.
The Agreement provides that States and Territories are to meet the following milestones:
Despite the passage of the first milestone, New South Wales has not published any such protocol. Until such time as these milestones are achieved, it is difficult to comment on the implications of the referral regime.
However, on 30 September 2012, the Queensland Government published its protocol, which provides that:
Despite the fact that the Committee has been established and functions under the Commonwealth EPBC Act, due to the operation of the Agreement, the requirement for decision makers to obtain and consider advice from the Committee will also apply to State and Territory approval processes. This additional referral regime has the potential to increase the timeframe and complexity of the approvals process for CSG and LCM developments. Therefore, the NSW Government will need to ensure that the referral decision is made early in the approval process to avoid unnecessary delays to such developments and to ensure that the requirements are clear and transparent to avoid making the approvals process more complex.
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