The modern minefield – water approvals for mining projects
Look out for our previous insight articles (as well as articles still to come) on the following topics:
- understanding water regulation;
- the modern minefield – water approvals for mining projects;
- water theft and offences;
- strategic water sharing options;
- project delivery options for large-scale water infrastructure;
- pricing and competition for water;
- native title and cultural heritage, and water; and
- defects and compliance in construction.
This article gives an overview of the water regulatory regime for resource projects in Queensland, by exploring the following questions:
- Do you need an authority to take or interfere with water for your project?
- What is an ‘Associated Water Licence’ and do you need one?
- How do you comply with water monitoring obligations off-tenure?
- When do you need a water licence for diverting a watercourse?
- Do you need authority from the State or Federal Government Departments to take or interfere with water for your resource project?
Critically, the rights to all water in Queensland are vested in the State. Predominantly, the water regulatory regime for resource projects is spread across multiple Queensland Acts, including:
(a) Petroleum and Gas Production and Safety Act 2004 (Qld) (P&G Act);
(b) Mineral Resources Act 1989 (Qld) (MR Act);
(c) Water Act 2000 (Qld) (Water Act); and
(d) Environmental Protection Act 1994 (Qld) (EP Act).
However, in 2013, the ‘water trigger’ was introduced into the national Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act), meaning that:
(a) coal seam gas (CSG) projects; and
(b) coal mining development,
impacting on water resources are now considered a matter of national environmental significance (MNES), and those projects may also need to obtain approval under the Federal regime.
The impact of resources projects on underground water resources in Queensland has been a critical issue for project proponents and stakeholders in recent years. This has been a key focus of objections to a number of mining projects, as seen in both the Adani approval process, with respect to the water licence to take water from the Suttor River, and for New Acland Stage 3, which was the longest ever Land Court trial, with an objection focusing on impacts to groundwater. Subsequently, water approvals are now a key strategic matter for resources projects in the current climate and have been subject to substantial regulatory reform over the past five years.
Notably, statutory rights to take or interfere with underground water in Queensland vary depending on whether water is associated water or non-associated water. Proponents must obtain an authority under the Water Act, such as a water licence, to take or interfere with non-associated water when undertaking authorised activities, such as, for example:
(a) water taken for consumptive uses such as camp water; or
(b) water taken from a water bore for use in mine operations.
Historically, there have been discrepancies between the P&G Act and the MR Act with regards to statutory rights to associated water. Under the P&G Act, holders of petroleum tenements (including petroleum leases (PLs)) have the right to take and interfere with an unlimited amount of associated water.
Associated Water Licence
Under the MR Act, coal producers historically did not have the same statutory underground water rights as other producers. For instance, coal producers would generally need to apply for a water licence in order to de-water the coal seam and access the deposit. Various water plans sit under the Water Act to manage the specific resources within certain areas or formations. It became apparent that there were situations where the water plan that applied for specific coal projects did not provide a pathway to take or interfere with the water, as was necessary to extract the coal.
The Water Reform and Other Legislation Amendment Act 2014 (Qld) was therefore introduced to give producers under the MR Act, the same statutory underground water rights for associated water (underground water rights) as PL holders.
Due to concern from a number of stakeholders about the impacts on water resources which might result from coal projects exercising statutory water rights, the Environmental Protection (Underground Water Management) and Other Legislation Amendment Act 2016 (Qld) was introduced, to amend the new MR Act statutory water rights, before they commenced.
The amendments introduced the concept of an Associated Water Licence (AWL). While there is often some confusion about an AWL, its role is essentially that of a transitional authority, to ensure projects which impact underground water are subject to assessment. For new projects, the impacts on underground water will be assessed as part of the application for an environmental authority (EA). Separately, whether a project requires an AWL depends on its status prior to 6 December 2016.
Proponents who require an AWL are unable to exercise statutory underground water rights without first obtaining an AWL, thereby having the project’s impacts on underground water assessed. Importantly, AWLs are subject to public notification and appeal rights. Moving forward, resource tenure projects under both the P&G Act and MR Act have underground water rights for associated water. However, proponents must obtain a separate approval under the Water Act to take non-associated water in a regulated groundwater area.
Underground water management
When exercising underground water rights, resource tenement holders must report the volume of associated water that they take and specifically for mineral development licence (MDL) and mining lease (ML) holders, the time the exercise of underground water rights commences. The Water Act provides a detailed set of obligations on operators to manage the impacts on underground water including:
(a) underground water impact reports;
(b) provisions for projects within cumulative management areas (Surat CMA); and
(c) bore assessments together with make good agreements for impacted parties.
Surface and non-associated water
Where impacts on water relate to:
(a) groundwater related to non-associated water, for example, water taken for consumptive uses such as camp water, or water taken from a water bore for use in mine operations; or
(b) the take or interference with surface water,
proponents may require an approval (such as a water licence) under the Water Act, as managed through the water plan for the relevant area.
Importantly, resources proponents should note that water licence applications may be publicly notified and subject to third party appeals.
Resource project activities often require the diversion of watercourses in order to access the resource deposit. Proponents have a statutory right under the Water Act to interfere with (but not take) the flow of water in a watercourse where the impacts of the interference were assessed as part of the EA application for the project, and there are EA conditions which address the watercourse diversion. A proponent may still need to apply for a water licence under the Water Act as a separate authority in some circumstances.
Water monitoring authorities
As part of underground water management obligations for a resource project, proponents are often required to monitor water at locations which are outside of the area of the tenement (i.e. ML or PL).
Given the importance of underground water monitoring obligations, water monitoring authorities (WMA) under both the MR Act and P&G Act have been introduced in order to provide a pathway for resource tenement holders to effectively comply with these obligations by providing, amongst other things:
(a) an authority to undertake those activities off-tenure; and
(b) a mechanism to be able to gain access to that land.
A WMA can be obtained over land which overlaps other mining or petroleum tenure. WMAs are ‘resource authorities’ for the purposes of the Mineral and Energy Resources (Common Provisions) Act 2014 (Qld) (MERCP Act). That means, the land access framework under the MERCP Act is available to holders of a WMA. Providing this land access framework is particularly important where there may not be an existing relationship between the relevant landholder and the proponent.
Under the EPBC Act, projects that have, or are likely to have, a significant impact on MNES must be referred to the Federal Minister who will determine:
(a) whether or not a project is a ‘controlled action’ requiring assessment and approval under the EPBC Act; and
(b) if so, following assessment, whether the action should be approved and the project allowed to proceed, with or without conditions.
The Environment Protection and Biodiversity Conservation Amendment Bill 2013 (Cth) (which commenced on 22 June 2013) introduced the impacts of CSG projects or large coal mining developments on water resource as a MNES. That is, CSG or coal mining projects (in reality, of any size) may require Federal Government assessment and approval if they are likely to have a significant impact on a water resource. The water trigger has been controversial since prior to its commencement, and remains complex to understand when considering transitional protections that would otherwise apply under the EPBC Act.
The water regulatory framework for resources projects is complex and multifaceted and this article sets out a non-exhaustive summary of some of the approval related issues faced by our clients. Please do not hesitate to contact a member of our specialist resources and approvals team below for assistance in navigating approvals which might be required for your resources project, such as:
(a) the impact of expansion projects on existing EPBC Act referrals or approvals;
(b) land access for water monitoring obligations;
(c) make good agreements; and
(d) whether specific interference with or take of water may trigger an approval requirement.
Many thanks to Laura Sclavos, Graduate, for her assistance in putting this article together.
This publication covers legal and technical issues in a general way. It is not designed to express opinions on specific cases. It is intended for information purposes only and should not be regarded as legal advice. Further advice should be obtained before taking action on any issue dealt with in this publication.