What is the role of the Federal government?

 

The Federal government’s role in relation to mineral and petroleum exploration and production is to assess any action that has, will have or is likely to have a significant impact on a ‘matter of national environmental significance’ and to approve or not the action under the Environment Protection and Biodiversity Conservation Act 1999 (Cth). Amendments to that Act in July 2013 included ‘a water resource, in relation to coal seam gas development and large coal mining development’ as a ‘matter of national environmental significance’. This section overviews the role of the Federal government in relation to mineral and petroleum exploration and production.

 

What is the role of the federal government?
 

The Federal Government only has a role in relation to mineral and petroleum exploration and production if environmental assessment and approval for the exploration or production activity is required under the Environment Protection and Biodiversity Conservation Act 1999 (Cth).

 

Environment Protection and Biodiversity Conservation Act 1999
 

The Environment Protection and Biodiversity Conservation Act 1999 is the Federal Government’s central piece of environmental legislation. It provides a legal framework to protect and manage important flora, fauna, ecological communities, heritage places and, in relation to coal seam gas and large coal mining, water resources. These are defined in the Act as ‘matters of national environmental significance’.

 

Mineral or petroleum exploration or production which may have, will have or are likely to have a ‘significant impact’ on one or more ‘matters of national environmental significance’ are referred to as ‘controlled actions’ and will need to be assessed and approved by the Federal Environment Minister under the Act before the action can undertaken.

 

The ‘matters of national environmental significance’ included in the Act are:

  • world heritage values of a declared World Heritage property;[i]

  • national Heritage values of a national heritage place;[ii]

  • ecological character of a declared Ramsar wetland;[iii]

  • extinct in the wild, critically endangered, endangered, or vulnerable species and ecological communities;[iv]

  • listed migratory species;[v]

  • nuclear actions including mining of uranium and radioactive waste;[vi]

  • marine areas;[vii]

  • the Great Barrier Reef Marine Park; and[viii]

  • water resources, where coal seam gas or large coal mining development has, will have, or is likely to have a significant impact on those resources[ix].

 

A mineral or petroleum explorer or producer which proposes action that has, will have, or is likely to have a significant impact on any of the matters of national environmental significance must refer that action to the Federal Environment Minister for a decision on whether assessment and approval is required under the Act. Penalties can be imposed if such actions are not referred to the Environment Minister.

 

The requirement that any actions relating to mineral and petroleum exploration and production that have, will have, or are likely to have a significant impact on a matter of national environmental significance be assessed under the Act is in addition to any environmental assessments and approvals required from the NSW Government.

 

The ‘water trigger’

You may have heard the term ‘water trigger’ used to describe the last of the matters of national environmental significance listed above, that is, ‘water resources, where coal seam gas or large coal mining development has, will have, or is likely to have a significant impact’.

 

This matter of national environmental significance was added through amendments to the Environment Protection and Biodiversity Conservation Act 1999 which passed the Federal Parliament on 19 June 2013 and came into effect on 22 June 2013.[x]

 

Which coal seam gas and large coal mining activities are captured by the water trigger?

For the purposes of the water trigger ‘coal seam gas development’ is defined as:

 

... any activity involving coal seam gas extraction that has, or is likely to have, a significant impact on water resources:

(a) in its own right; or

(b) when considered with other developments, whether past, present or reasonably foreseeable developments.

 

The definition includes any impacts of associated salt production and/or salinity.

 

For the purposes of the water trigger a ‘large coal mining development’ is defined as:

 

... any coal mining activity that has, or is likely to have, a significant impact on water resources (including any impacts of associated salt production and/or salinity)

(a) in its own right; or

(b) when considered with other developments, whether past, present or reasonably foreseeable developments.

 

Activities covered

The definitions of ‘coal seam gas development’ and ‘large coal mining development’ for the purpose of the water trigger relate to impacts on a water resource of activities that form part of the process of extracting coal or coal seam gas.

 

The development of infrastructure associated with coal seam gas or large coal mining development that is not part of the extraction process is not included in the definitions of coal seam gas development or large coal mining development for the purposes of the water trigger. Extraction of coal seam gas or coal must form part of the activity and not merely be associated with it.

 

When referred along with a new or modified proposal for the extraction of coal seam gas or coal, the following activities will form part of the extractive process for the purposes of the water trigger:

  • water supply for use in the extraction of coal seam gas or coal;

  • management of water generated as a result of extraction of coal seam gas or coal, such as holding dams or water treatment facilities, and

  • management of waste generated as a result of extraction of coal seam gas or coal.

 

However, these activities will not independently be captured by the water trigger if there is no new or modified extraction of coal seam gas or coal planned as part of the activity.

 

Developments which do not form part of the definition include:

  • transport infrastructure, such as pipelines, road or rail infrastructure;

  • office/housing and amenity construction, and

  • environment protection, monitoring and associated land management activities.

 

However, if such actions impact on any of the other matters of national environmental significance they require assessment.

 

What is an ‘action’ for the purposes of the Act?

‘Action’ is defined broadly in the Environment Protection and Biodiversity Conservation Act 1999 and includes:

 

  • a project, a development, an undertaking, an

  • activity or a series of activities, or an alteration of any of these things.

 

Actions include, but are not limited to:

 

  • site preparation and construction, operation and maintenance, and closure and completion stages of a project, as well as alterations or modifications to existing infrastructure.

 

An action may have both beneficial and adverse impacts on the environment, however only adverse impacts on matters of national environmental significance are relevant when determining whether approval is required under the Act.

 

What is a ‘significant impact’?

The Federal Government has produced ‘significant impact guidelines’ which set out criteria for determining whether an action will have a significant impact on a matter of national environmental significance.

 

To view the Significant Impact Guidelines for Matters of National Environmental Significance visit:

Significant Impact Guidelines – Matters of National Environmental Significance

To view Significant Impact Guidelines for Coal Seam Gas and Large Coal Mining Developments visit:

Significant Impact Guidelines – Coal Seam Gas and Large Coal Mining Developments

 

Application of the precautionary principle

When deciding whether or not a proposed action is likely to have a significant impact on a matter of national environmental significance, the precautionary principle is relevant. Where there is a risk of serious or irreversible damage, a lack of scientific certainty about the potential impacts of an action will not itself justify a decision that the action is not likely to have a significant impact on a matter of national environmental significance.[xi]

 

How are impacts assessed?

The Federal Environment Minister decides what kind of environmental assessment is required for each action which requires assessment under the Environment Protection and Biodiversity Conservation Act 1999.

 

An environmental impact statement prepared for assessment by the NSW Government of a mineral or petroleum development is commonly accepted as the basis for assessment of the development under the Act should that be required.

 

Under a bilateral agreement in place between the Commonwealth and NSW Governments, the Commonwealth Government has agreed that the NSW Government’s assessment report will be used as the basis for the Commonwealth Minister’s decision. The Commonwealth Minister still retains the ability to seek any additional information or assessment required to fully inform a decision.

 

Role of the Independent Expert Scientific Committee on Coal Seam Gas and Large Coal Mining Development

The Independent Expert Scientific Committee on Coal Seam Gas and Large Coal Mining Development was established by the Federal Government in 2012.

 

The Committee provides scientific advice on the potential water-related impacts of coal seam gas or large coal mining proposals to Federal and State Governments so that decisions made by those governments are informed by the best available science.

 

The Federal Environment Minister must obtain advice from the committee on any assessments of coal seam gas or large coal mining developments required under the water trigger.

 

The NSW Mining and Petroleum Gateway Panel must also seek advice from the Committee when determining an application for a Gateway Certificate if that application relates to land verified as Biophysical Strategic Agricultural Land.

 

For information on the Mining and Petroleum Gateway Panel  see:

What happens at the Mining and Petroleum Gateway Panel Stage?

[i] Environment Protection and Biodiversity Conservation Act 1999 (Cth) s 12.

[ii] Ibid s 15B(1).

[iii] Ibid s 16(1).

[iv] Ibid s 18.

[v] Ibid s 20A.

[vi] Ibid s 21.

[vii] Ibid s 23.

[viii] Ibid s 23B.

[ix] Ibid s 24D.

[x] Australian Government Significant impact guidelines 1.3 Coal seam gas and large coal mining developments — impacts on water resources (Department of the Environment, December 2013).

[xi] Ibid.

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