The Draft National Harmonised Regulatory Framework: Coal Seam Gas
Submittor: / Ruth BorgerAddress: / Owens Lane via Seaspray VIC 3850
Email: /
Confidentiality: / Happy to have submission published
Executive Summary
- There cannot be co-existence where a power imbalance between parties exists.
- The risks of CSG exploration and mining far outweigh any perceived benefits.
3. Continuing to foster fossil fuel use and development in the face of serious climate change is unreasonably negligent.
1. Chapter One: Towards Sustainability and Co-existence
1.1 The Draft National Harmonised Regulatory Framework: Coal Seam Gas (the Draft Framework) outlines the following principles:
Shared Commitments to:
§ multiple and sequential land use
§ better informed public discourse on resource development
§ the delivery of best possible outcomes for affected communities
Multiple Land Use Framework
§ demonstrate a commitment to maximising the social, economic and environmental value of land and marine environments.”[1]
1.2 Social Licence to Operate
“Australia cannot reap the benefits from CSG development if industry’s social licence to operate and resulting community confidence have not been established.”[2]
‘To ensure that the needs of participants involved in CSG development are addressed, it is necessary to determine what environment is required to best facilitate this outcome. This environment needs to have a focus on the principle of co-existence, where there is a shared commitment among the resources industry, other land users and governments to: multiple and sequential land use; better informed public discourse on resource development; merit based land access providing certainty for industry and improved community confidence in land use decision-making; and finally, the delivery of best possible outcomes for affected communities.’[3]
2. Response to Chapter One
2.1 Without the consent of individual landowners and local communities, the CSG industry lacks the social licence to operate. The Draft Framework downplays the community anger at laws that allow miners access to private land. There are more than “instances of resistance” to CSG mining,[4] there is vehement and widespread opposition.
2.2 In spite of existing mining law, the assumption of “multiple and sequential land use” is strongly opposed by landowners. The concept of willing “Co-existence” is a nonsense while a power imbalance exists between the parties and while Governments facilitate the inequities.
2.3 The Draft Framework entrenches a mining company’s legal right to trample the landowner’s right to the quiet enjoyment of his/her land, even to “steal” his/her land via enforced “legal” occupation.
2.4 However, the idea that a landholder’s right to natural justice can be protected via this proposed Framework is highly contestable. For example, in Victoria, a refusal to consent to a mining company’s invasion of one’s land can be appealed at VCAT (Victorian Civil Administrative Tribunal). This is an unelected body appointed by the State Government whose decisions can only be appealed in the Supreme Court on an error of law.
2.4.1 Should the Victorian State Government’s proposal to raise appeal fees from $322 to $1000 to $2000 be implemented, the average landholder will generally lack the financial and legal resources (even more than they do now) to contest a mining company’s application for a licence over his/her land, let alone other legal costs. So, the chances of a landowner appealing occupation of his/her land is significantly reduced should the VCAT fees be raised (Submissions to this Draft policy closed 15 February 2013).
2.5 Human Rights Violations: The shared commitment to multiple and sequential land use” contravenes Article 17 of the Universal Declaration of Human Rights[5], which states:
“(1) Everyone has the right to own property alone as well as in association with others.
(2) No one shall be arbitrarily deprived of his property."
In accordance with the UDHR, Liberty Victoria[6], for example, interpret Article 17 to entitle individuals to:
· control and use of property
· the right to any benefit from the property
· a right to transfer or sell the property, and
· a right to exclude others from the property.
“In recognising these rights, Liberty Victoria acknowledges that such rights must be exercised within the bounds of the law. Liberty Victoria further acknowledges the government may apply the following limitations on the use of private property:
· that a person’s right to private property not unreasonably interfere with the property rights of another private party and their right of quiet enjoyment and privacy, and
· that the use of private property not unreasonably interfere with public property rights, including uses required for public health, safety, peace or convenience.
“This is consistent with Section 20 of the Victorian Charter of Human Rights and Responsibilities which provides: A person may not be deprived of his or her property other than in accordance with law.[7] Private property rights are also implicitly recognised in s 51(xxxi) of the Australian Constitution, which confers power on the Commonwealth Constitution to legislate for the acquisition of property, but only ‘on just terms’. Property rights are not confined to rights to private property. They include cultural and communal rights of the kind recognised as native title in Australia. Such rights extend beyond interests in land to community-owned art, folklore and traditional remedies. However there is currently no legal protection for such rights.”[8]
2.6. The point is that property rights are extinguishable under the current mining laws.
2.7 In Australia, the right to the quiet enjoyment of one’s land can also be destroyed or damaged by mining infrastructure and works on neighbouring properties. The landowner has no right to prevent or even influence drilling and infrastructure works not only on his/her land but also on neighbouring property where such works may cause Nuisance to the landowner. This is very different to the law in the USA where private individuals own much of the mineral rights across the country, not governmental or state organizations.[9]
2.8 Notwithstanding any rights to the quiet enjoyment of land above ground, the landowner cannot legally prevent underground mining works and infrastructure that may be beneath his/her home or other buildings and land.
3. The Social Licence to Mine
3.1 Sec 51 (i) and (xx) of the Australian Constitution states that the “Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to:
§ trade and commerce with other countries, and among the States”; and
§ foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth;” [10]
3.2 The role of Government is to protect the rights of its citizens; to ensure that it acts in the best interests of all and protects their health and happiness. Break this social contract and what follows is either anarchy or totalitarianism. It seems inconsistent with the legal precepts of the Australian Constitution that the Parliament could enact laws that cede vastly greater rights to powerful [mainly foreign] corporations while cancelling the rights of ordinary citizens in the process.
3.3 The principle of Co-existence is only meaningful where all parties have equal rights in law. For the landowner these rights must extend not only to his/her own land, including under the ground, but also to lands within a viable buffer radius.
4. Buffer Zones Compared
4.1 Wind Energy Facilities: The Victorian State Government’s policy on Wind Energy Facilities (windfarms) which requires a 2 kilometre buffer between a turbine and a dwelling[11] withouth the owner’s consent. And turbines are prohibited in specified Urban Growth Zones.[12]
4.2 Dog Kennels: The Victorian Code of Practice recommends a 500 metre buffer between a residence and a dog kennels business.
4.3 In comparison, buffer zones (if any) between dwellings and a mining/drill site can be as little as 100 metres.
4.4 There is no consistency between these buffers and no logical reason for the discrepancy. CSG mines, especially when clustered, are far more intrusive than a windfarm. So there should be a comparable buffer. Two kilometres is probably a minimum.
5. Community Benefit
5.1 Given that the Draft Framework continues to validate mining companies’ rights over individuals’ rights, there is no assurance whatsoever that “…the Framework will benefit the community … by providing increased levels of consistency, certainty and transparency in the management of CSG development in Australia.”[13] In reality, it will only benefit the mining industry.
6. Economic Aspects
6.1 “CSG operations can play a significant role in maximising equitable benefits to all stakeholders, including the community, local businesses, shareholders and government, through its contribution to Australia’s GDP, tax revenues and job creation.”[14]
“Best use of resources: Governments should seek to maximise the economic and social benefits of regulated land use for all Australians and future generations through encouraging the multiple use of regulated land, while respecting and protecting environmental, cultural and heritage values.”[15]
6.2 The proposition that “best use of resources” means that private land title rights should be subsumed without question to allow mining companies to “use/abuse” private property is immoral in the context of Australian democracy. This proposition is presented as a “fact” when there is no valid basis for it, other than an government endorsed inalienable right of mining companies to exploitation. It has been clearly demonstrated that the impacts of mining on small communities exact a heavy social, financial and personal toll.[16] The proposition, therefore, that mining can co-exist with other activities, especially agriculture, “while respecting and protecting environmental, cultural and heritage values” is simply false. And, as global experience of mining activities over time clearly demonstrates, is impossible.
6.3 Any financial benefits that mining (including exploration) may contribute must be measured against the financial disbenefits suffered by individuals and communities disadvantaged by CSG activities. Financial losses include declining property values and the inability to sell property affected directly or indirectly by CSG exploration and mining. The very identification of proposed mining sites is enough to cause real estate prices to fall.[17] Therefore, CSG contributions, if any, to GDP, tax revenues and job creation must be counterbalanced by the real losses from other activities, e.g. agriculture, the socioeconomic and health costs (including mental health) to individuals and communities. The cost to local government of maintaining local road infrastructure is just one example of a significant cost that must be borne by the local community via local Council rates. The costs to the economy caused by extreme weather events must also be included. Ironically, discounting the full economic impact of the the financial costs to mining from the 2011 Queensland floods, the financial losses to mining were in the billions of dollars.[18]
6.4 Environment Minister, Tony Burke’s conditional approval of Whitehaven’s Maules Creek coal mine and Idemitsu’s Boggabri expansion (widely reported but strongly criticised by Rob Oakeshott, MP and others) while this Draft Framework is still at the submission stage is a truncation of the policy decision-making process and implies that any new policy will not change the current state of play. In particular, the approvals granted to Whitehaven are troubling from a governance perspective, given its embroilment in the Eddie Obeid corruption investigation by ICAC.
7. Educating the Public
“Governments also play a significant role as educators by providing key messages and information to assist the general public, the CSG sector and the media. In this way, all parties will better understand and appreciate the importance of co-existence in land use, what governments are doing to protect the public interest, and the communities’ expectations of resource companies in working with land holders and local community leaders.”[19]
7.1 This statement suggests that Governments are bent on a propaganda exercise that conflates “the public interest” with “mining interests” and belittles the rights of other interests be they those of farmers and other people or small communities. This has little to do with communities’ expectations which clearly are at odds with Governments’ objectives.
8. Application of Leading Practice
8.1 The list of Leading Practices omits the application of the Precautionary Principle, a guiding principle of several international treaties to which Australia is a signatory. It is included in various Federal and State legislation such as the National Strategy for Ecologically Sustainable Development (ESD Steering Committee 1992) and the Inter-Governmental Agreement on the Environment (IGAE) (Australian Government 1992, para. 3.5.1).
The precautionary principle is designed to ensure that decision-making accounts for uncertain but potentially serious and/or irreversible threats of harm.
9. A Rigorous Assessment Process
“A rigorous impact assessment will:
§ ensure environmental and human health considerations are explicitly addressed and incorporated into the development decision-making process
§ anticipate and avoid, minimise or offset the adverse biophysical, social (including human health) and other relevant effects of development proposals
§ protect the environmental values of natural systems and the ecological processes which maintain their functions
§ promote development that is sustainable and optimises resource use and management opportunities (IIIA 1999).”[20]
9.1 The term “sustainable” is not defined but assuming that compliance with the objectives outlined in the first three dot points will contribute to sustainability, then the fourth dot point is logically inconsistent because it is difficult to see how development that “optimises resource use” can be sustainable, noting that the Dictionary definition of “optimise” is to “make the best or most effective use of [a situation or resource]” [21] From a mining company’s perspective, making the best use would surely be to make the most profits possible.
10. Environmental Management Plan
“An environmental management plan is required to ensure that the potential environmental impacts of each CSG activity are understood and strategies are put in place to manage or remove those risks.”[22]
10.1 As the Draft Framework notes,[23] it is impossible to eliminate risks. The problem is that mitigation and minimisation strategies cannot protect against the many well-documented environmental risks. No environmental management plan can guard against human or technical errors (e.g. the Exxon Valdez Alaskan oil spill in 1989). Even with the best intentions, no drilling process is absolutely fail safe (e.g. the 2010 BP Deepwater Horizon oil castrophe in the Gulf of Mexico). In another case closer to home, the oil spill/leak off the Kimberley Coast in 2009, reportedly resulted from “schedule and cost likely [being] put ahead of safety and the environment”.[24] So, the risks of a drill puncturing an aquifer and of chemical contamination where toxic chemicals are employed in fracking cannot be legislated away. Neither human errors nor technological failures can be eliminated absolutely. Hence the strong need to invoke the Precautionary Principle when assessing the risks of mining.