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Senate Estimates: Gladstone Harbour, Nuclear Actions and Whitehaven Coal

Estimates & Committees
Larissa Waters 19 Nov 2013

Senator WATERS: I have a number of issues that I want to raise. I would like to start with the Gladstone Harbour. I saw in the papers on the weekend that the new minister has now ruled out offshore dumping of the dredge spoil for the second shipping channel in Gladstone, which is in some ways a welcome development. However, as I am sure the department is aware, the last time there was onshore land reclamation of the dumping from the Western Basin project, it leaked and caused further turbidity problems. There were reports out this morning that it had actually then contributed to an algal bloom, which may well have played into the fish disease in the harbour. What will the department do to ensure that we do not have a repeat of that situation with the onshore reclamation?

Mr Knudson: With respect to the channel duplication project in Gladstone Harbour, the proponent has indeed lodged a referral with the department on that and they are in the process of developing their environmental impact statement. In the referral documentation they refer to taking a look at the impacts associated with a range of different disposal options, including onshore options et cetera. They will be progressing that. Part of that will obviously be that they will need to take a look, in a comprehensive way, at any potential impacts that the dredge disposal could have-wherever it is proposed to be disposed-and make sure that it is adequately managed. Obviously, trying to deal with the issues along the lines of what you have outlined would be a part of that assessment.

Senator WATERS: Do you envisage that there would be additional conditions, given that you had conditions last time and they still leaked? Can we be assured that there will be particular attention paid to that issue to try and save what is left of Gladstone Harbour?

Mr Knudson: The issue, as you phrased at the end, is effectively making sure that whatever is proposed by the proponent and what measures they are thinking of putting in place, combined with any conditions of approval that may be attached to a decision, if that is what is decided, would adequately deal with the issue. Obviously, we always take a look back on past practices and figure that if there are areas where we need to change our practices, so be it. But my point is that the proponent will be taking a look at this issue and may indeed be coming forward with a different approach based on past experience, one that may not necessitate additional Commonwealth conditions if the proponent is already proposing to deal with such matters.

Senator WATERS: Okay. Thank you. Just making sure the proponent actually complies with the conditions this time would be good-but that is another matter.

I want to move to the Western Basin Dredging and Disposal Project. What checks did the department do to make sure that the EIS that was prepared by the Gladstone Ports Corporation took into account all known information about the state of the local environment?

Mr Knudson: It would seem that we are going to have to take that one on notice just because it is the bit of a dated project for us; so we are going to have to dig into our files and come back to you on that specific question.

Senator WATERS: All right. What action did the department take on warnings that I understand were made by GBRMPA about the need for a strategic assessment to be undertaken in Gladstone Harbour for all of the various LNG plants and the dredging project? What was the reaction, what action did the department take, on that advice from GBRMPA that in fact a strategic assessment was warranted in Gladstone Harbour?

Ms Cameron: Senator, do you have a date for when GBRMPA said that, about a strategic assessment? I remember something, but it was

Senator WATERS: From memory, it was August 2011. It has been in the public domain in recent media reports. It is perhaps more within your purview than mine to be across those dates.

Mr Knudson: Senator, what I would say is that the department is required to assess any referral which it receives, and so, if a proponent decides to proceed with an individual project, then we will assess that project. The second thing I would say is that, obviously, both the Great Barrier Reef Marine Park Authority and the government of Queensland have been involved in a pretty extensive exercise of developing comprehensive strategic assessments on the coastal area as well as the marine area, and those obviously have Gladstone as well as a number of other ports within scope.

Senator WATERS: Okay. As you know, anything that is currently on foot in fact is not going to be dealt with by that strategic assessment, so we will just park that. My specific question was: what specific action did the department take when GBRMPA warned that, if there was not a strategic assessment done for Gladstone, EPBC processes would in effect be flawed? Was any action taken or not?

Mr Knudson: Again, I think, going back to Ms Cameron's comment, we will have to take that on notice.

Senator WATERS: Okay. Did the department inform the minister of GBRMPA's warning in that respect?

Mr Knudson: That would be in the same category as the previous question: we will have to take that on notice.

Senator WATERS: Okay. I want to move now to the bilateral agreements, both the assessment and approval bilateral agreements. Firstly, going to the renegotiated Queensland bilateral, I confess-and this is my area-I find it very confusing. Could you please explain to me: what is the intended effect of the alteration to the scope of the bilateral agreement as regards nuclear actions and Great Barrier Reef Marine Park waters and Commonwealth waters? What is the effective change? It is on page 7, particularly clause 12.3.

Dr Bacon: With the Queensland assessment bilateral revisions-the revisions to an existing assessment bilateral with Queensland-there are, basically, probably two main substantive changes that have occurred. The first is to broaden the matters of national environmental significance that can be addressed under the assessment bilateral, and the broadening of those matters is to include matters in relation to the Great Barrier Reef and in relation to nuclear matters as well as Commonwealth marine matters. The second substantive change, revision, to the agreement is to put in place a range of additional administrative streamlining measures. One example of that is to cooperate around a single set of conditions.

Senator WATERS: Okay. I have understood the second part. Just a follow-up question on the first part: so am I correct in saying that the new scope of the assessment bilateral-now that Queensland will undertake these assessments on behalf of the Commonwealth-will now include all GBR Marine Park areas, all GBR World Heritage waters and all Commonwealth waters?

Also, on nukes, are there some carve-outs? I do not quite understand clause 12.4(c) about nuclear actions. Are you intending to impart all nuclear action that is currently regulated under the EPBC Act to Queensland? Or are you intending to retain some power over the assessment of nuclear actions?

Mr Barker: The provision in 12.4(c) effectively replicates a provision in the act which prohibits the Commonwealth minister approving those types of actions-and, in fact, those types of actions being assessed under the act. It just replicates an existing carve-out under the EPBC Act.

Senator WATERS: In that it gives it all to Queensland or that it does not give it to Queensland?

Mr Barker: It does not give it to Queensland; it carves it out of the agreement.

Senator WATERS: It doesn't?

Mr Barker: That is right.

Senator WATERS: So you are retaining the assessment of all aspects of nuclear actions that are currently regulated federally?

Mr Barker: No, that provision effectively prohibits those types of actions-a nuclear power plant, an enrichment plant or that type of thing-from being approved under the EPBC Act. There is no role for an assessment or approval of those types of activities.

Senator WATERS: That is what the act says. Why does that need to be reflected in the agreement. Is this seeking to make any change to what the act says? What are you trying to do with 12.4(c)?

Mr Barker: No, not in that respect. I think that is just there for the purpose of clarity.

Senator WATERS: So the Commonwealth will retain its full responsibility for the assessment and approval of any nuclear actions, be they prohibited or not by the terms of act-and the state cannot have any role in assessing or approving that? Is that correct?

Mr Barker: No. Maybe I am confusing things a little. I apologise. That provision relates to a subset of nuclear actions which cannot be approved under the EPBC Act. Uranium mining and other types of mining which involve radioactive products and decayed products of uranium, for example, can be assessed and approved under the EPBC Act.

Senator WATERS: By whom?

Mr Barker: Approved by the Commonwealth minister and assessed, under this agreement, by the state.

Senator WATERS: Thank you-that is what I was trying to get at. So this does give away the assessment of uranium mining to Queensland where previously it sat with the feds?

Mr Barker: Yes, it allows the state to undertake those assessments, subject to the agreement.

Senator LUDLAM: Would you not call that a substantive change? When you listed your two substantive matters, the fact that you would be delegating uranium assessment back to a state government-you did not list that as a matter you thought was worth drawing to our attention as substantive?

Dr Bacon: When I talked about the main substantive changes, one of them was to broaden the matters of national environmental significance which can be assessed under the Queensland assessment bilateral. When I mentioned 'nuclear', I had intended to include the nuclear matters which can be assessed by the Commonwealth. This assessment bilateral, once it is finalised by the state, does include uranium mining under the EPBC Act.

Senator LUDLAM: Is this seen as a model for future relations with other states, including WA, for example, where there are live assessment processes afoot?

Dr Bacon: The policy is to broaden, wherever we can, assessment bilateral agreements with states and territories-or, if there is no existing assessment bilateral agreement, to put one in place. With the example of WA, we would be looking at options for broadening their current assessment bilateral agreement.

Senator WATERS: On that second aspect of the change about the single set of conditions, is it yet known who will be enforcing those conditions? My sense from the agreement is that the intention is that the state will be implementing most of the conditions and the Commonwealth will be only tacking on what cannot be done by the state. Who will be responsible for the enforcement of this single set of conditions? Does that mean there will be no federal conditions and no more enforcement by the feds-or by the community to hold the feds to those conditions?

Mr Barker: I think this is a matter still to be discussed with the states-about exactly the shape in which that might be embedded between the Commonwealth and the state. It sort of depends on which jurisdiction is imposing the condition.

Senator WATERS: Yes, precisely.

Mr Barker: If the conditions were imposed by both jurisdictions and consolidated in a single condition document, the obligation to enforce the condition remains with the jurisdiction that imposes it. If it is wholly a condition that the state imposes or that the Commonwealth imposes, that jurisdiction would retain responsibility for the enforcement.

Senator WATERS: We are obviously paying close attention to the conditions the federal government will retain the application of and therefore the enforcement of. I trust you are advising the minister appropriately around that. Moving to approvals bilats, I was very interested in the MOU with the Queensland government and the Commonwealth, that there did not seem to be a restatement of the minister's earlier commitment to retain three things: Commonwealth waters, new clear actions, and state-run projects. Has there been a policy change? Why are what we thought were carve-outs that would be retained by the Commonwealth not reflected in the MOU?

Dr Bacon: The policy position is to pursue as comprehensive an accreditation arrangement with each state and territory as possible, subject to the requirements and the standards set out in the EPBC Act being met.

Senator WATERS: So the negotiations will be undertaken on the basis that Commonwealth waters, new clear actions and state-run projects will not be quarantined by the Commonwealth from an approval bilat? Is that correct?

Dr Bacon: There are particular issues around actions in Commonwealth waters or on Commonwealth land or Commonwealth actions. Those matters are within Commonwealth jurisdiction. We are anticipating the Commonwealth will retain a role in relation to those matters where there is Commonwealth jurisdiction.

Senator WATERS: There is currently Commonwealth jurisdiction over all matters of national environmental significance, so if that is your logic you would not hand off any of them. I do not want to verbal you. Am I clear in that you will attempt to retain Commonwealth land and water but will not attempt to retain jurisdiction over state-run projects?

Dr Bacon: In relation to other matters, we will be doing a very detailed analysis of the processes that each state and territory puts forward for accreditation. We are yet to have the detailed discussions with each state and territory about which processes we will be looking at in relation to the approvals bilateral agreements. It is probably premature to be able to say precisely which processes will be in scope for those agreements and in which state.

Senator WATERS: Has the minister instructed the department to maintain his earlier public statements about those areas being quarantined from a handoff of approval powers to the states, or has the minister not instructed the department to keep those areas?

Dr Bacon: I think I have already said that the policy position is to pursue as comprehensive an approach as possible and we are yet to have the detailed discussions about which particular processes we may be looking at for accreditation.

Dr de Brouwer: It will also depend on the nature of the assurance that can be provided around those issues-on state projects that the transparency and governance arrangements are adequate. That provides public assurance. There are a range of questions that we will come to in discussion with the individual states around these matters, but the benchmark is high.

Senator WATERS: I now move very quickly to the investigations into Whitehaven Coal and the allegation that they provided false and misleading information in their referral about the availability of offsets. Where is that investigation up to? It has been on foot for about nine months now. Could we have an update, please?

Mr Gaddes: That investigation is ongoing. We do not normally provide comment on ongoing active investigations. I would expect to see some progress before the end of the year on that particular matter.

Senator WATERS: Has it been actively ongoing? Why has it taken nine months so far?

Mr Gaddes: Investigations can take quite a long period of time, depending on how complex the matter is and the number of other investigations that the investigators are investigating at that particular time. It can take time to get information from certain areas.

Senator WATERS: I have so many other questions that I will, unfortunately, put on notice.


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