Farmers are considering legal action over the approvals process for the $1.2bn Chinese state-owned Shenhua mega-mine as the federal government prepares to announce whether the project has passed its final hurdle under the water trigger legislation.
At the same time, the former independent Tony Windsor, who was the architect of the legislation, has warned that if the Abbott government “abuses” the water trigger process, he would seek to return to federal politics.
Fiona Simson, president of the New South Wales Farmers Association, is calling for a judicial review in the land and environment court over the NSW government approval process which led to the state’s planning assessment commission (PAC) decision to allow the mine to proceed to the final federal stage.
“We would argue with the floodplain definition accepted by PAC … that it erred in accepting definition without strong grounds. There appears to be a total absence of reasoning for their decision,” Simson said.
“There are grounds for a judicial review in land and environment court and potentially other legal avenues.”
The federal government decision is expected in coming weeks. It will be the next step in a battle between the company and the surrounding farmers who say the 268m tonne coal mine on the ridge above the Liverpool Plains in NSW could contaminate prime agricultural land and the groundwater below it.
The water trigger or Environment Protection and Biodiversity Conservation Act (EPBC) allows an independent expert scientific committee (IESC) to assess the impacts of proposed coal seam gas and large coal mining developments on water resources.
While the NSW government has already approved the Shenhua project, the federal environment minister, Greg Hunt, referred the project to the IESC in the face of considerable political pressure. It is understood the IESC advice has gone to the environment department and Hunt must give the final tick of approval for the mine to go ahead.
Windsor put the water trigger law in place in a deal with the minority Gillard government in the previous term of parliament. In his recent book, Windsor’s Way, he foreshadowed a possible return to politics. On Friday he told Guardian Australia his key driving issue in considering a return to politics is the “water trigger and all it stands for”.
“The Shenhua and BHP mines and coal seam gas on the Liverpool Plains are real tests for the water trigger process – an objective scientific process – but we have yet to see any of that played out to its finality,” he said.
“If the government tamper or abuse the water trigger process or devolve its powers back to the states, I will definitely seek to re-enter politics.”
One of the Abbott government’s election promises was for environmental “one-stop shops” which would devolve powers to the states to reduce the regulatory burden, although the legislation is stalled in the Senate.
Shenhua, which has so far spent $720m on getting the mine to the current stage, has already expressed frustration at the delays in the approval process. Its chairman, Liu Xiang, said the experience did not tally with Australia’s “proclaimed enthusiasm for offshore investment”.
This week, a spokesman for Shenhua said the company expected the water trigger to be applied as part of the commonwealth assessment and “we have prepared accordingly”.
“Shenhua stands by the scientific assessments undertaken to date and has every confidence this additional review will reconfirm the conclusions reached in the NSW assessment process,” the spokesman said.
The Shenhua mine has already gone through a series of approval processes, include two NSW PAC assessments as well a number of referrals under the federal water trigger process. But the federal referrals have raised the concerns of a number of groups, including Cotton Australia.
Cotton Australia’s chief executive, Adam Kay, said he was concerned about how the referrals had been done.
“It doesn’t seem to have been a proper referral to give [IESC] panel direct access to proponents data,” he said. “We’ve got a number of cotton farms very close to this mine. There are farms that use groundwater and there has been a lot of work to adjust the groundwater to make sure it is sustainable for long term. The scale and size of the mine would suggest it would have an impact.”
Mark McKenzie, chief executive officer of the NSW Irrigators Council, said his organisation part funded research by the water laboratory at the University of New South Wales which found the full data was not available so it was difficult to say whether the PAC’s modelling proved a limited impact “as Shenhua asserted”.
“The research effectively says not all data was made available, that there were still significant gaps in what the model showed and they urged a precautionary approach,” McKenzie said. “We understand while the PAC didn’t appear to take that work into account in its final decision we understand the IESC ... has acknowledged they do have the material.”
This week, an environment department spokesman said the minister would make his final decision based on the “most up-to-date” scientific information.
“The community can be confident that the minister’s final decision whether to approve the project will be based on the most up-to-date scientific information,” he said.
“This is a significant project, and not something that can be rushed. The minister will decide whether any further information is required before he decides whether to approve the project and what conditions are required to protect matters of national environmental significance, including water resources.”
Windsor said the “key is the objectivity of the science”.
“The way [Greg] Hunt has dealt with this so far in the referral and the things he has done since to cover his pathway gives people less confidence in the objectivity of it,” Windsor said.
“To properly carry out an objective assessment of the Shenhua mine, you really need to go back to the powers of the IESC and carry out a valley-wide bioregional assessment of the capacity of that landscape to withstand the risks involved of these mega-mines, given this is the biggest groundwater system in the Murray-Darling.”
