Climate change litigation and Australia

Pointing out the potential risks to business and government of ignoring or denying the reality of climate  change.....

The Canberra Times, 29 May 2019:

Since the late 1990s, Australian politics on climate change has been divisive.

Although Australia signed the Kyoto Protocol in 1998, it did not ratify it until 2007. 

Then, in 2011, the Clean Energy Act purporting to reduce greenhouse emissions was passed, only to be repealed in 2014.

In 2016, Australia ratified the Paris Agreement and the Doha Amendment to the Kyoto Protocol; however, any serious action on climate change remains to be seen.

At the same time, some states and territories also have emissions reduction targets. 

The uncoordinated approach is a problem for at least two important reasons.

First, climate change is an ever-increasing phenomenon, with tremendous impact on corporate, social and political discourse. Any meaningful legal framework to govern climate change requires the development of a legal consensus at the federal level, in line with international commitments.

Second, there is a rising wave of climate change-related litigation globally which is headed for Australia. Climate change litigation 2.0 (targeting companies) and climate change litigation 3.0 (targeting governments) will sink Australia, unless drastic measures are implemented.

Under the current legal regime, company directors may only be liable if found to be in breach of their duty of care or for failing to address a foreseeable risk. However, guidance from case law suggests that it is difficult to establish that the actions or omissions of a particular entity or director caused or contributed harm to be suffered by another. With the arrival of climate change litigation 2.0, this will all change.

For one, litigation 2.0 will force companies to assess and report on the risks of climate change and potentially set out plans for mitigating those risks. The recent tide of comments from the Australian Securities and Investments Commission, the Australian Prudential Regulatory Authority and the Reserve Bank of Australia are a testament to this.

Companies and their directors could soon face liability (including personal liability) if they fail to assess and address risks relating to climate change. Investors, shareholders and even communities will be able to recover losses and seek damages from companies and their directors, auditors and advisors, for failing to assess and mitigate risks.

As major climate change attribution studies emerge to assist in tracing particular weather events with greenhouse gasses, causation will be easier to establish. It is likely that in the future, courts will rely on such studies to conclude that a particular entity has contributed, at least in some proportion, to a particular harm……

Although unprecedented and unheard of in Australia, climate change litigation 3.0 will be the next phase. It will allow Australians to bring action against the government for failing to mitigate risks.

Claims of this nature around the world are already proving to be quite successful. 

The Urgenda litigation in the Netherlands is the leading example. In that case, a Dutch NGO argued that the Netherlands Government had breached its duty of care to the Dutch people by failing to mitigate the risks of climate change and reducing greenhouse gases. The remedy ordered by the court was that the Netherlands Government reduce emissions by at least 25 per cent by the end of 2020….. [my yellow highlighting]

It should be noted that on 8 February 2019 the NSW Land and Environment Court in its judgment Gloucester Resources Limited v Minister for Planning [2019] NSWLEC 7 accepted that climate change formed part of critical reasons to reject a mine development.

Gloucester Resources decided not to appeal this decision and the proposed 830ha Rocky Hill Coal Mine in the Hunter Valley region will not proceed. 

Photoshop of the Week

via @sarahrees

"Stop Adani" convoy gets good reception as it passes through the NSW Northern Rivers region

Supporters at Ferry Park, Maclean, on Pacific Highway heading north
Photo: The Daily Examiner online

The Daily Examiner, 22 April 2019, p.4:

Protesters came out in support of the anti-Adani convoy as it made its way through the Clarence Valley yesterday.

Up to 180 cars, many of them electric, decorated in “Stop Adani” paraphernalia made their way along the Pacific Highway as part of a two-week campaign, organised by conservationist Bob Brown, to stop the proposed Carmichael coal mine.

Karen von Ahlefeldt said many in the convoy stopped for a chat and were “boosted” by the show of support.

“A lot of people standing there wished they could be on the convoy, this was a good chance for them to be part of it,” Ms von Ahlefeldt said.

Clarence Valley Councillor and Greens party member Greg Clancy stood at South Grafton waving on the cars as they made their way north.

“Politicians are not listening, and some of the public don’t understand,” Cr Clancy said.

“They think it is jobs, we need coal, but we don’t, we are phasing it out. Coal is not the future, it is the past.”

He said it was unthinkable to “dig up more of the Galilee Basin” and the proposed coal mine would be “contributing to climate change”.

Cr Clancy said movements such as the convoy were important steps to making change.

“Bob Brown has said this is going to be another Franklin River issue,” he said.

“People are not going to stand by. There will be protests, there will be arrests, it will be big.”

“You just have to look at how many vehicles have gone past today to know it’s going to be big.”

Mr Clancy called on politicians to commit to oppose the Queensland mine ahead of the federal election next month.

Listen up @billshortenmp and @ScottMorrisonMP - we’re heading headfirst for climate catastrophe. @BobBrownFndn leads the #stopadaniconvoy up to Galilee Basin. Here we are at #mullumbimby for the 2nd rally of the day, with an incredible turnout. #auspol pic.twitter.com/fYDwOSDHZZ

— Ellen Kirkwood (@Nelled) April 21, 2019

News Corp mastheads back Big Coal during 2019 federal election campaign

These were News Corp mastheads on 18 April 2019.

Images found @JennaCairney1 on Twitter

Apparently we voters don’t understand the role mining has in our country and Murdoch journalists are eager to pressure politicians on the subject of mining jobs and taxation revenue which they fear are on the line because these same politicians might “go weak-kneed at the sight of Stop Adani hashtags, earrings or stage invasions” [Townsville Bulletin, 18 April 2019, p.2].

I on the other hand think rural and regional areas know the mining industry rather well when it comes to jobs and taxes.

According to the Australian Government Labour Market Information Portal as of February 2019 the Mining Industry in this country“employs approximately 251,700 persons (ABS trend data), which accounts for 2.0 per cent of the total workforce. Over the past five years, employment in the industry has decreased by 5.4 per cent”.

Employment growth in the industry in the five years to February 2019 was in fact minus 14,400 employees.

Projected employment growth in the five years to May 2023 is predicted to be 2.4 per cent.

Not all mining industry employment is new jobs created by a mining venture either. The Australia Institute points to the fact that economic modelling done by Waratah Coal in 2011 found that a single Qld mine would displace 3,000 jobs in other industries and crowd out $1.2 billion in manufacturing activity.

Australian Tax Office (ATO) data for 2013-14 to 2015-16 show that almost 60 percent of corporations in the energy and resources sector paid zero tax in that period.

This percentage appears to be something of an industry norm as in 2007-08 ATO data indicated there were 4,290 mining companies operating in Australia and 68.3pc of all these companies paid no tax.

It is worth noting that in 2007 the Business Council of Australia (BCA) calculated corporate tax (as a percentage of profit) at 20pc for the mining industry.

Interestingly, BCA also stated “taxes collected are negative for the mining industry group because as major exporters survey participants reported a significant GST refund which more than offset other taxes collected”.

In 2016-17 BHP Billiton Aluminium Australia Pty Ltd with a total income $1.81 billion for that year paid no tax. Neither did Whitehaven Coal Limited with a total income of $2.39 billion, Claremont Coal Mines Ltd with a total income of $1.01 billion and Ulan Coal Mines Limited with a total income of $1.03 billion - to name just a few examples for that financial year. 

So there we have it.

An Australia-wide industry sector which in February 2019 employed less people than sectors such as Health & Social Assistance (est.1,702,700 persons), Retail (est.1,284,700 persons), Education & Training (est,1,032,400 persons) and Manufacturing (est. 872,500 persons) and, has a future growth projection which makes it unlikely to return even 2015 employment levels.

A sector which also regularly takes tax minimisation to an extreme.

Yet for some reason voters are supposed to ignore the ramifications of continuing to allow open slather to fossil fuel mining corporations as climate change impacts begin to bite.

The mining industry has pulled this sort of stunt before when it fought the proposed Resource Super Profits Tax which would have applied to mining companies involved in the extraction of non-renewable resources. It talked up inflated figures for mining employment and tax revenue and quoted the same in industry media releases.

The stakes for present and future generations were not quite as high nor as urgent then as they are now and it’s time the rapacious mining industry is firmly put in its place by concerned voters on 18 May 2019 – right at the back of the queue along with those political parties and candidates who blindly support Big Coal and Big Oil.

Australia can't afford politicians of that ilk anymore.

In the face of grave concerns Morrison Government pushes through Adani mining consent ahead of the 18 May general election, CSIRO rolls over & Geoscience lets the cat out of the bag

The Commonwealth Scientific and Industrial Research Organisation (CSIRO) attempts to avoid embarrassing the Morrison Coalition Government on the day it announced a federal election date:

CSIRO Statement, 11 April 2019:

In late 2018 and early 2019 CSIRO and Geoscience Australia wrote two reports for the Federal Government on specific questions on groundwater monitoring, management and modelling planned by Adani Pty Ltd for its Carmichael mine proposal in central Queensland.

This advice was limited to answering discrete inquiries on whether elements of Adani's proposed plans would be adequate to protect nationally significant environmental assets.

CSIRO identified inadequacies in the plans and was subsequently asked to review Adani's response to the recommendations CSIRO made to address the issues raised, as summarised by the Department of the Environment and Energy. Adani had committed to address the modelling limitations identified by the CSIRO and GA review in a groundwater model re-run to be undertaken within two years.

CSIRO considered that this commitment satisfied its recommendations, while also acknowledging there were still some issues that need to be addressed in future approvals, particularly confirming the source of the ecologically-important Doongmabulla Springs.

CSIRO has provided robust, peer-reviewed science on specific groundwater modelling-related questions about the plans. CSIRO's role is to provide scientific advice to inform approval processes, but it does not have any role in making approval decisions.

The public broadcaster reports in greater detail and with less reticence when detailing facts of the matter…….

ABC News, 18 April 2019:

Handwritten documents obtained by the ABC appear to directly contradict the Environment Minister Melissa Price that Adani "accepted in full" changes sought by scientists to limit the impact of its controversial Queensland coal mine.

Announcing her decision to approve Adani's water management plans for its Carmichael mine earlier this month, Ms Price said Adani "accepted in full" advice from the CSIRO and Geoscience Australia.

Prime Minister Scott Morrison also maintained the Government would "make all decisions based on the expert advice from ... Geoscience Australia and the CSIRO".

"We have always been following the advice of the scientists and we'll continue to do that," he said.

The advice was provided in a damning review in February of the company's plans.

But documents provided to the ABC showed Adani refused to accept key scientific findings and recommendations about its water management plans.

The ABC has obtained notes taken by three attendees of a phone hook up on April 5 involving senior officials from the Department of Environment and Energy and staff from Geoscience Australia.

The documents show the government science agency was concerned the water plans could allow Adani's mine to breach the conditions of its environment approval.

However, Adani would not accept the need for corrective action if that occurred.

The notes said that Adani refused to:

• acknowledge the scientists' key finding that the model Adani used to estimate the mine's impacts was not fit for purpose;
• accept that a new model could show that the mine's impacts would breach environmental approvals; and
• commit to corrective action if the new model showed greater impacts on the environment than Adani had claimed would occur.

A separate briefing note from the Department of Environment and Energy shows Adani also refused to consider scaling back its mining operation to minimise its impacts, despite being asked to do so.

The ABC requested the meeting notes under freedom of information (FOI) laws, but Geoscience Australia took the unusual step of releasing the documents immediately instead.

The briefing happened after the Department of Environment and Energy had already advised the Minister to approve the plans, which had been finalised the previous month.

One set of notes was taken by Geoscience Australia chief Dr James Johnson, another by head of environmental geoscience Dr Stuart Minchin, and the third by senior executive Dr Richard Blewett.

A handwritten note by Dr Blewett mentions concerns held by Jane Coram, the head of CSIRO's land and water division.

She complained the science agencies had "not seen the revised plan" set to be approved, and that they were expected to take the summary of it at "face value".

After the meeting, Ms Price published a statement announcing, "Geoscience Australia and the CSIRO have provided written assurances that these steps address their recommendations."

A spokesman for Ms Price said she was not present at the meeting.

"Decisions were made between the department officers, Geoscience Australia and the CSIRO on the proper scientific assessment of the issues and no other factor," the spokesman said.

But the notes show the scientific agencies were asked by the Minister's department to give formal assurances that Adani's commitments met their concerns in language acceptable to the Government.

"Gov[ernment] is keen for assurance," the notes taken by CEO of Geoscience Australia, James Johnson said.

"Ideal for gov[ernment]: letter from me to [Mr Finn Pratt] saying based on extensive briefing from [Department of Environment and Energy] on Adani addresses the concerns raised."

Fin Pratt is the head of the Department of Environment and Energy.

In his handwritten notes of the meeting, Mr Johnson said the Government was keen for an assurance "based on discussion briefing" from the department, but he scribbled that out and changed it to "based on extensive briefing".

The Minister subsequently published a letter from Mr Johnson to Mr Pratt saying: "Thank you for the extensive briefing ... Based on this briefing Geoscience Australia is of the view that Adani have addressed the issues and concerns raised in our recommendations."

Ms Price's spokesman told the ABC no pressure was placed on the science agencies.

"Any suggestion of pressure in that process is rejected in the strongest possible terms and is insulting to the integrity of the experts concerned," he said.

Adani said in a statement it could not comment on the content of the documents.

"Adani was not privy to internal briefing documents or discussions that the Federal Department of Environment and Energy may have provided to Geoscience Australia and CSIRO, consequently we are unable to comment as to their contents."

'Advice to Adani that they refused'

The briefing notes listed in point form the "advice to Adani that they refused".

These included a recommendation Adani acknowledge their modelling "is not fit for purpose" and that a "new model could revise impacts [to be] greater than [what] has been approved".

"So told Adani — if new model shows greater impact than current model, they have to sort it out [with] corrective [actions]", the notes said.

"They refused."

Before the verbal briefing to Geoscience Australia, the Department Environment and Energy prepared a summary of Adani's response to concerns raised by Geoscience Australia and the CSIRO, which was provided to the two agencies.

The summary was published by the Department of Environment and Energy.

That document shows Adani declined to commit to a reduced mine plan, or to cutting back coal extraction, as suggested by the Department Environment and Energy in response to the damning report on its groundwater management model and plans by Geoscience Australia and the CSIRO.

It also shows Adani negotiated compromise outcomes in response to some of the scientists' concerns and rejected other measures that the two agencies sought.

There were gaps between what was included in that document and what was apparently outlined in the verbal briefing to Geoscience Australia staff.

The notes of the verbal briefing the department gave to the scientists said that Adani committed to a "maximum timetable of three months" for conducting an investigation if water use limits were triggered — a demand of both CSIRO and Geoscience Australia.

In fact, the response Adani formally agreed to is less watertight: "If the groundwater level thresholds exceedance is because of authorised mining activities, the investigation will be prioritised and, depending on the nature of the impact, completed within three months."

Adani told the ABC it was not provided directly with the advice by CSIRO and Geoscience Australia until after the Government approved the plans. Instead it responded to summaries made by the Department of Environment and Energy.

Minister faced intense pressure to approve mine

Ms Price faced intense pressure from her own side of politics to approve Adani's water management plans before the federal election was called.

Queensland LNP Senator James McGrath warned he would publicly call for Ms Price's resignation unless she did the "right thing" by Adani, and Queensland's LNP executive condemned what it called her "delay" in approval.

In the wake of the Federal Government's sign-off on the water management plans, Adani is pressing the Queensland Government to complete a series of other, state-based approvals that are needed before mining can commence.

When Ms Price announced that she had approved the water management plans — just one working day after CSIRO and Geoscience Australia were briefed on Adani's responses to their concerns — the Environment Minister said:

"I have accepted the scientific advice and therefore approved the groundwater management plans for the Carmichael Coal Mine and Rail Infrastructure project under the Environment Protection and Biodiversity Conservation Act 1999.

"Both CSIRO and Geoscience Australia have confirmed the revised plans meet strict scientific requirements."

The Queensland Government is yet to approve construction as it seeks to protect a colony of black-throated finches around the mine site.

Even if construction is fully signed off, the project still requires more approvals to be granted from the Queensland and Commonwealth governments before coal can be dug out of the ground.

In an official statement to the ABC, a spokesperson for Geoscience Australia said it stood by their earlier statement that Adani's actions addressed the concerns raised in their technical advice.

"Adani did not acknowledge our advice that their groundwater model was not fit for purpose, and indicated they would not revise the model in the short term," the spokesperson said.

They said despite that, additional monitoring and mitigation Adani did agree to do satisfied their concerns.

Geoscience Australia said it was not pressured to provide the Government assurance.

The United Nations has taken a position on Adani Group mining consents after the Wangan and Jagalingou Traditional Owners Council put their case to this international body last year and, it has asked the Australian Government not to proceed with granting consents until after the High Court appeal by this traditional owners group is heard in May 2019. 

A request the Morrison Government saw fit to ignore.

And now for some good news......

David Morris, CEO of EDO NSW: Our argument was based on science, economics and – we argued - the proper application of the law. The climate contention as a ground for refusing this mine was innovative; the first time climate change has been addressed this way in an Australian court using the concept of a carbon budget as its basis.

Like so many great ideas – its strength was its simplicity. While there was lots of necessary evidence and discussion about the carbon budget, geopolitical climate policy and Australia’s legal framework for climate change, ultimately our argument was simple:  if you accept the science, then the local legal framework compels you to refuse the mine because it’s clearly not in the public interest to increase emissions.

As Professor Steffen said “it’s one atmosphere, it’s one climate system, it’s one planet - and so we need to start thinking more carefully about the net effect of wherever coal is burnt, or oil or gas… The project’s contribution to cumulative climate change impacts means that its approval would be inequitable for current and future generations”. [EDO NSW, media release, 8 February 2019]

The Sydney Morning Herald, 8 February 2019:

When Planning Minister Anthony Roberts intervened a year ago to give a coal miner the unusual right to challenge its project's refusal in court, neither would have countenanced Friday's outcome.

Instead of settling the future of Gloucester Resources' controversial Rocky Hill coal mine near Gloucester, the NSW Land and Environment Court just cast a cloud over coal mining in general.

The miner had thought it was merely challenging the Department of Planning's rejection of the mine's impact on visual amenity in the bucolic valley around Gloucester.

Instead, the Environmental Defenders Office, acting for residents opposed to the mine, grabbed the opportunity to join the appeal.

In what EDO chief David Morris describes as a "delicious irony", the court got to hear about the project's detrimental impact on climate change and the town's social fabric - despite Gloucester Resources arguing such intervention would be a "sideshow and a distraction".

Future generations will wonder why it took so long for any court in the land to hear such evidence when considering a coal mine project.

But Justice Brian Preston didn't just allow the EDO to provide expert evidence of the role greenhouse gas emissions play in driving climate change. He also accepted it as part of the critical reasons to reject the mine. "The decision forms part of what is a growing trend around the world on using litigation to fight climate change," Martijn Wilder, a prominent climate lawyer from Baker & McKenzie, says. "While early on some of this litigation was not successful, increasingly it is."

Gloucester Resources Limited v Minister for Planning [2019] NSWLEC 7, 8 February 2019 judgment here.

Hard right ideology has so blinded the Morrison & Berejiklian Coalition Governments that water sustainability is at risk in yet another part of New South Wales in 2019

This particular coal mining project below has a long history and each step of the way Liberal and National politicians at state and federal level have supported the interests of foreign-owned mining corporations over those of local communities and ignored the need for intergenerational equity.

The O'Farrell & Baird Coalition Governments went to bat for the coal mining industry in New South Wales in 2014 after Wyong Coal Pty Ltd neglected to gain consent from a landowner, the Darkinjung traditional owners:

Darkinjung Local Aboriginal Land Council v  Wyong Coal  Pty Ltd [2014] NSWLEC 3, 4 April 2014:

Wyong Coal  are not, however, the owners of the land the subject of the DA. Rather, the DA partially covers land owned by the applicant, the Darkinjung Local Aboriginal Land Council ("Darkinjung"). Moreover, the DA partially covers land over which a land rights claim has been made by Darkinjung under the Aboriginal Land Rights Act 1983…..

The proposed development is State Significant Development under Section 89C of the Environmental Planning & Assessment Act 1979 (EP&A Act) as it is 'development for the purposes of coal mining', as specified in the State Environmental Planning Policy (State and Regional Development) 2011. The Minister for Planning and Infrastructure is the consent authority for the project. However, the Planning Assessment Commission (PAC) will determine the application under delegation. In addition to approval under NSW legislation, the project is also a controlled action requiring assessment and approval under the Commonwealth's Environment Protection and Biodiversity Conservation Act 1999. The Commonwealth will undertake a separate assessment and determination under its legislation.

The Berejilian Coalition Government in 2018 carried the flag for an amended Wyong Coal development application which bypassed the need for Darkinjung LALC consent:

Environmental Defender’s Office NSW, November 2018:

Wyong Coal Pty Ltd, which trades as Wyong Areas Joint Coal Venture, and Kores Australia Pty Limited, are co respondents. KORES Australia Pty Ltd, a fully-owned subsidiary of Korea Resource Corporation, is the majority shareholder of Wyong Coal Pty Ltd.

The case is being fought on four main grounds: climate change, flooding impacts, compensatory water and risks to water supply for farmers in the region.

Wallarah 2 involves construction and operation of an underground coal mine over the next 28 years, until 2046. It would extract five million tonnes of thermal coal a year. The total greenhouse gas emissions over the life of the mine will be 264+ million tonnes of CO2.

In approving the Project, the PAC chose not to take into account emissions which come from the burning of coal mined at Wallarah 2. Our client argues that the law wasn’t followed with respect to climate change impacts. The key ground with respect to greenhouse gas emissions is that the PAC failed to consider an assessment of downstream emissions from the project. Under the EP&A Act, the PAC was required to consider the public interest. ACA argues that in 2018, considering the public interest for projects such as coal mines mandates the consideration of principles of ecologically sustainable development, particularly intergenerational equity and the precautionary principle.

In addition, our client argues that the PAC unlawfully failed to consider the risks of the flood impacts and the potential loss of water occasioned by the mining project.  

The Project, located within the Central Coast water catchment, would have significant impacts on the Central Coast water supply and residents in the surrounding areas. 

It would permanently alter the landscape, causing flooding events that will only increase over time as the impacts of climate change are realised. The PAC approval proposes dealing with these devastating flooding events by first requiring the mine to try mitigation measures like putting people’s houses on stilts, relocating homes or building levees. If those measures don’t work, then the mine would be required to pay the owners of the properties for the harm. Our client says this simply is not a lawful way to mitigate harm from flooding. There is no evidence that the mitigation measures will work or that compensation is an effective way to remedy harm caused by flooding.

The mine is also likely to impact upon the Central Coast water supply and access to water for farmers in the surrounding region.  The mine proposes to construct a pipeline to deliver compensatory water to the Central Coast Council and provide emergency and long-term compensatory water supplies to farmers if they lose access to water on their properties. If compensatory water cannot be provided, the mine can agree to buy those farmers out. The approval does not cover how the pipeline and the compensatory water is to be provided. ACA argues that the mitigation measures proposed by the PAC in the conditions of approval are not lawful, primarily because they go beyond the power of the PAC to deal with environmental impacts of the Project.

The Morrison Coalition Government by the hand of Minister for the Environment, Liberal MP for Durack and former mining industry lawyer Melissa Price, gave the stamp of approval on 18 January 2018:

This is the second time in the space of days NSW residents have learned that Liberal-Nationals politicians have allowed a new coal mine to progress towards operational capability in New South Wales.

Both of these new coal mines Shenhua Watermark and Wallarah 2 represent threats to regional water security.

Another thing for NSW voters to remember as they cast their ballot in the 2019 state and federal elections

The Shenhua Group appear to have first approached the NSW O'Farrell Liberal-Nationals Coalition Government in 2011-2012 concerning its plans to mine for coal on the Liverpool Plains, a significant NSW foodbowl. 

This particular state government was the subject of not one but two investigations by the NSW Independent Commission Against Corruption (ICAC) - Operations Spicer (2014) and Credo (2014). 

After he was found to have misled the independent commission Premier O'Farrell resigned as Premier in April 2014 and as Liberal MP for Ku-ring-gai in March 2015. Similarly the then NSW Minister for Resources and Energy, Minister for the Central Coast, Special Minister of State and Liberal MP for Terrigal Chris Hartcher resigned as government minister in December 2013 after he was named in ICAC hearings and left the parliament in March 2015.

On 28 January 2015 the NSW Minister for Planning and Liberal MP for Goulburn Pru Goward granted development consent for a subsidiary of the Chinese state-owned Shenhua Group, Shenhua Watermark Coal Pty Ltd, to create and operate an open cut mine on the Liverpool Plains. 

On 4 July 2015 then Australian Minister for the Environment and Liberal MP for Flinders Greg Hunt ticked off on the Abbott Government's environmental approval for Shenhua Watermark Coal to proceed with its mining operation.

Glaringly obvious environmental risks associated with large-scale mining in the region and vocal local community opposition had led to a downsizing of the potential mine site, for which the  NSW Berejiklian Liberal-Nationals Coalition Government paid the Shenhua Group $262 million in compensation.

ABC News, 31 July 2015, projected new mine boundaries

However, in July 2018 the Berejiklian Government renewed Shenhua’s mining exploration licence.

Given that on the successive watches of the O'Farrell, Baird and Berejiklian governments instances of mismanagement and/or corrupt conduct in relation to water sustainability, mining leases and the environment have been reported one would think that an abundance of caution would be exercised.

Instead we now learn that that Shenhua Watermark Coal has been allowed to vary development consent conditions for the open cut mine on the edge of the flood plain and, it is looking increasingly like pro coal, former mining industry lawyer, current Australian Minister for the Environment and Liberal MP for Durack, Melissa Price, will wave through these variations on behalf of the Morrison Liberal-Nationals Coalition Government. 

Thereby placing even more pressure on the already stressed surface and underground water resources of the state.

The Liverpool Plains are said to be a significant groundwater source in the New South Wales section of the Murray-Darling Basin.

Lock The Gate Alliance, 8 January 2019:

The NSW Government has allowed mining company Shenhua to alter its development approval for the controversial Watermark open cut coal mine in the Liverpool Plains, near Gunnedah, which will enable work on site to begin without key management plans being approved.

Despite the NSW deal, Shenhua is still not able to commence work under the Federal environmental approval until two important management plans, including the crucial Water Management Plan, have been approved by the Federal Government.

Now local farmers are afraid that the Federal Environment Minister, Melissa Price, may be about to follow the NSW Government lead and vary the approval to allow Shenhua to start pre-construction for their mine without the management plans that were promised.

Liverpool Plains farmer John Hamparsum said, “We’re disgusted that the NSW Government has capitulated to Shenhua yet again, and amended the development consent to let them start pre-construction work without the crucial Water Management Plan in place.

"They have repeatedly stated that the best science would apply to this mine before any work was done, and now they’ve thrown that out the window.

"We’re calling on the Federal Environment Minister, Melissa Price, and New England MP, Barnaby Joyce to now step up and promise that not a sod will be turned on this mine until the full Water Management Plan has been developed and reviewed by independent scientists.

"This mine represents a massive threat to our water resources and our capacity to feed Australia, and if the National Party has any respect for agriculture they need to act now and deliver on their promise that the best science will be applied.

"We won’t accept creeping development of this mine and weakening of the conditions that were put in place to protect our precious groundwater," he said.

Lock the Gate Alliance spokesperson Georgina Woods said, "It’s been four years since the NSW and Federal Governments approved Shenhua’s Watermark coal mine on the Liverpool Plains and there are still no management plans in place.

"Instead of upholding the conditions of Shenhua’s approval, the NSW Government has watered them down so that Shenhua can start work without these crucial plans in place.

"The community has a long memory and will not accept Governments changing the rules to the benefit of foreign-owned mining giants over local farmers," she said.

The former Federal Environment Minister, Greg Hunt, made a strong commitment that a Water Management Plan for the project would not be approved unless the Independent Expert Scientific Committee was satisfied with it.

The amended NSW approval can be accessed here.

A legal perspective on the issues surrounding water management by Dr Emma Carmody, Senior Policy and Law Reform Solicitor, EDO NSW and Legal Advisor, Secretariat of the Ramsar Convention on Wetlands, is included in the December 2018 issue of Law Society Journal,  Managing our scarce water resources: recent developments in the Murray-Darling Basin.