Wednesday, 19 June 2013
Environment Protection and Biodiversity Conservation Amendment Bill 2013; In Committee
by leave—I move opposition amendments (3) and (4) on sheet 7397 concurrently.
(1) Schedule 1, item 1, page 3 (line 15), omit "involves", substitute "is a".
(2) Schedule 1, item 1, page 7 (after line 17), after section 24E, insert:
24F Independent review
(1) The Minister must cause an independent review to be undertaken by a person or body of:
(a) the operation of Subdivision FB of Division 1 of Part 3 of the Act; and
(b) the extent to which that Subdivision has contributed to achieving the objects of the Act.
(2) The first review must be undertaken within 4 years of the date that the Environment Protection and Biodiversity Conservation Amendment Act 2013 receives the Royal Assent. Subsequent reviews must be undertaken at intervals of not more than 4 years after the date that the previous independent review is tabled in each House of the Parliament.
(3) The person or body undertaking the independent review must take into account any submissions of the Independent Expert Scientific Committee on Coal Seam Gas and Large Coal Mining Development.
(4) The person or body undertaking a review must give a report of the review to the Minister.
(5) The Minister must cause a copy of the report to be laid before each House of the Parliament within 15 sitting days of that House after the Minister receives it.
(3) Schedule 1, page 9 (after line 31), after item 18, insert:
18A Section 528 (at the end of the definition of coal seam gas development )
Add ", but does not include exploration, assessment or appraisal pursuant to a petroleum title granted under a law of a State or Territory.".
(4) Schedule 1, page 9 (after line 31), after item 18, insert:
18B Section 528 (at the end of the definition of large coal mining development )
Add ", but does not include exploration, assessment or appraisal pursuant to a minerals exploration licence or permit granted under a law of a State or Territory.".
I thank you, Chair, and I thank the chamber for leave. These amendments are important amendments. Before I get to these amendments, I will reflect for a moment on what transpired in the chamber. We just saw the Australian Greens moving to gag debate on their own amendment. The Greens moved to gag debate on their own significant amendment to environmental laws. It is the most remarkable thing I have seen in this place. The sanctimonious Greens come in here on a regular basis and preach transparency and accountability and have told us countless times how paramount the importance of this chamber is and how significant it is, and railed during the Howard years against any attempt to gag debate by the Howard government. On countless occasions, far more than ever occurred in the Howard years, the Greens have supported the Labor Party to gag debate. But now we see the remarkable situation of the Greens themselves moving the gag motion. And they are not just moving the gag motion on, say, the opposition's consideration or on the legislation as a whole; they start moving the gag motion on their very own amendments.
Senator Waters stood up and noted that we had been debating the amendment for an hour, 60 minutes—wow, whoop-de-do, what a big deal, a whole hour of consideration to something that would overturn a century-plus of state environmental laws and state land planning laws. Well, why on earth would you want to spend more than an hour considering overturning something that has been enshrined in the way this country has operated for more than a century? Why on earth would you need more than 60 minutes to contemplate such a vast and significant change to the way land management laws work in Australia!
Really, the hypocrisy that comes from the Australian Greens on so many levels is quite astounding, but perhaps none more so than such a contemptuous act as this, in terms of the way this chamber operates and the way the Australian people should be treated, and in terms of the significance of the law-making changes that they have proposed in this country. I really do question the sincerity of the Greens when it comes to their sanctimonious comments about having proper debate in this place, and I really do question their sincerity when it comes to their approach to facilitating transparency and openness in government and law-making, if they just want to come in here and simply shut down debate, even on their own substantial amendments.
It is worth noting that the amendments proposed add little, if any, relevance to the bill before the chair. The amendments the Greens have proposed are amendments to introduce a whole new area of responsibility to the Environment Protection and Biodiversity Conservation Act, an area of responsibility where the federal minister for the environment would become the gatekeeper and the checker on whether or not agreements had been reached between landowners and mining companies. There is not anything about whether environmental standards are met or whether the water trigger that has been put into this act is being appropriately applied, but a whole different scenario in terms of actual land use agreements.
I am pleased to say that, in speaking to the amendments moved by the opposition—the amendments that relate in particular to definitional issues surrounding coal seam gas development and large coalmining developments—we are going to come back to the legislation before the chamber and actually deal with the specific proposal in the bill before the chamber.
The Senate inquiry into this bill heard numerous concerns about definitional issues in relation to this legislation on a range of fronts. We heard concerns about how it is that a 'significant impact' is defined in the legislation. We know that regulations are being drawn up by the government, and we had some answers to questions about those earlier in the debate. I foreshadow to the government that I will have further questions for them about the significant impact provisions and how it is that they operate. Equally, the committee heard questions and concerns about how it is that a 'water resource' is defined in this legislation or how it will be treated in terms of its definition in this legislation. Of course, there was the not unreasonable question of what a 'large coalmining development' is. How big is big enough to be a large coalmining development? Obviously, that is a particularly vague term in that sense.
In particular, the amendments that I have moved deal with the difference and distinction between exploration or appraisal activities and actual production and development activities. In the previous debate on the Greens' amendment, I highlighted what happens at a state law level in terms of the granting of approvals and the different tests that are applied to exploration and appraisal activities versus those applied to production and development activities. It is quite reasonable that they are distinct. On the one hand, companies go in and assess whether there is a decent deposit there worth looking at in the first place—a decent deposit of coal or a decent amount of gas that can be extracted. What does the ground below the surface actually contain? You do not know that until you do the assessment, appraisal and exploration work. That is such a critical component of what occurs right across Australia to try to ascertain what our minerals and resources potential is under the soil, state by state. It is very important that there be proper processes in place to facilitate that as easily as possible.
In many, many instances—probably in the vast majority of instances—when that work is done, when a hole is drilled to test what the content of the ground beneath the soil is, the company will find that it is not satisfactory and moves on elsewhere. The intrusion—the access to the land—is therefore short term and minimal. The environmental impact on the land is also relatively short term and minimal. But sometimes, of course, deposits are found and it is then worthwhile proceeding to the next stage, the stage of production.
Rightly, state laws recognise that these are two distinct areas. Separate licences are granted for exploration activities and production activities. Different processes for approvals occur for exploration activities and production activities. But a major flaw in the legislation before the Senate today is that in relation to this expansion of powers at the federal level no such distinction has been factored in. A company will face exactly the same federal environmental hurdles to clear in relation to exploration or appraisal activities as they would face in relation to production and development activities. That is a significant flaw in this legislation and has the real capacity to hold up some of the most important work done in Australia, which is that exploration work to identify what and where the resources are.
As I said, the Senate committee took evidence in regard to this matter and heard a number of concerns. Santos submitted to the committee as follows:
Most concerning to Santos is a seemingly unintended consequence of the amendments that 'exploration' and 'appraisal' activities will be captured. …Traditionally the Act has been interpreted to regard a 'development' as referring to a defined project already committed to by the proponent.
Obviously, there is a vast difference between simply exploring whether something is there and actually committing as a company to extract those resources from the ground. The company argued that of course development can only follow after they have a sound understanding of the resource that is there. That is simply logic. If you do not facilitate the exploration, companies will never know what is in the ground and indeed governments and regulators will not know what is in the ground. It is to the benefit not just of industry but also of government and regulators to have a very clear understanding and knowledge of what is contained within the ground when making assessments as to whether or not full production activities should be undertaken.
The Australian Petroleum Production and Exploration Association submitted to the Senate inquiry and said:
The proposed amendment bill utilises the definition of coal seam gas development activity used by the existing Independent Expert Scientific Committee gateway. Coal seam gas development means any activity involving coal seam gas extraction that has, or is likely to have, a significant impact on water resources (including any impacts of associated salt production and/or salinity). This is a broad definition that is likely to extend to petroleum exploration activities, which involve small amounts of coal seam gas extraction. The inclusion of exploration activities in the scope of activities covered by the amendment will result in situations where exploration cannot proceed. This is despite the fact that it is the act of exploration that informs the assessment of a water resource. This paradox is particularly concerning in remote areas where little or no information already exists.
APPEA submitted that the bill should expressly exclude exploration activities from the definition of coal seam gas development. So we see very clearly there in the submission of APPEA that the bill, as drafted at present, would result in situations in which exploration could not proceed, thereby undermining the capacity of regulators to be informed when assessing what the water resource is that they are seeking to assess. So there is an internal failure in this bill: the government will be less informed because such exploration may not be undertaken.
Dr Dripps, the deputy secretary of the relevant department, informed the committee that:
The way the EPBC Act operates is that it is based on a 'significant impact' on one of the listed matters. So the stage of the activity, whether it is an early exploratory stage or an actual production stage, is not relevant in considering whether or not there is a significant impact.
Well, the opposition believes it is relevant, and we believe it is relevant because it does not just facilitate potential development; it facilitates better understanding and knowledge of the very water resources that the government seeks to be able to assess. By undertaking the exploration activities, we gain, especially in remote areas where there is little existing knowledge of some of those underground water resources, a far better appreciation, as a whole, of what is out there and how the connectedness operates and how it may indeed impact in terms of any future production that is to be undertaken.
That is why the coalition is moving this amendment. We would hope that the government—who, I know, want to see this industry grow but want to see it grow in a safe and sensible way—will recognise that this is a safe and sensible and largely technical amendment. So I would urge the government to support it.
As I flagged, I would also ask the government if, in relation to the 'significant impact' definitions, they can outline just what minimum level of consultation with industry they are committed to, and how those significant impact criteria in particular deal with the issues of exploration. Do those significant impact criteria make it clear that exploration activities are not considered to be of significant impact? If they do, that will be some level of comfort—although, obviously, it would be preferable if the legislation itself made clear, as the coalition moves and proposes, that exploration activities are expressly excluded.