Can there be harmony between groundwater preservation and mining production?

Posted 2 November 2017

Queensland’s mining water-use regulation has been through huge legislative changes and, with a spike in public concern over underground water rights, two mining law experts say the changes aim to achieve a balance between mining production and groundwater preservation.
HopgoodGanim Solicitor Alyce Nielsen and Senior Associate Alison McKee will be presenting on the regulatory frameworks governing water use for coal and gas projects in Queensland at this year’s QWater Conference.
While petroleum and gas extraction projects are regulated under the Petroleum and Gas (Production and Safety) Act and the Water Act, McKee said recent changes in legislation have been aimed primarily at the minerals and coal industry.
“Oil and gas tenure holders have underground water rights, which enables them to use associated water in conjunction with the activities permitted under their resource tenure,” McKee said.
“While some of the recent regulatory changes have been aimed at the oil and gas industry, the bulk of the amendments that have come about have been in relation to coal and mineral projects.”
Nielsen said the initial changes in legislation were aimed at granting coal projects underground water rights, similar to those held by petroleum and gas producers, which would alleviate production constraints caused by incompatible regulation requirements.
“Historically, coal producers did not have underground water rights. Not only did they need a tenure licence under the Mineral Resources Act, but they also needed a water licence under the Water Act,” Nielsen said.
“This meant that a coal project with a granted mining tenure might be unable to attain a water licence to dewater the coal seam due to the regulation of underground water. Clearly, that’s a problem for coal miners.”
But with the public pushing back against the initial legislative changes, the government moved to introduce further regulatory requirements for coal and mineral mines, Nielsen said.
“The government initially made changes to introduce underground water rights for coal producers to bring them in line with the rights gas producers had. But there was a lot of public concern about coal miners having an unrestricted right to underground water,” Nielsen said.
“Before the underground water rights for coal commenced and became operative, the government introduced another round of legislation that put further restrictions on those underground water rights.
“The new amendments introduced a concept called an associated water licence, and added further requirements for coal producers under the Environmental Protection Act. Some coal projects now have a lot more requirements to meet – they can’t exercise underground water rights automatically in the way that gas producers can.”
Nielsen said this bout of legislative changes means that, contrary to popular belief, some coal mines now have even more restrictions on their underground water rights than ever before.
“One of the biggest issues that concerns landowners is the use of water and how mining will impact or diminish underground aquifers. Water and mining are always a contentious issue in the Land Court. How impacts to water are addressed by the miner is an issue that almost always becomes one of the main areas of contention,” McKee said.
“The changes that have been made to legislation aren't necessarily a disincentive for producers, but the sheer volume of regulatory change in both the coal and gas spaces in recent years does make investment in projects more volatile. It gets very expensive.”

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