FINANCIAL INSTITUTIONS
ENERGY
INFRASTRUCTURE, MINING AND COMMODITIES
TRANSPORT
TECHNOLOGY AND INNOVATION
PHARMACEUTICALS AND LIFE SCIENCES
Coal Seam Gas
Legal Frameworks
VPELA Seminar
16 April 2013
Damon Jones
Senior Associate
Norton Rose Australia
An evolving regulatory web…….
Commonwealth approval
(EPBC Act)
National harmonisation
State regulation
2
18293345
Key legal issues
• Impact on groundwater and aquifers
3
18293345
The role of the EPBC Act
Existing
• EPBC Act already applies to CSG projects if trigger existing matters of national
environmental significance (eg listed threatened species, national heritage places)
• Establishment of Independent Expert Scientific Committee (IESC) on Coal Seam Gas and
Large Coal Mining Development in November 2012 – mandate to consider impact on water
resources but not land use ramifications
Proposed – ‘water trigger’
• Would require ‘large coal mine development’ and ‘coal seam gas development’ which are
likely to have a significant impact on ‘water resources’ to be referred to Federal
Environment Minister for a determination on whether a ‘controlled action’
• If a controlled action, project will require assessment and approval under the EPBC Act
• Aims to provide direct protection to ‘water resources’
• Would allow Minister to impose conditions directly relating to impacts on a water resource
• Amendment Bill amended and passed by House of Representatives on 21 March 2013
• Senate Environment and Communications Legislation Committee required to report on Bill
by 15 May 2013
4
18293345
EPBC “water trigger”
• Impact on projects currently being assessed:
– projects currently referred for a decision and in approval process,
where IESC has not yet given advice
– would apply to approximately 40 projects currently being assessed and
not yet subject to IESC advice
• Proposed amendments will not impact on projects which:
– have been previously approved under EPBC Act
– have already been subject of a determination that not a ‘controlled action’
– are currently being assessed under EPBC Act where advice received from
IESC
– are currently being assessed under State laws where advice received from
IESC
– are subject to prior environmental approval and did not require any further
environmental approvals
5
18293345
National harmonisation of regulatory frameworks
• National Partnership Agreement on Coal Seam Gas and Large
Coal Mine Development (14 February 2012 – 30 June 2014)
• IESC activities have commenced in 2013
• Draft National Harmonised Regulatory Framework for Coal Seam
Gas – released 14 December 2012 by Standing Council on
Energy and Resources (SCER)
• Framework aims to provide consistent regulatory approach to
managing CSG development:
• Identifies 18 leading practices across four core areas of:
– well integrity
– water management and monitoring
– hydraulic fracturing
– chemical use
• Designed to be flexible to accommodate the range of
geographical, geological, resource, social, regulatory and
institutional arrangements in each jurisdiction
6
18293345
CSG in Queensland
• Queensland has most highly developed CSG industry in Australia
• CSG exploration and production tenure/health and safety
– Petroleum and Gas (Production and Safety) Act 2004 (and
accompanying Regulation)
– Work Health and Safety Act 2011
• Environmental management of CSG industry
– Environmental Protection Act 1994 (environmental approval, regulation
and enforcement of CSG projects)
– Environmental authorities, EMPs, CSG Water Management Plans
• Impacts of water extraction
– Water Act 2000
– Seeks to manage cumulative impacts through designation of
Cumulative Management Areas and Underground Water Impact
Reports for all petroleum tenures
7
18293345
CSG in Queensland
• November 2012: CSG/LNG Compliance Plan 2012/13; Gasfields
Commission Bill 2012 (establishes GasFields Commission Qld)
• December 2012: Coal Seam Gas Water Management Policy 2012
• February 2013: Engagement and Compliance Plan (Dept of Natural
Resources and Mines)
• Premier Newman critical of EPBC water trigger on duplication grounds
8
18293345
CSG in New South Wales
• CSG represents small but growing proportion of total gas supplied
into NSW gas network – CSG industry expanding rapidly
• CSG tenures regulated under Petroleum (Onshore) Act 1991
• Environmental assessment of projects regulated under
Environment Planning and Assessment Act 1979
– ‘State significant development’ provisions or Part 5 of the Act will apply
• Groundwater impacts primarily regulated under Water
Management Act 2000 (where water sharing plan in place) or
under Water Act 1912
• Draft Aquifer Interference Policy – sets out proposed additional
requirements relating to regulation of groundwater impacted by
CSG activities
9
18293345
CSG in New South Wales
• Draft State Environmental Planning Policy (Mining, Petroleum
Production and Extractive Industries) Amendment (Coal Seam
Gas Exclusion Zone) 2013 – released 21 March 2013 for public
comment until 12 April 2013
• Under the draft SEPP CSG Exclusion Zones:
– “2km exclusion zone” around residential areas and critical industry
clusters
– Aims to prevent new CSG exploration, assessment and production
activities within these areas
– Includes mechanism by which councils may request that an area of
land be removed from an exclusion zone to enable CSG development
to occur, subject to obtaining necessary approvals
– Would not apply to coal projects that involve CSG production
10 18293345
CSG in Victoria
• CSG industry in Victoria still in its infancy
• Regulatory framework is in place for potential CSG production
activities under the Mineral Resources (Sustainable
Development) Act 1990
• Water Act 1989 provides for take and use licences and bore
construction licences
• Halt on CSG exploration licences pending response to National
Harmonised Regulatory Framework
11 18293345
A few issues to consider…
• Environmental baselines
• Rigour of environmental impact assessments
• Carrying capacity and cumulative impacts
• Application of ESD principles to decision making
• Precautionary principle cf adapative management framework
• Monitoring and reporting requirements
• Third party review rights
12 18293345
Disclaimer
The purpose of this presentation is to provide information as to
developments in the law. It does not contain a full analysis of the law nor
does it constitute an opinion of Norton Rose Australia on the points of law
discussed.
No individual who is a member, partner, shareholder, director, employee or
consultant of, in or to any constituent part of Norton Rose Group (whether
or not such individual is described as a “partner”) accepts or assumes
responsibility, or has any liability, to any person in respect of this
presentation. Any reference to a partner or director is to a member,
employee or consultant with equivalent standing and qualifications of, as
the case may be, Norton Rose LLP or Norton Rose Australia or Norton
Rose Canada LLP or Norton Rose South Africa (incorporated as Deneys
Reitz Inc) or of one of their respective affiliates.
13 18293345
14 18293345