The Environment Protection Biodiversity and Conservation Act 1999.
The major issue with Coal Seam Gas (CSG) development is the lack of regulation surrounding
new and existing developments. CSG production is mainly regulated by the States. Federal
involvement is limited except when provisions of the Environment Protection and
Biodiversity Conservation Act 1999 (EPBC Act) are triggered.
The EPBC Act “provides a legal framework to protect and manage nationally and
internationally important flora, fauna, ecological communities and heritage places”1.
Not all development proposals are subject to review under the EPBC Act. Only
developments that occur within specific spaces and are impacted by “controlled actions”.
A "controlled action" is defined broadly and includes2;
 Mineral and petroleum resource exploration and extraction
 Industrial processes
 Storage or transport of hazardous materials
 Extraction and diversion of water
All of which occur in CSG operations.
Controlled actions are those that have, will have or are likely to have a significant impact on:
 The environment anywhere if the ‘controlled action’ is taken on
Commonwealth land;
 The environment on Commonwealth land if the action is taken outside
Commonwealth land, or;
 The action will significantly impact on a “Matter of National Environmental
Significance” (MNES) for example world heritage places and properties,
wetlands listed under the Ramsar Convention, threatened or migratory
species and the Great Barrier Reef3.
Therefore, the EPBC Act is not applicable to actions that affect environments outside of
Commonwealth land if that action is also taken outside of Commonwealth land and do not
affect MNES. Action on farming land owned privately, for example, that is not in immediate
proximity to any Commonwealth land or threatened species or world heritage areas is
unlikely to trigger an intervention on EPBC Act grounds. The review of CSG projects is likely
to be limited as they are only subject to review if they fit the criteria listed above.
The Federal Environment Minister can reject a proposed controlled action if it will have
unacceptable impacts a MNES or on Commonwealth land environments, or impose
1Australian
Government, Department of Sustainability, Environment, Water, population and Communities, (2
September 2011) Environment Protection and Biodiversity Conservation Act
<http://www.environment.gov.au/epbc/index.html>.
2
Environmental Defenders Office (January 2011) Environment Protection and Biodiversity Conservation Act
1999 <http://www.edo.org.au/edonsw/site/factsh/fs03_1.php>
3
Australian Government, Department of Sustainability, Environment, Water, Population and Communities, (6
May 2011) What is protected under the EPBC Act? <http://www.environment.gov.au/epbc/protect/index.html>
additional conditions on the action to minimise negative environmental impacts. The latter
is the most common.
The EPBC and Water
Currently, there is no specific trigger of the Act related to ‘water sources’ more generally.
The only water sources that are covered by the Act are wetlands listed under the Ramsar
Convention, water sources within World Heritage areas and water sources that provide
habitats for protected and endangered species. Therefore, aquifers, such as the Great
Artesian Basin, are not protected from development based on their own merit.
This is problematic. Multiple scientific bodies have raised concerns about CSG
developments and their impact on underground water sources. CSG operations extract large
volumes of water (between 126 and 280 gigalitres a year4) from coal seams to depressurise
the gas. There are fears that CSG drilling activities may result in long term, dispersed water
contamination. The dewatering process (described above) as well as leaks from poorly
constructed CSG wells, may lead to contaminates leaking into connected aquifers and
surface water sources. This much has been acknowledged by the Queensland Government5.
Geoscience Australia have stated that there is insufficient information available to
understand how aquifers are connected and how the contamination of one can lead to cross
contamination of others:
“We have noted that the current groundwater modelling is inadequate in
terms of scale and detail to identify the impacts of multiple CSG
developments on groundwater interactions in the Great Artesian Basin (GAB)
and hence on EPBC Act listed discharge springs communities in the GAB6.”
This view was also expressed at the recent Senate Committee Inquiry into MDB by the
CSIRO who have indicated they do not know what the cumulative impacts of multiple
mining operations on water sources will be.
Much of the recent community concern around CSG and water is about fracking. Fracking
(or hydraulic fracturing) involves the use of fracking fluids containing water, sand and
chemicals (including harmful BTEX chemicals which have been banned by the Queensland
Government and temporarily by the NSW Government) which are pumped into the coal
seam to fracture rocks and release gas. Most, but not all of that water, is then extracted
leaving traces of contaminants behind. This ‘produced’ water is highly saline and full of
chemicals, unsuitable for agricultural or domestic purposes. It can be treated, through
evaporation ponds and de-salination plants, however, there is yet to be a coordinated
strategy for dealing with it.
4
Australian Petroleum Production and Exploration Association (2011) Water Management
<http://www.appea.com.au/industry/csg/water-management.html>
5
Department of Environment and Resource Management, Government of Queensland, (February 2011)
Aquifer Impacts and ‘make good’ Arrangements <www.derm.qld.gov.au/factsheets/pdf/water/w194.pdf>
6
Geoscience Australia (29 September 2010) Summary of Advice in Relation to the Potential Impacts of Coal
Seam Gas Extraction in the Surat and Bowen Basins, Queensland,
<www.environment.gov.au/epbc/notices/pubs/gladstone-ga-report.rtf>
Ultimately, the current triggers under the EPBC Act are insufficient to protect the
environment from these CSG processes7.
Current Proposed Amendments
There have been 25 amendments made to the EPBC Act since its inception. In the pipeline,
Tony Windsor has drafted a Bill which seeks to add a ‘Water Trigger’ to the list so that any
controlled action that has, will have, or is likely to have a significant impact on the water
quality, structural integrity or hydraulic balance of a water resource, has to be subject to
review under the Act8.
While such a trigger will increase the scope of the EPBC Act by introducing new criteria, it
does not make it easier to expose projects that are eligible for review.
CSG developments under review through the EPBC Act.
Eastern Star Gas has applied for approval under the Act to develop a CSG field of 1100 gas
wells in the Pilliga Scrub. However, that approval was not sought before any pilot works
began. A report compiled by the Northern inland Council for the Environment, The
Wilderness Society and Nature Conservation Council of NSW9 found that ‘significant
impacts’ have already occurred in the region including land clearance, risks to endangered
and threatened species and the introduction of pollution (2011, p. 4). Only once
environmental groups raised the issue with the Environment Minister did the project trigger
review under the Act.
There are, therefore, limitations to the Act particularly in relation to the visibility of projects
in remote areas of Australia. While new triggers under that Act, as proposed by Windsor’s
Bill, may increase the scope of projects that can be reviewed, the practice on the ground is
still reliant on vigilance on behalf of regulators on the ground, as well as environmental nongovernment organisations.
Other Amendments to deal with CSG:
Harmful processes (eg. Land clearance) can be nominated for listing Under the EPBC Act. A
‘process’ such as ‘fracking’ can be listed as a key threatening process if it could:
 cause a native species or ecological community to become eligible for inclusion in a
threatened list (other than the conservation dependent category); or
 cause an already listed threatened species or threatened ecological community to
become more endangered; or
 adversely affect two or more listed threatened species or threatened ecological
communities10.
7
Environmental Defenders Office (January 2011) Coal Seam Gas Production and Regulation: What you should
know, <www.edo.org.au/edonq/.../factsheet_-_coal_seam_gas_-_21_jan_2011.pdf>
8
Subject to the release of the Bill.
9
Northern Inland Council for the Environment, The Wilderness Society and Nature Conservation Council of
NSW (June 2011) Under the Radar: How coal seam gas mining in the Pilliga is impacting matters of national
environmental significance, p. 4.
10
Australian Government, Department of Sustainability, Environment, Water, population and Communities (25
March 2011) Key threatening processes under the EPBC Act
<http://www.environment.gov.au/biodiversity/threatened/ktp.html>
If it could be demonstrated that fracking fluid pollution was transferring between coal
seams and aquifers that were connected to Ramsar listed wetlands, this may be sufficient.
However, this would require greater monitoring and independent scientific research that is
not yet available.