The Morrison government's failure to activate the so-called "water trigger" when assessing the proposed Adani coal mine in Queensland will be challenged in the Federal Court.
Lawyers acting for the Australian Conservation Foundation will test the government's decision not to refer Adani's North Galilee Water Scheme, a pipeline supplying the mine, for a thorough assessment as intended by the law.
The Suttor River in central Queensland, from which Adani intends to pump water to feed its Carmichael coal mine. Credit:Christine Carlisle
The water trigger, introduced by the Rudd-Gillard government in mid-2013, was meant to require the government to assess the impact on water of all large coal mines and coal seam gas developments.
However, the government treated Adani's plan to draw 12.5 billion litres a year from the Suttor River in central Queensland as a pipeline that was not a "large coal mining development", nor did it involve one.
Similarly, it viewed the pipeline proponent, Adani Infrastructure Pty Ltd, as "a different legal entity" from the coal mine proponent, Adani Mining Pty Ltd.
The foundation plans to test both reasons for the failure not to activate the water trigger in court, arguing that the government made an error in law by ignoring infrastructure that was critical for the coal mine to proceed.
Tony Windsor, the former independent MP who was a key architect of the trigger, said reliable long-term access to clean water was "vital for regional communities and demands that we sustainably manage our rivers and aquifers".
"Allowing companies to split up mining projects and assess them in isolation makes a nonsense of the process," he said. "You don’t see much looking at just one piece of the jigsaw – you need to look at the whole puzzle."
A spokesman for Federal Environment Minister Sussan Ley said that, under national environment law, the water trigger "does not apply to activities related to associated infrastructure, such as pipelines because they do not directly involve the extraction of coal".
He said the Queensland government was responsible for issuing the water licence allowing the water extraction from the Suttor River.
"The federal government is responsible for ensuring that the water extraction levels approved by the Queensland government do not adversely impact on plants, animals and ecological communities," he said.
A spokeswoman for Adani said the Indian-owned miner had yet to see the legal challenge.
The company was proceeding with the mine, issuing contracts worth about $700 million for the construction of Adani’s Carmichael mine and rail project, it said in January.
Kelly O’Shanassy, the foundation's chief executive officer, said that "in an era of climate change and extreme drought, the Morrison government’s decision not to apply the water trigger to Adani’s project does not pass the pub test".
"Australians have a right to expect our government to make decisions lawfully and in the best interests of people, not big coal corporations," she said.
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