Alpha Coal and Newman's 'green tape' myth

The Conversation

The dispute between the Queensland and Commonwealth governments over the approval of Gina Rinehart's Alpha Coal Mine continues to escalate with the prime minister now backing her Environment Minister, Tony Burke, who the Queensland Premier Campbell Newman last night called a “rogue minister”.

In this war of words, a fundamental error is being made by the new Queensland Premier and Deputy Premier that suggest they do not understand their own approval processes.

The Queensland premier and deputy premier are suggesting in their media statements that the mine is now approved at a state level and that the Commonwealth approval under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) is all that is required for the mine to proceed.

Those suggestions are wrong and the state level approvals of the mine are probably 12-18 months away, which makes the pressure being placed on the Commonwealth minister to make a decision within 30 days and claims of Commonwealth “green-tape” holding up the project simply false.

At a state level the Coordinator-General's report was released on May 29 2012 recommending that the mine be approved subject to conditions. The Coordinator-General is a powerful bureaucrat appointed under Queensland legislation to facilitate large-scale developments in the state.

The idea that the Coordinator-General's report gives approval of the mine comes directly from the deputy premier's original media release on 29 May:

Alpha Coal Project given go-ahead

The Newman government has given the green light to what will be one of Australia's biggest mines, the $6.4 billion Alpha Coal Project in Queensland's Galilee Basin. Queensland's Coordinator-General has provided conditional approval for the mine – the first in the untapped coal rich Galilee Basin.

The Queensland premier made the point last night on the 7.30 Report:

Well, let's be very clear. The approval that the Queensland government has granted is for the mine at Alpha and for a railway line down to the coast at Abbot Point and the rail loop but not the port itself.

The premier went on to ask:

What we want to know is: will the Minister approve the project in the 30 day period provided for under the Environmental Protection and Biodiversity Conservation Act of the federal government? That's all the minister has to do. Approve the project subject to conditions. Let's get the jobs for Queensland and Australia and get on with it.

The deputy premier and premier appear fundamentally mistaken about the approval process because the Coordinator-General's report does not decide whether the project is approved at a state level (although in practice it is a big step towards the approvals being granted).

The Wandoan approval process timeline shows what is likely for Alpha. Chris McGrath

At a state level the mine requires a mining lease under the Mineral Resources Act 1989 (Qld) and an environmental authority under the Environmental Protection Act 1994 (Qld).

The applications for a mining lease and environmental authority are required to be publicly advertised for an objections period after the Coordinator-General's report is released.

Objectors then have an opportunity to lodge objections and those objections are heard by the Queensland Land Court, which makes a recommendation to the Queensland Minister for Mines and Queensland Minister for Environment on whether to approve the mining lease and environmental authority. Those ministers then decide the applications.

An example of the time that the remaining steps under Queensland law can be expected to take is Xstrata Coal's Wandoan Coal Mine. That mine began its approval process in 2007. The Coordinator-General's report for that mine was released in November 2010. Approval under the EPBC Act was granted on March 21 2011 but the mine has still not yet received final approval at a state level and cannot proceed until it does.

The significance of these points is that the Commonwealth minister is not holding up the mine proceeding by delaying his decision under the EPBC Act and not deciding the approval within 30 days as the Queensland premier and deputy premier are pressuring him to do. The approval process under the EPBC Act is running concurrently to the state level approvals. The mine cannot proceed without the state level approvals and they are likely to be 12-18 months away.

Dr Chris McGrath is a lawyer who teaches environmental regulation at The University of Queensland and environmental litigation at The Australian National University.

This article was originally published by The Conversation. Republished with permission.