During Parliamentary Budget Estimates on Thursday 29 July 2022, I asked Queensland Environment Department staff about an agreement entered into with New Acland Coal regarding unauthorised activity by the proponent, and whether the agreement should have been entered into given the activity potentially constituted an indictable offence.
You can read the answers below or in the official Queensland Parliament Record of Proceedings (Hansard).
Mr BERKMAN: Director-General, I have in front of me—and I can provide copies if necessary— an enforceable undertaking entered into between the department and New Acland Coal for land rehabilitation and unauthorised mining of the West Pit at its New Acland mine and the department’s reasons for accepting that undertaking. These are documents executed on 23 June. Do you require copies of those? They are fairly recent. I am happy to provide them if they are useful.
CHAIR: If we are going to progress with this question, then the committee needs to be aware of that as well. You will have to seek leave to table it as well.
CHAIR: Do you want to see what he is referring to, Director-General?
Mr Merrick: I am happy to, particularly if it aids responding to the question.
Mr BERKMAN: It may do, but I think—I will put the question and we can go from there.
CHAIR: Firstly, is leave granted for accepting these?
Mr MOLHOEK: We will have to look at them first.
CHAIR: They are significant.
Mr BERKMAN: Mr Merrick, do you accept that the works dealt with in the undertaking and that the reasons were unauthorised works intentionally carried out by New Acland that caused, on the department’s estimate in this decision document, around $2 million worth of damage?
Mr Merrick: I am not quite sure I accept the premise of the question, in terms of the way it is phrased. I think it was, through the chair, seeking an opinion.
CHAIR: I think so, yes.
Mr BERKMAN: Do you accept that the works dealt with here were unauthorised works as they are described in the decision?
CHAIR: Again, you are seeking opinions. I will allow some latitude in the response but counsel the member to—
Mr Merrick: I will invite the deputy director-general to make a few comments.
Mr Lawrence: The enforceable undertaking is obviously a mechanism within the act—it is written into the act—that is an alternative to other forms of enforcement. I do not believe that we have a dollar figure on damage in relation to this issue, but there is certainly a difference of view about whether or not that particular area was authorised in relation to mining and, as a result of that, there has been a really detailed and long investigation into the facts and circumstances and how that got to be mined. In our view, it required further approval. The company’s view is different. The documents do not have a clear and supportive way forward. This was a mechanism to put that matter to bed, to actually deal with the issue up-front around it and make sure that we put in place measures where that cannot occur again. There were some vagaries around the licence and the mapping that did not clearly articulate where the disturbed areas were.
Mr BERKMAN: I will put it to Mr Merrick. I suspect it will go back to Mr Lawrence.
Mr Merrick: This is the largest enforceable undertaking in the history of the state in terms of quantity.
Mr BERKMAN: I am not surprised, given the nature of the alleged offences. Can I clarify,
Mr Lawrence, it is the case under the EP Act that an enforceable undertaking cannot be entered into with respect to an indictable offence?
CHAIR: Seeking legal opinion, again. Member, I might—
Mr BERKMAN: It is a question of fact, Chair.
CHAIR: Please—
Mr BERKMAN: Please, if I might respond to that point of order—
CHAIR: Excuse me, member. I am going to get you to pause and reflect when I am speaking and giving some feedback to you. I am going to come back to your question later. I will ask you to stop there. We will move to questions from the government. You have almost caught up to government members on the time. I have allowed a fair bit of latitude. Keep calm on that question and maybe rephrase later if we get time.
[LATER]
Mr BERKMAN: For what it is worth, I believe this undertaking is published online or is supposed to be, so that may be useful. I do want to return to that issue, if I could. The department’s investigation that led to this enforceable undertaking was in relation to alleged serious environmental harm; is that correct?
Mr Merrick: Through the minister, I might invite the deputy director-general to come forward and speak to the matter.
Mr Lawrence: No, it was not in relation to that; it was in relation to unauthorised clearing and the work that was done there in terms of the West Pit. It was whether or not that was authorised.
Mr BERKMAN: The allegations clearly suggest the department’s view that it was unauthorised disturbance. The reasons suggest that the remediation cost is going to be in the vicinity of $2 million. That is well above the threshold for serious environmental harm; is it not?
Mr Lawrence: It is not the remediation cost that the environmental undertaking is talking about. The remediation of that area is already contained within remediation requirements in the environment authority. What the EU does is increase the amount of rehabilitation in terms of rehabilitating it to a higher level than the actual EA requires. At the moment they could just do grazing, but through the EU we have agreed to get to a koala habitat arrangement, which is quite a significant amount of investment—up to $2 million—to do that actual work.
Mr BERKMAN: Can you give an indication of the cost of the harm that the allegations were based upon? As Mr Merrick indicated, this is, I think you said, one of the biggest enforceable undertakings the department has ever engaged in. In terms of the thresholds that exist for establishing whether serious or material environmental harm is being caused, what is the department’s understanding of the cost that was caused by this unauthorised clearing and disturbance?
CHAIR: I think you are weighing into an area where you are seeking an opinion, but I will allow some latitude. This is the final question.
Mr Lawrence: We do not necessarily have a cost of, I suppose, doing the works of mining that particular area. The review we were looking at is about whether or not it was actually authorised in the first place.
Mr BERKMAN: If you do not have an estimate of the cost, how can you possibly establish either serious or material environmental harm?
CHAIR: Member for Maiwar, I have been extraordinarily generous with crossbench time today. You have had just over an hour. The opposition has had 2½ hours and government members are at 90 minutes. I will finish this session with about seven minutes of questions from government members and then we will do a summing up.