The legal and jurisdictional conundrum of mining in protected areas

I guarantee, after reading this, you will be scratching your head: What the …..?? Is nothing sacred?

Case Study: The Galilee Coal Project (known as the First China Coal Project), located near the town of Alpha in Central Queensland.

Environmental Impact: If it proceeds, the project will result in the virtual destruction of Bimblebox Nature Refuge in the Galilee Basin, Central Queensland.

Preamble: ‘Bimblebox’ was purchased with funds amounting to $286,000 provided by the National Heritage Trust of Australia (NHT), as a grant; with the condition in the Agreement that the land be dedicated in perpetuity as a Nature Refuge under both State and Federal law. See

The Agreement defines, ‘protected area’ as being in accordance with the International Union for the Conservation of Nature (IUCN) definition, namely: “…an area of land especially dedicated to the protection and maintenance of biological diversity, and of natural and associated cultural resources, and managed through legal and other effective means.”

The Agreement encumbers the recipients to forego entering any agreements that are inconsistent with the purpose for which the funds are provided, moreover, the agreement places an onus on the recipients for 999 years to continue managing the
land in the approved fashion (IUCN guidelines for a protected area), as part of the National Reserve System. Failure to do so would render the recipients liable to repay the funds to the Commonwealth.

  • However, the Agreement does not legally prevent the State of Queensland under the EPBC Act’s Bilateral Agreement provision to override the contracted performance via the Mineral Resources Act.
  • The objectives of management are expressed in the Schedule to the Agreement, to be: Securing and maintaining habitat conditions necessary to protect significant species, facilitating scientific research, developing limited areas for public     education, eliminating and preventing, exploitation or occupation inimical to the purposes of designation. It is then expressly stated that deleterious activities such as mining should be phased out. Conditions of the use of the Commonwealth funds required that an extensive monitoring program be conducted to ensure and demonstrate the protection of biodiversity values as part of ecologically sustainable management and for outcomes to be made available to encourage sustainable land management throughout the region.
  • To the contrary, however, the Conservation Agreement between the State of Queensland and the landholders states in item 5(c) of the Schedule that the landholder shall not undertake any exploration or mining unless required by law, when in fact the Agreement acknowledges that the land has 96% of its original vegetation intact, is in excellent condition and has high biodiversity values.
  • Some possible conclusions of the contractual arguments: The Commonwealth of Australia contributed public funds to the community acquisition of a private protected area as part of the National Reserve System. The contract provisions as listed above created legal obligations on the parties with respect to the onus on the use of public money and to Australia’s international obligations. The Commonwealth, if it approves the coal project, will break these contractual obligations, despite their clear intent to use public money for the creation of a national reserve system for the community’s benefit. The Commonwealth will rely on legislated assurances that the land is a declared Nature Refuge under the Queensland Nature Conservation Act, 1992 and that the Queensland Mineral Resources Act, 1989 permits the mining of Nature Refuges. Further, the Commonwealth will rely on the approved bilateral agreements of the EPBC Act, 1999 (chapter 3) to approve the EIS provided by the applicant.

See also this paper: Adams&Moon_Contradictions in private protected area policies

 

Leave a Reply

Your email address will not be published. Required fields are marked *

*

* Copy this password:

* Type or paste password here:

911 Spam Comments Blocked so far by Spam Free Wordpress

You may use these HTML tags and attributes: <a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <strike> <strong>