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Environment and Communications Legislation Committee
07/06/2012

GREGSON, Mr Andrew, Chief Executive Officer, New South Wales Irrigators Council

[14:12]

CHAIR: I welcome Mr Andrew Gregson from the New South Wales Irrigators Council. Thanks for being here today. The committee has received your submission as submission No. 8. Do you wish to make any amendments or alterations to your submission?

Mr Gregson : No, thank you.

CHAIR: Do you wish to make a brief opening statement before we go to questions?

Mr Gregson : Very briefly, with your indulgence.

CHAIR: Thanks, Mr Gregson.

Mr Gregson : I first of all thank the committee for the opportunity to provide both this submission to you and evidence to you today. It is greatly appreciated. I wish to acknowledge the work of our policy analyst, Stephanie Schulte, who put together this submission. Unfortunately, she is on leave, teaching in Singapore, and is unable to be with us today—hence, you are left with me.

It may be useful for the committee to understand our broader approach to mining and coal seam gas approvals before getting into the specifics of your terms of reference. The New South Wales Irrigators Council might be considered a little unusual in the breadth of agricultural peak and representative groups. We recognise that mining and coal seam gas operations will exist and will affect our constituency, but we do not believe that they either can or should be stopped. This is an industry that will be developed, and we want to find a way to ensure that it can be developed in a way that causes minimal harm to our operations and into the future.

CHAIR: Or no harm, if possible!

Mr Gregson : Well, we recognise that there will necessarily be some impacts; we want to make sure there is a regulatory regime around it to ensure that they are managed and minimised.

What we cannot agree with and do not agree with is the rush to develop this industry. We do not understand why there is a necessity for everything to happen so quickly when we are talking about non-renewable resources that will remain there, no matter what the time frame is to access them. It is our position that we need to have good information on which to base the decisions about whether to proceed and how to proceed, and we view the amendments proposed to the act as a means of achieving that good information which is necessary; but we would advocate that, in the absence of good information, nothing be done and we not be in such a rush. Specifically in respect of the terms of reference that are before you—and this comes from some experience with the Murray-Darling Basin Plan—we do urge caution in the make-up of the panel to ensure that the concepts of science and policy remain separated and that the information that comes from the panel remains separated from policy and is truly science. With that we are happy to take questions.

Senator FISHER: In talking about separating policy and science—is it the case that you think the bill manages that separation?

Mr Gregson : The amendments proposed in respect of the alignment or otherwise of the members of the panel are certainly contained within the bill. I am not entirely certain that the bill could be any stronger on that point. I think it will be a very difficult task for the minister to ensure that alignment does not occur. Particularly from what we have seen of the Murray-Darling Basin Plan, a large array of those who sit in science or in community who would sit on this panel are also in one way, shape or form aligned; so there is going to be a very difficult balancing act for the minister to obtain there. One of the things that we did put in our submission was that we called not only for the independence of all the members but for the chairman as well. That may be implicit within the construction of the amendments, but we would harbour some concerns about that.

ACTING CHAIR ( Senator Fisher ): Given that the members themselves supposedly have to be independent and then the chair has to be chosen from that group of people, how is there any distinction?

Mr Gregson : I think that is a fair assessment that you make, yes.

ACTING CHAIR: You are also saying, 'The rush, the rush; why the rush?'. What do you draw on as evidence of the rush in developing the industry?

Mr Gregson : The sheer number of applications for exploration permits in New South Wales; the fact that the industry has developed to the extent that it has in the absence of a regulatory regime—and you would appreciate that my experience of this is in the New South Wales jurisdiction. There is still a regulatory framework, particularly in respect of aquifer interference, that is being developed and has not been finalised, yet the sheer number of applications that are either on foot or have been issued shows that the industry is continuing apace. That is not only coal seam gas; obviously, mining has existed in New South Wales for a long time yet the regulatory framework around it, particularly in respect to impacts on water resources, is not finalised.

ACTING CHAIR: You also said something to the effect that—and I would like you to clarify or expand upon it—in the absence of information then nothing should happen. Did you mean in the absence of scientific information?

Mr Gregson : Yes, I did—absolutely. I was referring to information in the context of the proposed amendments that set up the scientific panel to provide that information: things to the very simple degree of understanding the connectivity between surface and groundwater, and the proximity of those sources and their horizontal movement; and things such as understanding the cumulative impacts on an aquifer. At the moment our knowledge and understanding in those fields, generally, is relatively poor and needs to be significantly better before an industry that has the capacity to punch holes in aquifers is allowed to develop at the pace that it is.

ACTING CHAIR: I presume by your saying, 'nothing should happen' that the development should not be allowed to proceed? Is that what you are saying?

Mr Gregson : Yes. Or at the very least the determination on an application for a permit should be placed on hold until such time as information is deemed sufficient to make a determination.

ACTING CHAIR: Okay. Are you limiting that comment to proposals that are clearly within the ambit of the act? That is, mining developments that stand to have significant impact, for example, on water resources?

Mr Gregson : You will notice that we have listed concerns in our submission in respect of the projects which would attract the interest of the amendments. We do not believe that only large projects should be the subject of the amendments. We would like to see it extended well beyond that. In particular, we have listed our concerns and made them publicly available about cumulative impacts of the development of the industry. The development of a large number of small projects has at least a consequence, if not a larger consequence—particularly for water resources—than one single large project.

Senator FISHER: Thank you.

Senator WATERS: I very much enjoyed your submission, so I want to take you to several points that you have raised in it. First of all, I just want to clarify some issues that Senator Fisher admirably raised also. Is your position that there should be no further approvals until the work of this committee is complete?

Mr Gregson : Not necessarily. We are seeking sufficient information to make a reasoned and rational decision where it can be shown that that information exists. We do not see any reason to hold up any further development, but it would be our submission that there are very few instances where the quality of information is currently sufficient, particularly in respect of water resources.

Senator WATERS: I am proposing an amendment to this bill for a five-year moratorium, which matches up with the time frame that the committee have said they will take to do their full research program. Do you think it is necessary that we wait for that entire research program to be completed?

Mr Gregson : We have not made any submissions in respect of that, despite being aware of the proposed moratorium. It comes back to the answer I gave to your last question. In instances where information is sufficient, we would not see reason to impose a moratorium. Of course, we are aware that regulations in respect of aquifer interference for mining activities could and should equally apply to aquifer interference for agricultural activities. Where the information is sufficient, we would not advocate a regulatory regime that simply brought a halt to it.

Senator WATERS: I want to talk a little now about whether or not you think this committee will have enough impact, essentially. I have been raising throughout the day my concerns that the committee will provide advice to the Commonwealth minister, but then that minister—because there is no water trigger in our environment laws—will not be able to act on advice about water. He will be able to act on advice about impacts on matters of national environment significance, which he is charged with protecting, but he is not charged with protecting water. In your view, does that limit the utility of the advice that the committee gives to the federal minister?

Mr Gregson : I would urge the committee to contemplate the heads of power that have been drawn for the Water Act. To contemplate whether or not the federal minister could in fact make some determinations in respect of impacts on water resources inside the Murray-Darling Basin.

Senator WATERS: Under the Water Act, indeed. But outside the Murray, where we do not have the Water Act?

Mr Gregson : From the perspective of my constituency, which of course is New South Wales, a very large proportion of the state lies within the Murray-Darling Basin.

Senator WATERS: Of course.

Mr Gregson : Whilst a regulatory regime where the constitutionality of the act or its impacts would obviously be simpler, it is our perspective that both the Commonwealth and the states have a role to play in terms of regulation of mining and coal seam gas operations. We remain engaged with the New South Wales government in developing their sustainable rural land use policy and in particular their aquifer interference policy. We note that under the aquifer interference policy, the New South Wales water minister needs to issue a certificate. There are certain exemptions which are currently the subject of some discussion, but we would anticipate that the information generated by this panel would also feed into that state regulatory process. Whether that is done formally or informally is a matter for further discussion, but from our perspective what is lacking in the regulatory framework is good information, and this panel gives the opportunity for that to exist.

Senator WATERS: You have touched on my next question—that is, the effect that this committee advice's can have on those state decision-making processes. My understanding is that it is not covered by the bill, but it is referred to in the national partnerships agreement, which I think New South Wales, Queensland and Victoria have now signed, but I will confirm that with the department later on. Is it sufficient in your view for this committee's advice to by merely taken account of, as opposed to acted upon or implemented, or decisions made in accordance with? How confident are you that this advice will be reflected in approval decisions made by the states?

Mr Gregson : In a perfect world, of course pure information would be what decisions are based on, but we do appreciate the framework within which the EPBC Act and indeed this panel and the state governments must work. In recognising the practicalities of it, we are reasonably confident that good information will be generated. We recognise that there is no requirement for that information to be used and having considered the legal framework around it—and I would point out that we are not experts in that field—we cannot see a way that it can be binding. But inside in particular the New South Wales framework for an aquifer interference policy, and with the national partnership framework that you are talking about, we think that the structure is such that the information will be given good account.

Senator WATERS: I want to move now to the publication of information. Your submission states that you support the publication of the committee's research publicly—and, of course, I also support that. Would a delay in publication significantly undermine that requirement? I have a proposal to add to the bill a requirement that the committee has to publish the advice to the minister publicly at the same time as providing it to the minister so that the public can see what it is and what effect it is having, if any, on the minister's decision-making processes. What is your view about whether or not the timing of the publication of that advice will influence its status, the public response to the committee et cetera?

Mr Gregson : I would struggle to see any circumstances where the suppression of the information would prove useful to anyone other than potentially the proponent. In particular, I would have thought it would be a protection on the minister to have that information publicised before a decision was made—and I suspect that there are possibly other legal frameworks that could be put in place to protect that information if it was vitally necessary for some other reason.

Senator WATERS: With the definitions in the bill, the committee's jurisdiction is enlivened when there is going to be a significant impact on water resources. In your submission, if I am interpreting you correctly, it sounds as though you are saying there should not be such a limit, that there should not have to be such a significant impact, in order for the committee to have a look at these applications. Is that correct? Can you talk us through your position in that respect?

Mr Gregson : Yes, that is largely correct. 'Significant' is such a broad term as to render it potentially meaningless; it allows for argument in both directions. In the event that 'significant' is left in there, we would argue that cumulative impacts, of themselves, have the capacity to be significant, and, therefore, individual potentially insignificant projects should be reviewed by the panel. We have argued in our submission that the capacity for the panel to consider all developments should be given to it and the capacity for referral outside of 'individually significant' should be given to the minister.

Senator WATERS: Could you say that last bit again please?

Mr Gregson : The minister should be given the capacity to refer to the panel projects that might be considered individually significant but have the capacity to be cumulatively significant.

Senator WATERS: Okay—not just significant in and of themselves but significant if they are combined with other projects. Effectively that is a call for cumulative impacts.

Mr Gregson : Absolutely.

Senator WATERS: In your view, are those cumulative impacts sufficiently addressed by this bill?

Mr Gregson : No, not at the moment.

Senator WATERS: Can you give me a bit more on that?

Mr Gregson : I suppose the simplest analysis of it is to look at a single aquifer: one small operation may be negligible, and 10 operations may be underneath the threshold of significance individually; but if you add 20 more holes to that single aquifer, all of a sudden you are up to the stage of having one very significant large impact. So what I think we would be looking for is the capacity for the minister to make a determination to refer to the panel multiple applications or applications that get beyond a critical threshold based on his or her own analysis.

Senator WATERS: And you think there is not the ability to do so under the bill as currently written?

Mr Gregson : I do not believe so but, as I say, I am not a legal expert in the field.

Senator WATERS: I think you are right—and I am going to go and have another look myself. Thank you very much. That is all from me.

Senator McKENZIE: Mr Gregson, thank you for your submission. Today I am pursuing an area that started early in the day, and it is around research and its academic and independent validity. Has the New South Wales Irrigators Council conducted research into water or partnered with other aspects of the water industry around developing research in your particular area of expertise?

Mr Gregson : Not to a significant extent in the time frame that I have been involved with the Irrigators' Council, which is the past five years. However, the organisation is 27 years old.

Senator McKENZIE: So you could not comment on the role of industry in partnering with organisations, advocacy groups and universities to conduct research within a particular sector?

Mr Gregson : I could provide an opinion but I doubt it would be useful.

Senator McKENZIE: That is fine. Asked and answered!

CHAIR: You are refreshingly honest, I must say. The issue has been raised of—sorry, Senator McKenzie, I thought you had finished. I am happy for you to carry on.

Senator McKENZIE: That is okay. Could you clarify: when you asked that the chair and other members of the committee be not leaders of a particular body or group, did you mean research centres as well or are you talking about advocacy groups?

Mr Gregson : We are mindful, particularly in respect of the arguments, which I am sure you are familiar with, over the Murray-Darling Basin plan across the course of the last four years, that there can on occasion be a very fine line between what is a scientific technical advisory group and what is an arm of a lobby group.

Senator McKENZIE: Correct. I think they were mentioned this morning.

Mr Gregson : I did not mention any specific names. I am more than prepared to if you would find it useful, but we are concerned that the capacity for the same exists here. I am not entirely certain that there is capacity within the legislative framework to do anything further about it than what the amendments propose. We are simply raising it as an issue now in front of the committee such that it can be referred to later when the minister is making a decision on appointments.

Senator McKENZIE: I will put the rest of my questions on notice. Thank you.

CHAIR: The issue of appointment of committee members took up a lot of time this morning. You said that you do not want it to be an arm of a lobby group. Is that correct?

Mr Gregson : That is correct.

CHAIR: In your submission, you argue that the stakeholders should be given an opportunity to make recommendations for members to be selected to the committee.

Mr Gregson : That is correct.

CHAIR: Would that not then lead to a diminution of independence?

Mr Gregson : With respect, on the contrary. I think that the capacity to comment not only on experts from the field in which a lobby group works but also on the fields in which it does not will encourage and enhance the independence. To give you an example, if an environmental organisation were able to provide comment on the appointment of a water resources specialist or if a water resources organisation was able to provide comment on a mining specialist, then you might find that that is in itself a check and balance against the lack of independence on the panel.

CHAIR: I am not sure if you were here for the evidence from the Minerals Council of Australia.

Mr Gregson : Only for the last part of it.

CHAIR: There was a bit of debate about the definition of an expert. Did you hear that?

Mr Gregson : I heard part of that, yes.

CHAIR: I suppose there are two issues that are raised in your submission. One is, if a stakeholder has an opportunity to make recommendations, then the Minerals Council should be one of those stakeholders. Is that correct?

Mr Gregson : Yes, agreed.

CHAIR: They should have the same capacity as your organisation. Do you accept the definition by the Minerals Council that to be appointed to this committee a hydrologist or an expert in this area should have an understanding of the mining industry?

Mr Gregson : Not necessarily. If you ask somebody for expertise in hydrology then that expertise may have come across a broad range of fields. Of course, one might be mining; another might have been hydrology in respect of agriculture or a range of other extractive water industries. Do they need to have specific expertise in the subject matter to which their seat is assigned? Yes, absolutely but in terms of the projects for which they will be asked to be assessed, no, I do not follow that logic at all.

CHAIR: Yes, I was having difficulty myself, Mr Gregson. That is good. Do you have a view on the stopping-the-clock issue?

Mr Gregson : We did. In fact, I even noted it down here somewhere. I know it was referred to in our submission, but I cannot find it immediately. It is listed under 'Other matters' as the final item of our submission.

CHAIR: You were asking for clarification, weren't you?

Mr Gregson : Yes, I think we were, particularly in respect of what happens with current mining approvals. One of the reasons we raised this is that there are a significant number—and over the course of the next couple of years there will be a further significant number—of approvals issued in New South Wales that will expire and will come up for renewal. One of the questions that is being asked in terms of the development of the framework in our state at the moment is how they will be treated—whether they will be treated under an old system or a new one. We recognise that there are timing constraints on investment in mining and coal seam gas as there are in any other industry. So the stop-the-clock process is a relatively onerous one, and I do not think we would be averse to some sort of time limits on the clock-stopping process.

CHAIR: Thank you very much, Mr Gregson. That has been very good. We appreciate your input.

Mr Gregson : It has been a great pleasure. Thank you.

Proceedings suspended from 14 : 36 to 14 : 53