On 16 March 2020, ACF lodged a case in the Federal Court against the Morrison Government, over its assessment of Adani’s North Galilee Water Scheme (NGWS). The case was heard by the Federal Court on 6 October and 13 November 2020. A decision is expected in early 2021.
The NGWS is proposed pipeline and water harvesting infrastructure that would enable Adani to pump up to 12.5 billion litres of water per year from the Suttor River to the Carmichael coal mine.
The basis of ACF’s case is that the Morrison Government made an error of law when it decided not to apply the ‘water trigger’ to the assessment of the NGWS. ACF launched similar legal action against the federal government in 2018.
This blog explains what the water trigger is, why it’s important, and how this case is different to the first case ACF brought about the NGWS in 2018.
What is the ‘water trigger’ and why does it matter?
We live on one of the driest continents on Earth. Water has a special significance to Australians and our environment.
The water trigger is a feature of our national environment laws, designed to comprehensively assess the impacts of large coal mine developments and coal seam gas projects on water aquifers and rivers.
The water trigger applies when the Environment Minister decides a coal mine or coal seam gas project will have, or is likely to have, a significant impact on a water resource.
What was ACF’s first NGWS case about?
In 2018, Adani submitted its NGWS plans for assessment by the federal government. The government decided that although the project’s impacts on threatened species needed to be assessed, its impacts on water resources did not.
ACF launched legal proceedings arguing that the government had made an error of law by not applying the water trigger.
During the course of litigation, we discovered the federal government had not properly considered some of the thousands of public comments that were made. On that basis we added a new argument to our case.
In June 2019, before we had the opportunity to have the case heard in the Federal Court, the government conceded the case. However, while it conceded that it had not properly considered some of the public comments, it did not concede that it had made an error regarding the non-application of the water trigger - the original basis for our case.
In other words, the legal question about the scope of the water trigger was left unresolved.
What’s the difference this time?
In December 2019 the government again determined that the impact of Adani’s NGWS on water did not need to be assessed.
In the government’s view, the water trigger only applies to projects that involve the physical extraction of coal. While the NGWS will supply water for exclusive use at the Carmichael coal mine, because the pipeline scheme does not, in and of itself, propose to extract coal, the water trigger does not apply.
ACF’s view is that this is a very narrow reading of the water trigger, which would encourage mining and coal seam gas (CGS) proponents to ‘split up’ the assessment of their projects to escape scrutiny.
At a time when global warming is changing rainfall patterns and creating more intense and prolonged droughts, expert scientific scrutiny of big coal projects is essential.
In its submission on Adani’s NGWS, the federal government agency Geoscience Australia expressed concerns that Adani’s water modelling did not assess the potential for climate change to impact on flood frequency and had ignored potential impacts on groundwater dependent ecosystems.
Big mining corporations cannot be trusted to put our environment ahead of their profits, which is why it is so important that the water trigger is applied to projects like Adani’s NGWS.
We are taking this case to draw a line in the sand. If we win, it will set a new legal precedent that essential infrastructure for coal mines and CSG projects must be assessed under the water trigger.
ACF is funded by tens of thousands of Australians. This means our campaigns to protect our living world are fearless, objective and independent. Please donate here if you would like to support our work to Stop Adani, including this court case.
