Holman Webb Lawyers was recently involved in Federal Court litigation to protect the Great Artesian Basin (“GAB”) from long-term environmental damage.

This article provides a high-level summary of the case and highlights the need for legislative reform to protect vital freshwater resources in Australia.

What is the GAB?

The GAB contains a vast volume of underground water and is the largest groundwater basin in Australia, covering an immense area of approximately 1.7 million square kilometres across four states and territories.

The GAB is an invaluable natural resource for the regions it underlies, providing a reliable source of freshwater deep beneath the arid and semi-arid landscapes of Australia. Without this vast underground reservoir, many parts of inland Australia would struggle to support their populations and economies.

The parties to the litigation

Holman Webb Lawyers acted on behalf of the Applicant, AgForce Queensland Farmers Limited (AgForce), which is the peak industry body representing Queensland’s rural producers, including a group of farmers who were in the vicinity of the proposed project.

The Respondent was the Federal Government.

The application

In early 2022, the Federal Government approved a mining company’s proposed carbon capture and storage (“CCS”) project to pump more than 300,000 tonnes of emissions from a coal-fired power station into the GAB west of Toowoomba in Queensland.

AgForce sought to set aside the Federal Government’s approval on the basis that the Federal Government’s decision-making process involved errors of law.

The alleged errors of law

In approving the mining company’s proposed action, the Federal Government determined that the proposed action was not a ‘controlled action’ for the purposes of the Environment Protection and Biodiversity Conservation Act 1999 (“EPBC Act”). This determination was based on the Federal Government’s decision that the proposed action did not involve a ‘large coal mining development’ and, subsequently, the mining company’s proposal did not have to be further assessed.

On behalf of AgForce, we argued that the Federal Government’s determination was in breach of the EPBC Act and that the Federal Government was required to:

• Refer the matter to the Independent Expert Scientific Committee on Coal Seam Gas and Large Coal Mining Development for advice; and
• Consider all adverse impacts the proposed action is likely to have.

What about the Queensland State Government?

Queensland has its own environmental legislation that must be considered when any large-scale proposal may impact the environment.  In a statement issued by the Queensland Government’s Department of the Environment, Tourism, Science and Innovation (“Department”) in May 2024, the Department ultimately determined that the project was unsuitable to proceed due to its potential impacts on groundwater resources in the GAB. A three-year assessment undertaken against Queensland’s environmental legislation found the proposed CCS project would increase concentrations of chemical contaminants and, consequently, cause irreversible or long-term change to the GAB’s groundwater quality and environmental values. On this basis, the Department’s decision clarified that CCS projects will not be viable in the GAB – not now, and not in the future.

After the Federal Court litigation was commenced by AgForce, the Queensland Government introduced legislation to prevent CCS projects, including the proposed CCS project, that might have otherwise pumped carbon waste into the GAB.

The need for legislative reform

Parties aggrieved by similar actions which interfere with the integrity of Australia’s essential natural resources should not have to advocate through extensive litigation to protect our environment and the legitimate interests of affected communities. To this end, the new Queensland legislation offers a productive development. However, other Australian States and Territories need similar legislative changes to protect the GAB from CCS projects.

The Federal Government also needs to tighten the EPBC Act to properly protect water resources such as the GAB on a national basis. It is surprising this has not already been done, given Australia is one of the driest continents in the world and noting the importance of the GAB to communities and rural producers in areas where there is no other available water source. 

If you have any questions or queries about this case or would like advice and assistance regarding a disputed environmental law matter, please contact Shane Roberts.

Shane Roberts
Partner – Brisbane

Vanessa Karabetsos
Law Clerk – Brisbane