Abstract
Using the Carmichael coal mine as a case study, this paper explores and analyses the current challenges and potentials of the Australian regulatory framework in designing policies that balance the direct local economic benefits with global environmental concerns and a global common vision about how to manage mining development and energy security challenges). In this effort, it evaluates the current Australian regulatory framework for mining projects, based on two hypotheses: 1) the development of large-scale mining energy projects linked to fossil-fuel resources creates legal challenges; 2) these legal challenges should be analysed in an interdisciplinary approach from both local and global perspectives on law, economics and socio-politics.
Since the gold rushes of the 1850 s, mining has taken centre stage in the Australian economy. In recent decades, due to a boom in investments in mining projects as part of the global competition for mineral resources and sources of energy, the country has become one of the world’s top producers of gold, iron ore, lead, zinc, nickel and coal. Australia, as a fossil-fuel supplier of energy, has played a key role in the trade balance of energy in the Asia-Pacific region, not only satisfying the growing Asian energy demand from key economic sectors, but also benefitting from the specific countries’ aspirations to advance access to energy that is more reliable and reduce biomass consumption.
The mining boom in Australia reached its peak with the launch of the “Carmichael Coal Mine” project (sometimes referred to in the Australian media as the “Adani Mine” or “Adani project”), funded by investors from India. In 2010, a “mega-project” also called “the Carmichael coal mine” was proposed. It was expected to have a lifetime of 60 years and estimated life-cycle production of 2.3 billion tonnes of thermal coal.
Due to its enormous scale, and despite its potential economic and social effects (including fiscal income), the Carmichael project has been strongly opposed by conservationists, farmers, left-wing politicians and climate-change advocates because of its potential environmental impacts, including its consequences for climate change. Other opponents include human rights groups, as well as groups of Aboriginal peoples, whose lives and native titles are compromised by the mine project location. UNESCO, too, has expressed apprehensions regarding potential impacts on the World-Heritage-listed Great Barrier Reef Marine Park. As such, the Carmichael project, which was initially projected to become one of the largest coal mines in the world, has become the object of litigation in Australia’s courts.
It is estimated that the burning of coal from the mine will generate 4.6 billion tonnes of greenhouse gas (GHG) emissions. These emissions are more than 0.5 percent of the country’s remaining carbon budget, if the world is to have a chance of limiting global temperature rises to 2°C above pre-industrial levels. 1
Using the Carmichael coal mine as a case study, the purpose of this paper is to explore and analyse the current challenges and potentials of the Australian regulatory framework to move towards designing policies that take into consideration and balance both the direct economic benefits for the local economy and global environmental concerns (including a global common vision about how to manage mining development and energy security challenges. Hence, the current status of the regulatory framework for mining projects in Australia, as well as possible future sustainable development pathways for this contentious sector for governments and civil society, will be evaluated. It propounds two hypotheses: 1) the development of large-scale mining energy projects linked to fossil-fuel resources creates legal challenges; 2) these legal challenges should not be analysed only from a local legal perspective but require a global and interdisciplinary approach combining various disciplines, such as economics and socio-politics, but also different areas of law, such as foreign investment law, human rights law and environmental law.
It will also consider mining projects from the perspective of global concerns, including GHG emissions (highlighted for example by the Paris Agreement and the Intergovernmental Panel on Climate Change (IPCC)) and the need for access to reliable sources of energy (highlighted by Agenda 2030 of the United Nations Development Programme). This combination is included herein as substantive guidance especially in relation to how local regulators and policy-makers will proceed to manage and regulate this activity.
The article’s methodology is a “legal science” approach combined with a socio-economic and political science approach, analysing current and future pathways towards sustainable development of the mining sector with a view to highlighting key challenges that require scholarly and regulatory attention in the future, not only in Australia but also in other resource-rich countries. This article seeks to capture and address the specific challenges the mining and fossil-fuel energy investment projects are facing now and in the future, with the ambition of turning the global regime of the mining energy sector toward a more collaborative sustainable development path, rather than the current “project-by-project” approach.
Regulatory Background to the Carmichael Coal Mine Case
The regulatory background to the Carmichael coal mine is a regime dating back to the time of British colonial control over the Australian continent and before the Commonwealth of Australia was established in 1901. The original Carmichael coal mine project came up at a critical moment in time when the Australian mining sector was facing significant structural changes and industry adjustment due to the difficult economic crisis. Despite these difficulties, however Australia remains vigorous in the development in the mining sector, taking into account the global relevance of its resources. Adani, as all the mining companies in Australia, is well established within the relevant institutional and governmental frameworks. As such, it provides a useful demonstration of the interplay of environmental and energy law, foreign investment law, and the international law of indigenous rights and interests, as they arise during the approval processes for large mining development projects.
Australia is a federation of states and territories with representative democracies at state, national and local levels. 2 The Commonwealth of Australia includes six states and internal and external territories. 3 The Australian Constitution provides specific powers to the national government with residual powers to states and local territories. 4 Each of the various states and territories has enacted its own laws regarding the exploration and development of mining operations. Each state and territory has its own jurisdictional power over natural resources such as minerals, and onshore and offshore (up to the three nautical miles (NM) limit from the baseline) petroleum, while the federal government shares with the states and territories jurisdictional power over other types of natural resources. 5 The current Australian federal government, led by a Liberal-National party coalition, was elected in May 2019. 6 Government policy at all levels aims to provide a well-defined system of laws and procedures governing the development of mining projects, as well as proactive foreign investment regimes, especially large-scale mining projects such as the Carmichael project, which ranks Australia in the top echelon of leading investment destinations, second only to Canada. 7
1.1 Legal Context
Australian Legal System
In the Australian legal system, the federal government has decision-making power as regards foreign investments. The official Foreign Investment Policy of Australia is very explicit and states that Australia “welcomes foreign investments as it has helped to build Australia’s economy and is thought to furthermore enhance the wellbeing of Australians by fostering economic growth and prosperity”. 8 The Foreign Investment Review Board (FIRB), a Commonwealth government body responsible for administering the Foreign Acquisitions and Takeovers Act (the Act) and examining proposals by foreign persons and entities to invest in Australia, assesses whether a proposal is “contrary to the national interest”. 9 The Act, however, does not define “national interest”. 10 This allows proposals to be assessed on a case-by-case basis, recognising that national interests change over time and flexibility is necessary to account for variable economic and industry conditions. Generally, when considering whether a proposal is in the “national interest”, regard is given to broad topics contained in Australia’s foreign investment policy (such as national security and competition) and other government policies (e.g., tax or environment) that affect the economy and broader community as well as the “character of the proposed investor”.
Carmichael, Queensland
Carmichael is situated in Queensland, one of the most important states with regards to coal production. In Queensland, the State Minister responsible for the legislation governing the management of natural resources is the Minister for Natural Resources and Mines. The Minister is assisted by the Department of Natural Resources and Mines (DNRM) and key departments, such as the Department of Energy and Water Supply, the Department of State Development, Infrastructure and Planning, the Queensland Treasury and the Department of Environment and Science. A foreign investor is not able to start mining activities in Australia until the respective state’s or territory’s government has granted the necessary permission, commonly in the form of a mining licence or lease. Furthermore, as in many other states in Australia, there are numerous other permits and licences required at each stage of the mining cycle in Queensland. 11 The most important permits and licences applicable for most mining developments include environmental permits, planning and development approvals, health and safety permits, rights to use water, electricity and other utilities, and cultural heritage and native titles. Environmental assessment, approvals and compliance with legislative requirements are mandatory for the commissioning and operation of all mining projects. 12 In Queensland, mining licences are governed by the Mineral Resources Act of 1989 (MRA). 13
The DNRM manages Queensland’s natural resources. 14 The Department of Environment and Heritage Protection (DEHP) manages the process for issuing the necessary environmental authorisations required for a mining lease. 15 In this process, and in order to issue a mining lease, the DNRM investigates applicants’ past dealings with the resource authorities in Queensland. However, the DNRM does not investigate their past performance in other Australian states or offshore.
The lack of investigation into a mining lease applicant’s past performance in jurisdictions outside Queensland and the lack of self-reporting of environmental offences in jurisdictions outside Australia for suitable operator registration for an environmental authority represent a lack of due diligence, 16 and opens up a challenge for the current legal framework because mining leases might be granted to operators with a history of non-compliance.
In addition, the question of “land access” is relevant. Land access refers to the legal framework for foreign investors to enter the land of a “third party” 17 to conduct the activities (i.e., transport, drilling, and establishing and using production facilities) necessary to realise a mining project. The question of land access is relevant because it includes the relationship of the foreign investor with indigenous and local governments and their respective planning authorities. Land in Queensland comprises “Crown land” and “private land”. 18 Crown land refers to land owned by the Commonwealth of Australia or the State. When a mining licence is granted on Crown land, the conditions for entry depend on the category of the land concerned.
In state parks, national parks and wilderness areas, including for example the Great Barrier Reef, mining activities normally cannot be conducted and in conservation reserves and regional parks, exploration and mining are restricted, and mining licences and land access permits can be subject to further restrictions. 19
Agreement from the relevant government department, currently the DEHP, is required to realise a mining project. Until 1992, the Australian legal system did not recognise that Australia’s indigenous inhabitants had rights or interests in relation to lands or waters.
Native Titles
In order to understand the developments and the paradigmatic shift in the thinking of the mining industry with regards to the native titles in Australia, the Mabo case is crucial. 20 In the wake of the Mabo case, the High Court of Australia recognised the “native title” rights of Aboriginal peoples in relation to land in which those rights survived the acquisition of sovereignty by non-indigenous people.
Native title law is very complex in Australia and cannot be treated extensively in this article. However, key provisions of native title rights are set out in the Native Title Act of 1993. 21 The Adani Mine Case has challenged Australia’s native title system since the indigenous people living in the area, the Wangan and Jagalingou people, possess a registered native title claim over the proposed mine site. While some community members have sought to negotiate a land-use agreement with Adani, others have remained opposed to the project. International law and human rights law supporting the rights of indigenous groups will be treated in Section 1.4 “Human Rights and Cultural Challenges”.
1.2 Importance of Australia in the Global Mining-Energy Landscape and Economic Potentials
Australia is the third highest-ranking country among the world’s top mining countries. Australia possesses the highest ranking in economic demonstrated resources (“EDR”) of crucial minerals. 22 It is a top producer of gold, silver, lead, zinc and copper and a range of other minerals and has the largest EDR of iron in the world. Australia is also one of the world’s largest producers of coal with production in 2012 amounting to 241 million tonnes, with a global share of coal production of 6.3 percent. Only China and the US produce more coal. 23
Queensland is very rich in coal and produces one eighth of the global metallurgical coal used in steel production. Australia is second in the world in the production of thermal coal (coal used in power generation), which accounts for 15 percent of internationally traded coal. 24 The majority of coal produced in Australia is exported to Asia, and growth in demand from China has increased exports in Queensland. Community and environmental groups are concerned about possible adverse impacts on the environment, on climate change, groundwater, threatened species, indigenous rights and the Great Barrier Reef Marine Park, where the plant is located, and this has led to several court challenges to both Commonwealth and state environmental approvals.
However, it is evident that the Carmichael development in the energy sector will make a difference not only at the domestic level but also at a world level. Its project approval process represents an opportunity to develop further and improve awareness of any gaps and vulnerabilities of the Queensland legal system in the mining industry that can be assessed to be crucial for the global energy landscape.
The energy resource sector in Australia occupies a prominent position on the national agenda as it delivers important economic benefits and potential for the state, given that it contributes to export earnings, employment, foreign and domestic investments, and government revenues. 25 The national reliance on, and the future economic potential of, the mining industry has enabled large resource companies to become highly influential in Australian politics, which has led the carbon lobby to exercise significant power and influence over key policy-makers and public opinion. 26 Employment predictions due to mining industry growth are promising, especially with the economic modelling predictions.
For example, the economic modelling for the Carmichael coal mine was quite optimistic in estimating the number of jobs per annum from 2024, predicting a future increase in average annual employment by 1,206 jobs in Queensland and 1,446 jobs in Australia. 27 However, despite this optimistic vision, the economic modelling of Adani was disputed in the Land Court with economists challenging the assumptions made regarding the number of jobs that would be created by the mine and the company itself. 28 Perhaps the establishment of “performance requirements”, referred to as obligations imposed by the host state on the investor to run its business in a certain manner (for example, forcing foreign investors to hire indigenous personnel), could be considered as its “economic potential” for consideration under the Australian legal framework. 29 If done properly, the project may solve the current unemployment rate of indigenous Australians 30 – a crucial topic in the mining industry, given that most of the mining projects (like the Carmichael project) are located in remote regions and overlap and/or are in close proximity to land over which indigenous peoples have rights and interests by way of native title claims or rights.
Energy Connection
Another source of economic potential, even if it is at a very nascent stage of development, is the possible reconversion of the mining industry sector and coal production towards renewable energy infrastructures, which would have a considerable beneficial impact on the economy and the environment by mitigating climate change impacts and creating new work forces, both local and indigenous. An example is given by the Adani Group itself since one of its subsidiaries, Adani Renewables Australia (a parent of Adani Mining Pty) is striving to be a leading supplier of renewable energy in Australia with a vision of generating renewable energy as part of an energy mix that is reliable, secure and affordable as we transition to generating lower emissions. 31
1.3 Climate Change and Environmental Protection Challenges
The current scientific understanding of climate change, the quantification of emissions as proposed from the Carmichael project, and the contribution of those emissions to climate change have been prepared and documented in a joint expert report on GHG and climate change issues for the Land Court of Queensland hearing of objections to granting the mining lease and environmental authority applications for the mine and rail components of the project. Even if its lifespan was reduced, Carmichael is one of the largest coal mines in the world and the project would represent a serious climate impact, contributing to factors causing global temperatures to rise to 2°C above pre-industrial levels. Such an increase would have significant impacts in Queensland, including: 1) a decline in environmental values of many sites, including the Great Barrier Reef; 32 2) increased flooding, erosion and damage in coastal areas due to increased numbers of severe tropical cyclones and sea-level rise; 33 3) significant increase in heat-related deaths and diseases; 34 4) reduced water availability and increased frequency of droughts affecting agricultural production; 35 and 5) coastal erosion due to sea-level rise, projected to be about 40 cm higher than today by the late 21st century. 36
Even with such a strong negative impact on climate change, however, coal will still be needed for the transition period from non-renewable toward renewable energy until the moment where it can be totally abandoned. 37 In Australia, Bloomberg New Energy Finance has stated that a tipping point has now been reached, with renewables now being cheaper to build than new coal or gas power stations and hopes for new future trends to convert from coal to renewable energy projects, such as the solar energy mentioned previously. 38 Future potential hopes thus lie in this process of reconversion from non-renewable energy to renewable energies, where the coal industry will be totally abandoned at a certain point because it increasingly falls out of favour in the face of both cheaper alternatives and concerns about health.
With regard to environmental protection in Australia, environmental assessment, approvals and compliance with legislative requirements are mandatory for the commissioning and operation of all mining projects. Environmental assessments and approvals are governed by both Commonwealth and state and territory legislation.
Depending on the size, significance and impact of the project, the regulator may require environmental assessments to be undertaken with respect to: 1) minimisation of impact on flora, fauna and habitats; 2) environmental pollution and contamination of land; and 3) management and use of water resources, including protection against groundwater contamination. 39
In Queensland in reference to the Carmichael coal mine, the most important pieces of hard law to be considered under state and Federal legislation are a) a mining lease under the MRA; b) an environmental authority under the Queensland Environmental Protection Act of 1994 (EPA); and c) approval under the Environment Protection and Biodiversity Conservation Act (EPBC Act). 40 A range of other approvals can be required depending on the nature and location of a mine and its associated infrastructures.
Sometimes water licences under Queensland’s Water Act 2000 are required, where the project plans to extract groundwater. Changes to the Water Act on 10 November 2016 created a special exemption for the Carmichael project in order to avoid undergoing a further objection process for its water licence. In Queensland, for large infrastructure projects, both the state and Commonwealth in conjunction with the Coordinator-General’s office have authority. The Coordinator-General may declare a project to be a coordinated project for which an Environmental Impact Statement (EIS) is required. 41 An EIS is required for high-risk and/or large-scale projects that have the potential to cause environmental, social or economic impacts. 42
Weaknesses have been identified in the coordinated projects assessment processes, including inadequate due diligence, the fact that the Coordinator-General has the discretion to make evaluations and recommendations, and the limited independent review of modelling systems used in the EIS. The criteria of due diligence in conducting investigations appear to be particularly challenging. The State Development and Public Works Organization Regulation 2010 stipulates that the proponent must provide in the EIS details of any proceedings under a law of the Commonwealth or state. As mentioned in the previous section, this requirement does not extend to proceedings in jurisdictions outside Australia. Under the EPBC Act, in referral and approval decisions, the Minister must have regard to a person’s environmental record. This includes demanding that executive officers of a body corporate check whether the operator is “suitable” or has a negative track record in terms of pollution when they apply for environmental authority for a mining lease under the EPA 1994.
The gap in both state and Commonwealth law regarding the investigation of the project proponent’s record in jurisdictions outside Australia is potentially significant in the context of the Carmichael coal mine since the proponent Adani Mining Pty has not been subject to any proceedings under a Commonwealth, state or territory law for the protection of the environment. 43
Despite these challenges, recently, an important decision to approve a Groundwater Dependent Ecosystem Management Plan (GDEMP) was taken on 8 April 2019. 44 As reported by the international media, the Coordinator-General’s Office said that the review of this GDEMP “has been rigorous and based on the best available science” and there had been regular meetings to “ensure the plan is robust and provides the maximum environmental protection”. 45 As noted by the state’s environmental minister, Leanne Enoch, however, in a statement to the Queensland parliament, the plan was approved on the basis of significant commitments and amendments to continue to undertake important monitoring work over the next two years and throughout the life of the mine. Enoch also took a shot at critics in the state’s Liberal National Party and the Federal Government over the pressure they had put on Queensland to grant Adani’s environmental approvals:
[It] will be interesting to see how the federal government justifies its approval of a previous version of the GDEMP given the considerable enhancements that are required in order for it to reach the standard of approval by the Queensland regulator. 46
1.4 Human Rights and Cultural Challenges
Since the Wangan and Jagalingou people received the first notification of the Carmichael project in late 2011, negotiations have been prolonged and controversial. 47 The legal saga took place from 2012–2016, a period within which the Wangan and Jagalingou people rejected three Indigenous Land Use Agreements (ILUAs) put forward by Adani.
Adani approached the National Native Title Tribunal twice and both times the Tribunal delivered a ruling in favour of the mining lease. 48 Finally, Adani obtained the consent of the Wangan and Jagalingou people in an ILUA signed in April 2016. The authorisation of this agreement was contentious and difficult, however, with the vote adjudged to be unrepresentative and illegitimate. 49
The decision was based on the contentions presented by Adani and the Queensland Government, including the argument that the Minister for State Development had designated the mine and associated port projects as “prescribed projects” of social and economic importance to the state (the “national interest”).
In April 2016, the Queensland Minister for Natural Resources and Mines granted two mining leases to Adani as mentioned above, and in August 2016 the Federal Court dismissed an appeal against this decision. In September 2016, a further appeal against the decision was made to the full Federal Court but in October 2016, the Minister for State Development upgraded the project’s status to “critical infrastructure” considered “essential to the state’s economic and community wellbeing”. Adrian Burragubba, one of the native title applicants opposed to the mine, has claimed that Adani and the Queensland Government are attempting to force the mine on traditional owners against their will, implying that the international legal right of prior and informed consent is not protected under Australian law. 50
The concept of free, prior and informed consent is contained in Article 32 of the 2007 United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). 51 According to this provision, indigenous people have the right to withhold consent to any major acts affecting their wellbeing and cultural heritage, and it interprets “consent” similarly to a veto power. 52 If consent is withheld, the state can override this, if it is justified in the public interest.
Although Adani has now received all the necessary approvals, legal challenges continue, including an appeal to the full Federal Court over the decision to grant the leases.
1.5 Participation and Consultation during Environmental Impact Assessment Processes
In July 2000, the Australian federal government introduced a new project-based Environmental Impact Assessment (EIA) regime under the EPBC Act aimed at identifying, predicting, evaluating and mitigating the impacts associated with development proposals and policies. Although states and territories retained primary responsibility for planning and environmental regulation under the EPBC Act, the Australian government’s reach was extended to include actions that threaten matters of national environmental significance. 53 Classified in 2010 by then-appointed Coordinator-General Graeme William Newton as a “significant project” under the State Development and Public Works Organisation Act (1971) (although this was later changed to a “coordinated project”, the Carmichael Coal Mine and Rail Project was required to submit an EIS. After receiving the terms of reference for the EIS in May 2011, the Adani Mining published its report of anticipated environmental, social and economic impacts of the project as well as proposing avoidance, mitigation and offset measures.
By Adani’s own admission, the project will result in a change to the character of the landscape in terms of topography, geology and soils; potentially contribute to natural hazards and climate change through emissions produced by various chemicals and fuels used to undertake underground and open-cut mining activities; affect surrounding ecosystems, flora species, and vegetation; and, contribute to noise and air pollution. 54 The project is unlikely to seriously impact water resources given that, geographically, the Carmichael mining lease lies 300 km inland within the Galilee Basin, a semi-arid environment where there are no nearby permanent watercourses except for part of the spring-fed Carmichael River. Two salt lakes, the Buchanan and the Galilee, and the Doongmabulla Springs Complex which consists of a large number of permanent freshwater springs, are situated to the west of the mine. The main aquifer in the mine area is the Colinlea Sandstone/Bandanna Formation. 55
Although the project has faced strong opposition from inception due to its enormous scale, significant concerns have been raised regarding its impact on Aboriginal communities in the area who would be directly impacted by the mine or related rail and port infrastructure. The proposed mine and the first 17 km of the railway are located within the external boundaries of the Wangan and Jagalingou people. Parts (approximately 145 km) of the railway are located within the external boundaries of the lands of the Jangga people, a smaller part (17 km) is within the external boundaries of the Barada Barna, Kabalbara and Yetimarla people, and another (3 km) is within the external boundaries of the Barada Barna people.
The proposed project would therefore cross the homelands of four different Aboriginal nations, all of which are subject to the Native Title Act 1993 (NT Act), which recognises the traditional rights and interests to land and waters of Aboriginal and Torres Strait Islander peoples, and the Aboriginal Cultural Heritage Act 2003 (ACH Act) which binds all persons to provide effective recognition, protection and conservation of Aboriginal cultural heritage. The NT Act itself has been criticised for creating a political and legal context which favours mining interests as well as denying indigenous peoples the right to veto proposed developments on customary lands and denying traditional owners royalties when they fail to either reach or refuse to enter into an agreement. 56
Between 2011 and 2012, Adani embarked on a consultation process to inform stakeholders and the broader community of the project and involve them in the EIS. According to Adani this was to be accomplished through (1) establishing an open two-way flow of information, designed to meet community, government and the proponent’s requirements in achieving a transparent, meaningful and appropriate consultation process; (2) communicating detailed project information, in an easy-to-interpret, community-friendly format; (3) enabling opportunities for local and regional communities, and other stakeholders, to identify issues, impacts and possible mitigation measures to be documented for consideration as part of the EIS; and (4) building community understanding and support of the EIS process. 57 The public consultation process was organised by Adani through a four-stage approach, with stage 1 coinciding with the commencement of the EIS and release of the Initial Advice Statement and Draft Terms of Reference, stage 2 with the development of the EIS, stage 3 with the release of the draft EIS, and stage 4 with the evaluation and finalisation of the EIS. 58
Adani reported that their consultation activities included community information sessions held in Moranbah, Clermont and Collinsville, government agency briefings and meetings held in Mackay, Brisbane, Moranbah and Canberra, council briefings and meetings held in the local governments of Isaac, Whitsunday and Charters Towers, landholder communications with those affected by acquisition of property or easements, and also consultation with traditional owners. Community information sessions were advertised in local newspapers, project newsletters, the Adani website and email notifications to stakeholders on the project database. Letters of invitation were sent to directly affected landholders. Although community engagement for the social impact assessment (SIA) was integrated with the EIS consultation, Adani Mining Pty also claims to have undertaken a number of consultation activities to explicitly inform the SIA. These activities included interviews conducted with representatives from Isaac, Charters Towers, Whitsunday, Mackay and Central Highlands Regional Councils, and Townsville City Council; workshops held with key service providers across the regional study area; and the issuance of invitations to potentially affected landholders to participate in case studies. During the consultation process, in addition to the environment, a number of major themes were discussed including housing and accommodations, workforce supply, fly-in/fly-out operations, shared-use rail corridors, life in mining towns, and roads and safety. 59
In its EIS, Adani reported that during the consultation process it established an Early Works Agreement and Cultural Heritage Management Plan (CHMP) with all four Aboriginal nations who would be directly affected by the development project. Adani has failed to reach land-use agreements with all of the affected indigenous groups, which has fuelled conflict and division among the Aboriginal nations. Traditional owners from the Wangan and Jagalingou nations in Central Queensland have continually sustained their opposition to the project on the basis that it would destroy their ancestral homelands and the sacred Doongmabulla Springs.
The Wangan and Jagalingou Family Council (WJFC) has refused to sign the IULA with Adani, which is required in order for the project to go ahead. Having voted down the first and second ILUA proposals in 2012 and 2014 respectively, the WJFC held a third meeting in 2016 without the involvement of the company and again rejected Adani, refusing to give up their native title rights. 60 However,
as indicator of Adani’s heavy hand, alongside the State Governments’ central role in constructing indigenous consent for the Carmichael Mine to proceed, in late 2015 the Coordinator General and Adani initiated a further attempt to settle a land use agreement. This was obtained at a meeting in April 2016. 61
The WJFC disputes Adani’s claim that they consented to the ILUA and also assert that the mining company misled the Tribunal by overstating the economic benefits of the mine and associated infrastructure. Adrian Burragubba, spokesperson for the WJFC, described this as “a sham meeting which has engineered a sham outcome”, commenting that
not just once but three times W&J traditional owners have voted to reject Adani taking our lands and digging the Carmichael mine on our country. But right from the start foreign billionaire Adani’s company has been intent on getting what it wants, and used its power and money to divide our community. 62
Moreover, Murrawah Johnson, also a spokesperson for the WJFC, claimed that in order to push through the agreement “Adani has bussed in large numbers of people, including non-members of our claim group who have no connection to the country which this dangerous mine is set to destroy”. 63
While the WJFC currently awaits a decision on the matter by the Full Federal Court, the United Nations has asked the Australian Government to consider suspending the Adani project in central Queensland until it gains the support of a group of traditional owners, raising concerns that the project might violate indigenous rights if it was to proceed.
Economic Challenges in Relation to the Carmichael Coal Mine
In 2013, the Independent Expert Scientific Committee on Coal Seam Gas and Large Coal Mining Development (IESC – an Australian government-approved independent scientific body) completed a report for a number of Queensland government agencies in relation to the Carmichael mine’s supplementary EIS. Amongst the various questions posed to the IESC, the agencies wanted to know what “additional measures and commitments [are] required to monitor, mitigate and manage impacts resulting from changes to surface or groundwater resources?” Amongst other things, the authors of the report recommended,
The management of the voids could be further strengthened by providing a Mine Void Management Plan, which would be expected to be developed prior to completion of mining in the first pit ... In the Final Void Management Plan, the proponent should demonstrate that impacts to water resources are mitigated and managed in perpetuity where backfilled voids are not part of the final landform and consider options for the post-mine use. 64
This piece of advice is in line with the best practice notion that successful mine closure results in few or no negative legacies. 65 As Currell et al. point out, however, the IESC recommendation, sage as it may be, is not binding and companies are “not required to resolve all technical and scientific issues identified in the committee’s advice”. 66 They argue that in Australian mine approval conditions, it is common to omit remediation/mitigation strategies “if the proposed mining has a more serious impact than is currently modelled”. What is concerning about this warning is that Australian government regulators, planners and policy-makers have repeatedly made no attempt to prevent adverse outcomes in the mining sector and this behaviour pervades thinking not just in relation to environmental issues but also those of a financial and economic nature.
For this reason, a number of economists and journalists interested in this project have drawn similarities between the physical voids that will need to be created to extract the resource and the “economic voids” that are likely to appear once production starts (if the project ever gets to that stage). These commentators have identified four different types of economic voids: royalties, tax, employment and public debt. Below, each of these will be examined in detail.
2.1 Mining Royalties
Queensland’s Mineral Resources Act (1989) and Mineral Resources Regulation (2013) stipulate that coal mining be subject to royalty payments. A sliding scale from five to seven percent applies depending on the market value of a tonne of coal but companies can claim a number of deductions that effectively reduce the royalty rate. 67
Even though this requirement may seem simple and straightforward, it was the Office of the State Revenue’s Royalty Ruling MRA001.2 (issued in 2019) that finally clarified a number of issues related to calculating the appropriate value of coal at the relevant taxing point and the ability to claim deductions for particular “allowable” expenses. Before then, these issues were resolved on an ad hoc basis, usually by policy-makers and sometimes by the relevant minister. Given the sheer size of Adani’s initial proposal, corporate tax advisors, such as PricewaterhouseCoopers and civil society organisations, raised, as early as 2013, the need to clarify coal royalty rules, thus opening up the path for what is now MRA001.2. 68
Legal clarifications aside, the issue of royalty revenues arising from Carmichael’s operation needs further examination. In its public statements, Adani Mining Pty has said, “The Carmichael project will pay billions of dollars in royalties”. 69 This is not likely to occur, given that the market value of thermal coal (Carmichael’s primary product) is expected to remain at around the current US$8 per tonne (where the 7 percent royalty rate applies). According to Buckley and Nicholas, 70 in 2018, thermal coal from all of Queensland’s mines contributed A$538 million in royalties to the state of Queensland (on average A$8 per tonne). Carmichael’s export target of 27 million tonnes per annum (mtpa) is likely to yield A$125 million annually, a significant figure when compared to current coal industry contributions but much lower than the one Adani claims, as it will take eight years before it reaches A$1 billion. One can argue that however much the company inflates its royalty payments, it will still make some payments, thus debunking the economic void claim, except that the provision of royalty deferrals is on the table for this project. In mid-May 2015, an Australia Broadcasting Corporation investigation found that the Queensland Government had offered Adani a royalty deferral valued at A$320 million. 71 After some high-level political debate in the state’s cabinet, the Queensland Government announced a seven-year royalty deferral for Adani. 72 This, together with the three years it will take to construct the mine, means that the State will not receive royalties for a total of 10 years from the start of the project.
2.2 Tax
Non-renewable resources contribute approximately 10 percent of Australia’s GDP 73 and yet the country’s taxation regime at the federal level does not include taxes specifically designated to apply to for profits derived from the mining sector. In 2012, the Rudd Labour government introduced the Minerals Resource Rent Tax (MRRT) to tax profits derived from iron ore and coal mining at a rate of 30 percent 74 but the Abbot Coalition government repealed the tax in 2014. 75 The taxes that currently apply to mining operations are the same that apply to other sectors: corporate income taxes (top rate of 30 percent) and various withholding taxes. Despite the existence of these taxes, large mining companies are notorious for paying little or no tax at all in Australia. This is due to provisions in the tax code that allow companies to offset large accumulated losses against past and future profits and to claim expenses such as depreciation, research and development and debt financing amongst others. The sector also benefits from tax incentives and concessions such as the fuel tax. In addition, mining companies make full use of tax minimisation schemes involving overseas subsidiaries registered in tax havens or low-tax jurisdictions. 76 In 2018, the Australian Taxation Office (ATO) questioned both BHP and Rio Tinto about selling iron ore to their Singapore subsidiaries (where the corporate tax is 17 percent) at one price and then reselling for a higher price to their final clients. 77 This practice is known as trade misinvoicing and multinational companies commonly use it to avoid capital controls, to claim tax incentives and to evade or minimise taxes. Money-laundering operations also use the same technique. 78
For its part, Adani Mining Pty has promised a contribution of A$22 billion in taxes to the government over the life of the mine. 79 However, during a 2015 trial in the Queensland Land Court, company representatives admitted that the figure is more likely to be A$16.8 billion. 80 In addition, following the lead of other large conglomerates in Australia, the company has set up a corporate structure designed to minimise tax paid in Australia. Australian and Indian media investigations have been unable to decipher the complex corporate web created by Adani but it is clear that subsidiaries exist in Singapore, Mauritius, the British Virgin Islands and the Cayman Islands, the latter three being well established tax havens. These media reports suggest that the company might not end up paying the stated billions in tax, which would leave a large void in the government’s revenue expectations in years to come. 81
2.3 Employment
Adani’s original proposal was for a 60 mtpa mine with a cost of A$16.5 billion. A project of those dimensions would have made Carmichael the second largest producer of thermal coal in the world after Peabody Energy’s North Antelope Rochelle Mine in the US (107 mtpa) 82 and would have dwarfed Australia’s current largest thermal coal operation, BHP Billiton’s Mount Arthur Mine (15 mtpa). 83 The employment prospects of a mine this size, together with the operation and expansion of Adani’s terminal at Abbot Point Port and construction of the 388 km freight rail line connecting the mine with the port, raised public expectations for a region in Queensland that depends heavily on natural resource extraction. 84 Adani’s announcements in this regard matched these high expectations by claiming that the company would generate “10,000 direct and indirect jobs” over the life of the mine. 85 This figure originated from a report of consulting firm GHD, commissioned by Adani early in the project proposal phase. However, during a court case in 2015, Adani’s economist, citing the company’s latest economic assessment, said the project would generate 1,464 direct and indirect jobs in Australia (82 percent of them in Queensland) in the first phase of the project (30 years after the start of the mine). 86 Since then, the proposed rail link has decreased in length and the revision calls for a 200 km rail line that would make use of an existing line owned by Aurizon, further decreasing the labor needed. 87 In the revised proposal, the mine itself is expected to produce an estimated 10 mtpa of coal based on an investment of A$2 billion for the life of the mine. 88
In the absence of any regulation ensuring that companies keep their employment promises during the operational stages, the challenge is to rely on mechanisms that maximise employment for the local population. 89 It is also important that during the proposal phases, companies rely on economic modelling that does not inflate employment figures. As it stands, this project has already created a large void in terms of the employment expectations it originally raised. The Adani Group is by no means the only one currently expanding its coal activities: a large number of countries around the world are welcoming mining projects.
2.4 Public Debt
Like any other mining company, Adani’s original intention was to seek external funds to finance the A$16.5 million it needed to realise Carmichael. Australia’s biggest bank, the Commonwealth Bank, was adviser to the project until 2015 and since then Adani has had difficulties securing a bank that would support the project. 90 The Queensland Government offered A$900 million in the form of a low-interest loan for other needed developments (railroad) but then retracted it in 2017. 91 The last possibility for external funding came from the Northern Australia Infrastructure Facility (NAIF), which would have made A$1 billion available for these additional developments. It was also blocked. 92
Despite these setbacks and because of stiff opposition from environmental, indigenous and farming groups; financiers’ concerns over the long-term feasibility of coal projects; 93 decreasing world coal prices; and the company’s human rights record in India, 94 the company has a long way to go to secure Carmichael but options are still available. In the period 2018–19, the Indian state of Gujarat saved Adani’s troubled 4 GW Ultra Mega Power Plant at Mundra in the Gulf of Kutch by renegotiating its purchase agreement, allowing it to increase its power tariff by 30 percent for the next 30 years. 95 At the same time, the Government of India awarded the company a Special Economic Zone tax exemption for 10 years. In addition, the State Bank of India provided a US$1.5 billion loan to the Adani Group. In Australia, there is the possibility that the Federal Government may lend A$1 billion at a discounted three percent annual rate for 30 years via the Export Finance and Insurance Corporation to build the railway link between the mine and the port. 96 Despite its recent good fortunes in India and the promise of public money from Australia, the company remains highly indebted. A 2015 report by Credit Suisse placed Adani in a category of Indian corporate entities with “high exposure to [fluctuating prices of] commodities” whose foreign currency debt servicing “continues to be of concern”. 97 In a later report, Credit Suisse warned that Adani’s listed companies’ ratio of debt to EBITDA (Earnings Before Interest, Taxes, Depreciation and Amortization) was high in 2017 and would take years to decrease. 98
Providing taxpayers’ funds to the Carmichael project risks that the company may decide, in the near future, to write off incurred losses and abandon the project altogether, leaving a large void of debt that all Australians would have to pay over the next 30 years without realising any of the supposed benefits of the mine.
Conclusion
The purpose of this article was to explore and analyse the current challenges and potentials of Australia’s mining regulatory framework. Its authors hope to advance discussions around a more conscious global approach to design policies that can consider and balance direct economic benefits for the local economy, global environmental concerns and a global common vision on how to manage sustainably mining developments and energy challenges. As in the case of Australia, the development of large-scale mining projects linked to fossil-fuel resources creates complex legal and economic challenges. However, these specific legal challenges cannot be analysed solely from one current single (national) legal framework, but rather, as it has been shown, both domestic and international frameworks must be combined. It requires an interdisciplinary approach, combining different areas of law such as foreign investments, human rights, environmental law, including questions over mineral ownership rights, licensing regimes, land access regimes, and discussions on tax and royalty issues.
The article examines the current status of the regulatory framework for mining projects in Australia as well as reports suggesting possible future sustainable development pathways through this contentious sector for governments and civil society. Despite initial potential in terms of job opportunities, financiers have recognised that investing in coal has a number of risks that are primarily linked to climate policy pressure, competition from renewable energy producers, the use of public funds and keeping employment promises. After years of searching, Adani Mining Pty is still looking for sponsors and other supporters to back its plans. Over the years, more than 60 investors, banks, insurers and suppliers have declined to invest in the project and consequently, the Adani Group has been forced to self-finance much more than it had initially planned, thus becoming more exposed to fluctuations in the value of global currencies and commodities. The Australian Federal and state governments should seriously consider enacting laws and policies that prevent companies from using tax minimisation schemes based onshore and offshore. These laws should also limit the use of royalty dispensation schemes and employment levels should be negotiated by using Impact Benefit Agreements involving both the state government and the impacted indigenous communities surrounding a mining project. What this article shows with regard to these policies and laws is that they are either not in place or very ineffective.
Despite the introduction of a new project-based EIA, designed to identify, evaluate and mitigate the impacts associated with development proposals and policies, a number of critical issues have been identified in relation to the process. These include inadequate due diligence, the Coordinator-General’s discretion on evaluations and recommendations and the limited independent review of modelling systems used in the EIS. Consequently, despite clear environmental, social and economic impacts as outlined in this article, the Carmichael project was given the go-ahead, once again prioritising economic development over environmental and sustainability priorities.
The questions that arise from the Carmichael project demonstrate that further interdisciplinary research within a broad legal framework, which includes foreign investment law in combination with energy security and climate change policy, is needed in order to address the challenges discussed in this article and critically open up a new discussion on moving towards more sustainable mining practices in the future.
Footnotes
Taylor, C. and Meinshausen, M. 2014. Joint Report to the Land Court of Queensland on “Climate Change – Emissions”. Adani Mining Pty (Adani) v. Land Services of Coast and Country Inc & Ors.
Hunt, M. 2009. “Mining Law in Western Australia”. Fourth Edition. Alexandria NSW: The Federation Press.
Ibid.
Leary, J. and Colangelo, N. 2016. “Australia”. In: Richer La Flèche, E. (Ed.) The Mining Law Review. Fifth Edition. London: Law Business Research Ltd.
Ibid.
Ibid., at 12.
Supra, note 4.
Ibid.
Environmental considerations will be developed in Section 1.3: “Climate Change and Environmental Protection Challenges”.
Mineral Resources Act 1989, sections 8(1), (2) and (3).
Natural resources include water, land, minerals and energy, and the Department administers systems and procedures for land and property, water management, mining and exploration, and mapping data.
Ibid.
“Third Party” rights also include the rights of “indigenous Australians” that might have a claim to the land for which the investor is seeking a mining licence. If a group of indigenous Australians is recognised as the traditional owners of the land, they are awarded native title to the land.
Department of Natural Resources and Mines (2014).
Roeder, R.W. 2016. “May I Enter? The Question of Land Access”. In: Roeder, R.W. Foreign Mining Investment Law: The Cases of Australia, South Africa and Colombia. Springer.
Ibid. The Mabo case led to a new form of interaction between indigenous Australians and mining companies given that after this case native title agreements now increasingly include provisions on indigenous employment in the mining workforce.
The Native Title Act 1993 (Cth) (NTA) aims to: 1) protect and recognise native title rights; 2) provide for the validation of past acts and intermediate acts; 3) establish ways in which future acts affecting native title may proceed; and 4) establish a mechanism for determining competing interests.
Supra, note 19.
Roeder, R.W. 2016. Foreign Mining Investment Law: The Cases of Australia, South Africa and Colombia. Springer.
Department of Natural Resources and Mines, Queensland Government, Queensland Mining and Petroleum Industry Overview (July 2016).
An Australian survey asking members of civil society about their views on the results of the recent Federal election in relation to the great Australian mineral industry found that 91 percent were concerned about the time taken to approve mining projects in their states. Reform of environmental approvals was the most popular choice of reforms to boost mining in Australia with 85.5 percent of respondents choosing this over regulation and taxation; 77 percent of respondents said a candidate’s policies on mining influenced their votes at the election; and jobs and revenue were selected as the top two benefits to Australia from mining. Friends from Australian Mining, July 2019.
Goodman, J. and Worth, D. 2008. “The Minerals boom and Australia’s resource curse”. Journal of Australian Political Economy 61: 201–219.
Adani Mining Pty, Ltd, v. Land Services of Coast and Country (2015), QLC, 48.
Supra, note 15, at 13.
There is no specific binding legislation in Australia that obliges mining companies to hire or train indigenous Australians.
The current unemployment rate is over 50 percent among those identified as indigenous Australians. Supra, note 23.
More concretely, the first solar project, Rugby Run, located near Moranbah, has reached mechanical completion with more than 247,000 solar panels now installed. In phase one, Rugby Run Solar Farm will supply 65MW of renewable power each year with the capacity to expand up to 170MW. Rugby Run will be fully operational early 2019. See also “Adani Group wins projects across coal, gas, highways in competitive bidding”. The Economic Times, 21 April 2019. Available at https://economictimes.indiatimes.com/industry/energy/power/adani-group-wins-projects-across-coal-gas-highways-in-competitive-bidding/articleshow/68975601.cms?from=mdr; https://www.adaniaustralia.com/; McCarthy, J. 2016. “Adani pursuing possible Queensland solar energy project”. The Courier-Mail, 10 February. Available at https://www.couriermail.com.au/business/adani-pursuing-possible-queensland-solar-energy-project/news-story/4a63df6304da51cbbb0de991c4df224b; and finally Kampmark, B. 2018. “Journey into Obsolescence: Australia’s Adani Carmichael Mining Project”. Global Research, 2 December. Available at 
.
Intergovernmental Panel on Climate Change. 2014. AR5 Climate Change 2014: Impacts, Adaptation, and Vulnerability. Geneva: IPCC; Climate Commission. 2013. The Critical Decade 2013: Climate Change Science, Risks and Responses, at 5 and 74. Canberra ACT: Commonwealth of Australia; and Office of Climate Change. 2011. Climate Change: Adaptation for Queensland, at 2. Brisbane QLD: Department of Environment and Resource Management, State of Queensland.
Office of Climate Change, ibid., at 15, 25, 27, 38, 40.
Climate Commission, supra, note 32, at 60–61; Office of Climate Change, supra, note 32, at 66.
Climate Commission, supra, note 32, at 65.
Intergovernmental Panel on Climate Change. 2013. AR5 Climate Change 2013: The Physical Science Basis. Geneva: IPCC.
Supra, note 4.
Environment Protection and Biodiversity Conservation Act 1999, Act No. 91. See also ibid.
Supra, note 4.
An Environmental Impact Statement (EIS) includes an environmental impact assessment, an economic impact assessment and a social impact assessment.
Supra, note 15.
Australian Government, Department of the Environment – Approval Carmichael Coal Mine and Rail Infrastructure Project, Queensland (EPBC 2010/5736), Decision made under section 130(1) and 133 of the EPBC Act 1999; Australian Government, Department of the Environment – Variation to Conditions attached to Approval Carmichael Coal Mine and Rail Infrastructure Project (EPBC No. 2010/5736). The reasons for the decision to approve the management plan are explained in the document “The Hon Melissa Price MP, Minister for the Environment: Statement of Reasons for decision to approve a management plan under the approval conditions for the Carmichael Coal Mine and Rail Infrastructure Project (EPBC 2010/5736) under the Environment Protection and Biodiversity Conservation Act 1999”. Available at .
Ibid.
Smyth, L. 2016. “Adani’s Carmichael Mine, International Law and the Definition of Consent”. Native Title Newsletter, December.
Ibid.
Robertson, J. 2016. “Indigenous owners launch fresh legal challenge to Adani’s Carmichael mine”. The Guardian, 7 December. Available at https://www.theguardian.com/environment/2016/dec/07/indigenous-owners-launch-fresh-legal-challenge-to-adanis-carmichael-mine; Media Release. 2017. “W & J resist mining industry push to amend Native Title Act to secure Carmichael mine proposal”. Wangan and Jagalingou Family Council, 12 February. Available at .
Supra, note 47, at 1.
The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) was adopted by the General Assembly on Thursday, 13 September 2007, by a majority of 144 States in favour, 4 against (Australia, Canada, New Zealand and the United States) and 11 abstentions (Azerbaijan, Bangladesh, Bhutan, Burundi, Colombia, Georgia, Kenya, Nigeria, Russian Federation, Samoa and Ukraine). See .
Article 32 of UNDRIP states: 1. Indigenous peoples have the right to determine and develop priorities and strategies for the development or use of their lands or territories and other resources. 2. States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources. 3. States shall provide effective mechanisms for just and fair redress for any such activities, and appropriate measures shall be taken to mitigate adverse environmental, economic, social, cultural or spiritual impact.
Macintosh, A. 2010. “The Australian Government’s environmental impact assessment (EIA) regime: Using surveys to identify proponent views on cost-effectiveness”. Impact Assessment and Project Appraisal 28(3): 175–188.
Currell, M.J., Werner, A.D., McGrath, C., Webb, J.A. and Berkman, M. 2017. “Problems with the application of hydrogeological science to regulation of Australian mining projects: Carmichael Mine and Doongmabulla Springs”. Journal of Hydrology 548: 674–682.
Corbett, T. and O’Faircheallaigh, C. 2006. “Unmasking Native Title: The National Native Title Tribunal’s Application of the NTA’s Arbitration Provisions”. University of Western Australia Law Review 33(1): 153–177; and Lyons, K. 2018. “Securing territory for mining when Traditional Owners say ‘No’: The exceptional case of Wangan and Jagalingou in Australia”. The Extractive Industries and Society 6(3): 756–766. Available at .
Ibid.
Ibid.
Lyons, supra, note 56.
Ibid., at 3.
Ibid.
Whitbread-Abrutat, P., Kendle, A. and Coppin, N. 2013. “Lessons for the mining industry from non-mining landscape restoration experiences”. In: Tibbett, M., Fourie, A.B. and Digby, C. (Eds) Mine Closure 2013: Proceedings of the Eighth International Conference on Mine Closure. Perth: Australian Centre for Geomechanics.
Supra, note 55, at 681.
The rate calculation depends on the average price per tonne of coal sold, disposed of or used in a given period by a particular mining operation. If the average price (AP) per tonne is less than A$100, the rate is a fixed 7 percent. If it is more than A$100 but not more than A$150, the rate is calculated according to the formula (7 + ((AP – 100) ÷ AP×5.5). If the average price is more than A$150, the rate is calculated according to the formula (7 + ((AP – 100) ÷ AP×5.5) + ((AP – 150) ÷ AP×2.5). See Queensland Treasury. 2019. “Royalty Ruling MRA001.2: Determination of coal royalty”. Available at .
Minerals Council of Australia. 2015. “Submission to House of Representatives Standing Committee on Education and Employment Inquiry into Innovation and Creativity: A Workforce for the New Economy”, at 2.
The MRRT was a federal tax applicable to iron ore and coal projects in Australia from 1 July 2012. It did not apply to companies making less than A$75m of MRRT mining profits per year. Even though the maximum tax rate was set at 30 percent, companies were entitled to an “extraction allowance” of 25 percent therefore the effective rate was 22.5 percent. Any MRRT paid was deductible for income tax purposes. See Guj, P. 2012. Mineral royalties and other mining-specific taxes. Brisbane and Perth: International Mining for Development Centre. Because mining companies used various tax minimisation schemes, the MRRT tax never raised the desired revenue for the government. In the first six months after its introduction, it had only raised A$126 million against a full year forecast of A$2 billion. See Roberts, G. 2013. “Rio pays no mining tax”. News.com.au, 14 February. Available at https://www.news.com.au/finance/business/rio-pays-no-mining-tax/news-story/a9829f30fb4d9a0df0589d85a40ae5d8; and AAP. 2015. “Swan reveals mining tax revenue”. SBS News, 27 February. Available at .
Cox, L. 2015. “Uncertainty over massive Queensland mine after election shock and concerns over Indian company”. The Sydney Morning Herald, 6 February.
Fahrer, J. 2015. “Carmichael Coal and Rail Project: Economic Assessment. Expert Report”. Report to Land Court of Queensland.
Supra, note 85. The projected production in the latest report is 40mta.
Supra, note 83.
One such mechanism is the Impact Benefit Agreement. Currently, local-level governments and indigenous landowners use these agreements in their dealings with mining companies but federal and state governments can also use them.
Tahara-Stubbs, M. 2018. “Adani claims financial close on Carmichael coal mine”. Project Finance International, 18 July.
As of 2019, over 100 globally significant financial institutions have divested from thermal coal, including 40 percent of the top 40 global banks and 20 globally significant insurers. See Buckley, T. 2019. “Over 100 Global Financial Institutions Are Exiting Coal, With More to Come”. Cleveland OH: Institute for Energy Economics and Financial Analysis. Available at .
This effectively is a taxpayer-funded subsidy to the company that they will have to pay via increased electricity tariffs.
Gupta, A., Shah, K. and Kumar, P. 2015. “House of Debt: Sector Review”, at 15–16. Credit Suisse. Available at https://research-doc.credit-suisse.com/docView?language=ENG&format=PDF&sourceid=csplusresearchcp&document_id=1054415551&serialid=2vtAOtv% 2Fc8M0sh9CPFFOGsSV45sLr4LSMBym3iFlRYI% 3D.
According to Gupta et al., the EBITDA rates in 2017 were: Adani Power: 8.1, Adani Ports & SEZ: 4.1, Adani Enterprises: 8.6 and Adani Transmission: 5.0. See Gupta, A., Shah, K. and Kumar, P. 2017. “India Corporate Health Tracker: Sector Review”, at 9. Credit Suisse. Available at https://research-doc.credit-suisse.com/docView?language=ENG&format=PDF&sourceid=emblast&document_id=x754328&serialid=zIxSn4xZTOJCZ921PyMcyqKWxHK% 2Bd2Zxu0xhtt2oXt0% 3D.