Judgment to Come on Case Seeking Rejection of Coal Mine on Ground it Could Increase Global Warming
Thursday 11 August 2016 @ 11.27 a.m. | Corporate & Regulatory | Trade & Commerce
The potentially landmark appeal against the development of the proposed Alpha coal mine (the project) in central Queensland is yet to be handed down. The appeal decision is to rule on whether the project should not be allowed to proceed on the grounds that it could increase global warming.
The notice of appeal in the cases has been filed as Coast and Country Association of Queensland Inc. (CCAQ) v Paul Anthony Smith, Member of the Land Court of Queensland and Hancock Coal Pty Ltd and Minister For Environment and Heritage Protection [File No CA9986/15 - Brisbane] and the Queensland Court of Appeal (McMurdo P and Fraser and Morrison JJA) have heard the appeal on 7 June 2016 and their judgment is currently reserved with the Court considering the matter.
Background Leading to the QCA Appeal
At its most basic level, the case involves a challenge by local graziers and conservation groups who are against the development of a large coal mine in the Galilee Basin area of central Queensland and highlights very much the competing notions of the public right to object to such projects and the independent review by the legal system of such large economically important projects.
The project is a proposed joint venture of GVK (an Indian company) and Hancock Prospecting Australia and, if approved, is intended to produce 30 million tonnes of thermal coal per annum over 30 years. This project is intended to operate alongside another new mine - Kevin’s Corner - and coal from both mines is to be shipped by a new rail line to the Port of Abbot Point and exported. Eventually, the project is to consist of six open cut pits, some 4 square kilometers in area. Sample pits were created on the site during the exploration phase in 2010-2011. The project application process began in 2008 and, as yet, it has not been fully approved nor has the project commenced operation.
Land Court of Queensland
In Hancock Coal Pty Ltd v Kelly & Ors and Department of Environment and Heritage Protection (No. 4) [2014] QLC 12, the Land Court of Queensland heard objections to the project and upheld concerns regarding the impacts the project would have on groundwater. As a result, it recommended that the applications for the project be refused or, in the alternative, that applications be granted ". . . subject to further assessment of the groundwater impacts under under the Water Act 2000 (Qld)".
Queensland Supreme Court
In Coast and Country Association of Queensland Inc (CCAQ) v Smith & Anor; Coast and Country Association of Queensland Inc (CCAQ) v Minister for Environment and Heritage Protection & Ors [2015] QSC 260, the CCAQ sought judicial review of the Land Court’s decision in the Queensland Supreme Court on the basis that:
". . . the Land Court of Queensland had misunderstood the legal tests to be applied to the applications and in relation to the environmental harm caused by the mine’s contribution to climate change".
Following on from the Land Court’s decision, the Queensland Minister for Environment and Heritage Protection proceeded to grant the application for an environmental authority, on the condition that it was subject to further assessment of the groundwater impacts of the proposed project - as yet, the Minister has not made a decision regarding the grant of the mining lease. The Minister's decisions was also challenged by CCAQ on the basis that: ". . . the decisions lacked finality and had not followed the correct legal process".
The above proceedings were heard in the Queensland Supreme Court on 22 and 23 April 2015 and were subsequently dismissed on 4 September 2015.
Appeal to Supreme Court Judgment
As already noted above, the CCAQ has filed an appeal against the Queensland Supreme Court judgement which was heard on 7 June 2016 and which judgment is currently reserved with the Court considering the matter and looking to deliver judgment at some point in the future. The grounds for that appeal are stated as follows in the Notice:
1. His Honour erred in construing the Environmental Protection Act 1994 (Qld) as allowing the Land Court, when considering whether or not to recommend the grant of an environmental authority for the Alpha Coal Mine, to give zero weight to the environmental harm caused by the Scope 3 greenhouse gas emissions produced in transporting and burning the coal obtained as a result of that coal mine, on the basis of the Land Court's finding of harm caused by other mining activities not being those of the Alpha Coal Mine.
2. His Honour erred in construing section 269(4)0), (k) and (I) of the Mineral Resources Act 1989 (Qld) as allowing the Land Court, when considering whether .or not to. recommend the grant of a mining lease for the Alpha Coal Mine, to give zero weight to.the adverse. environmental impact caused by the operations to be carried on under the authority of the proposed mining lease due to the Scope 3 greenhouse gas emissions produced in transporting and burning the coal obtained as a result of that coal mine, on the basis of the Land Court's finding of adverse environmental impact caused by other mining activities not being those of the Alpha Coal Mine.
Possible Significance of the Case
A recent ABC report on the case points to why the decision of the Queensland Court of Appeal may be very significant when it is delivered, the report, quoting Jo-anne Bragg from the Environmental Defenders Office Queensland, representing CCAQ, states the case could set an important precedent because:
"This is the first time Queensland's highest court — the Court of Appeal — is considering the Environmental Protection Act and climate change. . . If we win — and we do expect to win — it would have important precedent value as to how coal projects, in fact all projects, are assessed in Queensland and maybe other states."
On the side of those seeking the project's progress is the argument that the project is set to be a significant provider of employment and one of ". . . state significance" - GVK Hancock is quoted as follows:
"To date, we have invested tens of millions of dollars on a broad range of environmental assessments that contributed to our environmental approvals, . . . Our Alpha Coal Project has been a project of state significance since October 2008 and we will continue to work within legislative framework to advance our projects to a point where construction can commence."
The case highlights the competing interests of developing the economy and creating work versus the need to protect against damage to the environment, such as will increase the harmful effects of climate change. Also interesting to note is while a decision like this, were it to favour the climate change argument, would be a new precedent here in Australia, similar concepts have been used successfully overseas, for example, the Dutch decision reported last June 2015, where a court in The Hague ordered the Dutch government to cut its emissions by at least 25% within five years - a decision clearly holding the potential to cause climate change to be a valid reason for legal objection. Even more interesting being that in the Dutch case the obligation to act was clearly placed at the feet of the government.
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