Qld Court of Appeal delivers climate change judgment on Alpha coal mine approval challenge
27 September 2016
Queensland’s highest court has today delivered its judgment on a challenge to the assessment of the climate change impacts from the proposed 30-million-tonne-per-year Alpha coal mine in the Galilee Basin.
Conservation group Coast and Country, which brought the case, fronted Queensland’s Court of Appeal with parties Hancock Coal Pty Limited and the Queensland Minister for Environment and Heritage, at a one-day appeal on 7 June 2016.
Jo-Anne Bragg, CEO of Environmental Defenders Office Queensland (EDO Qld), lawyers for Coast and Country, said: “On behalf of our client we presented three judges in Queensland’s Court of Appeal with a highly specific legal case about how the impacts in Queensland from the burning of coal from this mine are to be assessed under Queensland law.
“Our client said, as a matter of law, the impact of the burning of fossil fuels from the Alpha mine should not be disregarded, or given zero weight, because other mines may cause similar impacts if the Alpha mine is refused.
“The argument that coal from other mines would replace the environmental damage of Alpha coal if it did not go ahead is known as the ‘substitution argument’. It is used by coal mines to avoid responsibility for the consequences of their actions. We said, as a matter of law, they are responsible for the consequences of their actions, regardless of what others may do.
“Our client was disappointed in the decision. They are here to clarify the law regarding the protection of the Great Barrier Reef and environment through the legal system. We will carefully read the judgment to see the reasoning of the Court of Appeal.
“We all know that burning fossil fuels is contributing to global warming, extreme weather events and severe damage to our Great Barrier Reef. Every further approval locks in those impacts.”
Coast and Country lodged the appeal on 2 October 2015 following a Supreme Court decision on 4 September 2015 that acknowledged emissions from the burning of coal were relevant in the assessment of coal mines in Queensland.
This decision followed a ruling by Queensland’s Land Court in April 2014 that the emissions from the burning of the coal were legally relevant to the assessment, as part of the requirement to consider the public interest.
EDO Qld will thoroughly examine the judgment with our client before any further comment.
Hancock Coal Pty Ltd (Hancock) proposed the Alpha Coal Project, seeking approval for a 30 million tonne per annum thermal coal mine, 360km south-west of Mackay in the Galilee Basin, in 2008. In February 2013 Coast and Country objected to the grant of the mining lease (ML) and environmental authority (EA) for the project in the Queensland Land Court due to the impacts of the project on groundwater, climate change and economics. A number of landholders, including Paola Cassoni, the Curries and the Andersens also objected.
In April 2014, the Land Court found that “given the unsatisfactory nature of the evidence relating to groundwater, good reason has been shown for a refusal to grant the mining lease”. The Land Court recommended that the ML and EA either be refused or subject to additional groundwater conditions. This decision showed the value of community objection rights in scrutinising and exposing inadequate assessments on matters of crucial importance such as groundwater. Partial court costs were awarded by the Land Court in favour of Paola Cassoni against Hancock, showing the strength of her objection. The Land Court decision took significant steps forward in the recognition of climate change, finding that the emissions from the burning of the coal were legally relevant as part of the requirements to consider the public interest.
In August 2014, after considering the Land Court recommendation, the Environment Minister granted the EA for the project. Coast and Country challenged some aspects of the Land Court’s decision including whether it had properly considered emissions from the burning of coal. Coast and Country subsequently challenged the decision of the Environment Minister to grant the EA.
The Supreme Court dismissed the applications for Judicial Review on 4 September 2015, but recognised the Land Court had considered the emissions from the burning of coal as part of the consideration of the public interest – yet gave no weight to those emissions due to the factual finding that the emissions of the product coal would be substituted by another project elsewhere if this mine did not proceed. This was a significant finding, which clarified for the first time in the Supreme Court, that emissions from the burning of coal were relevant in the assessment of coal mines in Queensland. Following this finding, Coast and Country lodged an appeal in Queensland’s Court of Appeal on 2 October 2015.
The appeal was heard in Queensland’s Court of Appeal on 7 June 2016.