Alpha Coal Appeal: GVK Hancock project faces Qld’s highest court
7 June 2016
24 June 2016
GVK Hancock project faces Qld’s highest court
Queensland’s highest court will today hear argument about the assessment of environmental impacts in relation to GVK Hancock’s proposed 30-million-tonne-per-year Alpha coal mine in the Galilee Basin.
Conservation group Coast and Country, who brought forward the case, will front Queensland’s Court of Appeal with parties Hancock Coal Pty Limited and the Queensland Minister for Environment and Heritage, for the one-day appeal.
Jo-Anne Bragg, CEO of Coast and Country lawyers Environmental Defenders Office Queensland (EDO Qld), said: “We are here today with a highly specific legal case about how impacts from the burning of coal of proposed coal mines are assessed and considered right here in Queensland.
“We all know that burning fossil fuels is contributing to global warming, extreme weather events and severe damage to our Great Barrier Reef.
“Courts have already accepted that emissions from the burning of coal are legally relevant to the public interest in assessing coal mines. Lower courts have already found that the burning of coal from this mine is both real and of concern.
“Our argument today is that, 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 of other mines that may cause similar impacts if the project is refused.
“The idea 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’. We say, as a matter of law, that argument is simply irrelevant. It is just as if someone tried to argue that water pollution from a proposed sewage treatment facility should not be given weight during assessment because another facility with equal water pollution impacts might be built somewhere else instead. The fact remains the proposed facility would still have serious impacts that need to be considered and assessed. Just because the harm would be no worse than the alternative, does not make the harm non-existent.
“This is the first time the Queensland Court of Appeal will consider the powers of the Land Court and decision-makers under the Environmental Protection Act 1994 (Qld) and the Mineral Resources Act 1989 (Qld) in relation to climate change and the substitution argument.”
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 as part of the requirement to consider the public interest.A decision by the Court of Appeal could be delivered within months.
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 will be heard in Queensland’s Court of Appeal on 7 June 2016.