11 April, 2017
The High Court has ruled out a further appeal over questions of climate change flowing from the reasoning in recent decisions by the Land Court of Queensland over new major thermal coal mines.
On 7 April 2017, the High Court rejected an application for special leave to appeal from the Queensland Court of Appeal in Coast and Country Association of Queensland Inc v. Smith & Ors [2016] QCA 242.
How the Queensland Land Court has dealt with climate change to date
Where objections are made to applications for new mines or mine expansions, the Land Court hears evidence and argument as part of a formal process. Its recommendations flowing from that hearing are then taken into account when decisions are made to grant mining leases under the Mineral Resources Act 1989 (Qld) (MRA) and environmental authorities under the Environmental Protection Act 1994 (Qld) (EPA). A key issue for new coal mines in recent cases has been the issue of the impact on climate change from the burning of exported thermal coal.
In April 2014, the Land Court of Queensland made its recommendations in relation to Hancock Coal's Alpha Mine in Queensland's Galilee Basin.
In doing so, Member Smith of the Land Court applied reasoning developed in respect of the Wandoan Coal Project by President MacDonald in Xstrata Coal v Friends of the Earth – Brisbane Co-Op Ltd (2012) 33 QLCR 79.
The consistent reasoning of the Land Court has been that:
- Under the MRA the burning of coal outside Australia is not something to be considered as part of the environmental impact of the "operations" of the mine. It can be considered when weighing up whether "the public right and interest is prejudiced", and as to whether "any other good reason has been shown for a refusal."
- In respect of these two factors, the evidence before the Land Court has been that the coal market is demand driven. Coal will be burned regardless of whether it sourced from Queensland coal mines, or mines in other parts of the world. As a factor in assessing whether to recommend approval, climate change has therefore been given limited significance.
- Under the EPA, consideration only had to be given to the activities permitted under a proposed environmental authority. This limited consideration to the mining activities, and not any subsequent burning of the coal.
Decisions of the Queensland Supreme Court have accepted that approach
Douglas J in September 2015 accepted that this line of reasoning was open to the Land Court, and that factual decision was not open to review: Coast and Country Association of Queensland Inc v. Smith & Ors [2015] QSC 260.
On appeal in September 2016 to the Queensland Court of Appeal, there was a difference of opinion between the judges as to whether the EPA could be read in the way adopted by the Land Court to exclude consideration of contributions to climate change outside Australia. The majority considered that it could be. All judges however agreed that the factual conclusions of the Land Court were not open to review.
The High Court is unwilling to reconsider the accepted approach
The High Court's decision brings to an end a common ground of activists' challenges to thermal coal mines in the context of the current Queensland legislation.
Without endorsing the reasoning, the position of the High Court is that future recommendations by the Land Court on that basis will not be subject to further review by higher courts. Applicants for new or expanded thermal coal mines will be able to rely on that reasoning, in the event that they face similar challenges in the future.
For further information, please contact:
Darren Fooks, Partner, Baker McKenzie
darren.fooks@bakermckenzie.com
