19 October, 2019
Oakey Coal Action Alliance Inc v New Acland Coal Pty Ltd & Ors [2019] QCA 184
What you need to know
- The recent decision of Queensland's highest court is likely to be the end of the road for some long-running litigation which, for resources companies, demonstrates that things can still go horribly wrong with approvals processes.
- While high profile and widely reported, the decision otherwise does not really take forward Queensland law around approvals processes for resources projects in any material way.
- Sadly for all concerned, the decision represents the end point of three-and-a-half years of litigation and, worse still, that end point sees the mining company's approval processes wind up where they started with the mining lease application and environmental authority amendment application being referred back to Queensland's Land Court.
- The Queensland Court of Appeal's decision has closed out how the Land Court should have approached groundwater approvals prior to the statutory reforms which took effect at the end of 2016. This is explained below.
- However, those statutory reforms mean this groundwater ruling will have no bearing on any future mining lease applications or environmental authority applications being heard in the Land Court.
What you need to do
- Proponents should be aware of the delays which can arise during the course of a mining lease/environmental authority approvals process.
The start of the journey: the approvals the coal miner sought
In 2014 the New Acland Coal Pty Ltd's (New Acland) stage 3 expansion was approved by the Coordinator General subject to conditions and recommendations .
New Acland subsequently applied for two new mining leases and a variation to its environmental authority. Objections were lodged in respect of all three applications.
Queensland Land Court recommends that New Acland Stage 3 Expansion be rejected
The mining leases and environmental authority applications were referred to the Land Court in March 2016 because of objections taken by a number of parties including Oakey Coal Action Alliance Inc (Oakey Coal). Fourteen months later, the Land Court delivered a decision which recommended to Government that the applications for the mining leases be rejected and that the environmental authority amendment application be refused. Groundwater featured prominently in the Land Court's reasoning.
Queensland Supreme Court sets aside Land Court's decision
New Acland subsequently sought judicial review of the Land Court's decision on a number of administrative law grounds.
In particular, it contended that the Land Court did not have jurisdiction to consider impacts to groundwater. It also argued that the Land Court's decision had been made in circumstances where there was a reasonable apprehension that the Land Court member hearing the case had demonstrated bias against the mining company.
The Supreme Court concluded that the Land Court did not have jurisdiction to consider the impacts of the proposed mining activities on groundwater. This was because, at the time, groundwater impacts fell to be considered as part of a mining company's application for a water licence under the Water Act 2000 and that was an entirely separate process to what the Land Court was considering.
The Supreme Court rejected New Acland's apprehended bias arguments. It found that, while there were reasonable grounds to apprehend bias, New Acland had waived its rights to complain during the proceedings. It held that the Land Court Member's reasons did not "re-enliven" any apprehension of bias.
The Supreme Court remitted the matter to the Land Court for rehearing by another member. Orders were also made limiting the scope of the remitted hearing.
More information on the Supreme Court's decision can be found here.
The recent decision of Queensland's Court of Appeal
Oakey Coal then appealed the Supreme Court's decision on two main grounds. Firstly, that the Land Court did have jurisdiction to consider the issue of groundwater and secondly, that it was wrong to consider the Land Court's Member's reasoning on groundwater inadequate.
New Acland filed a cross-appeal arguing that the Supreme Court had erred in its findings in relation to apprehended bias.
Supreme Court's finding on apprehended bias reversed
The Court of Appeal affirmed the Supreme Court's conclusion that New Acland had abandoned the right to claim apprehended bias during the course of the Land Court proceedings.
However, the Court of Appeal found that a fair-minded observer might apprehend bias on the face of the Member's reasons. New Acland succeeded on its cross-appeal on this basis.
Groundwater – Supreme Court's finding affirmed
Given New Acland had succeeded on its cross-appeal, it was not strictly necessary for the Court of Appeal to consider the groundwater issue. Nevertheless, the parties invited the Court to making a finding on this issue.
As the law stood at the time New Acland's applications were made, the grant of a mining lease did not authorise a mining proponent to interfere with groundwater. A water licence was required in order to lawfully interfere with groundwater.
The Court of Appeal found that the Land Court could only consider impacts arising from activities authorised by the contemplated mining lease. Given a mining lease could not at the time authorise interference with groundwater (and therefore no impact to groundwater could flow from that instrument), the Court of Appeal stated that consideration of impacts to groundwater would be outside the Land Court's jurisdiction.
INSIGHTS
Legislative amendments have since been made to streamline the approvals process relating to groundwater impacts for mining projects. Under the new legislative regime, the right to interfere with groundwater is authorised by a mining lease. Impacts to groundwater are therefore a relevant matter for decision makers when considering an application for a mining lease and environmental authority.
Under the current legislative regime, the Land Court would likely have jurisdiction to take impacts to groundwater into account.
Next steps – back to the Land Court for a new hearing
The Court of Appeal's decision does not yet bring the New Acland matter to a close. The matter has now been referred back to the Land Court for rehearing.
Due to the Court of Appeal's conclusion on apprehended bias, none of the Land Court Member's findings can be maintained when the matter is reheard.
For further information, please contact:
John Briggs, Partner, Ashurst
john.briggs@ashurst.com
