Adnyamathanha Traditional Lands Association v Minister for Energy & Mining (SA)

[2018] SASC 142

SUPREME COURT OF SOUTH AUSTRALIA

(Civil)

ADNYAMATHANHA TRADITIONAL LANDS ASSOCIATION v MINISTER FOR ENERGY & MINING (SA) & ANOR

[2018] SASC 142

Judgment of The Honourable Justice Doyle

21 September 2018

ENVIRONMENT AND PLANNING - ENVIRONMENTAL IMPACT ASSESSMENT AND APPROVAL GENERALLY

The plaintiff seeks an interlocutory injunction restraining the second defendant from undertaking any further work at the site of its Leigh Creek Energy Project.

The plaintiff’s claim for final relief has three limbs:

1. An allegation that the second defendant is proposing to undertake a regulated activity, in particular the drilling of wells, in breach of s 96 of the Petroleum and Geothermal Energy Act 2000 (SA) (the PGE Act) as there is no Statement of Environmental Objectives (SEO) in relation to that activity.

2.  An allegation that the first defendant’s approval of the SEO for the Leigh Creek site is invalid because it did not take into account the mandatory relevant consideration of the regulated activities, and in particular the drilling of wells, proposed to be covered by the SEO.

3. An allegation that the first defendant’s granting of a petroleum exploration licence under the PGE Act is invalid as it failed to include in that licence the various mandatory conditions required by the PGE Act.

Shortly before the hearing, the plaintiff sought leave to include a fourth limb to its claim; namely, that the Environmental Impact Report (EIR) for the Leigh Creek site is invalid because it failed to take into account, and provide an assessment of, the mandatory consideration under ss 97(1) and (2) of the PGE Act, being the cultural values of Aboriginal Australians.

Held (per Doyle J) dismissing the application for an interlocutory injunction:

1. Consideration of the principles governing the application for an interlocutory injunction in the decisions of Australian Broadcasting Corp v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 and Australian Broadcasting Corp v O’Neill (2006) 227 CLR 57.

2.  The various limbs of the plaintiff's claim relied upon in support of the application for an interlocutory injunction have only limited prospects of success in obtaining final relief of the type necessary to sustain the interlocutory injunctive relief sought by the plaintiff.

3.  The balance of convenience does not lie in favour of the granting of the interlocutory injunction. While, if no injunction is granted there will be significant, and largely irreparable, prejudice to the cultural interests of the Adnyamathanha people, the second plaintiff will suffer immediate, significant and irrecoverable economic loss.  The absence of an undertaking as to damages and the date timing of the application are also relevant.

4.  Application for an interlocutory injunction dismissed.

Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth); Petroleum and Geothermal Energy Act 2000 (SA) ss 74, 75, 96, 97 and 105(1); Petroleum and Geothermal Energy Regulations 2013 (SA) rr 10, 20, 53, referred to.
Australian Broadcasting Corp v Lenah Game Meats Pty Ltd (2001) 208 CLR 199; Australian Broadcasting Corp v O’Neill (2006) 227 CLR 57; Samsung Electronics Co Ltd v Apple Inc (2011) 217 FCR 238; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; Onus v Alcoa of Australia Ltd (1981) 149 CLR 27; RW v Minister for Education and Childhood Development [2016] SASC 158, considered.

ADNYAMATHANHA TRADITIONAL LANDS ASSOCIATION v MINISTER FOR ENERGY & MINING (SA) & ANOR
[2018] SASC 142

Civil

1. DOYLE J:             The plaintiff seeks an interlocutory injunction restraining the second defendant from undertaking any further work at the site of its Leigh Creek Energy Project.

2. The plaintiff’s application came on for an urgent hearing before me on 18 September 2018.  At the close of argument I declined the plaintiff’s application.  Given the urgency involved, and the parties’ desire to be able to consider their positions in light of my decision, the parties requested that I prepare and deliver my reasons within a short period of time.  While this has limited my ability to consider some aspects of the matter in as much detail as I would have liked, I considered it appropriate to accommodate the parties in this respect.

3. These are my reasons for declining the plaintiff’s application.

   Background

4. The plaintiff in these proceedings is the Adnyamathanha Traditional Lands Association (ATLA).  It is a not-for-profit association registered with the Register of Indigenous Corporations under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth). It was established primarily to manage the native title claims brought by the Adnyamathanha people, and to become the prescribed body corporate once there was a native title determination in their favour. However, ATLA has also taken on a role more generally as a body representing the Adnyamathanha people in their dealings with governments and private bodies.

5. The second defendant in these proceedings, Leigh Creek Energy Ltd (LCE), is a public company listed on the Australian Securities Exchange.  On 18 November 2014 it was granted a petroleum exploration licence (PEL) (being PEL 650) under the Petroleum and Geothermal Energy Act 2000 (SA) (the PGE Act), covering an area in the north of South Australia that includes the Leigh Creek Coalfield.  The Leigh Creek Coalfield falls within the area of land over which ATLA claims native title, and is a site of great cultural significance to the Adnyamathanha people.

6. Pursuant to PEL 650, LCE plans to produce energy from coal using a process known as in situ gasification (ISG)[1] in the Leigh Creek Coalfield.  The process of ISG involves the conversion of coal from its solid state into a gaseous form, resulting in the generation of synthesis gas (or syngas) containing methane, hydrogen and other valuable components.  The syngas can be used either to produce electricity directly, or for further refinement into a variety of products including synthetic methane and ammonia.

   [1]    Sometimes also referred to as underground coal gasification or UCG.

7. Through its Leigh Creek Energy Project (LCEP), LCE aims to use ISG to produce commercial quantities of pipeline quality methane gas, fertiliser and electricity.  However, in order to obtain information that will inform the feasibility and design of a potential commercial facility, LCE proposes first to establish and operate what it refers to as a pre-commercial demonstration plant (the demonstration plant) within the Leigh Creek Coalfield.  It is anticipated that the establishment and operation of the demonstration plant will span a relatively short period of about two or three months.

8. To this end, LCE prepared an Environmental Impact Report dated 3 April 2018 (the Leigh Creek EIR), and a Statement of Environmental Objectives dated 9 April 2018 (the Leigh Creek SEO), in relation to the demonstration plant.

9. On 18 April 2018, the delegate of the first defendant (the Minister for Energy and Mining (SA)) (the Minister) made a decision under s 98 of the PGE Act classifying the regulated activities under the Leigh Creek EIR as “medium impact”. On the same day, notice of the Minister’s approval of the Leigh Creek SEO was given in the South Australian Government Gazette.

10. Since this time, LCE has undertaken drilling work in connection with its demonstration plant.  It is now at the point where the commencement of the establishment and operation of the demonstration plant more generally is imminent.

    ATLA’s judicial review proceedings

11. On 3 September 2018, ATLA commenced judicial review proceedings alleging that LCE was undertaking petroleum exploration activities in connection with the LCEP without a valid PEL or Statement of Environmental Objectives (SEO) under the PGE Act. In those proceedings, and by way of overview, ATLA seeks various forms of relief, including declaratory and injunctive relief, and orders quashing the Minister’s 18 November 2014 grant of PEL 650 to LCE, and the Minister’s 18 April 2018 approval of the Leigh Creek SEO. It also seeks the interlocutory injunctive relief the subject of the present application.

12. More particularly, ATLA’s statement of grounds identifies three limbs to its claim.

13. The first limb is an allegation that LCE is proposing to undertake a regulated activity, and in particular the drilling of wells, in circumstances where this would be in breach of s 96 of the PGE Act and unlawful because there is no SEO in force for that activity.

14. The second limb is an allegation that the Minister’s 18 April 2018 approval of the Leigh Creek SEO is invalid and of no effect because it did not take into account the mandatory relevant consideration of the regulated activities, and in particular the drilling of wells, proposed to be covered by the SEO.

15. The third limb is an allegation that the Minister’s 18 November 2014 decision to grant PEL 650 is invalid and of no effect by reason of the Minister’s failure to include in that licence the various mandatory conditions required by ss 74(3)(b), 75 and 105(1) of the PGE Act.

16. The final relief sought by the plaintiff in its statement of grounds is to the following effect:

    (a)declaration that the drilling activities that form part of the LCEP are part of a “regulated activity” for the purposes of the PGE Act;

    (b)a declaration that LCE is required to obtain a valid SEO approved under Part 12 of the PGE Act that includes the drilling activities before undertaking the drilling activities that form part of the LCEP;

    (c)an injunction restraining LCE from carrying out any further work at the LCEP site until a valid SEO (that includes drilling activity) is approved under Part 12 of the PGE Act, and notified in the South Australian Government Gazette under s 104 of the PGE Act;

    (d)a declaration that the LCEP SEO is invalid and of no effect;

    (e)an order quashing the decision of the Minister’s delegate to approve the Leigh Creek SEO;

    (f)an injunction restraining LCE from undertaking any work at the LCEP site in reliance on the Leigh Creek SEO;

    (g)a declaration that PEL 650 is invalid and of no effect;

    (h)an order quashing the decision of the Minister’s delegate to grant PEL 650; and

    (i)an injunction restraining LCE from undertaking work at the LCEP site in reliance upon PEL 650.

17. In its statement of grounds, ATLA seeks interlocutory orders in terms of (c), (f) and (i) above.  While ATLA’s interlocutory application only sought an order in terms of (c), there is little difference between (c) and (f) and so I will treat the plaintiff’s application as encompassing both (c) and (f).

18. At the commencement of the hearing of the interlocutory application, ATLA announced that while it did not abandon the third limb of its claim, it did not press it for the purposes of supporting its application for interlocutory injunction relief.  It thus did not seek any interlocutory order in terms of paragraph (i) above.

    ATLA’s proposed amendment to its statement of grounds

19. At the commencement of the hearing of ATLA’s application for an injunction, ATLA sought leave to amend its statement of grounds to include a fourth limb to its claim; and to rely upon it in support of its application for an interlocutory injunction in terms of paragraphs (c) and (f) above.

20. The proposed fourth limb involves an allegation that the Leigh Creek EIR is invalid by reason of it failing to deal with a mandatory relevant consideration, namely the requirements under s 97(1) and (2) of the PGE Act that an Environmental Impact Report (EIR) take into account, and provide an assessment of, the cultural values of Aboriginal Australians.  Based upon this proposed fourth limb, ATLA also seeks to amend to include a further paragraph of relief, namely a declaration that the Leigh Creek EIR is invalid and of no effect.

21. Having only been notified of this proposed amendment shortly prior to the hearing, the defendants were not in a position to consent to it being made.  In the circumstances, I did not give permission for the amendment to be made.  I deferred that issue for later consideration.  However, I indicated that I would nevertheless permit the plaintiff to put submissions in relation to this proposed fourth limb in support of its claim for interlocutory relief.  But I also indicated that I would hear from the defendants as to any difficulties they might have in responding fully to the proposed fourth limb given the late notification of the proposed amendment, and bear any such difficulties in mind when determining whether to grant interlocutory relief insofar as it was based on this aspect of the ATLA’s case.

    Principles governing interlocutory injunctive relief

22. There is no dispute as to the principles governing ATLA’s application for an interlocutory injunction.  They are the principles set out in the decisions of the High Court in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd[2] and Australian Broadcasting Corporation v O’Neill.[3]

    [2]    Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199.

    [3]    Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57.

23. As the first of these decisions makes plain, the starting point is the identification of the legal or equitable rights which are to be determined at trial, and in respect of which the final relief is sought.  As Gleeson CJ explained, if the applicant for an interlocutory injunction cannot show a sufficient colour of right of the kind sought to be vindicated by final relief, the foundation for the interlocutory relief in support of that right disappears.[4]

    [4]    Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 at [15].

24. Here, ATLA relies upon the first, second and fourth limbs of its case as founding the final relief that would justify the interlocutory relief sought in paragraphs (c) and (f) in order to preserve the status quo pending the hearing and determination of its claim.

25. Having identified the rights to be determined at trial that are relied upon in support of the interlocutory relief sought, the decision of the High Court in Australian Broadcasting Corporation v O’Neill prescribes an approach that requires that ATLA establish that:[5]

    1.there is a serious question to be tried, namely that on the evidence before the Court there is a sufficient likelihood of success to justify the preservation of the status quo pending the trial;

    2.the balance of convenience favours the grant of an injunction; and

    3.the plaintiff is likely to suffer harm for which damages will not be an adequate remedy.

    [5]    Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57 at [19], [65]-[72].

26. Further, subsequent authorities have confirmed that these three matters are not to be considered in isolation from one another.  To the contrary, and by way of explanation, depending on the nature and circumstances of the particular case, both the strength or weakness of the plaintiff’s case, and the nature and extent of the ‘irreparable harm’ to be suffered by the plaintiff, may inform whether the balance of convenience lies in favour of an injunction.[6]

    [6]    See, for example, Samsung Electronics Company Ltd v Apple Inc (2011) 217 FCR 238 at [62]-[74].

27. It remains true that the Court will not conduct a preliminary trial in assessing whether there should be a grant of interlocutory relief.  However, in some cases it will be possible and appropriate for the Court to undertake some evaluation of the strength of the plaintiff’s case for final relief in order to assist in determining where the balance of convenience lies.  That is more likely to be appropriate in cases where the decision to grant or refuse an interlocutory injunction will in a practical sense determine the substance of the matter in issue.[7]  It is also more likely to be appropriate in cases where the merits will turn upon matters not requiring the resolution of significant factual disputes.  For reasons that will become apparent, I consider that this is an appropriate case for some level of analysis and assessment of various aspects of the merits of ATLA’s claim.

    [7]    See, for example, Samsung Electronics Company Ltd v Apple Inc (2011) 217 FCR 238 at [74], and the cases referred to therein.

28. Finally, in assessing where the balance of convenience lies, the task of the Court is to assess and compare the prejudice and hardship likely to be suffered by the plaintiff (and any third persons or the public) if an injunction is not granted, with the prejudice and hardship likely to be suffered by the defendant(s) (and any third persons or the public) if an injunction is not granted.

    The parties’ positions on the application for an interlocutory injunction

29. As elaborated upon below, ATLA contends that it has established a sufficient likelihood of success in its claim for final relief in terms of paragraphs (c) and (f) above.  It further contends that if no injunction is granted, then the Adnyamathanha people whom it represents, and the public more generally, will suffer significant harm.  It contends that there will be inevitable and significant harm to a site of great cultural significance to the Adnyamathanha people, and hence to the cultural interests of those people, as well as the potential for environmental harm more generally.  ATLA thus contends that it will suffer irreparable harm if an injunction is not granted, and that the balance of convenience lies in favour of granting an interlocutory injunction to preserve the status quo pending a trial.

30. The second defendant, LCE, opposes the interlocutory relief sought.  It does so in part on the basis that there is insufficient merit in ATLA’s claim for final relief to warrant the interlocutory relief sought.  Central to LCE’s challenge to the first and second limbs of ATLA’s claim is its contention that they cannot succeed because LCE has already completed the drilling for the demonstration plant, and that it did so in reliance upon an earlier SEO (and a series of activity approvals based on that earlier SEO), and not the Leigh Creek SEO.  LCE also contends that the proposed fourth limb of ATLA’s claim does not have a sufficient likelihood of success to support an interlocutory injunction.

31. LCE also relies upon various other obstacles, or potential obstacles, to ATLA’s success in obtaining the final relief sought.  It challenges ATLA’s standing to obtain the final relief sought.  It relies upon what it contends was ATLA’s earlier consent to the relevant drilling activities in connection with the demonstration plan.  It also contends that ATLA delayed in bringing these proceedings with the result that they are out of time.

32. In addition to these last two matters presenting potential obstacles to the final relief sought, LCE relies upon them as relevant to the balance of convenience.  In this respect LCE also relies upon its evidence as to the significant, and potentially catastrophic, financial consequences for LCE, its workforce and the LCEP in the event that there is an injunction that delays the commencement of the planned work on the demonstration plant.  LCE also points to the failure of ATLA to proffer an undertaking as to damages.  While accepting the existence of the matters of cultural concern to the Adnyamathanha people, LCE contends that these matters are not sufficient in all of the circumstances to establish that the balance of convenience lies in favour of an injunction.

33. The Minister does not take a position in relation to whether or not the interlocutory injunction sought against LCE should be granted.  However, through his counsel, he did put various submissions which were generally supportive of LCE’s submissions to the effect that there is limited, if any, merit in the various limbs of ATLA’s claim.

    The legislative scheme

1. The PGE Act establishes a statutory scheme that regulates the exploration of petroleum. Relevantly for the purposes of the present case, “petroleum” is defined in s 4(1) to include coal where in situ gasification would be appropriate.

2. Critical to the operation of the statutory scheme is the notion of “regulated activities”. In particular, s 11 of the PGE Act provides that a person must not engage in a regulated activity unless that activity is authorised. Regulated activities are defined in s 10 to mean, amongst other things, exploration for petroleum; and operations to establish the nature and extent of a discovery of petroleum, and the commercial feasibility of production and the appropriate production techniques. They are also defined to include all operations and activities reasonably necessary for, or incidental to, these activities such as (for example) the drilling of wells.

3. The regulatory scheme established by the PGE Act operates at three stages. First, there is a process for the Minister granting an exploration licence in respect of a particular area and mandated terms of such a licence. Secondly, in order to undertake any particular regulated activity, the activity must be the subject of an approved SEO. Thirdly, where (as in this case) the regulated activities are classified as requiring high level official surveillance, the Minister’s prior written approval is required before those activities are undertaken.

4. In order to set the framework for the parties’ submissions, it is useful to outline the operation of the statutory scheme at these three stages.  I include the first stage by way of context, even though the limb of the plaintiff’s case challenging the Minister’s approval of the PEL 650 is not pressed for the purposes of the application for an interlocutory injunction.

5. As to the first stage, or licensing stage, the statutory scheme relevantly provides:

   ·    The Minister may grant a licence including an exploration licence.[8]  Such a licence authorises subject to its terms the licensee to carry out, in the licence area, exploratory operations for regulated resources of the kind relevant to the category of licence.[9]

   ·    In considering an application for the grant of an exploration license, the Minister must have regard to a number of factors relating to the suitability of the proposed work program, the applicant and other criteria.[10]

   ·    An exploration licence is subject to a number of mandatory conditions.[11]  A licence may also be granted on other conditions the Minister considers appropriate.[12]

   ·    If a licence condition is not complied with, the licensee is guilty of an offence.[13] The Minister also has disciplinary power to suspend or cancel a licence where a licensee fails to comply with the PGE Act or a condition of the licence.[14]

   ·    Fees are payable to the Minister in respect of an exploration licence in accordance with the Petroleum and Geothermal Energy Regulations 2013 (SA) (the PGE Regulations).[15]

   [8] PGE Act, ss 12(1), 13(c) and 21.

   [9] PGE Act, s 21(2).

   [10] PGE Act, s 23.

   [11] PGE Act, ss 25, 26, 73, 74, 75 and 105.

   [12] PGE Act, s 76.

   [13] PGE Act, s 77.

   [14] PGE Act, s 91.

   [15]   PGE Regulations, r 53 and Schedule 1.

6. As to the second stage, or SEO stage:

   ·    A licensee must not carry out regulated activities unless an SEO is in force for the relevant activities.[16]

   ·    In essence, the SEO establishes the environmental objectives that must be achieved in carrying out regulated activities and sets the criteria to be applied to determine whether the stated environmental objectives have been achieved in a particular case.[17]  The “environment” is defined broadly.[18]

   ·    The process for approval involves the preparation of an EIR and then an SEO based on that report.[19]  An EIR may relate to regulated activities generally or a particular class of regulated activities; and may be applicable to the whole of the State or be limited to a particular part of the State.[20]  The Minister will classify the activities to which the EIR relates as either low, medium or high impact activities.[21]

   ·    Where, as here, the Minister has classified the activities as medium impact activities, the SEO is subject to a public consultation process.[22]

   ·    After taking into account all public submissions, the Minister may approve (or amend) the SEO.[23]  Where an SEO is approved, notice of the approval is published in the Gazette.[24]

   ·    It is a mandatory condition of every licence that the licensee must comply with an approved SEO relevant to the activities carried out under the licence.[25]

   ·    If, in the Minister’s opinion, authorised activities are being conducted in a way that results in undue damage to the environment, the Minister may, by written notice given to the licensee, direct the licensee to take specified action to prevent or minimise environmental damage.[26]

   [16] PGE Act, s 96.

   [17] PGE Act, s 100(1).

   [18] PGE Act, s 4.

   [19] PGE Act, ss 97 and 99.

   [20] PGE Act, s 97(3).

   [21] PGE Act, s 98.

   [22] PGE Act, s 102.

   [23] PGE Act, s 102(4).

   [24] PGE Act, s 104.

   [25] PGE Act, s 105.

   [26] PGE Act, s 108.

7. As to the third stage, or activity approval stage:

   ·    A licence will divide the regulated activities to be carried out under the licence into activities requiring high level official surveillance or activities requiring low level official surveillance.[27]  The Minster may, by written notice to a licensee, change the classification of activities under the relevant licence conditions.[28]

   ·    Under Clause 3 of the PEL granted to LCE, being PEL 650, all regulated activities authorised by that licence are classified as requiring high level official surveillance.

   ·    As all regulated activities require high level official surveillance, the Minister’s prior written approval is required before those activities may be undertaken.[29]

   ·    An application for the Minister’s approval of the activities is to be given to the Minister at least 35 days before the proposed commencement of the activities or within such shorter period as the Minister may, in a particular case, allow.[30]  The application must include, or be accompanied by, specified information or material,[31] including an assessment as to whether the relevant activity is covered by an existing SEO.[32]

   [27] PGE Act, s 74(1).

   [28] PGE Act, s 74(4).

   [29] PGE Act, s 74(3)(a).

   [30]   PGE Regulations, r 19(1).

   [31]   PGE Regulations, r 20.

   [32]   PGE Regulations, r 20(1)(g).

   ATLA’s challenge to the lawfulness of LCE’s proposed activities

8. As mentioned, the first limb of ATLA’s claim is an allegation that LCE is proposing to undertake a regulated activity, and in particular the drilling of wells, in circumstances where this would be in breach of s 96 of the PGE Act, and thus unlawful, because there is no SEO in force in respect of that activity.

9. Section 96 of the PGE Act provides:

   A licensee must not carry out regulated activities unless a statement of environmental objectives is in force for the relevant activities under this Part.

   Maximum penalty:  $120,000.

10. There is no dispute that the drilling in connection with the demonstration plant is a regulated activity.  The issue is whether there is an SEO in force “for” that activity.

11. ATLA points to the Leigh Creek SEO, and the exclusion from the activities covered by that SEO of the drilling of wells.  In particular, the Leigh Creek SEO provides:[33]

    Drilling of the inlet, outlet and observation wells is covered by an existing Statement of Environmental Objectives for drilling (SAPEX 2013) and is not covered by this SEO.

    [33] Leigh Creek SEO, page 4.  There is an equivalent exclusion from the Leigh Creek EIR.

12. The reference in this passage to SAPEX 2013 is a reference to the Arckaringa Basin Exploration Drilling Activities SEO dated October 2007, and reviewed in August 2013 (the Arckaringa SEO).  The Arckaringa SEO is expressed as applying to “all of SAPEX’s drilling activities, including petroleum exploration drilling, initial production testing and coal drilling in the Arckaringa Basin, as defined in [the Arckaringa EIR]”.

13. The LCEP is not within the Arckaringa Basin.  To the contrary it is in the Telford Basin, some hundreds of kilometres from the Arckaringa Basin.  Thus, the Arckaringa SEO does not cover the location of the drilling in respect of LCE’s demonstration plant.  Further, ATLA has adduced some expert evidence from Dr Mudd (an environmental engineer with expertise in relation to groundwater resources and the impact of mining and other similar activities) and Dr Lafleur (an earth scientist).  Their evidence, while very general, was to the effect that the geology of the Arckaringa Basin and Telford Basin are quite different from one another, and hence raise quite different considerations from an environmental risk perspective.  ATLA also relies upon the differing matters of cultural significance, with its concerns on behalf of the Adnyamathanha people being confined to the Telford Basin (and the Leigh Creek Coalfield in particular).

14. Based on the above, ATLA contends that there is no SEO in force for drilling work in connection with the demonstration plant in the Telford Basin, and that in undertaking any such drilling work LCE will be in breach of s 96 of the PGE Act. It seeks an injunction to restrain this apprehended breach of s 96.

15. The first and most fundamental response by LCE to this limb of ATLA’s claim is that LCE has completed its drilling work in connection with the demonstration plant. In particular, Mr Haines (LCE’s General Manager Technical) has deposed that LCE does not presently intend or contemplate any drilling work, and does not have any extant approvals in place for such work. On this basis, LCE contends that there is simply no factual basis for any apprehended breach of s 96 of the PGE Act, and hence no basis for any injunction to restrain LCE from undertaking any work in connection with the demonstration plant.

16. In my view, this is a sound objection to any grant of injunctive relief based upon the first limb of ATLA’s case.  During the course of oral argument, ATLA faintly pressed a contention to the effect that despite the affidavit evidence of Mr Haines, there was still some chance (although it accepted that it was something less than a real prospect) that further drilling would be required.  I consider this to be speculation without any evidential foundation, and not a sufficient basis for an interlocutory injunction.

17. Further, and in any event, even if LCE were to form the view that it needed to undertake further drilling in connection with the demonstration plant, LCE accepts that as this would be a high surveillance activity, it would be required to submit a further activity notification and obtain a further activity approval from the Minister.  LCE has indicated a preparedness to provide ATLA with a copy of any such activity notification.  In those circumstances, even if there was otherwise a sufficient basis for an apprehension that LCE might engage in drilling, ATLA would have an opportunity to object, or seek injunction relief, at that point in time.

18. The second response by LCE to the first limb of ATLA’s claim is to point out that despite the apparent assumption in ATLA’s case that LCE relies upon the Leigh Creek SEO (or at least the cross-reference in that SEO to the Arckaringa SEO) as the SEO in force for its drilling activities for the purposes of s 96, this is not so.

19. LCE’s affidavit evidence establishes that the drilling that it has undertaken in connection with the demonstration plant occurred between July 2016 and the end of June 2018 relying upon the Arckaringa SEO and a series of activity notifications and approvals based upon that SEO.  Significantly, those activity notifications involved an application of the objectives and criteria in the Arckaringa SEO to the particular geology and circumstances of the site of the proposed drilling for the demonstration plant in the Telford Basin.  They did so primarily by way of quite detailed Environmental Assessment Reports attached to the activity notifications.  Those activity notifications also attach Work Area Clearance reports prepared on behalf of the Adnyamathanha people by ATLA.  The subsequent activity approvals by the Minister were expressed to be conditional upon adherence to the strategies identified in the relevant environment assessments, and the requirements of ATLA in the Work Area Clearance reports.

20. LCE contends that the above is sufficient to establish that there was an SEO in force for its drilling, and hence sufficient for the purposes of s 96.

21. Its primary submission in this respect is that the PGE Act contemplates SEO’s operating in respect of particular activities of a comparable nature even if undertaken in quite different regions. It thus contends that the Arckaringa SEO is an SEO that was “in force for” its drilling activities for the demonstration plant. In support of this contention, LCE relies upon the PGE Act’s express contemplation that both EIRs and SEOs may be applicable to the whole of the State or be limited to a particular part of the State. LCE also points out that under s 100(1) of the PGE Act, the purpose of the SEO is merely to identify the environmental objectives that need to be addressed in carrying out regulated activities, and to set the criteria to be applied to determine whether those objectives have been achieved. LCE further contends that the focus of an SEO is upon a particular type or range of activities, and that there is thus no need for the SEO to be site specific. It is only the analysis of how the relevant objectives and criteria will be met that must be specific. Here that analysis was undertaken in the activity notifications (and attached documentation) in respect of LCE’s drilling, as approved by the Minister’s delegate in the activity approvals.

22. Even if the Arckaringa SEO was not inherently, or in its own terms, capable of being an SEO “in force for” LCE’s drilling activities for the purposes of s 96 of the PGE Act, LCE’s alternative argument is that it gained that status in respect of those activities when the Minister’s delegate gave approvals for those activities based upon the Arckaringa SEO.

    In my view, there is some merit in this second response by LCE to the first limb of ATLA’s claim. It appears to me that the PGE Act may well contemplate the possibility of a licensee undertaking regulated activities on the basis of an SEO that was not prepared for the purposes of the particular site at which the relevant activities will be undertaken. While there would necessarily be limits to extent to which this will be sufficient to establish that there was an SEO “in force for” the relevant activity, on the material before me I see no particular difficulty in the circumstances of this case given the approvals that were obtained by LCE on the basis of the Arckaringa SEO. That said, I acknowledge that this second response to the first limb of ATLA’s claim is not as strong or clear as the first. It is at least arguable that while the PGE Act contemplates that an EIR or SEO may apply across a range of locations or sites, its operation will be confined to those locations or sites identified on the face of the EIR and ESO; and that an EIR or SEO prepared for one location cannot be simply applied in respect of another location not identified in that EIR or SEO.

23. Finally in respect of the first limb of ATLA’s case, ATLA put a submission that LCE was not entitled to rely upon the Arckaringa SEO because all of LCE’s regulated activities in respect of the demonstration plant had to be governed by the one SEO (here, the Leigh Creek SEO). As I understand this argument, ATLA submits that while the PGE Act permits the existence of different SEO for different regulated activities, it does not permit this in the case of interconnected regulated activities such as those in relation to the demonstration plant.

24. I can see no textual basis for such an approach in the PGE Act. All that the PGE Act (and in particular s 96) requires is that there be an SEO in force for every regulated activity. This is consistent with the scheme of the PGE Act, which is focussed upon ensuring that each individual regulated activity is approved. If, as ATLA accepts, the PGE Act contemplates different SEOs in respect of different regulated activities,[34] then I can see no textual basis for limiting the circumstances in which that approach may be adopted.  I can see no textual basis for preventing a licensee adopting that approach even in the case of different regulated activities that have some connection by reason of them being part of the same project or at the same site.

    [34]   This seems to be express in the case of EIRs (which may relate to regulated activities generally or “a particular class of activities” (s 97(3)) and implicit or inherent in the case of SEOs.

25. For the above reasons, I consider that ATLA has very limited prospects of success in establishing an apprehended breach of s 96 of the PGE Act so as to obtain final injunctive relief.

    ATLA’s challenge to the Minister’s approval of the Leigh Creek SEO

26. The second limb of ATLA’s claim is an allegation that the Minister’s 18 April 2018 approval of the Leigh Creek SEO is invalid and of no effect because it did not take into account the mandatory relevant consideration of the regulated activities, and in particular the drilling of wells, proposed to be covered by the SEO.

27. In my view, this second limb of ATLA’s claim suffers from a similar defect to the first limb.  It assumes that the Leigh Creek SEO is intended to operate, and was approved by the Minister’s delegate on the basis it would operate, for the purposes of LCE’s drilling activities in respect of the demonstration plant.  But, as pointed out above, that was plainly not so.  LCE did not rely upon the Leigh Creek SEO for the purpose of those drilling activities, and the Minister’s delegate did not approve it for the purpose of those drilling activities.  The Minister’s delegate was not required to consider LCE’s drilling activities in approving the Leigh Creek SEO; that is, consideration of LCE’s drilling activities was not a mandatory consideration in that approval process.  Accordingly, the failure to take into account those drilling activities does not seem to me to provide a basis for challenging the approval of the Leigh Creek SEO.

28. Put another way, or from another perspective, it seems to me that ATLA, in effect, challenges the wrong decision.  If it wished to challenge an approval in relation to the drilling activities, it would need to challenge the activity approvals given by the Minister in respect of those drilling activities (based upon the activity notifications attaching the Arckaringa SEO).  It has not done so; and nor has any basis for doing so been identified by ATLA.

29. Putting to one side for the moment the proposed fourth limb of its case, I do not understand ATLA to have identified any other basis for challenging the Minster’s approval of the Leigh Creek SEO. To the extent that it is sought to be challenged on the basis that there was some requirement that it address the drilling activities to be undertaken at that site, I regard this as merely another form of the final argument advanced in support of the first limb – which, for the reasons I have explained, has limited merit. It assumes that there must be a single (and site-specific) SEO for all regulated activities for a particular project or site, in circumstances where I do not consider there to be any textual support for such a requirement in the PGE Act.

30. For these reasons, I consider that the second limb of ATLA’s case also has only limited prospects of success.

    ATLA’s challenge to the Minister’s approval of the PEL 650

31. As ATLA no longer presses the third limb of its claim in support of its application for an interlocutory injunction there is no need for me to consider the parties’ respective arguments in relation to the merits of this aspect of ATLA’s claim.

    ATLA’s challenge to the Leigh Creek EIR

1. The proposed fourth limb of ATLA’s case is an allegation that the Leigh Creek EIR is invalid by reason of it failing to deal with a mandatory relevant consideration, namely the requirements under ss 97(1) and (2) of the PGE Act that an EIR take into account, and provide an assessment of, the cultural values of Aboriginal Australians. Based upon this proposed fourth limb, ATLA seeks a declaration that the Leigh Creek EIR is invalid and of no effect. It also contends that this limb of its case would justify, or support, an order quashing the Minister’s delegate’s approval of the Leigh Creek SEO and injuncting LCE from undertaking any work in reliance upon that SEO.

2. Section 97 of the PGE Act provides:

   97—Environmental impact report

   (1)An environmental impact report on regulated activities must be prepared in accordance with the regulations.

   (2)An environmental impact report—

   (a)     must take into account cultural, amenity and other values of Aboriginal and other Australians insofar as those values are relevant to the assessment; and

   (b)     must take into account risks inherent in the regulated activities to the health and safety of the public; and

   (c)     must contain sufficient information to make possible an informed assessment of the likely impact of the activities on the environment.

   (3)An environmental impact report—

   (a)     may relate to regulated activities generally or a particular class of regulated activities; and

   (b)     may be applicable to the whole of the State or be limited to a particular part of the State.

3. The reference in s 97(1) to an EIR being prepared in accordance with the regulations is a reference to r 10 of the PGE Regulations, which is in the following terms:

   10—Environmental impact report

   (1)For the purposes of any environmental impact report required under Part 12 of the Act, a licensee (or, in the case of a preliminary survey licence, pipeline licence, associated activities licence or special facilities licence, a person applying for a licence) must provide the following information or material:

   (a)     a description of the regulated activities to be carried out under the licence (including their location);

   (b)     —

   (i)a description of the specific features of the environment that can reasonably be expected to be affected by the activities, with particular reference to the physical and biological aspects of the environment and existing land uses; and

   (ii)an assessment of the cultural values of Aboriginal and other Australians which could reasonably be foreseen to be affected by the activities in the area of the licence, and the public health and safety risks inherent in those activities (insofar as these matters are relevant in the particular circumstances); and

   (iii)if required by the Minister—a prudential assessment of the security of natural gas supply;

   (c)     a description of the reasonably foreseeable events associated with the activities that could pose a threat to the relevant environment, including—

   (i)information on the following:

   (A)events during the construction stage (if any), the operational stage and the abandonment stage;

   (B)events due to atypical circumstances (including human error, equipment failure or emissions, or discharges above normal operating levels); and

   (ii)information on the estimated frequency of these events; and

   (iii)an explanation of the basis on which these events and frequencies have been predicted;

   (d)     an assessment of the potential consequences of these events on the environment, including—

   (i)information on the following:

   (A)the extent to which these consequences can be managed or addressed;

   (B)the action proposed to be taken to manage or address these consequences;

   (C)the anticipated duration of these consequences;

   (D)the size and scope of these consequences;

   (E)the cumulative effects (if any) of these consequences when considered in conjunction with the consequences of other events that may occur on the relevant land (insofar as this is reasonably practicable); and

   (ii)an explanation of the basis on which these consequences have been predicted;

   (e)     a list of all owners of the relevant land;

   (f)    information on any consultation that has occurred with the owner of the relevant land, any Aboriginal groups or representatives, any agency or instrumentality of the Crown, or any other interested person or parties, including specific details about relevant issues that have been raised and any response to those issues, but not including confidential information.

   (2)The Minister may require that a person provide further information or materials (verified, if the Minister so requires, in a manner determined by the Minister) to assist in assessing potential events and consequences that may arise from particular activities.

   (3)Information and material provided under subregulation (1) or (2) must—

   (a)     be balanced, objective and concise; and

   (b)     state any limitations that apply, or should apply, to the use of the information and material; and

   (c)     identify any matter in relation to which there is a significant lack of relevant information or a significant degree of uncertainty; and

   (d)     so far as is relevant, identify the sensitivity to change of any assumption that has been made and any significant risks that may arise if an assumption is later found to be incorrect; and

   (e)     so far as is reasonably practicable, be presented in a way that allows a person assessing the information or material to understand how conclusions have been reached and allows the information or material to be used to make an informed decision on the level of environmental impact of particular activities without the need to obtain additional technical advice.

   (4)Information or material provided under this regulation must be accompanied by a declaration signed or executed by a person (being either the licensee or applicant or a person authorised by the licensee or applicant) who has taken reasonable steps to review the information and material to ensure its accuracy.

   (5)Information and material provided under this regulation must be kept available for public inspection in accordance with directions of the Minister.

4. In its challenge to the EIR, ATLA focusses upon rr 10(1)(a) and (b)(ii), which together require that the EIR contain a description of the regulated activities and an assessment of the cultural values of Aboriginal Australians which could reasonably be foreseen to be affected by those activities. ATLA also relies upon the requirement under s 97(2), which provides that the EIR “must take into account” cultural, amenity and other values of Aboriginal Australians insofar as those values are relevant to the assessment.

5. ATLA contends that these are mandatory requirements of an EIR that have not been complied with; and that this non-compliance is sufficient to render the Leigh Creek EIR invalid and of no effect.  As I understand ATLA’s case, it further contends that this would have the consequential effect of invalidating the Minister’s approval of the Leigh Creek SEO.

6. While LCE’s primary contention is that the requirements of s 97(1) and (2) are not justiciable, I am satisfied that ATLA’s contention that they are justiciable mandatory requirements has sufficient merit for present purposes.

7. However, both LCE and the Minister also contend that the requirements of these subsections, even though mandatory, nevertheless involve a relatively low hurdle which they contend the Leigh Creek EIR plainly clears. They contend that this construction is supported by the text of the relevant provisions, pointing in particular to the reference in s 97(2) to the EIR needing merely to “take into account” the relevant matters; and to the general terms of the relevant aspect of the requirements in r 10, and its requirement that the assessment of these matters be “concise”. LCE and the Minister effectively contend that as long as such matters are identified in the EIR in some meaningful way, then there is no occasion for the Court to enquire further; it should not embark upon any assessment of the appropriateness or thoroughness of the treatment of these matters.

8. The Minister contends that there is some analogy with the approach to judicial review of decision-makers required to take certain matters into account.  He relies in this respect upon the statement of principle by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd[35] to the effect that in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account.

   [35]   Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 40-41.

9. In addition to reliance upon the text of ss 97(1) and (2), and r 10, LCE and the Minister contend that this approach is supported by the nature of an EIR, and its role in the legislative scheme. The EIR is not intended as the definitive assessment of the impact of the regulated activities upon matters of cultural significance to Aboriginal Australians. Rather, its role in that scheme is as a document that identifies such issues for the purposes of the Minister then classifying the regulated activities under s 98; and then, in the event that they are classified as medium or high impact activities, as a document informing the process of consultation required by the PGE Act prior to approval of the relevant SEO.

10. ATLA, on the other hand, rejects the suggestion that ss 97(1) and (2) represent a low hurdle. They contend that they should be understood as requiring an indication on the face of the EIR that the relevant cultural considerations and their significance has been properly understood and assessed; that a mere identification of the issues is not sufficient.

11. I do not think it is desirable in the context of the present application that I attempt any definitive articulation of what ss 97(1) and (2) require. It is at least arguable that they require more than a mere identification of the relevant issues, and require some form of meaningful assessment of those issues that demonstrates that they have been understood and taken into account. That said, I also think it is plain that the requirements ought not be construed in too demanding a fashion. Given the role of an EIR in the statutory scheme, and the terms of the relevant provisions, they should not be construed as requiring that any particular weight or significance be attached to the particular issues, or as otherwise inviting scrutiny as to the precise way in which those issues have been taken into account.

12. Turning to the treatment of the cultural significance to the Adnyamathanha people of the regulated activities associated with the demonstration plan within the Leigh Creek EIR, there are passages of relevance at pages 54 and 106 of that document.  At page 54 it states:

    4.2.1  Aboriginal Cultural Heritage

    PEL 650 is located in the northern Flinders Ranges region which is culturally significant to the Adnyamathanha Aboriginal People. The Adnyamathanha have a long history of occupation in this region which was significantly disrupted when the country was opened up to pastoral settlement and mining following European exploration during the 1840’s (Northern Flinders Rangers SCB 2004).

    The Adnyamathanha maintain a strong connection to the project region including ownership of the Myrtle Springs and Leigh Creek pastoral stations adjoining PEL 650, the community of Neppabunna and Igawarta, management of the Nantawarrina Indigenous Projected Area (IPA) located approximately 50 km south-east and co-management of the Vulkathunha – Gammon Range National Park located 50 km to the east. The IPA and national park are of great cultural significance as traditional tribal territory and places of culturally important sites. Areas of cultural heritage significance to the Adnyamathanha people and evidence of long term occupation in the region include song lines, stone arrangements, rock art, occupation sites, graves and ochre quarries (DoE 2013; DEH 2006). The Leigh Creek area forms part of the Adnyamathanha Dreaming journey of Yulu (sic) the Kingfisher Man to Wilpena Pound (Ikara).

    A search of the Central Archive, which contains the Register of Aboriginal Sites and Objects (DSD-AAR 2016) indicated that there are 22 registered or reported sites within 10 km of PEL 650. One registered site and two reported sites are located within the PEL. Site types on the Register identified in the region include objects, archaeological sites, engravings, quarries, and ceremonial and burial sites. Two of the sites located outside the PEL are identified as restricted sites.

    The landform and ground surface at the site of the demonstration plant is heavily disturbed and has been at least partially graded. Old roads, excavations, small stockpiles and other disturbance are prevalent across the site. There are no Aboriginal cultural heritage sites registered at or in the immediate vicinity of the demonstration plant site (however undiscovered Aboriginal sites may still be present in areas which have been previously disturbed).

    The Aboriginal Heritage Act applies to the entirety of the Leigh Creek Coalfield (including PEL 650) and provides for the protection of all Aboriginal sites, object and remains, including recorded, reported, or undiscovered heritage. The protection extends to Aboriginal sites, object and remains which may exist in areas which have been disturbed in the past and / or subject to a cultural heritage survey or work area clearance.

    LCK has signed a cultural heritage agreement with the Adnyamathanha Traditional Lands Association and cultural heritage clearances have been undertaken.

13. And in the subsequent section of the EIR under the heading ‘Environmental Impact Assessment’, it states the following (at page 106):[36]

    [36] There are also some accompanying references in the risk assessment table that appears at section 5.11 of the EIR.

    5.1  Cultural Heritage

    Potential impacts to cultural heritage arise mainly from:

    ·    earthworks associated with construction and rehabilitation

    ·    activity outside designated / approved areas.

    The demonstration plant is located in existing disturbed areas within the Leigh Creek Coalfield. The site and its surrounds have been subject to extensive, heavy disturbance from previous coal mining activities and consequently any cultural heritage values and sensitivity have been significantly reduced.

    Work Area Clearances with the Adnyamathanha Traditional Lands Association have been carried out for the demonstration plant site. Demonstration plant activities will be undertaken within the area cleared by the Work Area Clearance. Signage and fencing (where required) will be installed to delineate approved areas and any restricted areas. If sites of cultural heritage significance are present in the vicinity they will be flagged and / or fenced off where necessary to prevent disturbance. In addition, procedures are in place to deal with the incidental discovery of cultural heritage material.

    5.1.1  Risk Assessment

    The level of risk to cultural heritage in relation to earthworks during construction and rehabilitation activities has been assessed as low, due to the remote likelihood of this occurring at the site after a Work Area Clearance has been carried out. The level of risk for impact to cultural heritage caused by activity outside designated areas, although unlikely, has the potential for a major consequence, leading to a medial level of risk (see Table 5-4).

14. ATLA contends that the above does not involve any meaningful assessment of the relevant cultural issues.  In particular, ATLA points to the limited nature of the reference to the journey of Yurlu at the end of the second paragraph of the passage from page 54 of the EIR.  Not only does this not provide any explanation or elaboration of the significance of the journey of Yurlu, ATLA contends that the lack of understanding as to its significance becomes apparent from the EIR’s impact assessment.  In particular, the passage at page 106 both assumes that the past disturbance of the Leigh Creek Coalfields somehow diminishes the significance of the site, and seems to assume that the matters of cultural significance have some physical dimension that can be dealt with by being flagged or fenced off where necessary.  ATLA contends that this involves such a fundamental misapprehension of the cultural significance of the site to the Adnyamathanha people that the report cannot be said to contain an assessment of those cultural matters, or even to have taken them into account.

15. LCE contends that the EIR does comply with the requirements of ss 97(1) and (2). In addition to relying upon the passages extracted above as involving sufficient compliance with those sections, LCE relies upon the various references in the EIR to an environmental risk assessment. That environmental risk assessment is referred to as having being undertaken as part of the EIR, and as supporting the discussion of matters relevant to the environmental impact assessment in the EIR. LCE contends that a proper consideration of the adequacy of the EIR so far as compliance with ss 97(1) and (2) is concerned would require consideration of the process and supporting documentation underpinning the EIR, including the environmental risk assessment. Given the late timing of the proposed amendment to raise the proposed fourth limb of its case, LCE was not in a position to provide evidence of these matters to the Court.

16. In addition to the above, and perhaps more by reinforcement of its earlier submission that in assessing the adequacy of an EIR it is important to keep in mind its role in the statutory scheme, and its later submissions that an inadequacy in an EIR ought not be a basis for invalidating the approval of an SEO based on that EIR, LCE contends that there can be no doubt that the ultimate approval of the Leigh Creek SEO was informed by a proper understanding of the matters of cultural significance to the Adnyamathanha people.  In support of this contention, LCE relies upon the two written submissions made by ATLA (signed by Mr Coulthard, as the CEO of ATLA) in relation to these matters as part of the consultation process that preceded the approval of the SEO.  In those submissions, Mr Coulthard explained the significance of the Leigh Creek Coalfield to the Adnyamathanha people, and in particular the area’s relevance to the mura or creation story involving Yurlu in similar terms and detail to the evidence before me (which I have summarised later in these reasons).  The submissions noted that similar concerns had been made plain to LCE through the process of the Work Area Clearance reports of September 2016 and August 2017 (which formed part of the activity notifications and approvals process I have mentioned earlier).

17. It is neither possible nor appropriate for me to reach any detailed or final view as to the resolution of these competing submissions as to the adequacy of the Leigh Creek EIR for the purposes of ss 97(1) and (2), and r 10; particularly in circumstances where the defendants have not had the opportunity put on evidence as to the process and materials underpinning the references to the Adnyamathanha people’s cultural interests in the Leigh Creek EIR. It is sufficient for me to state that ATLA’s claim in this respect may have some merit; however, it does not appear to me to be a very strong claim.

18. The next submission made by both LCE and the Minister is that even if ATLA were to succeed in establishing that the Leigh Creek EIR did not comply with the requirements of ss 97(1) and (2), this would not operate to invalidate the EIR, let alone any subsequent step in the statutory scheme such as approval of the Leigh Creek SEO by the Minister. And without a sufficient likelihood of the claim achieving invalidation of the Minister’s approval of the Leigh Creek SEO, there would be no basis for the interlocutory injunctive relief.

1. In this respect, the defendants rely upon the well-known passage from the reasons of the High Court in Project Blue Sky Inc v Australian Broadcasting Authority[37] to the effect that not every breach of a statutory requirement or obligation will operate to invalidate acts affected by, or performed in consequence of, that breach.  It will be a matter of construction of the relevant legislation, and an ascertainment of the relevant legislative intent.  It is less likely that the legislature will have intended a breach to have an invalidating effect where the section in question regulates the exercise of functions or powers already conferred, rather than imposing essential preliminaries to the exercise of those functions or powers; or where the section imposes obligations that involve matters of policy and interpretation rather than obligations that have a rule-like quality.

   [37] Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [94]-[98].

2. In my view, bearing in mind the role of the EIR in the statutory scheme (as outlined earlier), ATLA’s contention that a failure to comply with ss 97(1) and (2) will have an invalidating effect upon the EIR, let alone a subsequent approval of an SEO based upon that EIR, will likely be problematic. While non-compliance with those requirements may well provide a proper basis for declaratory relief and potentially injunctive relief if the issue is raised prior to the Minister’s classification of regulated activities under s 98, or perhaps the Minister’s approval of the relevant SEO under ss 102(4) or 104, I consider it unlikely that such non-compliance would result in the invalidation or quashing of the EIR, let alone the invalidation or quashing of any subsequent classification or SEO approval by the Minister. There may also be strong discretionary grounds for refusing any relief to this effect in circumstances, such as appears to have been the case here, where the consultation process subsequent to the EIR, and prior to approval of the SEO, involved a proper articulation and consideration of the relevant cultural issues.

3. For all of the above reasons, it is my view that the proposed fourth limb of ATLA’s also has only limited prospects of being successful in establishing an entitlement to final relief of a type that would support the interlocutory relief presently sought.

   Other matters relevant to the merits of ATLA’s claims

4. The defendants rely upon some additional matters going to the merits of ATLA’s claim.  LCE challenges ATLA’s standing to bring and pursue these proceedings.  It also contends that ATLA’s consultation with respect to, and consent to, the activities in relation to the demonstration plant since 2016 will preclude it succeeding in its claim.  And both LCE and the Minister contend that ATLA’s delay in bringing these proceedings is such that its claim should fail as being out of time.  It is appropriate that I deal with each of these in turn.

   Standing

5. While LCE will be entitled to pursue this issue in due course, I am satisfied that ATLA has established a sufficient likelihood of it having the necessary standing to bring and maintain these proceedings.  Certainly I consider that the cultural significance of the Leigh Creek Coalfield area to the Adnyamathanha people gives them an interest over and above that of members of the public, or indeed of other Aboriginal Australians, in relation to the activities associated with the demonstration plant.  Further, while ATLA was formed primarily for the purposes of pursuing native title claims on behalf of the Adnyamathanha people, the evidence suggests that ATLA has since taken on a role in representing Adnyamathanha people more generally in their dealings with government and other organisations.

6. In my view, the combination of the above establishes a sufficient likelihood for present purposes that ATLA will be able to establish a ‘special interest’ of the type identified in authorities such as Onus v Alcoa of Australia Ltd.[38]  The cultural interests relied upon by ATLA are more than matters of mere intellectual or emotional concern.[39]

   [38]   Onus v Alcoa (Aust) Ltd (1981) 149 CLR 27.

   [39]   See the discussion in RW v Minister for Education and Childhood Development [2016] SASC 158 at [128]ff.

7. Even if ATLA is an appropriate body to represent the Adnyamathanha people, LCE contends that there are some doubts about its authorisation to commence and pursue these proceedings.  While these are matters that may need to be considered in due course, I am again not presently satisfied that they are matters that should stand in the way of the interlocutory relief sought.

8. For these reasons, I do not consider the issue of standing to present any obstacle to the grant of interlocutory relief sought by ATLA.

   Consultation and consent

9. LCE contends that ATLA was involved in the extensive consultation process that has been undertaken in relation to its activities under PEL 650 since at least September 2016.  LCE further contends that ATLA has approved or consented to its drilling activities in respect of the demonstration plant through its provision of two Work Area Clearance reports dated September 2016 and August 2017 respectively.

10. LCE’s primary contention is that by reason of these Work Area Clearance reports, ATLA will be estopped from challenging LCE’s drilling activities.  Alternatively, even if this is not so, LCE contends that ATLA’s consultation and consent in relation to those drilling activities are powerful discretionary considerations.

11. ATLA’s response to these contentions is by way of a factual challenge to the nature and significance of the Work Area Clearance reports, or at least ATLA’s understanding as to the same.  At present the evidence in support of this factual challenge is confined to evidence of Mr Coulthard, as CEO of ATLA.  He deposed to, for example, an understanding (and belief that others on behalf of ATLA are of a like understanding) that the Work Area Clearance reports were confined to a consideration of physical site disturbance rather than extending to matters of cultural significance or an opportunity to raise concerns about the proposed activities more generally.

12. While aspects of ATLA’s asserted understanding of the nature of the Work Area Clearance reports, and the process underpinning them, appear difficult to reconcile with the terms of those reports, it is not appropriate for me to attach too much significance to this aspect of LCE’s submissions for present purposes.  While the matters raised by LCE present another obstacle that ATLA will need to clear, at least in relation to the first limb of its claim, I cannot say more than this for present purposes so far as the merits of ATLA’s claim is concerned.  That said, I do consider that the matters raised in this respect by LCE provide some basis for its contention of delay on the part of ATLA, and hence are of some general relevance in my overall assessment of the balance of convenience.

    Delay

13. Both LCE and the Minister contend that ATLA’s delay in bringing these proceedings means that they will, or may, fail by reason of being out of time.  Further, and in any event, LCE contends that ATLA’s delay is a further matter that should weigh against injunctive relief in my assessment of the balance of convenience.

14. Under r 200(1) of the Supreme Court Civil Rules 2006 (SA), an action for judicial review must be commenced as soon as practicable after the date when the grounds for review arose and, in any event, within six months after that date.

15. At least insofar as ATLA’s challenge to the Minister’s approval of the Leigh Creek SEO is concerned, the relevant date would appear to be 18 April 2018.  ATLA commenced these proceedings on 3 September 2018, and so after about four and a half months. While this was within the six month outer limit for the purposes of r 200(1), LCE and the Minister do not accept that the proceedings were brought “as soon as practicable” after 18 April 2018.

16. The importance of timeliness in the pursuit of judicial review proceedings is well-known, and the reasons for it obvious.  As Lord Diplock said in O’Reilly v Mackman:[40]

    The public interest in good administration requires that the public authorities and third parties should not be kept in suspense as to the legal validity of a decision the authority has reached in purported exercise of decision-making powers for any longer period than is absolutely necessary in fairness to the person affected by the decision.

    [40]   O’Reilly v Mackman [1983] 2 AC 237 (citations omitted).

17. And as this Court said in Hall v City of Burnside:[41]

    As McHugh J said in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 553, the six-month limitation period is “the general rule”. It is not “an arbitrary cut off point”. The six-month limit represents a judgment as to an appropriate time limit having regard to the public interest and having regard to the interest of individuals who have an interest in the particular case that arises. A limitation period is imposed, and the length of the period is determined, recognising that the limitation period may result in a cause of action being defeated.

    A six-month time limit for proceedings by way of judicial review is common in Australia, and in some jurisdictions the time limit is even shorter: see Aronson, Dyer, Groves, Judicial Review of Administration Action (3rd ed, Lawbook Co, 2004), pp 718-719.

    The relatively short limitation period reflects the fact that judicial review is concerned with the validity of decision-making by individuals and bodies exercising statutory and other powers that must be exercised in the public interest. Such decisions often have direct and consequential effects on persons other than those immediately affected. In a range of circumstances it will often be a matter of significance for other persons and authorities to know whether or not such a decision is valid or has been subject to a legal challenge. There is a substantial public interest in being able to say, after a specified time, that such a decision can be treated as beyond attack. The very fact that the standing rules permit challenges to validity to be made by persons other than those directly involved in the decision-making process is a reason why there should be a relatively short period within which any such attack should be mounted.

    The fact that r 98.06 requires that, quite apart from the six-month time limit, proceedings should be brought “as promptly as possible” emphasises the significance of the time limit.

    [41]   Hall v City of Burnside (2006) 102 SASR 298 at [47]-[50]; see also at [78]-[85].

18. Here, there may ultimately prove to be merit in this response to ATLA’s claim.  Given ATLA’s awareness of LCE’s operations in respect of the demonstration plant for at least two years, and its apparent awareness of the approval of the Leigh Creek SEO from around the time it was given in April 2018, there will need to be some explanation for the time it took for these proceedings to be commenced.  However, prior to hearing and considering any evidence of this nature, it is difficult for me to say much as to the likelihood of ATLA’s claim failing on account of delay.  Again, I do not consider I can or should say much more at the present time than that this will be another obstacle that ATLA will need to overcome for it to obtain the final relief sought in these proceedings.

19. However, I do consider that I can have at least some regard to ATLA’s delay in assessing the balance of convenience.  Delay in this context is relevant not only for the reasons set out in the authorities mentioned above, but also (for reasons I will elaborate upon later in my consideration of the financial prejudice to LCE) because it has served to exacerbate, or make more acute, LCE’s financial prejudice if an injunction is granted.

    ATLA’s prejudice if no injunction ordered

20. In support of its contention that it will suffer prejudice, and indeed irreparable harm, if there is no injunction to prevent the proposed works on the demonstration plant, ATLA relies upon the evidence of its CEO, Mr Coulthard, as to the cultural significance of the site of this plant to the Adnyamathanha people.

21. In particular, Mr Coulthard explained that the significance of the Leigh Creek Coalfield to the Adnyamathanha people lies in the mura or creation story involving Yurlu the Kingfisher, his journey south through the area on his way to a ceremony at Wilpena Pound, his lighting of a fire to signal his approach to the ceremony that then created the coal in the area, and the consequential reference to this coal by the Adnyamathanha people as Yurlu’s Coal.  He explained the great cultural and spiritual significance of this creation story for the Adnyamathanha people, and its relationship with not only the Leigh Creek Coalfield but also the beginnings of the Flinders Ranges.  He explained that the Leigh Creek Coalfield area manifests and embodies an important part of the Yurlu story.

22. Mr Coulthard acknowledged the prior disturbance of the area through the coal mining activities of the last 60 or so years, adding that the lives of many have already been significantly diminished by reason of this activity.  However, he explained that whilst the previous mining has caused severe damage, the area nevertheless remains of vital importance to the Adnyamathanha people.  He said that the mined land should now be fully and properly rehabilitated, and healed under the guidance of the Adnyamathanha people.  It should not be subjected to any further violation.

23. LCE does not challenge the existence or significance of the cultural concerns raised and explained by Mr Coulthard on behalf of ATLA and the Adnyamathanha people.  The only minor qualification to this is a submission to the effect that the significance of these matters should be assessed in a context where they were not presented as an obstacle to the works going ahead in the Work Area Clearance reports prepared in September 2016 and 2017.  While I have regard to this submission, I cannot attach much weight to it on this application given the dispute I have mentioned as to ATLA’s understanding of the nature of those reports and the process underpinning them.

24. In the circumstances, I accept the evidence of Mr Coulthard as to the cultural significance of the Leigh Creek Coalfield to the Adnyamathanha people.  I also accept that a continuation of the works on the demonstration plant in that area will thus cause the Adnyamathanha people a significant degree of distress and harm, much of which will be irreparable.  While it is relevant that the works will occur in an area that has already been disturbed through previous mining, and that the demonstration plant will only be operational for a relatively short period, I accept that this will be of little significance in terms of assuaging the harm to Adnyamathanha people’s cultural interests.  The evidence before me suggests that the Adnyamathanha people will suffer a significant degree of distress and harm if the work on the demonstration plant proceeds.

25. For these reasons, I accept that if an injunction is granted, the Adnyamathanha people will suffer significant prejudice.

26. I also accept that there will be at least some risk of environmental harm if the works continue.  That said, the evidence before me in that respect is limited and somewhat speculative.  There is some evidence of the general concerns in the scientific community and the community in general about the potential (and in some cases reality) of environmental harm as a result of similar undertakings elsewhere, and the adverse attitude taken to such undertakings by the governments of some other states.  Those concerns have been echoed in the reports I have been provided from Dr Mudd and Dr Lafleur.  However, the evidence before me also reveals that a detailed process of assessing these environmental risks, and identifying the steps that can and will be taken to address those risks, has been undertaken by and on behalf of LCE.  There has been a consultation process, and the Minister, through his delegate, has assessed those risks, and approved the Leigh Creek SEO.  In those circumstances, it is neither possible nor appropriate for me on this application to say more than that there may be some risk of environmental harm if an injunction is not granted and the works on the demonstration plant proceed.

27. However, it is important to appreciate that the apparent inevitability of harm to the culture of the Adnyamathanha people, and the possibility of harm to the environment more generally, are not a sufficient basis for an injunction to restrain the works going ahead.

28. The first reason for this is that neither of these matters of themselves give rise to a ground for judicial review capable of sustaining final relief of this type.  ATLA does not suggest otherwise; it accepts that it must establish a sufficient likelihood of success in respect of at least one of the limbs of its case as outlined above.  If it cannot do so, then it will not have made out a basis for an interlocutory injunction. 

29. The second reason for this is that while these matters establish prejudice that will be incurred if an injunction is not granted, consideration of whether the balance of convenience ultimately lies in favour of an injunction requires consideration also of the prejudice that will be incurred if an injunction is not granted.  It is to that matter that I now turn.

    LCE’s prejudice if an injunction is granted

30. LCE contends that it (and its employees) will suffer immediate and significant prejudice if an injunction is granted.

31. In support of this contention, LCE relies upon the evidence of its executive chairman, Mr Peters.  Mr Peters’ evidence was that LCE is a “one-project” company, with that project being the LCEP. The next stage in the LCEP is the demonstration plant, with the further work in that respect due to commence within a matter of days.

32. Mr Peters explained that LCE’s share price is directly affected by ASX announcements regarding the LCEP and its demonstration plant.  By way of illustration, he noted that when LCE announced ATLA’s proceedings to the market on 7 September 2018, its market capitalisation fell from $84.87m to $68.37m, resulting in a significant loss for LCE’s shareholders. Whilst noting that this movement subsequently corrected, he proffered it as an illustration of the price sensitivity of such an announcement.

33. For these reasons, Mr Peters considers that any delay in the demonstration plant (LCE having previously announced to the market that it would be producing gas at that plant by the end of September 2018) will significantly reduce LCE’s share price and market capitalisation and cause material losses to LCE’s shareholders. Indeed, Mr Peters believes that any further delays will “destroy the market’s confidence” in LCE’s ability to deliver in stated timeframes.

34. Mr Peters said that any injunction or delay will, for similar reasons, also have significant implications for LCE’s ability to raise capital in the future.  He explained that LCE has already been to the market to raise equity twice: raising $20m in March 2017 and $12m in July 2018.  He said that LCE had hoped to, and budgeted on, the basis that it would be producing gas by December 2017, but that the approval process relating to the demonstration plant took much longer than was expected and final approvals were not obtained until September 2018.  In light of these delays, he considered that any further delays will make it almost impossible for LCE to raise further capital.

35. According to Mr Peters, the ability to raise further capital is critical to LCE’s survival. It needs further capital to continue with the LCEP.  And without the LCEP, LCE’s business will be lost (given that it is a “one-project” company). The effect of Mr Peters’ evidence is that if an injunction is granted, it will be very difficult for LCE to raise capital to progress the LCEP at any point in the future (having regard to the damage the further delay will cause to LCE’s standing in the market, and the difficulties in raising capital over the Christmas period, even if the trial were heard and determined urgently).  In his view, in the absence of further capital, the company is unlikely to be viable. Indeed, Mr Peters gave evidence of conversations he has had with various investors who have told him that they will withdraw from negotiations if an injunction is granted.

1. If the company is no longer viable, Mr Peters said that LCE’s 35 employees will lose their employment, and the $47m it has raised since 14 November 2014 to develop the LCEP will likely have been wasted.

2. Even putting to one side LCE’s ability to raise further capital and hence its ability to survive, LCE contends that it (and its employees) will suffer immediate and material prejudice in the event that an injunction is granted.  In particular, and according to Mr Peters, it will immediately have to start making redundancies amongst its 35 staff. It may also have to demobilize the contractors who are due to start arriving on site from 21 September 2018.  According to Mr Peters, mobilisation and demobilisation costs are in the order of $62,000, and there will be approximately a one month delay in remobilizing these contractors in the event that they have to be demobilized. He said that, even if LCE could survive a delay of several months, with or without further capital, it would have to carry its current operational costs, which are approximately $27,000 per day, increasing to $47,000 per day, and which it will not be able to recover except through market gains in the event that the LCEP is successful.  Mr Peters estimated that a delay of even one month would cost LCE in the order of $750,000.

3. ATLA did not seek to cross-examine Mr Peters, or otherwise challenge his evidence.  ATLA initially advanced submissions to the effect that Mr Peters’ evidence suggested that LCE’s financial position was so precarious that the Court should have concerns about both LCE’s ability to safely undertake the work contemplated by the demonstration plant, and LCE’s financial viability in any event.  But when pressed as to the evidential foundation for these submissions they were not maintained.  In my view these are matters of speculation, and not matters of sufficient weight to materially influence my assessment of the balance of convenience.

4. I accept the general thrust of Mr Peters’ evidence, namely that if an injunction is granted then LCE (and hence its shareholders) will almost immediately commence to suffer economic prejudice both through a likely reduction in its share price, and the incurring of some tens of thousands of dollars in daily operational costs and other costs associated with the demobilisation of contractors.  I also accept that it is likely some employees will need to be made redundant.  I further accept that there is a real prospect that an injunction will have a significant effect upon LCE’s ability to raise further capital, and hence upon the viability of LCE and its LCEP.

   Absence of undertaking as to damages

5. ATLA has not proffered any undertaking as to damages in support of its application for an interlocutory injunction.  Presumably by way of explanation for this, ATLA adduced evidence to the effect that it has limited assets.  Its financial statements for the year ended 30 June 2017 reveal assets of slightly in excess of $200,000, and net assets of about $175,000.  The evidence also reveals that ATLA is a not-for-profit organisation, and registered charity, that employs only two staff and exists and operates for the benefit of, and to protect the cultural interests of, the Adnyamathanha native title holders and the Adnyamathanha people generally.

6. LCE contends that ATLA’s failure to proffer (and financial inability to support) the ‘usual’ undertaking as to damages is a very significant consideration given the significant financial prejudice it is likely to incur if an injunction is granted (as outlined above).  It contends that it is sufficient to prevent an injunction being granted, or at the very least should weigh heavily in my assessment of whether the balance of convenience lies in favour of an injunction.

7. It is true that the proffering of an undertaking as to damages is usually a pre-condition to the grant of an interlocutory injunction.  It is also true that the financial capacity to support that undertaking is often a relevant consideration.

8. However, the authorities recognise that there may be exceptions to this approach.  I refer in this respect to the reasons of Refshauge J in Financial Integrity Group Pty Ltd v Farmer (No 3)[42] for a convenient summary of the relevant principles and considerations.  As his Honour noted, one category of case in which there might be an exception to the usual approach is in the case of litigation involving a strong public interest and in respect of which the plaintiff has established a strong prima facie case.

   [42]   Financial Integrity Group Pty Ltd v Farmer (No 3) [2014] ATSG 75 at [16].

9. In my view, given the nature of the interests sought to be protected by ATLA (namely the cultural interests of the Adnyamathanha people as a whole), and the apparent appropriateness of ATLA acting on behalf of the Adnyamathanha people in that regard, the proffering of an undertaking as to damages (and a proven financial ability to support it) should not be an essential pre-condition to the grant of interlocutory injunctive relief in this case.  I approach the matter on that basis.

10. However, I do accept that the absence of such an undertaking is a relevant consideration in my assessment of where the balance of convenience lies, particularly in light of my view as to the limited merits of ATLA’s claim.  In the absence of an undertaking as to damages, LCE will likely not only suffer significant financial harm if an injunction granted, but also it will have limited, if any, ability to recover compensation for any such losses even if its position is ultimately vindicated.

    Consideration

11. Drawing the above threads together, there are various difficulties or obstacles that ATLA will need to confront in respect of each of the limbs of its claim (including the proposed fourth limb).  There are no apparent, let alone obvious or clear, answers to some of these difficulties or obstacles.  In short, I consider that ATLA has only limited prospects of being successful in establishing an entitlement to final relief of the type necessary to sustain the interlocutory injunctive relief presently sought.

12. As to the balance of convenience, I accept that if no injunction is granted there will be significant, and largely irreparable, prejudice to the cultural interests of the Adnyamathanha people, as well as some possibility of environmental harm more generally.  However, for the reasons I have explained these considerations are not capable of sustaining injunctive relief on their own.  Not only have these matters been taken into account, at least to some extent, in the relevant decision‑making and approvals, but they do not of themselves constitute grounds for intervention by this Court whether through its powers of judicial review or otherwise.  And while they are very relevant to my assessment of the balance of convenience, they are also not necessarily decisive on this issue.

13. Indeed, LCE has established that it will suffer financial loss if an injunction is granted.  That loss will be immediate and significant, and will likely extend to the redundancy of some of its employees.  The impact of an injunction, and its consequential impact on LCE’s ability to raise further capital, may well be fatal to the viability of LCE and its LCEP.

14. While the prejudice likely to be suffered by LCE will be financial in nature, it is relevant in this respect that ATLA has not proffered, and is not in a financial position to support, an undertaking as to damages.  LCE’s financial losses will thus not be recoverable.

15. In my consideration of the balance of convenience, I also attach some weight to ATLA’s prior involvement in the process leading to the approvals of the activities already undertaken in respect of the demonstration plant, and the relatively late timing of the present proceedings and application.  While there are factual issues in this respect that I am not presently in a position to assess, and I do not intend to be overly critical of ATLA, the fact is that the late timing of the application has contributed to the extent and immediacy of the prejudice likely to be suffered by LCE if the injunction is granted.

16. In summary, it is for these reasons that I am not satisfied that ATLA has established a significant likelihood of it being successful in obtaining final relief of the relevant type to justify the interlocutory injunctive relief sought.  Put another way, given ATLA’s limited prospects of success in obtaining final relief of the relevant type, I am not satisfied that the balance of convenience lies in favour of granting interlocutory injunction sought.

17. It is for these reasons that I dismissed ATLA’s application for an interlocutory injunction.