Waratah Coal Pty Ltd v Youth Verdict Ltd & Ors (No 6)
[2022] QLC 21
•25 November 2022
LAND COURT OF QUEENSLAND
CITATION: Waratah Coal Pty Ltd v Youth Verdict Ltd & Ors (No 6) [2022] QLC 21 PARTIES: Waratah Coal Pty Ltd ACN 006 670 300 (applicant) v Youth Verdict Limited, The Bimblebox Alliance Inc.,
John and Susan Brinnand(active objectors) and Chief Executive, Department of Environment and
Science(statutory party) FILE NOs: MRA050-20 (MLA 70454) EPA051-20 (EPML 00571313) PROCEEDING: Application for mining lease and objections thereto, objections to environmental authority. DELIVERED ON: 25 November 2022 DELIVERED AT: Brisbane HEARD ON:
26, 27, 28, 29 April 2022, 3, 4, 5, 6, 10, 11, 12, 17, 18, 19, 20, 23, 24, 25, 27, 30, 31 May 2022, 1, 16, 17 June, 28 July 2022. Final written submissions received on 4 November
2022. HEARD AT: Brisbane
Erub (Darnley Island)
Poruma (Coconut Island)Gimuy (Cairns) PRESIDENT: FY Kingham ORDERS:
1. I recommend to the Honourable the Minister responsible for the Mineral Resources Act 1989 that
MLA 70454 be refused.
2. I recommend to the administering authority
responsible for the Environmental Protection Act
1994 that EPML 00571313 be refused.3. I direct the Registrar of the Land Court to provide a copy of these reasons and access to the Land Court e-trial site to the Honourable Minister administering the Mineral Resources Act 1989 and to the administering authority under the Environmental
Protection Act 1994.
4. I will hear from the parties as to costs.
CATCHWORDS:
ENERGY AND RESOURCES – MINERALS – COURT EXERCISING JURISDICTIONS IN MINING MATTERS –
where there are objections to the grant of the mining lease being applied for - where there are objections to the draft
environmental authority – where the Court hears the objections together – where the Court makes
recommendations to the Minister for the MRA and administering authority for the EPA concerning the mining leases and draft environmental authority.
ENERGY AND RESOURCES – MINERALS – COURT EXERCISING JURISDICTION IN MINING MATTERS –
where multiple objections considered including noise, air quality, ecology, surface water, ground water, subsidence from underground mining, biodiversity offsets, impact of mining on a nature refuge, climate change impacts, economic benefit, social impact, past performance and many others
ENERGY AND RESOURCES – MINERALS – COURT EXERCISING JURISDICTION IN MINING MATTERS – CONDITIONS OF ENVIRONMENTAL APPROVAL –
where there is uncertainty about the extent of environmental harm resulting from mining – where there is uncertainty about the ability to offset significant residual impacts – where
proposed conditions deferred certain investigations until after the approval is granted – whether the uncertainty affects the decision about whether the application should be approved ENERGY AND RESOURCES – MINERALS – COURT EXERCISING JURISDICTIONS IN MINING MATTERS – JURISDICTION AND POWERS – Environmental
Protection Act 1994 (as at 14 April 2013) s 223 - whether the Court can consider the impact of combustion of the mined coal when making an objections decision
HUMAN RIGHTS – Human Rights Act 2019 ss 8, 13, 15(2), 16, 24, 25(a), 26(2), 28, 58 – where the Court required to
properly consider human rights relevant to its decision - where the meaning of a ‘limit’ to a human right considered - whether there is a sufficient causal connection between the approval of the applications, the combustion of the mined coal and the harm resulting from climate change to constitute a limit - where the meaning of the right to life, the cultural rights of First Nations peoples, the rights of children, the right to property, the right of privacy and home, and the right to
equal enjoyment of human rights considered – where the Court considered whether the limit to each of those rights was demonstrably justified
Convention on Biological Diversity, opened for signature 5 June 1992, 1760 UNTS 79 (entered into force 29 December 1993)
Environmental Offsets Act 2014 (Qld)
Environmental Offsets Regulation 2014 (Qld)
Environmental Protection Act 1994 (Qld)
Human Rights Act 2019 (Qld)
Land Court Act 2000 (Qld)
Mineral Resources (Common Provisions) Act 2014 (Qld)
Mineral Resources Act 1989 (Qld)
National Greenhouse and Energy Reporting Act 2007 (Cth)
Nature Conservation Act 1992 (Qld)
Paris Agreement, opened for signature 22 April 2016,
[2016] ATS 24 (entered into force 4 November 2016)State Development and Public Works Organisation Act 1971 (Qld)
United Nations Framework Convention on Climate Change,
opened for signature 9 June 1992, 1771 UNTS 107 (entered
into force 21 March 1994)
Vienna Convention on the Law of Treaties, opened for
signature 23 May 1969, 1155 UNTS 331 (entered into force
27 January 1980)A & B v Children’s Court of Victoria [2012] VSC 589 Adani Mining Pty Ltd v Land Services of Coast and Country Inc & Ors (2015) 36 QLCR 394; [2014] QLC 48 Anvil Hill Project Watch Association Inc v Minister for the Environment and Water Resources (2007) 97 ALD 398
Budayeva v Russia [2008] II Eur Court HR 267Bulga Milbradale Progress Association Inc v Minister for Planning & Infrastructure (2013) 194 LGERA 347
Bundesverfassungsgericht [German Constitutional Court] 1
BvR 2656/18, 1 BvR 78/20, 1 BvR 96/20, 1 BvR 288/20, 14
March 2021Buzzacott v Minister for Sustainability, Environment, Water, Population and Communities (2013) 215 FCR 301 Carstens v Pittwater Council (1999) 111 LGERA 1
Castles v Secretary, Department of Justice (2010) 28 VR
141
Cemino v Canna (2018) 56 VR 480Certain Children v Minister for Families and Children & Ors (No 2) (2017) 52 VR 441 Certain Children v Minister for Families and Children (2016) 51 VR 473 Coast and Country Association of Queensland Inc v Smith & Ors [2016] QCA 242 Coast and Country Association of Queensland Inc v Smith & Ors [2015] QSC 260
Committee on the Rights of the Child, Views:
Communication No. 107/2019, 88th Sess, UN DocCRC/C/88/D/107/2019 (22 September 2021) (‘Saachi v Germany’) Deés v. Hungary (European Court of Human Rights,
Chamber, Application No 2345/06, 9 November 2010)
Director of Housing v Sudi [2010] VCAT 328
Director of Public Prosecutions (DPP) v SL (2016) 263 A
Crim R 193
E. v United Kingdom (European Court of Human Rights,
Chamber, Application no 33218/96, 26 November 2002)
Fraser v Attorney-General of Canada [2020] SCC 28Friends of the Gelorup Corridor Inc v Minister for the Environment and Water [2022] FCA 944
Future Generations v Ministry of the Environment Corte
Suprema de Justicia de Colombia [Supreme Court of Justice
of Colombia], TC4360-2018, Radicación n. 11001-22-03-
000-2018-00319-01 (5 April 2018)
Giacomelli v. Italy ECtHR (European Court of Human
Rights, Chamber, Application No 59909/00, 2 November
2006)
Gloucester Resources Ltd v Minister for Planning (2019)
234 LGERA 257
Gray v Minister for Planning (2006) 152 LGERA 258
Grimkovskaya v Ukraine (European Court of Human
Rights, Chamber, Application no 38182/03, 21 October
2011)
Hancock Coal Pty Ltd v Kelly & Ors (No 4) (2014) 35
QLCR 56; [2014] QLC 12
Hatton and Others v. the United Kingdom (European Court
of Human Rights, Grand Chamber, Application No
36022/97, 8 July 2003)Hight Country Conservation Advocates v U.S. Forest Serv 52 F. Supp 3d 1174 (D. Colo. 2014) Hogan v Hinch (2011) 243 CLR 506 Human Rights Committee, Views adopted by the Committee
under article 5 (4) of the Optional Protocol, concerning communication No. 3624/2019, 135th Sess, CCPR/C/135/D/3624/2019 (22 September 2022) (‘Billy et al v Australia’) Innes v Electoral Commission of Queensland & Anor (No 2) (2020) 5 QR 623.
James v United Kingdom (1986) 8 EHRR 123
Lopez Ostra v Spain, (European Court of Human Rights,
Chamber, Application no 16798/90, 9 December 1994)
McKinnon v Secretary, Department of Treasury (2006) 228
CLR 243
Minister for Environment v Sharma (2022) 400 ALR 203Minister for the Environment and Heritage v Queensland Conservation Council Inc (2004) 139 FCR 24
Momcilovic v The Queen (2011) 245 CLR 1
Moreno Gómez v. Spain (European Court of Human Rights,
Chamber, Application No 4143/02, 16 November 2004)National Land Services of Coast and Country Inc v Chief Executive, Department of Environment and Heritage (2016)
222 LGERA 122
New Acland Coal Pty Ltd v Smith & Ors (2018) 230
LGERA 88New Acland Coal v Ashman & Ors and Chief Executive,
Department of Environment and Heritage Protection (No 4)[2017] QLC 24 Owen-D’Arcy v Chief Executive, Queensland Corrective Services [2021] QSC 273 Pembroke Olive Downs Pty Ltd v Sunland Cattle Co Pty Ltd & Ors [2020] QLC 27
PJB v Melbourne Health (2011) 39 VR 373Queensland Conservation Council Inc v Xstrata Coal Queensland Pty Ltd & Ors (2007) 98 ALD 483 Re Application under the Major Crime (Investigative Powers) Act 2004 (2009) 24 VR 415
Sharma v Minister for the Environment (2021) 391 ALR 1
Sinclair v Mining Warden at Maryborough (1975) 132 CLR
473State of the Netherlands (Ministry of Economic Affairs and
Climate Policy) v Urgenda FoundationECLI:NL:HR:2019:2007, (Supreme Court of the
Netherlands, 20 December 2019)State of the Netherlands (Ministry of Infrastructure and the
Environment) v Urgenda Foundation,ECLI:NL:GHDHA:2018:2610, (The Hague Court of
Appeal of the Netherlands, 9 October 2018)Sun v Minister for Immigration and Border Protection (2016) 243 FCR 220 SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362
Telstra Corporation v Hornsby Shire Council (2006) 67
NSWLR 256
Thompson v Minogue [2021] VSCA 358UPAL v Arco (No 2) [1999] 1 Qd R 445 Waratah Coal Pty Ltd v Youth Verdict Ltd & Ors [2020]
QLC 33
WBM v Chief Commissioner of Police (2012) 43 VR 446WildEarth Guardians v US Bureau of Land Management 870 F 3d 1222 (10th Cir, 2017) Wildlife Preservation Society of Queensland
Proserpine/Whitsunday Branch Inc v Minister for theEnvironment & Heritage (2006) 232 ALR 510 Winn v Director-General of National Parks and Wildlife & Ors (2001) 130 LGERA 508 Xstrata Coal Queensland Pty Ltd & Ors v Friends of the Earth – Brisbane Co-Op Ltd & Ors and Department of Environment and Resource Management (2012) 33 QLCR 79; [2012] QLC 13 APPEARANCES: P Ambrose QC and D O’Brien KC with J O’Connor, T Jackson and G Yates (instructed by Hall & Wilcox) for the
applicant
S Holt KC and E Nekvapil SC with K McAuliffe-Lake,
K Brown (instructed by the Environmental Defenders Office)
for Youth Verdict Ltd and The Bimblebox Alliance Inc
J and S Brinnand, active objectors (self-represented)
J Horton KC with A Hellewell (instructed by Litigation Unit,
Department of Environment and Science) for the statutoryparty
[781]
What are the climate change implications for the Project?
[1015]
Conclusions
[1030]
Economic and Social Benefits
[1030]
Overview
[1036]
The financial assessment
[1084]
The economic assessment
[1253]
Mr Coleman’s evidence
[1261]
Social impacts
[1280]
Conclusions on economic and social benefits
[1288]
Human Rights
[1288]
The Climate Change Ground
[1658]
The Glen Innes Ground
[1706]
Assessment of the application for the mining lease
[1810]
Assessment of the application for the environmental authority
Recommendations
Appendix
EXECUTIVE SUMMARY
This case is not about whether any new coal mines should be approved. It is about
whether this coal mine should be approved on its merits.
Waratah Coal Pty Ltd has applied for a mining lease (ML) and an environmental
authority (EA) to allow it to mine thermal coal in the Galilee Basin. Without those
approvals, the mine cannot proceed.
The applications were referred to the Court so the evidence and arguments about the
Project could be tested through an open and transparent process. It is my function to
make recommendations, but not the final decision, on the applications. The Minister
for Resources will decide the ML application. The Chief Executive of the Department
of Environment and Science will decide the EA application.
The factors I have considered are not determined solely by the parties. The Mineral
Resources Act 1989 (MRA) and the Environmental Protection Act 1994 (EPA)
prescribe matters that I must consider and weigh in the balance in making my
recommendations. They also constrain me from considering some matters that might
otherwise seem relevant. The Court has additional obligations under the Human
Rights Act 2019 (HRA) to properly consider human rights and not to make a decision
that is incompatible with human rights.
In its submissions, Waratah refers to the coal in the area applied for as the ‘Waratah
coal’. While I do not take that to be an assertion of ownership, it prompts me to
observe that the State is not regulating Waratah’s use or enjoyment of its own private
asset. This coal is a public resource, owned by the State, to be exploited, or not, for
the public good. There is no default position in favour of or against exploitation.
In the objects of the MRA, the Queensland Government has identified the broader
societal benefits of developing the State’s mineral and energy resources, by
encouraging and facilitating mining, encouraging environmental responsibility in
mining and responsible land care management, and providing for an appropriate
financial return to the State.
The EPA also recognises the benefits that appropriate development can bring. Its
objective is to:
protect Queensland’s environment while allowing for development that
improves the total quality of life, both now and in the future, in a way that maintains the ecological processes on which life depends (ecologically sustainable development).
The two applications are heard together to promote coherence in decision making and
efficiency in the process. Ultimately, though, each application must be, and has been,
decided by reference to criteria specific to that application.
This has been a lengthy and strongly contested hearing. As the size of my decision
attests, I have heard substantial and detailed evidence, including evidence from
experts in a multiplicity of disciplines.
The parties did their best to agree on a list of issues for the hearing. Unfortunately,
they failed to completely agree, not so much on what the issues were, but how the
questions should be framed for me to consider. I have used the list of issues as a point of reference, accepting that some issues fell away during the hearing, and the parties
made limited use of the list in their comprehensive written and oral submissions.
More helpful is the list of matters not in dispute, which encompassed important
matters and greatly reduced the hearing time.
I have thoroughly considered all the evidence I heard and to which I was referred, as
well as the parties’ arguments. Ultimately, I have decided to recommend both
applications are refused. I have prepared detailed reasons and this summary provides
an overview only.
The Project encompasses both open cut and underground thermal coal mining on
several properties north of Alpha in Central Queensland. All but one of those
properties has been extensively cleared and are used for grazing purposes. The
remaining property, Glen Innes, is a protected area under the Nature Conservation
Act 1992 (NCA) known as the Bimblebox Nature Refuge (Bimblebox). It is one of
the refuges in private hands that comprise one-third of Queensland’s protected area
estate. Bimblebox was established as a refuge by a group of private citizens,
committed to conservation and to exploring whether sustainable cattle grazing could
co-exist with biodiversity conservation.
These citizens pooled their limited personal savings and secured Commonwealth
government funding to purchase the property as part of the national estate. Funding
was conditional on the property being declared a refuge under Queensland law, which
it was. Both the Commonwealth and Queensland governments assessed the property
as worthy of protection because of its ecological values.
Bimblebox is in the Desert Uplands. Its ecology is not unique, but its ecological
condition is very high. When Bimblebox was established the Desert Uplands was
subject to extensive clearing. The ecosystem on Bimblebox was, and still is,
underrepresented in the protected area estate. Bimblebox is surrounded by properties
cleared for grazing.
The owners have conservation agreements with both the Commonwealth and
Queensland Governments, which they have faithfully observed for almost 22 years.
In that time, they have built a community of people who come to Bimblebox for
conservation, education, scientific research, recreation, and artistic purposes.
By law, a nature refuge of this sort can be mined. That was the case when it was
established.
Waratah proposes to underground mine two-thirds of the refuge. That would cause
subsidence across the surface of the land above the mine, resulting in a ridge and
swale landscape and extensive surface cracking. The extent of subsidence impacts is
not certain. What effect subsidence impacts will have on the ecological values of
Bimblebox is not certain. What can or should be done to remediate those impacts is
not clear.
The evidence suggests it is likely the Refuge will be lost and the ecological values of
Bimblebox seriously and possibly irreversibly damaged. There is no credible plan
before the Court to offset such a loss and the evidence causes me to question whether
one could be developed and implemented.
The uncertainty about those matters prevents me from assessing what level of harm
would be authorised by the EA, whether that harm could be appropriately managed,
and whether that would be an acceptable outcome given the object of ecologically
sustainable development.
The purpose of the Project is to mine and export thermal coal for combustion to
produce electricity. Waratah’s intended market is Southeast Asia, where there is a
growing population and demand for electricity. As well as the considerable economic
benefits of the mine, including to Waratah and to the State of Queensland, there is a
benefit to our neighbours in Southeast Asia in providing a reliable source of energy.
Climate change was a key issue in this hearing. Human-induced climate change is
caused by greenhouse gas (GHG) emissions, most importantly carbon dioxide (CO2),
which is emitted when thermal coal is combusted. The Paris Agreement, made by the
Conference of Parties of the United Nations Framework Convention on Climate
Change (UNFCCC), sets a long-term global temperature goal of well below 2°C
above the pre-industrial level at 2100, with the ambition of keeping that temperature
to 1.5°C above that level.
The evidence is clear that, globally, we are struggling to achieve that goal. The higher
the temperature rises the greater the risk that the climate will move into a self- reinforcing cycle with feedback loops, exacerbating the climate changes and limiting
our options in response. None of that is in dispute.
What is in dispute is whether I can take into account the emissions from combustion
of the coal. Waratah says the Court has no control over the emissions, because
approving the applications does not approve the combustion of the coal. That will be
a decision made in the countries to which the coal will be exported. The emissions in
generating electricity will be the responsibility of those countries and are not relevant
to these applications.
However, granting permission to mine the coal cannot be logically separated from the
coal being used to generate electricity. The justification for the mine is to export coal
for that purpose. As a matter of law, I have decided I can take the emissions into
account in applying the principles of ecologically sustainable development (for the
EA application) and in considering whether the applications are in the public interest
(on both the ML and the EA applications).
This case is about Queensland coal, mined in Queensland, and exported from
Queensland to be burnt in power stations to generate electricity. Wherever the coal is
burnt the emissions will contribute to environmental harm, including in Queensland.
That raises the question of how to assess the significance of those emissions when
this coal is only one source. Waratah says there is no certainty about what will happen
with future global emissions and climate change. There are too many uncertainties to
predict what will happen. Future global emissions can only be forecast.
However, there is sufficient certainty in the science to understand the relationship
between emissions and temperature. This helps in weighing arguments about the
significance of the contribution of emissions from combustion of the Project coal to
climate change.
There is an almost linear relationship between increases in the atmospheric
concentration of GHGs and increases in temperature. This knowledge underpins the
use of a carbon budget to understand the possible consequences of different levels of
GHG emissions. By taking into account the present accumulation of GHGs in the
atmosphere, the remaining carbon budget estimates the maximum further GHG
emissions to keep temperatures at the specified level.
The carbon budget is only one tool for assessing the significance of the Project, but it
is helpful and informative about the scale of the Project. The remaining global carbon
budget to keep the temperature to 1.5°C in 2100 is 320 Gt. At the current rate of
global emissions, that will be exhausted in eight years. The remaining carbon budget
to keep temperatures to well below 2°C by 2100 is 620 Gt. At the same rate, it will
be exhausted in 15.5 years.
Neither calculation takes into account the emissions from combusting the Project
coal. The parties agree that will result in 1.58 Gt of CO2 being emitted between 2029
and 2051. In absolute terms, that is a material contribution to the remaining carbon
budgets that meet the Paris Agreement goals.
Waratah says approving the mine will make no difference to total emissions, because
it will displace other lower quality coal with higher GHG emissions. I reject that
submission, as well as its submissions that there will be a beneficial climate outcome
if the Project is approved and an adverse climate outcome if it is not. Although the
Project coal might displace other supply in its market, that is most likely to be other
high rank coal, with similar GHG emissions.
As well as evidence about climate scenarios, Waratah produced scenarios about the
market for the Project coal, which, amongst other things, could be used to estimate
demand for the Project coal for the projected life of the mine. Relating the climate
and the market scenarios provides a picture of what the climate consequences could
be if there was sufficient demand for the coal for the mine to be viable.
Viability matters because the economic benefits are only fully realised if the mine is
viable. So balancing the benefits and the costs of the mine requires a consistent
approach to the scenarios.
It does not mean that approving the applications guarantees a particular temperature
outcome, and I have not made my decision on that basis. This Project alone is not the
difference between acceptable and unacceptable climate change. But 1.58 Gt of CO2
is a meaningful contribution to the remaining carbon budget to meet the long-term
temperature goal of the Paris Agreement. Making the coal available for combustion
could limit the options for achieving that goal.
In the end, I have decided that the climate scenario consistent with a viable mine
risks unacceptable climate change impacts to Queensland people and property, even
taking into account the economic and social benefits of the Project.
The social benefits of the mine are largely regional and are mixed, with residents of
Alpha, on balance, experiencing the mine positively and the affected landowners
experiencing it negatively.
Waratah’s assessment of the economic benefits at $2.5 b suggests the potential
benefits are considerable. They are also uncertain in a market with declining demand
for thermal coal. There is a real prospect the mine will not be viable throughout its
projected life and that not all the economic benefits will be realised. Further, the costs
of climate change to people in Queensland, to which combustion of coal from the
Project will contribute, have not been fully accounted for. Nor have the environmental
costs of the act of mining on Bimblebox.
In any case, an economic analysis is only part of the consideration and there are many
factors I have had to consider that cannot be quantified and are not capable of precise
analysis.
One of those is the human rights implications of the Project, both as they relate to
Bimblebox and to climate change. This is not a separate approval process, but forms
part of my consideration of the applications. I must properly consider the human
rights that might be limited by the Project and whether any limit can be demonstrably
justified as required by the HRA.
Waratah says the Project would not limit any human rights because the relationship
between approving the mine and climate change is too remote, indirect and not
specific to this mine. I have explained why I find the connection between the two is
sufficient to constitute a limit to human rights.
Under the HRA, an act or decision can limit a human right if the limit is “no more
than is justified in a free and democratic society, based on human dignity, equality
and freedom”. That test requires the decision maker to balance the purpose and
importance of both the limit and the right, taking into account the nature and extent
of the limit and whether there are less restrictive alternatives.
This test gives an additional dimension to my function when assessing the public
interest on both applications.
I have found that several human rights would be limited by the Project. For the owners
of Bimblebox, that is their right to property and to privacy and home. In relation to
climate change, I have found that the following rights of certain groups of people in
Queensland would be limited: the right to life, the cultural rights of First Nations
peoples, the rights of children, the right to property and to privacy and home, and the
right to enjoy human rights equally. Doing the best I can to assess the nature and
extent of the limit due to the Project, I have decided the limit is not demonstrably
justified.
For each right, considered individually, I have decided the importance of preserving
the right, given the nature and extent of the limitation, weighs more heavily in the
balance than the economic benefits of the mine and the benefit of contributing to
energy security for Southeast Asia.
It is not my function to decide whether granting the applications would be unlawful
because it is not compatible with human rights. However, in deciding what
recommendation to make, I have taken into account my view of the human rights
implications as a matter relevant to the public interest for each application.
I have also considered my findings on the other the key issues I have mentioned in
this summary and other discrete issues raised by the objectors and the relevant
statutory criteria. On each application I have weighed all the relevant factors in the
balance in reaching my decision.
This is only a summary of key findings that led to my decision to recommend both
the applications are refused. The reasons start with an explanation of the Court’s
function and a description of the Project and its history of assessment. Then follows
a detailed assessment of the relevant evidence and the parties’ arguments using four
broad themes: Bimblebox, Climate Change, Economic and Social Benefits, and
Human Rights. The reasons conclude with my discrete assessment of each
application, having regard to the relevant statutory criteria.
THE COURT’S FUNCTION IN A MINING HEARING
| The MRA | [60] |
| The EPA | [69] |
| The HRA | [77] |
| Interpreting the HRA | [79] |
| How the HRA relates to the Court’s function in a mining objection hearing | [87] |
| Key Principles | [91] |
| Public Interest | [92] |
| Ecologically Sustainable Development | [102] |
| Precautionary Principle | [109] |
| Intergenerational Equity | [116] |
The applications made by Waratah for a ML under the MRA and an EA under the
EPA have been referred to this Court because there are objections to both being
granted.[1]
[1] Mineral Resources Act 1989 (MRA) s 265; Environmental Protection Act 1994 (EPA) s 219. Note, the relevant version of the MRA is the current 2021 version unless otherwise specified. The relevant version of the EPA is the 14 March 2013 version. All references to the EPA in this decision are to
The Court’s function is to hear the ML and EA applications and the objections to
them and, considering prescribed criteria, make a recommendation to the ultimate
decision maker on each application.[2] If practicable, the Court must conduct the
[2] MRA ss 268, 269; EPA ss 222, 223.
hearings together, which it has in this case.[3]
[3] MRA s 265(9); EPA s 220(2).
The Court has procedures to identify the parties who will fully participate in the
hearing. They are called active parties. The applicant for an ML or EA, and the
Department with responsibility for the EA, the Department of Environment and
Science (DES), are active parties in any mining objection hearing. Not all objectors
wish to be active parties and the Court’s process allows objectors to choose whether
to take on that role. Youth Verdict Ltd (YV), the Bimblebox Alliance Inc (TBA) and
John and Susan Brinnand elected to be active parties. Youth Verdict and the
Bimblebox Alliance (YV&TBA) were represented by the same lawyers. Mr Brinnand
represented himself and his wife. There are 23 current objectors who did not elect to
be active in the Court process. Nevertheless, the Court must consider their objections
in making its recommendations, and they are referenced at relevant points of this
decision.[4]
[4] Practice Direction 4 of 2018.
For the application for the ML, the Court must make a recommendation to the
Minister for Resources that the application be granted or rejected, in whole or in part,
or that the application be granted subject to stated conditions.[5]
[5] MRA s 269(2)(3).
For the application for the EA, the Court must make an objections decision directed
to the Chief Executive of DES. The Court may recommend the application be granted
in the terms of a Draft EA that has been publicly notified; that the application be
granted, but on different conditions; or that the application be refused.[6]
[6] EPA s 222(1).
The Court’s recommendations are not the final decisions on the applications, but they
affect the rights and interests of the parties in a practical sense.[7]
[7] New Acland Coal Pty Ltd v Smith & Ors (2018) 230 LGERA 88, [97].
The Court’s recommendation on the ML application is a pre-condition to the
application proceeding. The Minister must take the Court’s recommendation into
account in making the final decision.8
Similarly, the Court’s objections decision on the EA is the trigger for the Chief
Executive of DES (or their delegate) to make a final decision on the EA application
and the decision maker must have regard to the Court’s objections decision.[9]
[9] EPA s 225.
In fulfilling its function for the applications under those two Acts, the Court is acting
in an administrative capacity, and must comply with the obligations imposed on
public entities by the HRA.[10]
[10] Waratah Coal Pty Ltd v Youth Verdict Ltd & Ors [2020] QLC 33.
The objects of the MRA, the EPA, and the HRA guide the Court in interpreting the
requirements of and in exercising its powers under those Acts. Key provisions of the
Acts introduce principles the Court must have regard to in making its
recommendations.
In this section of the reasons, I will consider the objects of the three Acts, the key
principles, and some of the legal arguments raised about their interpretation.
The MRA
The MRA encourages and facilitates exploitation of the mineral resources of the State
in an environmentally responsible way.
Section 2 states the seven principal objectives of the MRA. The most pertinent for
this hearing are to:
(a) encourage and facilitate…mining of minerals;…
(d) encourage environmental responsibility in…mining;…
(e) ensure an appropriate financial return to the State from mining;…
(g) encourage responsible land care management in … mining.
One mechanism in the MRA for encouraging both mining and environmental
responsibility is to coordinate the processes for publicly advertising and hearing and
deciding the applications for the ML and the EA.[11]
[11] MRA s 265(9); EPA s 220(2); MRA 2013 s 252B; EPA s 51.
Another mechanism is the prescribed criteria the Court must consider in deciding
what recommendation to make:
269 Land Court’s recommendation on hearing
(4) The Land Court, when making a recommendation to the Minister that an application for a mining lease be granted in whole or in part, shall take into account and consider whether-
(a) the provisions of the Act have been complied with; and (b) the area of land applied for is mineralised or the other purposes for which the lease is sought are appropriate; and (c) if the land applied for is mineralised, there will be an acceptable level of development and utilisation of the mineral resources within the area applied for; and (d) the land and surface area of the land in respect of which the mining lease is sought is of an appropriate size and shape in relation to-
(i) the matters mentioned in paragraphs (b) and (c); and (ii) the type and location of the activities proposed to be carried out under the lease and their likely impact on the surface of the land; and (e) the term sought is appropriate; and (f) the applicant has the necessary financial and technical capabilities to carry on mining operations under the proposed mining lease; and (g) the past performance of the applicant has been satisfactory; and (h) any disadvantage may result to the rights of-
(i) holders of existing exploration permits or mineral development licences; or (ii) existing applicants for exploration permits or mineral development licences; and (i) the operations to be carried on under the authority of the proposed mining lease will confirm with sound land use management; and
(j)
there will be any adverse environmental impact caused by those operations and, if so, the extent thereof; and
(k) the public right and interest will be prejudiced; and (l) any good reason has been shown for a refusal to grant the mining lease; and (m)
taking into consideration the current and prospective uses of that land, the proposed mining operation is an appropriate land use.
The acceptable level of development criterion (s 269(4)(c)) allows the Court to
consider the viability of the mine because that is relevant to whether the resource will
be developed and utilised to an acceptable level.[12]
[12] Armstrong v Brown [2004] 2 Qd R 345, [14]-[15].
The sound land use and the environmental impact criteria (s269(4)(i) and (j)) refer to
the operations to be carried on under the authority of the proposed ML. This confines
these considerations to mining coal and associated activities within the boundaries of
the proposed ML.[13]
[13] Coast and Country Association of Queensland Inc v Smith & Ors [2016] QCA 242, [31]-[33].
The public interest consideration (s 269(4)(k)) considers the interests of the public,
not a mere individual interest.[14] However, that criterion is not confined to the
[14] Sinclair v Mining Warden at Maryborough (1975) 132 CLR 473, 485.
authorised activities, as s 269(4)(i) and (j) are. It has been interpreted to involve a
discretionary balancing exercise of the widest import confined only so far as the
subject matter and the scope and purpose of the statute may enable.[15] It allows
[15] Adani Mining Pty Ltd v Land Services of Coast and Country Inc & Ors (2015) 36 QLCR 394, [43].
consideration of what is known as scope 3 emissions of GHG emissions, including
combustion of coal extracted under the proposed ML.[16]
[16] Xstrata Coal Queensland Pty Ltd & Ors v Friends of the Earth – Brisbane Co-Op Ltd & Ors and
Like the public interest criterion, the any good reason criterion (s 269(4)(l))
contemplates broader considerations, limited only by the structure and objects of the
MRA.[17]
[17] Xstrata Coal Queensland Pty Ltd & Ors v Friends of the Earth – Brisbane Co-Op Ltd & Ors and
The Court must weigh all the benefits and detriments of a proposal in deciding what
recommendation to make.[18]
[18] Sinclair v Mining Warden at Maryborough (1975) 132 CLR 473, [575].
The EPA
The object of the EPA is ecologically sustainable development (ESD).
The mechanisms for achieving that objective include promoting environmental
responsibility environmental values into management of natural resources and ensuring all reasonable and practicable measures are taken to protect environmental
values from all sources of environmental harm (s 4).
For a mining activity, the object of the EPA is achieved by requiring an EA to be
granted before any activity authorised by the ML can take place (s 147(1)). The EPA
prescribes a staged decision-making process for a mine of the scale that Waratah
proposes, which requires environmental impact assessment and, if DES decides the
application can proceed, public notification of proposed conditions (the Draft EA),
and the opportunity for any person to object to the grant of the EA or to the proposed
conditions (Ch 5, Pt 6).
In hearing the EA application and objections, the Court must perform its function
under the EPA in the way that best achieves the object of the Act (s 5). This regulates
the way in which the Court goes about making its decision, rather than its outcome,
by requiring the Court to make its recommendation in a way the Court conceives is
the way that best achieves ecologically sustainable development.[19]
[19] National Land Services of Coast and Country Inc v Chief Executive, Department of Environment and
In making the objections decision, the Court must consider a number of matters:
223 Matters to be considered for objections decision
In making the objections decision for the application, the Land Court must consider the following-
(a) the application documents for the application;
(b) any relevant statutory requirement;(c) the standard criteria;
(d) to the extent the application relates to mining activities in a wild river area – the wild river declaration for the area;
(e) each current objection;
(f) any suitability report obtained for the application; (g) the status of any application under the Mineral Resources Act for each relevant mining tenement.
The standard criteria means –
(a) the principles of ecologically sustainable development as set out in the ‘National for Ecologically Sustainable Development’; and
(b) any applicable environmental protection policy; and
(c) any applicable Commonwealth, State or local government plans, standards, agreements or requirements; and (d) any applicable environmental impact study, assessment or report; and (e) the character, resilience and values of the receiving environment; and
(f) all submissions made by the applicant and submitters; and (g) the best practice environmental management for activities under any relevant instrument, or proposed instrument, as follows –
i. an environmental authority;
ii. a transitional environmental program;
iii. an environmental protection order;
iv. a disposal permit;
v. a development approval; and
(h) the financial implications of the requirements under an instrument, or proposed instrument, mentioned in paragraph (g) as they would relate to the type of activity or industry carried out, or proposed to be carried out, under the instrument; and (i) the public interest; and
(j) any applicable site management plan; and (k) any relevant integrated environmental management system or proposed integrated environmental management system; and (l) any other matter prescribed under a regulation.
In a mining objections hearing the Court’s consideration of environmental impacts is
driven by the framework of the EPA. However, the Court must be careful to observe
some jurisdictional limitations in considering environmental factors for both the ML
and EA applications. As noted above, when considering any adverse environmental
impacts under s 269(4)(j) of the MRA, the consideration is confined to the impacts of
mining and associated activities authorised by the ML.
There is a dispute between the active parties about whether the standard criteria,
including the public interest criterion, allow the Court to consider scope 3 emissions
when making its recommendation on the EA. As that is addressed below at [663]-
[718] it is not necessary to say more here.
The HRA
The main objects of the HRA are (s 3):
(a) to protect and promote human rights; and (b) to help build a culture in the Queensland public sector that respects and promotes human rights; and (c) to help promote a dialogue about the nature, meaning and scope of human rights.
The HRA states the human rights Parliament specifically seeks to protect and
promote. One mechanism for achieving the objects of the HRA is to require public
entities to act and make decisions in a way compatible with human rights (s 58).
Another is to require courts to interpret statutory provisions, to the extent possible
that is consistent with their purpose, in a way compatible with human rights (s 48).
Interpreting the HRA
In interpreting the HRA, I understand none of the following propositions is
controversial, but it is useful to state them.
All legislation must be construed having regard to its text, context, and purpose, and
in a way that best achieves its objects.[20]
[20] SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362, 368, 375; Acts Interpretation Act 1954 s 14A.
International and foreign law sources with a logical or analogical relevance can assist
in interpreting the HRA (s 48). However, courts should pay due regard to the different
legal and constitutional settings for those decisions.[21]
[21] Momcilovic v The Queen (2011) 245 CLR 1, 37-38.
As beneficial legislation, provisions of the HRA which bestow, protect, or enforce
rights should be construed as widely as their terms permit.[22]
[22] AB v Western Australia (2011) 244 CLR 390.
Human rights are an expression of underlying values. Those values explain their nature.
Human rights should be construed in the broadest possible way before consideration
is given to whether they should be limited.[23]
[23] Re Application under the Major Crime (Investigative Powers) Act 2004 (2009) VSC 381, [80].
An act or decision is compatible with human rights if it does not limit a human right
or, if it does, the limit is only to the extent that is reasonable and justifiable in a free
and democratic society based on human dignity, equality and freedom (ss 8 and 13).
The test of compatibility of a limit with a human right is set out in s 13 and is known
as the proportionality test.
The context for construing a human right includes the proportionality test. The
Victorian Court of Appeal recently considered the role of the cognate provision of the
Victorian Charter (s 7) in interpreting rights:[24]
[24] Thompson v Minogue [2021] VSCA 358, [46].
The context within which each provision conferring a human right must be construed includes s 7(2). However, the existence of s 7(2) does not distort the process of statutory construction by mandating that provisions conferring
a human right — with or without internal limitations — be given either an
overly narrow or an overly generous interpretation. Each provision must be
given the meaning that its text, context and purpose — assisted in appropriate
cases by international jurisprudence — require.I will apply those principles, by construing the rights in the broadest possible way
having regard to their text, context and purpose, taking into account s 13, without
allowing it to distort the process of interpretation.
How the HRA relates to the Court’s function in a mining objection hearing
The Court is a public entity within the meaning of the HRA when making
recommendations on the applications for the ML and EA (s 9).
This means I must fulfill the obligations imposed on a public entity, and it would be
unlawful for me either (s 58):
1. to act or make a decision in a way that is not compatible with human rights (the substantive obligation); or
2. in making my decision on the applications, to fail to give proper consideration to a human right relevant to the decision (the procedural obligation).
The procedural limb in s 38(1) of the Charter of Human Rights and Responsibilities
Act 2006 (Vic) (Victorian Charter) has been held to require the decision maker to:[25]
[25] Bare v IBAC (2015) 48 VR 129, [288].
(1)
understand in general terms which of the rights of the person affected by the decision may be relevant and whether, and if so how, those rights will be interfered with by the decision;
(2) seriously turn his or her mind to the possible impact of the decision
on a person’s human rights and the implications thereof for the
affected person;
(3) identify the countervailing interests or obligations; and
(4) balance competing private and public interests as part of the exercise
of justification.
There was a substantial dispute between Waratah and YV&TBA about how to
interpret and apply the HRA, specifically, whether the Project could be said to limit
a human right because of the combustion of the mined coal. I address that argument
later in these reasons at [1298]-[1383]. Waratah also argues it does not bear an onus
to demonstrate that any limit to the right is justified. I address that argument at [1412]-
[1421].
Key Principles
A number of principles are referred to in these reasons. The following is a brief
explanation of their history, meaning and application.
Public Interest
Both the MRA and the EPA require the Court to consider the public interest when
deciding what recommendation to make. Although the EPA uses the term ‘public
interest’ and the MRA uses the phrase ‘public right and interest’, I consider little turns
on the different formulation.
The High Court considered the phrase ‘public right and interest’ in in Sinclair v
Mining Warden at Maryborough.[26] At that time, the mining regulation required the
[26] (1975) 132 CLR 473, 482, 485, 487.
Mining Warden to recommend rejection of an application if they considered the grant
would prejudice the public right or interest.
Barwick CJ recognised environmental concerns are matters of general public
interest:[27]
[27] Sinclair v Mining Warden at Maryborough (1975) 132 CLR 473, 479.
It cannot be doubted, in my opinion, that the matters raised and evidenced by the objector [the effect of mining operations on the environment of Fraser Island] were matters of general public interest.
The Court went on to consider what was required of the Mining Warden in
considering the public interest in a mining objection hearing. The principles that can
be derived from that decision are:
• Considering whether the public interest or right would be prejudiced by granting the ML involves a process of weighing various matters, and benefits and
detriments against each other.
• It is for the Court to determine what weight should be attached to the various considerations in favour of or against grant.
The term public interest is a broad concept that is incapable of universal application.[28]
[28] Osland v Secretary, Department of Justice (2008) 234 CLR 275, 315.
In O’Sullivan v Farrer the High Court described the discretionary nature of the
concept:[29]
[29] (1989) 168 CLR 210, 216.
Indeed, the expression ‘in the public interest’, when used in a statute,
classically imports a discretionary value judgment to be made by reference
to undefined factual matters, confined only ‘in so far as the subject matter
and the scope and purpose of the statutory enactments may enable ... given reasons to be [pronounced] definitely extraneous to any objects the legislature could have had in view.
What is in the public interest will require consideration of competing arguments about
the public interest, or different features or facets of the public interest.[30]
[30] McKinnon v Secretary, Department of Treasury (2006) 228 CLR 243, [55].
More recently, the ‘public interest’ was considered by the High Court in Hogan v
Hinch. French CJ said:[31]
[31] (2011) 243 CLR 506, [31].
Section 42 requires that the court, before making an order under that section, be satisfied that "it is in the public interest to do so". The term "public interest" and its analogues have long informed judicial discretions and evaluative judgments at common law...When used in a statute, the term derives its content from "the subject matter and the scope and purpose" of
the enactment in which it appears [72]. The court is not free to apply
idiosyncratic notions of public interest.It is in the public interest, in determining an application under an Act, to give effect
to the objects of that Act.[32]
[32] Carstens v Pittwater Council (1999) 111 LGERA 1, 25.
The HRA requires the Court to interpret all statutory provisions, to the extent possible
that is consistent with their purpose, in a way that is compatible with human rights (s
48). This does not create a special rule of interpretation. It forms part of the body of
interpretative rules to be applied at the outset, in ascertaining the meaning of a
provision.[33]
[33] R v Momcilovic (2010) 265 ALR 751, [35.1].
However, the protected rights give an additional dimension to the public interest. In
Hogan v Hinch,[34] Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ referred to
[34] Hogan v Hinch (2011) 243 CLR 506.
the cognate requirement when it referenced rights protected under the Victorian
Charter in evaluating the public interest criterion for a suppression order, made under
the Serious Sex Offenders Monitoring Act 2005 (Vic).[35]
[35] Hogan v Hinch (2011) 243 CLR 506, [71].
Ecologically sustainable development
ESD is the object of the EPA. In making its objection decision, the Court must
consider the principles of ESD as set out in the ‘National Strategy for Ecologically
Sustainable Development’.36
The core objectives of the National Strategy for ESD are:
•
to enhance individual and community well-being and welfare by following a path of economic development that safeguards the welfare of future generations
• to provide for equity within and between generations •
to protect biological diversity and maintain essential ecological processes and life-support systems
The guiding principles of the National Strategy for ESD are:
• decision making processes should effectively integrate both long and short-term economic, environmental and equity considerations • where there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation • the global dimension of environmental impacts of actions and policies should be recognised and considered • the need to develop a strong, growing and diversified economy which can enhance the capacity for environmental protection should be recognised • the need to maintain and enhance international competitiveness in an environmentally sound manner should be recognised • cost effective and flexible policy instruments should be adopted, such as improved valuation, pricing and incentive mechanisms • decisions and actions should provide for broad community involvement on issues which affect them.
The National Strategy states the guiding principles and core objectives must be
considered as a package, with none predominating over the others, requiring a
balanced approach taking them all into account in pursuing the goal of ESD. The
Court should not view any in isolation or reject an application because it finds a
guiding principle is ‘breached’.[37]
[37] New Acland Coal Pty Ltd v Smith (2018) 230 LGERA 88, [267].
Rather, the principles assist the Court in its evaluative task and informs the decision
making process.
While the EPA expressly incorporates the principles of ESD as a prescribed criterion,
the MRA does not. Nevertheless, the findings made for the EA application may have
relevance for various prescribed criteria under the MRA and, in that indirect way, the
principles of ESD may be relevant to the ML application.
Before finishing with the EPA, I will briefly discuss two concepts within the
principles of ESD which were the focus of attention in this hearing – the precautionary
principle and intergenerational equity.
Precautionary Principle
The precautionary principle was developed internationally and adopted in Australia
by the early 1990s. The National Strategy definition, incorporated into the EPA by
reference in the definition of standard criteria is:
where there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation.
The same formulation of the precautionary principle appears in the Protection of the
Environment Administration Act 1991 (NSW). In Telstra Corporation v Hornsby
Shire Council,[38] Preston CJ articulated how it should be implemented, an approach
[38] (2006) 67 NSWLR 256.
since adopted in this Court.[39]
[39] Adani Mining Pty Ltd v Land Services of Coast and Country Inc & Ors (2015) 36 QLCR 394, [268].
Preston CJ identified two preconditions to the application of the principle – a threat
of serious or irreversible environmental damage and scientific uncertainty as to the
environmental damage.
The threat of serious or irreversible environmental damage must be adequately
substantiated by scientific evidence. As to the degree of uncertainty his Honour
identified the following factors might be considered:[40]
[40] Telstra Corporation v Hornsby Shire Council (2006) 67 NSWLR 256, [141].
(a) the sufficiency of the evidence that there might be serious or irreversible environmental harm caused by the development programme or project; (b) the level of uncertainty, including the kind of uncertainty (such as technical, methodological or epistemological uncertainty); and (c) the potential to reduce uncertainty having regard to what is possible in principle, economically and within a reasonable time frame.
The principle has a protective function:[41]
[41] Telstra Corporation v Hornsby Shire Council (2006) 67 NSWLR 256, [152].
to require the decision-maker to assume that there is, or will be, a serious or irreversible threat of environmental damage and to take this into account, notwithstanding that there is a degree of scientific uncertainty about whether the threat really exists.
Finally, his Honour said the principle embraces the concept of proportionality.
Measures taken in applying the principle should not go beyond what is appropriate
and necessary to achieve the objectives, recourse should be had to the least onerous
measure, and the disadvantages should not be disproportionate to the aims.[42]
[42] Telstra Corporation v Hornsby Shire Council (2006) 67 NSWLR 256, [166].
There is a substantial dispute between the parties as to whether the precautionary
principle is engaged in this case and, if it does, what would be a proportionate
response. That dispute is best dealt with after I have discussed the relevant evidence.
Intergenerational equity
The concept of intergenerational equity also has its origins in international policy and
is embedded in one of the core objectives of the National Strategy on ESD “to provide
for equity…between generations.”
There has been little judicial consideration in Queensland of the meaning of
intergenerational equity, and the definition of standard criteria in the EPA has
changed over time. That principle was considered by Bowskill J, as the Chief Justice
then was, in New Acland Coal Pty Ltd v Smith. It was not necessary for her Honour
to explore the meaning of the principle, because she decided the Member had wrongly
applied it.
The guiding principles of the National Strategy for ESD includes this principle, which
reflects the core objective of intergenerational equity, amongst other things:
decision making processes should effectively integrate both long and short-
term economic, environmental and equity considerations.In an earlier version of the EPA, the definition of standard criteria referred to the
Intergovernmental Agreement on the Environment, adopted in the same year as the
National Strategy on ESD, which included this definition of the principle:
3.5.2 Intergenerational Equity
• The present generation should ensure that the health, diversity and productivity of the environment is maintained or enhanced for the benefit of future generations.
While this formulation is more specific than the key principle and core objective set
out above, it is consistent with the way the principle has been considered in
Queensland and other jurisdictions.
In an article which explored the ESD principles, Preston CJ identified three
fundamental principles underpinning the concept of inter-generational equity:
1. the conservation of options principle which requires each generation to conserve the natural and cultural diversity in order to ensure that development options are available to future generations;
2. the conservation of quality principle that each generation must maintain the quality of the earth so that it is passed on in no worse condition than it was received; and
3. the conservation of access principle which is that each generation should have a
reasonable and equitable right of access to the natural and cultural resources of the
earth
(references omitted)
Without narrowing the breadth of the core objective of the National Strategy, his
Honour’s thoughtful analysis of the different aspects of the concept provides a useful
framework for considering the arguments about intergenerational equity in this case.
This principle was applied in assessing the Rocky Hill Coal Project in the case of
Gloucester Resources Ltd v Minister for Planning.[43] While the following passage
[43] (2019) 234 LGERA 257.
identifies factors that are specific to that case, it also assists in understanding how it
might apply more generally:[44]
[44] Gloucester Resources Ltd v Minister for Planning (2019) 234 LGERA 257, [398]-[399].
398 A further social impact, revealed in the other types of social impact
discussed earlier, is the distributive injustice or inequity that would result from approval of the Rocky Hill Coal Project. Distributive justice concerns the just distribution of environmental benefits and environmental burdens of economic activity. Distributive justice is promoted by giving substantive rights to members of the community of justice to share in environmental benefits (such as clean air, water and land, a quiet acoustic environment, scenic landscapes and a healthy ecology) and to prevent, mitigate, remediate or be compensated for environmental burdens (such as air, water, land and noise pollution and loss of amenity, scenic landscapes, biological diversity or ecological integrity). Issues of distributive justice not only apply within generations (intra-generational equity) but also extend across generations (inter-generational equity).
399 The principle of intra-generational equity provides that people
within the present generation have equal rights to benefit from the exploitation of natural resources as well as from the enjoyment of a clean and healthy environment: Telstra v Hornsby Shire Council at [117]. The principle of inter-generational equity provides that the present generation should ensure that the health, diversity and productivity of the environment are maintained or enhanced for future generations.
(references omitted)
With that context about the Court’s function and the objects and principles that must
guide it in fulfilling its function, I will outline the mine proposal, how it has evolved
during the hearing, and provide an overview of the objections made to the ML and
EA applications.
THE PROJECT AND OBJECTIONS
| History of the project | [125] |
| The original and revised mine plan | [134] |
| The objections | [143] |
| History of the project |
The Project was previously known as the China First Coal Project.[45] It was to be
[45] WAR.0008.0025; WAR.0291.0004, [17].
developed by China First Pty Ltd, a fully owned subsidiary of Resourcehouse
Limited, which in turn, was wholly owned by Mineralogy Pty Ltd. China First had
contractual rights with Waratah to develop the project and mine 1.4 b tonnes of coal
from the tenements Waratah would apply for.
The Applicant is now Waratah Coal Pty Ltd, a privately owned Australian coal
exploration and development company and a wholly owned subsidiary of Mineralogy
Pty Ltd.[46] The following corporate structure shows the relationship of corporations
[46] WAR.0008.0025.
within this group and, ultimately, the interest of Clive Palmer.[47]
[47] YVL.0328.
This project has had a long history since exploration commenced 16 years ago.48
It was assessed at both State and Commonwealth levels between 2008 and 2015.
Then, after a lapse of four years when nothing appears to have happened with the ML
and EA applications, they were publicly notified and then referred to the Court. After
they were referred, Waratah made significant changes to the mine plan, as it related
to the Bimblebox Nature Refuge. This hearing has proceeded on the revised mine
plan.
In summary, the pre-hearing assessment of the original mine plan went through the
following steps:
• In November 2008, the Queensland Coordinator-General declared the Project a coordinated project under the State Development and Public Works Organisation
Act 1971 (SDPWOA) for which an Environmental Impact Statement (EIS) was
required.
• In March 2009, the Commonwealth Minister for Environment determined the project was a ‘controlled action’ under Environmental Protection and Biodiversity
Conservation Act 1999 (Cth) (EPBC Act), and in April the Minister decided it
should be assessed by an EIS.
• In May 2011, Waratah applied for a mining lease, MLA 70454, and an environmental authority, EPML 00571313. In August that year, Waratah lodged
an EIS to both the Coordinator-General and the Commonwealth Minister. The EIS
was released for public and agency comment between September and December.
• In 2012, the Coordinator-General required Waratah to provide further information. Waratah provided a Supplementary EIS (SEIS) in March the
following year. The Coordinator-General’s evaluation report on the EIS and the
SEIS was issued in August 2013.[49] 324 submissions were received during
[49] WAR.0291.0005, [35].
consultation on the EIS: 14 from government agencies, 35 from NGOs, 272 from
individuals and 3 form letters with 1,517 signatories.[50] More than 90% of these
[50] WAR.0040.0028, note that this report uses two different sets of figures – at WAR.0040.0027 the
related to protecting Bimblebox from mining. A further 76 submissions were made
during consultation on the SEIS.
• In December 2013, the Commonwealth Minister for Environment gave a Controlled Action Approval under the EPBC Act, subject to conditions.[51]
[51] WAR.0291.0006, [36]. The Federal Environment Minister, Tanya Plibersek, announced on 4 November 2022 that she will reassess 18 major coal and gas project proposals including this one.
• In 2015, Waratah submitted and then revised an Environmental Management Plan (EMP). In November 2015, the Department of Environment and Heritage
Protection, as DES was then called, advised Waratah the revised EMP met the
requirements of the EPA.
• In December 2015, DES issued the Draft EA.[52] [52] WAR.0291.0006, [39], [40]; WAR.0043.0001.
Nothing further happened with the applications for four years.
Then, in December 2019:
• Waratah lodged an application with the Barcaldine Regional Council for approval under the Planning Act 2016 to construct and operate a 1400 MW coal fired power
station to utilise coal from the project. Waratah proposed to supply 4.8 Mtpa of
coal from the project when the power station was fully operational, with the
remaining coal to be exported.
• Waratah’s ML and EA applications were subject to public consultation.
The applications were referred to the Land Court on 22 April 2020. Some other
approvals are needed before the mine could be fully operational, but they are not
before the Court.[53]
[53] WAR.0040.
Almost one year later, Waratah notified the Court and the parties that it would revise
its mine plan to remove open-cut mining on Bimblebox. In a letter to objectors,
Waratah advised it had considered the objections carefully and decided not to proceed
with open cut mining on Bimblebox. It said the revised mine plan will significantly
reduce the environmental impacts associated with mining on the refuge.[54] While that
[54] WAR.0281.
would suggest the change was prompted by the concern expressed for Bimblebox, Mr
Harris said it was to “better utilise the economic mineral resources”.[55]
[55] WAR.0291.0021, [98].
The original and revised mine plan
The original plan was to create a new mine 30 km north of the township of Alpha in
central Queensland to mine 1.4 b tonnes of raw coal. That would have involved
mining 20 Mtpa of coal from open-cut operations and 36 Mtpa from underground
operations for a total run-of-mine (ROM) coal extraction of 56 Mtpa. Coal would be
washed, with an overall product yield of 72%, producing 40 Mtpa of thermal coal.[56]
[56] WAR.0009.0008.
The following map shows the original mine plan in 2011.
That would have incorporated the following elements:[57]
[57] WAR.0040.0018.
• Open-cut mine 1 comprising two surface mining pits (north and south) mining two seams (then called the C & D seams) producing 10 Mtpa in total;
• Open-cut mine 2 comprising two surface mining pits (north and south) mining one seam (the B seam) producing 10 Mtpa in total;
• Longwall underground mines 1, 2 and 3 variously mining the C and D seam resources producing 27 Mtpa in total;
• Longwall underground mine 4, mining the B seam producing 9 Mtpa; • Two coal preparation plants with a raw washing capacity of 28 Mtpa each; • Two product coal stockpiles handling product coal to rail load-out facilities; • Water management structures including raw water and environmental dams, creek diversions, levee banks/bunds, drainage channels and sediment traps;
• Tailings storage facilities and coarse spoil disposal areas integrated into the mine spoil pile areas; and
• A mine industrial area.
The surface mining method was to be a combination of walking draglines for
overburden removal in conjunction with truck and shovel fleets for partings removal
and coal recovery. An additional overburden removal system utilising large electric
rope shovels loading onto overburden conveyors would also be used in conjunction
with the draglines.
Underground mining would be undertaken by the longwall method involving seven-
kilometre-long blocks with a 400 m wide longwall face.
In its revised EMP, Waratah identifies several changes to that mine plan. The key
changes are:[58]
[58] WAR.0356.
1.
There will be no open-cut mining or infrastructure on the surface of the Bimblebox Nature Refuge, removing 3,004 ha of open-cut mining in total and adding an area of 968 ha of subsidence. This means the area formerly called Open Cut Two South will still be mined, but only using underground mining methods and there will no longer be any mining in the area previously marked as Open Cut One South.
2.
Waratah no longer proposes the construction of an accommodation village at the site of the Project.
3.
Although the evidence about this was ambiguous, it seems Waratah will now utilise existing rail network and infrastructure from Alpha to Gladstone ports, as well as existing port facilities.[59] The proposals about rail transport are not before the Court, although they are relevant in assessing the impacts and benefits of the project.
[59] WAR.0291.0007, [46].
The following map is the revised mine plan as it stands at the time of hearing.
There are seven properties within the proposed ML area.
TBA does not own Glen Innes, the property which is the Bimblebox Nature Refuge.
It is aligned with and supports the owners of the Bimblebox Nature Refuge. The lion’s
share of the evidence led during the hearing related to the impacts on that refuge.
Bimblebox Nature Refuge is underlain by three longwall mines: Underground 4 B
Seam and Underground 2 DL Seam and Underground 3 DL Seam.
Other properties that would be affected by mining or mine infrastructure are:[60]
[60] WAR.0013.
• Kia Ora - The Kia Ora property would be the location of Open Cut 1 North and 2 North operations and the Underground 4 B Seam and Underground 2 DL Seam
longwall mines. It is owned by Colleen and Lancelot Sypher who have withdrawn
their objections.
• Spring Creek - The Spring Creek property would be affected by Underground 4 B Seam and Underground 1 DL Seam & Underground 2 DL Seam longwall mines.
It is owned by the Julie-Ann and Scott Brown who have withdrawn their
objections.
• Monklands - The Monklands property would not have any mining footprint within its boundaries but would host mine infrastructure including the coal handing and
preparation plant. It is owned by Pamela and Reid Bauman who objected but are
not active parties.
• Corntop - The Corntop property would not have any mining footprint within its boundaries. It is owned by Janeice Marie, Julia, Paul and Peter Anderson who are
not objectors.
• Lambton Meadows – The Lambton Meadows property is underlain by the Underground 3 DL Seam longwall mine. It is owned by Elwyn and Andrew
McDowell and Joanne Bell Rea who are not objectors.
• Cavendish – The Cavendish property is over the footprint of proposed B Seam and Lower D Seam longwall mines. It is owned by Rhonda and Allan Coyne who
objected but are not active parties.
The objections
During the notification period in 2019-2020, 22 objections were received to the
application for the ML and 16 to the application for the EA. Some objections have
been withdrawn, leaving 31 current objections.
Of the current objectors, YV&TBA and Mr & Mrs Brinnand elected to be active
parties in the hearing, the remaining objectors did not, but the Court must consider
their objections in deciding what recommendations to make.
The active parties prepared a List of Issues of Fact and Law.[61] Ultimately, it did not
[61] COM.0331.
define the hearing and submissions. I have used it as a guide, rather than a strict
definition of the issues in these reasons. It was not fully settled as an agreed List.
However, the List helpfully related the objections to the issues.
As there are two applications, it is necessary to identify which relate to only one or
both applications. In the following summary, derived from the List of Issues, I have
identified the name of the objector and noted whether the objection relates to either
or both applications. Although the active parties’ list does not identify YV&TBA as
having raised some issues in their objections, during the hearing Waratah agreed
YV&TBA’s objections were couched in sufficiently broad terms to raise all
environmental impacts on Bimblebox that were canvassed during the hearing.
Waratah confirmed that in its written submissions, and the following summary
reflects that agreement.
In summary, the parties agree the objections raise issues about:
• Restricted land within the proposed mining lease area as defined in s 68 of the Mineral Resources (Common Provisions) Act 2014. (ML - YV&TBA, Coyne,
Bauman)
• Impacts on the Great Barrier Reef from shipping coal (ML and EA - Sharov & Sosnina)
• Whether there will be an acceptable level of development of the resource (ML and EA- YV&TBA)
• Past performance (ML - YV&TBA) • Subsidence Impacts (EA - YV&TBA, Sharov & Sosnina) • Groundwater quality (ML and EA - YV&TBA, Sharov & Sosnina, Cousins; EA - Coyne, Bauman; ML - McEwan)
• Surface water impacts (ML and EA - YV&TBA, Sharov & Sosnina, Kelly, Cousins; ML - McEwan; EA - Van der Duys)
• Air quality – dust and odour (ML and EA - YV&TBA, EA - Coyne, Bauman) • Noise and vibration (ML and EA- YV&TBA, Sharov & Sosnina; EA - Coyne, Bauman)
• Soil impacts – (no objectors are identified in the list of issues in dispute) • Rehabilitation – (no objectors are identified in the list of issues in dispute) • Ecology and Land Management – including Flora and Fauna Impacts (ML and EA- The Black-Throated Finch Recovery Team; Anderson & O’Connor, Fairfax,
Kelly, Cousins, Lonergan & Wales, Atkinson, Sharov & Sosnina; ML - Kitson,
Brinnand, McEwan, Van der Duys EA - YV&TBA)
• Offsets – (ML and EA - Sharov & Sosnin, Anderson & O’Connor, ML - McEwan, EA - YV&TBA)
• Climate Change – including health, cultural, sea levels and cost impacts (ML and EA - Fairfax, Kelly, Cousins, Lonergan & Wales; ML- Brinnand, Atkinson; EA -
YV&TBA, Sharov & Sosnina, Van der Duys)
• Social Impacts – other than climate change and health impacts (ML – Atkinson, McEwan)
• Economics (EA - YV&TBA; ML - McEwan) • The principles of ESD (EA - YV&TBA; ML and EA - Fairfax) • Human Rights (ML and EA - YV&TBA)
Most of those issues are considered under the broad topics of:
• Bimblebox Nature Refuge • Climate change • Economic and social benefits • Human rights
Any remaining issues are addressed under relevant criteria that I must consider for
either or both applications.
BIMBLEBOX NATURE REFUGE
| Bimblebox Nature Refuge | [150] |
| Ecological values | [153] |
| Conservation management | [194] |
| Green grazing | [199] |
| Other scientific research | [211] |
| Artists’ camp | [213] |
| Summary of values | [217] |
| Potential impacts of mining activities on Bimblebox | [218] |
| Noise and vibration | [223] |
| Dust | [274] |
| Subsidence | [303] |
| Water | [358] |
| Ecological impacts of subsidence or rehabilitation | [385] |
| What are the potential impacts of subsidence? | [390] |
| What would remediation of subsidence mean for the ecology of Bimblebox? | [405] |
| Conclusions on impacts on Bimblebox | [422] |
| Offsets | [449] |
| What law applies to offsets for this mine? | [459] |
| Is Waratah’s Offset Plan adequate? | [472] |
| Should I prefer Dr Cousin over Professor Maron? | [481] |
| Is it possible to devise an adequate Offset Plan? | [505] |
| How could offsets be conditioned if the mine is approved? | [522] |
| Findings on offsets | [562] |
The uniqueness of Bimblebox doesn’t come from its rarity. It’s not the last
surviving species of anything, it’s not the last population of any poor creature
or plant…It’s an example of something which was once everywhere in the
Desert Uplands but increasingly no more and certainly not in a protected
form. It’s a unique combination of an extraordinary number of things that
are, or were, entirely ordinary.[62]
[62] T 23-39, lines 14-19.
Bimblebox Nature Refuge
The name of one of the active parties speaks for itself. The Bimblebox Alliance Inc
marshalled extensive expert and lay evidence so I could know what they and others[63]
[63] Other objectors who raise the impact on Bimblebox but were not active parties are: Youth Verdict Ltd, Atkinson, Bettington, Sharov & Sosnina, Kelly, Black Throated-Finch Recovery Team,
value about Bimblebox and what they fear will be lost if the mine proceeds.
John Brinnand feels so strongly about Bimblebox that he made sure I had the
perspective of a regular visitor, committed to the place and the people who care for
it. Mr Brinnand represented himself, no mean feat in any case. In this lengthy and complex hearing, I appreciated his serious intent and thoughtful and respectful
contributions.[64]
[64] Waratah objects to specified passages of Mr Brinnand’s written submissions. WAR.0778.0088-0089.
In this section I will discuss the evidence about the values of Bimblebox that the
objectors say are at risk from the mine.
Ecological values
Bimblebox, or as it used to be known, ‘Glen Innes,’ is in Jagalingou Country in the
Jericho sub-region of the Desert Uplands, a bio-region under threat from broad scale
clearing for cattle grazing when the current owners purchased it in 2000 to protect it.
A change to legislation and policy arrested the threat. Even so, significant areas of
the Jericho sub-region have been cleared (see Figure 1 after [171]).[65]
[65] Waratah objects to evidence from a lay witness that 40% of the Jericho subregion has been cleared. I have not had regard to that evidence, as this figure speaks for itself.
Three ecologists gave evidence about Bimblebox’s ecological values: Dr Daniel, Mr
Caneris, and Professor Fensham. They prepared a Joint Report that also include
contributions by Mr Thompson, a soil and land use rehabilitation expert and all four
gave evidence in a concurrent evidence session.[66]
[66] COM.0068; T-11.
Dr Daniel, engaged by Waratah to give evidence on vegetation, is the principal
ecologist at Terrestria Pty Ltd and advises governments and private organisations
about ecological investigations, ecological management planning, and offsetting of
impacts.
There are several other environmental impacts, either on other affected properties, or
elsewhere, that are conveniently dealt with now.[684]
[684] The owners of two properties, Cavendish (the Coynes) and Monklands (the Baumans) have objected but are not active parties in the hearing. Their objections include groundwater impacts, which I have
Noise
Neither the Cavendish homestead nor the Spring Creek homestead are predicted to be
subject to noise exceedances,[685] but Mr Elkin predicted noise exceedances at the
homesteads on the properties Kia Ora and Monklands.
[685] WAR.0481.0019, [185].
Kia Ora is within Open Cut Two North Pit and, if the mine proceeds, that homestead
will be lost or relocated. Monklands is within the ML area but not the subject of open cut activity. It is 1.5km from the closest noise source, a Coal Handling and
Preparation Plant.
Mr Elkin said that because the Kia Ora homestead will be within the Open Cut Two
North Pit and the Monklands Homestead will be within 1.5 km of the CHPP, it will
make it difficult to reduce noise to acceptable levels using reasonable and feasible
mitigation measures. The measures typically used at mine sites are unlikely to give
the required 20 dB noise reduction.[686]
[686] WAR.0481.0067, WAR.0481.0108.
In its 2015 draft Environmental Management Plan, Waratah stated its intention to
either acquire these properties or relocate the homesteads, so the noise impacts for
these receptors would not be relevant.[687]
[687] WAR.0026.0042.
Kia Ora is a freehold property owned by Lance and Colleen Sypher, who have
withdrawn their objections to the applications. It is reasonable to infer they have come
to an agreement with Waratah, but that is not before the Court.
Monklands is a freehold property owned by the Bauman family,[688] who have objected
to the applications, but did not elect to be active parties in the hearing. Cavendish is
owned by the Coyne family. Like the Baumans, they have objected, but did not elect
to be an active party.
[688] COM.0003; COM.0027; COM.0034; COM.0052.
The Bauman and Coyne families proposed additional conditions to monitor and
respond to noise at their residences. In its Revised Draft EA, [689] DES acted on Mr
Elkin’s opinion, which partly supported the objectors’ proposals.[690]
[689] DES.0029.0033-0035.
[690] WAR.0481.0019-0024, [184]-[223].
The amended Draft EA provides the following in relation to Monklands only, because
Cavendish is not predicted to have noise levels exceeding the Revised Draft EA
limits:
D8 The holder of this environmental authority must undertake continuous noise and vibration monitoring and recording at the following locations, at any given time:
(a) Monklands homestead.
The revised conditions provide assurance that, if the mine were to proceed, there
would be sufficient monitoring to proactively manage potential impacts. On the
evidence, I do not consider further conditions are required to deal with the concerns
raised by the Bauman and Coyne families regarding noise.
Air
The SEIS included a cumulative air quality assessment accounting for the summation
of pollutants from this Project, the Alpha Coal mine and the Kevin’s Corner mine.[691]
[691] WAR.0438.0032, [7.2].
Mr Welchman subsequently considered the cumulative air quality impacts of the
project and identified five sensitive receptors which would be significantly impacted
by excessive maximum 24-hour PM10 emissions. These were Kia Ora Homestead,
Hobartville Homestead, Cavendish Homestead, Glenn Innes Homestead, and
Monklands. Excessive annual average emissions were only predicted for Kia Ora
Homestead.
As for PM2.5, maximum 24-hour emissions exceeded air quality objectives at Kia Ora
Homestead, Glenn Innes Homestead, and Monklands. Similar to above, excessive
annual average emissions were only predicted for Kia Ora Homestead.
Mr Welchman cautioned that ‘coarse assumptions’ were made when considering the
cumulative air quality impacts, namely about how and when the surrounding mining
operations would most adversely impact air quality.
As a result, Mr Welchman strongly advised the EA include a requirement for a
reactive air quality management plan, with continuous monitoring at the following
receptors if they were not acquired by Waratah: Kia Ora Homestead, Hobartville
Homestead, Cavendish Homestead, Monklands, and Spring Creek.
The Revised Draft EA includes that condition. I consider that is adequate to protect
the values of those receiving environments from this impact.
Open cut mining
Waratah proposes two open cut pits on Kia Ora. The owners of that property have
withdrawn their objection. Waratah intends to purchase the property. If it cannot reach agreement the landowners will be compensated for the loss. The Revised Draft EA
includes orthodox conditions to deal with the environmental impacts and permanent
changes arising from open cut mining.
Subsidence
Subsidence is likely to occur as a result of the Project on properties outside
Bimblebox, under which underground mining will take place. These include Spring
Creek, Lambton Meadows, Kia Ora, and Cavendish.
In his single expert report, Mr Thompson, the expert engaged by Waratah for soils,
land use and rehabilitation, said of the impacts of subsidence on grazing areas:[692]
[692] WAR.0499.0013, lines 377-394.
The impacts of subsidence [on grazing areas] may take various forms. The ridge and swale topography will require a degree of earthworks to re- establish surface drainage to achieve sustainable soil conservation outcomes. The extent of these works will depend on the ridge and swale topography. The required amount of earthworks will be greater under the SEIS and Dr Pells estimates and less for the Seedsman estimates for multiple stacked and
offset configurations – simply because of the higher ridge and swale
frequency predicted by the SEIS and Dr Pells. There are a number of
approaches that will mitigate impacts on the grazing lands. These include:
• Surface soil disturbance should be minimised and where earthworks are required, topsoil should be salvaged and re-used with minimal stock pile storage time. • Areas of exposed subsoil and particularly areas where the lateralised pans are exposed by subsidence will need specific earthworks attention. • There will be some surface cracking due to subsidence. Blade ploughing currently used throughout the grazing lands to renovate the buffel pastures will suffice in these sandy light textured soils. • Livestock management and modified stocking rates will be needed.
Despite objecting to Dr Pells’ evidence on rehabilitation, Waratah relies on Dr Pells’
evidence that “[i]t may be necessary to limit access for cattle grazing until the surface
cracking is remediated. Even the widest cracks can be remediated by carefully
designed and effectively implemented earthworks followed by reseeding”.[693]
Although Waratah relied on that evidence in relation to Bimblebox, I consider it is
relevant to the other affected properties.
[693] COM.0065.0039, [1110].
There is the same uncertainty as for Bimblebox about the extent of subsidence on the
other affected properties. However, I am less concerned about the uncertainty because
of the evidence that these properties (except for parts of Lambton Meadows) are
cleared grazing lands and rehabilitation would be easier to achieve.
Black-throated finch
Several objections, including one made by the Black-Throated Finch Recovery Team
(BTFRT), were made on the basis the mine would threaten the black-throated finch,
which has been declared a threatened species.[694] The objections raise concerns about
clearing the habitat of the finch. There is a dispute about the prevalence of the finch
on Bimblebox.
[694] Sharov & Sosnina, Van der Duys & Maclure & Nealson, and Kelly. YV&TBA made no submissions about this species.
The BTFRT said the methodology undertaken in the EIS to establish the prevalence
of the finch in Bimblebox was deficient. Mr Rudd’s affidavit includes sound
recordings of the finch, apparently made on BNR.
Ms McIntosh said the field survey methodology used by Waratah was in accordance
with the relevant State and Commonwealth guidelines and was informed by
discussions with representatives of DERM from Threatened Species Partnerships
(Brisbane), Biodiversity Planning (Emerald), and Environmental Performance and
Coordination Branch (Brisbane). Surveys targeting the finch in and around the ML
area were carried out over a total of 62 days.
Mr Caneris said these surveys were ‘comprehensive’ and there has only ever been
one reported sighting of the finch, flying over the northwest of Bimblebox. Follow
up surveys in the same area and during the same season have revealed no sightings.
Because of the extent of survey effort, Mr Caneris is “comfortable BNR is not utilised
by this species regularly or as a breeding habitat. Regardless of the species’ presence
(confirmed or not) the extant habitats present as holding areas of high value feeding
and breeding resources and should be viewed as aligning with BTF habitat”.[695]
[695] COM.0068.0129.
To avoid and reduce potential impacts of the Project on the finch, Ms McIntosh says
Waratah relies on biodiversity offsets, a fauna management plan, inspections of sites immediately prior to vegetation clearing by a DES accredited spotter catcher and
rehabilitation of the site post-mine closure.[696]
[696] WAR.0290.0069-0070.
Those are orthodox measures for managing this type of risk. If there were more
evidence of this species on Bimblebox I would have looked more closely at whether
those conditions were adequate. On the limited evidence of their prevalence, I accept
the conditions are sufficient.
Hairy-Nosed Wombat
Ms Kitson objected to the Project because the EIS did not consider the impact of the
proposed mine on the hairy-nosed wombats at the Epping Forest National Park,[697]
approximately 100km north of the ML area. Specifically, her concern was about the
impact of vibration, given the wombats live in underground burrows.
[697] COM.0020.
Mr Elkin addressed this. His opinion was that the Epping Forest National Park is
sufficiently far away for there to be no vibration from blasting at that location.[698]
[698] WAR.0481.0160.
In the absence of evidence to the contrary, I do not find the Project will have adverse
impacts on the hairy-nosed wombat population at the Epping Forest National Park.
Shipping coal on the Great Barrier Reef
Mr Sharov and Ms Sosnina (non-active objectors) objected to the Project partly on
the basis that the Project coal will be shipped through the World Heritage listed Great
Barrier Reef, which they say will create environmental risks and pollute the Reef.
Waratah makes no submissions about this objection but relies on Mr Harris’ affidavit.
Mr Harris said that the current proceedings relate to the ML application and do not
include any request for approval to ship the coal through the GBR. However, he says
if coal from the Project is to be shipped from Abbot Point and thereby through the
Reef, Waratah will take necessary steps to minimise environmental impacts.[699]
[699] YVL.0291.0072, [390].
The terms under which transport would occur are beyond the jurisdiction of the Court.
I note Waratah has made non-binding commitments in this regard.
Standard criteria (f) all submissions made by the applicant and submitters; and section
223(e) each current objection
I have considered all the submissions made by Waratah and the current objectors, in
forming my view on the application.
Standard criteria (g) the best practice environmental management for activities under any
relevant instrument
This criterion relates to the way in which the activities would be undertaken if the EA
is approved.
I assume the Revised Draft EA has been prepared with best practice environmental
management principles in mind. Where the expert witnesses have recommended
additional or amended conditions, Waratah has largely supported them and DES has
done its best to reflect those recommendations in the Revised Draft EA. As observed
earlier, these are not conditions that DES has resolved to apply were I to recommend
the grant of the EA. They have been put forward only to assist the Court with the
formulation of conditions.
I have carefully considered all the lay and expert evidence about the current uses and
values of Bimblebox, the way in which they might be impacted by mining and what
can be done to avoid, mitigate, rehabilitate, or offset those impacts. Having done so,
I am not satisfied that appropriate conditions can be imposed to deal with subsidence,
rehabilitation, and offsets or that such conditions could be complied with.
Given that, I am not confident best practice environmental management would be
achieved under Waratah’s EMP and the Revised Draft EA.
Standard criteria (h) the financial implications of the requirements under relevant
instruments
I have addressed Waratah’s financial capacity in relation to the ML application. As I
understand this criterion, I should consider the proportionality of the requirements
imposed on an activity under the EA, taking into account the financial implications
of those requirements. I have no specific evidence to draw upon. I note that, if the EA
is granted, the mine would be subject to the rehabilitation cost provisions of the EPA
and the financial contributions would be a matter for a different process to this one.
Standard criteria (i) the public interest
I have already addressed the public interest factors under the ML application. The
same considerations arise in relation to the EA application, and I reach the same
conclusions.
Conclusion on the EA application
I am satisfied the Project could likely be managed to minimise impacts and
rehabilitate environmental harm to an acceptable standard on the affected properties
other than the Bimblebox Nature Refuge.
DES has done its best to assess the revised mine plan and formulate conditions that
are responsive to the changes. However, I am not satisfied the Revised Draft EA is
adequate. The remaining uncertainties about the ecological values of Bimblebox,
subsidence impacts, and what could or should be done to remediate them leaves me
unsure about what level of harm would be authorised by the EA. Assuming it is a loss
of Bimblebox’s biodiversity value as a nature refuge, the evidence of the offset
experts gives me cause to question Waratah’s assurance this can be offset.
The contribution of the combustion of the Project coal to the remaining carbon budget
to meet the Paris Agreement goal is material (1.58 Gt to a remaining carbon budget
of between 320 Gt and 620 Gt). Approving the Project would narrow the options for
achieving that goal.
I have applied the principles of ecologically sustainable development in deciding
what recommendation to make. Approving the application would risk
disproportionate burdens for future generations, which does not give effect to the goal
of intergenerational equity. There are also intragenerational inequities in the way in
which climate change impacts are experienced between different groups of people in
Queensland. The precautionary principle means I should take a cautious approach to
the application given the uncertainties about the impacts on Bimblebox and which
climate outcome is realised in the future.
While there would be substantial economic benefit if the application is approved,
other factors must be considered. The impact on Bimblebox, the contribution of combustion emissions to climate change and the limitations on human rights cannot
be reduced to a common quantitative unit of measurement, such as money.
Deciding what recommendation to make is a qualitative exercise and “the ultimate
decision involves an intuitive synthesis of various matters”.[700]
[700] Bulga Milbradale Progress Association Inc v Minister for Planning & Infrastructure (2013) 194 LGERA 347, [41].
Having regard to all the factors engaged by the statutory criteria, I recommend EPML
00571313 should be refused.
RECOMMENDATION
1. I recommend to the Honourable the Minister responsible for the Mineral
Resources Act 1989 that MLA 70454 be refused.
2. I recommend to the administering authority responsible for the Environmental Protection Act 1994 that EPML 00571313 be refused.
3. I direct the Registrar of the Land Court to provide a copy of these reasons and access to the Land Court e-trial site to the Honourable Minister administering the Mineral Resources Act 1989 and to the administering authority under the Environmental Protection Act 1994.
4. I will hear from the parties as to costs.
APPENDIX
Appendix A: Glossary
| ADA | Anti-Discrimination Act 1991 (Qld) |
| AET 1.5 | Wood Mackenzie Advanced Energy Transition 1.5 |
| AET 2.0 | Wood Mackenzie Advanced Energy Transition 2.0 |
| AIA | Acts Interpretation Act 1954 (Qld) |
| APS | International Energy Agency Announced Pledges Scenario |
| AQO | In relation to air: Air Quality Objective |
| In relation to noise: Acoustic Quality Objective | |
| AR6 | Sixth Assessment Report of the Intergovernmental Panel on |
| Climate Change | |
| BISOE | BIS Oxford Economics |
| BTFRT | Black-throated finch recovery team |
| CBA | Cost-benefit analysis |
| CCS | Carbon capture and storage |
| CDR | Carbon dioxide removal |
| CGE | Computable general equilibrium |
| CHPP | Coal Handling and Preparation Plant |
| COP | Conference of the Parties |
| CO2 | Carbon dioxide |
| CO2-e | Carbon dioxide equivalent |
| CRC | Committee on the Rights of the Child |
| CROC | Convention on the Rights of the Child |
| DAWE | Queensland Government Department of Agriculture, Water and |
| the Environment | |
| DERM | Queensland Government Department of Environment and |
| Resource Management | |
| DES | Queensland Government Department of Environment and |
| Science | |
| EA | Environmental Authority |
| ECtHR | European Court of Human Rights |
| EIS | Environmental Impact Statement |
| EMP | Environmental Management Plan |
| EPA | Environmental Protection Act 1994 (Qld) |
| EPBC Act | Environment Protection and Biodiversity Conservation Act 1999 |
| (Cth) | |
| EPP (Noise) | Environmental Protection (Noise) Policy 2019 |
| EPP (Air) | Environmental Protection (Air) Policy 2019 |
| EU ETS | European Union Emissions Trading Scheme |
| FOB | free-on-board |
| GBR | Great Barrier Reef |
| GHGs | Greenhouse Gas emissions |
| Gt | Gigatonne |
| GBR | Great Barrier Reef |
| HRA | Human Rights Act 2019 (Qld) |
| HRC | United Nations Human Rights Commission |
| ICCPR | International Covenant on Civil and Political Rights |
| IEA | International Energy Agency |
| IPCC | Intergovernmental Panel on Climate Change |
| ML | Mining Lease |
| MRA | Mineral Resources Act 1989 (Qld) |
| Mt | Mega tonne |
| Mtpa | Million tonnes per annum |
| NCA | Nature Conservation Act 1992 (Qld) |
| NDCs | Nationally Determined Contributions |
| NPS | Net Producer Surplus |
| NPV | Net Present Value |
| NTA | Native Title Act 1993 (Cth) |
| NZE | Net-Zero Emissions Scenario |
| PIN | Penalty infringement notice |
| QRIDP | Queensland Resources Industry Development Plan |
| RBL | Rating Background Level |
| RCP | Radiative Concentrated Pathways |
| ROM | Run-of-mine |
| SDPWOA | State Development and Public Works Organisation Act 1971 |
| (Qld) | |
| SDS | International Energy Agency Sustainable Development Scenario |
| SEIS | Supplementary Environmental Impact Statement |
| SIA | Social Impact Assessment |
| SIMP | Social Impact Management Plan |
| SSPs | Shared Socioeconomic Pathways |
| STEPS | International Energy Agency Stated Policies Scenario |
| UNDRIP | United Nations Declaration on the Rights of Indigenous Peoples |
| UNFCCC | United Nations Framework Convention on Climate Change |
| Waratah | Waratah Coal Pty Ltd |
| WEO | International Energy Agency’s World Energy Outlook 2021 |
| WG I | Intergovernmental Panel on Climate Change Working Group I: |
| The Physical Science Basis | |
| WG II | Intergovernmental Panel on Climate Change Working Group II: |
| Impacts, Adaptation and Vulnerability | |
| WG III | Intergovernmental Panel on Climate Change Working Group III: |
| Mitigation of Climate Change | |
| WM | Wood Mackenzie |
| WM ETO | Wood Mackenzie Energy Transition Outlook |
| YV | Youth Verdict Ltd |
| YV&TBA | Youth Verdict Limited and The Bimblebox Alliance |
TABLE OF CONTENTS
| Executive Summary | [1] |
| The Court’s Function in a Mining Hearing | [49] |
| Project and the objections | [125] |
| [150] | |
| Bimblebox Nature Refuge | |
| [150] | |
| Bimblebox Nature Refuge | |
| Offsets | [449] |
| [571] | |
| Climate Change | |
| [571] | |
| Overview | |
| What causes climate change and what are its impacts? | [586] |
| What contribution will this Project make to global GHG emissions and why is | [639] |
| that relevant? | |
| [719] | |
| What can climate scenarios and the carbon budget tell us? |
that version.
MRA ss 271, 271A.
Department of Environment and Resource Management (2012) 33 QLCR 79, [582].
Department of Environment and Resource Management (2012) 33 QLCR 79, [582].
Heritage (2016) 222 LGERA 122, [17].
EPA sch 1, def ‘standard criteria’.
report states there were 39 submissions from NGOs and 269 from private individuals.
Michael Slezak, ‘Coal and gas projects to be reassessed after conservation group wins legal bid on
climate change impacts’, ABC News (News article, 4 November 2022, accessed 9 November 2022):
<
Cousins, Anderson & O’Connor, Fairfax, Brinnands, Kitson, McEwen, Van der Duys & Nealson &
MacLure, Lonergan & Wales.
I uphold the objection and have not had regard to those passages in making my recommendations.
Anderson and O’Connor; Cousins; and Sharov & Sosnina; Brinnands; Atkinson; McEwen; Kelly.
YVL.0067.0041.
Fairfax, Anderson & O’Connor, Bettington, McEwan, Black-Throated Finch Recovery Team,
Atkinson, Lonergan & Wales.
from mining. See YVL.0324.0004 [19]-[20]. I have not had regard to that evidence as it falls outside
the particulars for the relevant ground of objection.
WAR.0741.0013.
WAR.0438.0041, Plate 2 and WAR.0438.0043, Plate 4.
that raise surface water: Sharov & Sosnina; McEwen; Kelly; Cousins; Van der Duys; Dr Merrick’s
evidence: WAR.0436, WAR.0489, WAR.0502 and WAR.0534.
to be experts on matters of ecology, however, Dr Pell’s knowledge of the type of work required to
remediate subsidence impacts is within the scope of his experience and expertise. Further to the
extent the following passage deals with groundwater depressurisation, that is beyond the jurisdiction
of this Court in this hearing. COM.0065.0040, [1145] & Figure 4.7.1.
objection. Professor Maron was responding to a question posed by the parties in the joint expert brief
and is amply qualified to answer it.[2022] FCA 944, [55].
scientists about what matters in assessing climate change and reducing global impacts – the goal (the
intent) or the measures to achieve the goal (the NDCs). Waratah also objects to various passages in which the climate change experts say no new coal mines are needed or should be approved if we are to meet the Paris Agreement goal. The experts referenced published studies in this regard. They were not asserting they had undertaken that analysis. While Waratah challenged the methodology used in those studies, no expert gave evidence that would allow me to form a view on the reliability of the
authors’ conclusions. In any case, I have evidence from the market experts about supply of thermal
coal in the target market, and it is that evidence that I have acted on.
COM.0067.0050-0051, [1205] – [1250].
2022) <
whole-of-economy Plan to achieve net zero emissions by 2050” (Report, accessed 14 November
2022) < >.
Department of Environment and Resource Management (2012) 33 QLCR 79.
and Country v Smith [2015] QSC 260, an application for judicial review of Member Smith’s decision
in Hancock Coal Pty Ltd v Kelly & Ors (No 4) (2014) 35 QLCR 56.
<
Payne JJA found the Independent Planning Commission’s decision to not accept the substitution
argument made in that case was not demonstrated to be manifestly unreasonable and irrational, and
observed that the IPC had agreed with that finding by Preston CJ.
Climate Model (Web Page, accessed 26 September 2022) <About the World Energy Model – World
Energy Model – Analysis - IEA> .<
the ground, I did not understand them to challenge the authors’ assessment of CCS.
T 10-81, lines 13-24.
44-3.
“Prestion CJ concluded” to the first paragraph on 0043.
<
10(4) American Economic Journal: Economic Policy 109.
Department of Environment and Resource Management (2012) 33 QLCR 79, [524], [548].
Department of Environment and Resource Management (2012) 33 QLCR 79, [548], [576].
88th Sess, UN Doc CRC/C/88/D/108/2019 (22 September 2021) (‘Sacchi et al v Argentina et al’).
September 2022) (‘Billy et al v Australia’).
CCPR/C/GV/36 (3 September 2019), 2 [6].
ECLI:NL:GHDHA:2018:2610, (The Hague Court of Appeal of the Netherlands, 9 October 2018)
[40].ECLI:NL:HR:2019:2007, (Supreme Court of the Netherlands 20 December 2019), 4.7.
September 2022) (‘Billy et al v Australia’), [72].
Human Rights Committee, General Comment No 36: Article 6: Right to Life, 124th Sess, UN Doc
CCPR/C/GV/36 (3 September 2019), 1 [1].
Bambrick’s report, YVL.0280: [16], [19], [20]-[21], [36], [93]-[96], [116], [117], [210]-[211].
Secretary, Department of Justice [2013] VSC 267, [55]-[71]; A & B v Children’s Court of Victoria
[2012] VSC 589, [109]-[110]; Secretary to the Department of Human Services v Sandling (2011) 36
VR 221, [11]-[23]; Director of Public Prosecutions (DPP) v SL (2016) 263 A Crim R 193, [7].
CRC/C/88/D/107/2019 (22 September 2021) (‘Saachi v Germany’). I have adopted YV&TBA’s
suggestion to look to the German decision which they say provides the background to the
proceedings in more detail than the others.96/20, 1 BvR 288/20, 14 March 2021 (‘Neubauer v Germany’).
undisturbed on appeal.
Seymane’s Case (1604) 5 CO Rep 91a, 91b. Bell and Gageler JJ were in dissent as to the outcome, but
those foundational principles were not in dispute.
YVL.0057.0042.
Human Rights, Chamber, Application No 2345/06, 9 November 2010); Lopez Ostra v Spain, (European
Court of Human Rights, Chamber, Application no 16798/90, 9 December 1994); Grimkovskaya v Ukraine
(European Court of Human Rights, Chamber, Application no 38182/03, 21 October 2011).
generally, at T 1-84; T 2-5 to T 2-6; T 2-8 to T 2-11; T 2-57; T 5-15; T 5-22; T 5-24 to T 5-29; T 5-
34 to T 5-36.not considered as this is outside the Court’s jurisdiction.
8
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