The Queensland Land Court has recommended the refusal of the mining lease and environmental authority applications for Waratah Coal Pty Ltd’s proposed thermal coal mine. President Kingham ruled in the objectors’ favour, finding that preserving human rights, intergenerational equity, protecting The Bimblebox Nature Refuge (Bimblebox) and conserving the climate, outweighed any economic benefit or benefits of energy security in South-East Asia.
Partners Jonathan Fulcher and Damian Roe join Vacation Clerk Harrison Stone to discuss the decision and the ramifications for future projects.
Background
The proposed coal mine is located in the Galilee Basin in Central Queensland. Waratah Coal proposes to mine around 40 million tonnes per annum (mtpa) for 30 years for export to South-East Asia, potentially contributing around $2.5 billion in economic benefits.
A number of parties objected to the mining lease and environmental authority applications including Youth Verdict, a First Nations-led activist group, who challenged the application on the basis that the adverse contributions of the mine to climate change would impact upon First Nations Peoples’ human rights.
First Nations witnesses gave evidence on country, constituting the first time the Court has taken evidence from Indigenous Peoples in accordance with their traditional protocols.
Reasons for recommendation
President Kingham’s reasons for refusal were predominately centred around environmental, human rights, and climate change concerns. However, the basis of these reasons stemmed from the notable rejection of the market substitution argument, where if one miner does not supply the coal, another will. President Kingham considered the uncertainty surrounding long-term global demand for thermal coal, thus declining to apply this argument which effectively overturns a series of previous decisions of Queensland’s Land Court approving the market substitution argument. 1
Climate change
The project, if approved, will generate 1.58 gigatons of CO2 emissions, which her Honour described as “a material contribution” to the global carbon budget, making it more difficult to achieve the Paris Agreement goals which Australia has adopted. The emissions from combusted coal were also considered by the Court to be relevant to the decision on public interest grounds, 2 despite Waratah arguing that the country combusting the coal is responsible for such emissions.
By applying the principles of ecologically sustainable development and the public interest, the Court held that “granting permission to mine the coal cannot be logically separated from the coal being used to generate electricity”. Ultimately, it was held the mine would create adverse climate outcomes in its emissions of greenhouse gas and hinder Australia in meetings its emissions reduction commitments.
This is the first time the Court has used “Scope 3” emissions as the basis for recommending refusal of a coal project.
Bimblebox in the Galilee Basin was another factor in the Court’s climate change reasoning. The climate impacts on Bimblebox were deemed “unacceptable” and the “ecological values of Bimblebox [could be] seriously and possibly irreversibly damaged”.
Human rights
President Kingham found that several human rights, under the Human Rights Act 2019 (Qld), would be limited by the project’s exacerbation of greenhouse gas emissions, such as the right to life, the cultural rights of First Nations peoples, the rights of children, the right to property and to privacy and home (particularly for the Bimblebox owners), and the right to enjoy human rights equally.
Intergenerational equity was a prominent point in the Court’s recommendation as climate change impacts on future generations were considered. Although this is a novel situation in Queensland, other jurisdictions including New South Wales have seen this in the past. 3 The Dartbrook Coal Mine and Bylong Coal Project were both rejected by the New South Wales Independent Planning Commission. 4 Each project did not allow the right balance to be struck in favour of future generations as the IPC saw it due to the projects’ adverse contributions to the climate.
Ramifications
This is the first time a Queensland court has recommended an application be refused on the grounds of climate change, and the first time in Australia a court has linked climate change and human rights in its decision. The rejection of the market substitution argument and subsequent assessment of Scope 3 emissions when considering the public interest, as well as the emphasis on human rights in contributing to intergenerational equity, will stand as important considerations for future coal projects in Queensland.
It may appear that President Kingham has been relatively “activist” with this landmark recommendation in Queensland. What is not radical, however, is the current application of these arguments in other jurisdictions. Queensland seems to be lagging in this respect.
It would be prudent for future coal mining projects to consider the overall benefits of the development of any future project to ensure that any potential adverse environmental outcome arising from Scope 3 emissions is outweighed by the other benefits of the project to the local community and the State. The public interest and human rights grounds on which this case has turned can be addressed by coal miners concentrating on the “net” in net zero; the goal for 2050 emissions.
For more information please contact our Resources and Energy team.
1. Xstrata Coal Queensland Pty Ltd & Ors v Friends of the Earth-Brisbane Co-Op Ltd & Ors and Department of Environment and Resource Management [2012] QLC 13; Hancock Coal Pty Ltd v Kelly & Ors and Department of Environment and Heritage Protection (No 4) [2014] QLC 12; Adani Mining Pty Ltd v Land Services of Coast and Country Inc & Ors [2015] QLC 48; New Acland Coal Pty Ltd v Ashman & Ors and Chief Executive, Department of Environment and Heritage Protection (No. 4) [2017] QLC 24; Coast and Country Association of Queensland Inc v Smith [2015] QSC 260; Coast and Country Association of Queensland Inc v Smith & Ors [2016] QCA 242.
2. Mineral Resources Act 1989 (Qld) s 269(4)(k).
3. Gloucester Resources Limited v Minister for Planning [2019] NSWLEC 7; Wildearth Guardians; Sierra Club v. United States Bureau of Land Management, and Wyoming Mining Association; BTU Western Resources, Inc.; State of Wyoming; National Mining Association, 870 F.3d 1222 (10th Cir, 2017).
4. Independent Planning Commission, Statement of reasons for decisions “Dartbrook Coal Mine – Modification 7 (DA 231 – 7 – 2000 MOD7)” 9 August 2019 [243]; Independent Planning Commission, Statement of reasons for decisions, “Bylong Coal Project (SSD 6367) 18 September 2019 [817].