New Acland Coal Pty Ltd v Ashman & Ors and Chief Executive, Department of Environment and Heritage Protection (No. 4)  QLC 24
The Land Court of Queensland has taken the unusual step of recommending a rejection of stage 3 of the New Acland coal mine.
The Court's expectation of rigour in relation to groundwater evidence, a feature in the Galilee Basin coal project mining lease objection cases, has remained high. Its finding that evidence in this case was not adequate was a major reason for the recommendation to reject.
Beyond this, the Court's reasoning raises significant issues for coal mining projects across the State. The ongoing impacts of a mine on environmental values beyond the life of the mine (including its rehabilitation), previously considered to be an ordinary consequence of mining, may now be given such judicial weight that new mining projects could be at risk of being refused.
Synopsis of decision
The setting for the decision
Applications for new mining leases, and for associated environmental authorities or their amendment, pass through a public objections process. If the proposed new lease or the authority is the subject of objections, a hearing of those objections takes place in an adversarial setting before the Land Court. The Land Court makes a recommendation which is then considered by the Minister for Natural Resources and Mines in the case of the mining lease, and by the Environment Department's chief executive in respect of the environmental authority, in making its final decision on the grant of the relevant licence.
The Court's findings
Member Smith recommended, in a lengthy decision, the rejection of the expanded New Acland coal mine, primarily because:
- he was not satisfied as to the certainty of the evidence as to the impact of the mine expansion on groundwater in the region;
Adequacy of evidence as to groundwater has been an ongoing feature of objections challenges to mining approvals in recent years. The Land Court has maintained a requirement for rigorous evidence as to the impact of a mine on available groundwater. •notwithstanding that he was not satisfied as to that evidence, he considered that the impact of the project on “intergenerational equity” justified refusal; and
- he did not agree with the conditions as to noise restrictions imposed by the Queensland Coordinator-General, and he could not make a recommendation inconsistent with them.
The application of the second and third of these points in the decision are of new significance.
Intergenerational equity as a primary reason for refusal
Among the criteria required to be considered when making the recommendation in respect of the environmental authority is the principle of intergenerational equity.1 Along with the precautionary principle, this notion has been accepted as one of the central components of sustainable development in Australia since at least the 1990s. The legislative expression of the principle in Australia is:
The present generation should ensure that the health, diversity and productivity of the environment is maintained or enhanced for the benefit of future generations.
Prior to this decision, that criterion has not received significant attention from the Queensland Land Court. Referencing the NSW Land and Environment Court’s consideration of the topic, Member Smith observed that the principles underlying the criterion include: •conservation of options: that future generations ought to have diverse natural and cultural resources available to them;
- conservation of quality: that the natural and cultural environments should be left in at least the same condition as which they were received; and
- conservation of access: that future generations should have a reasonable and equitable right of access to the natural and cultural resources of the earth.
Impacts on good quality agricultural land
In respect of what the Member identified as “good quality land” to be affected by the project, he accepted submissions that there would be a loss of the ability to use land for cropping or high value agriculture with certainty in the area of the pit void, with some probability in the case of the footprint of the mining lease, and with a potential in the case of a wider area as a result of the impact on regional groundwater: at  – . He reached the latter conclusion, despite his primary findings on groundwater being that the evidence before him was uncertain: at  – .
Whilst such long term impacts are not uncommon in mining projects, proponents usually seek to address these by way of make good agreements with land owners. The requirement for such compensation arrangements are now built into the Mineral Resources Act 1989 (MRA).
With the duration of the impacts potentially lasting well beyond the life of the operations in question (a further 12 years), and the lease (which the Land Court was prepared to allow for 25 years), potentially for hundreds of years or indefinitely, Member Smith considered however that make good agreements could not adequately address that risk:  – . He considered that there was a real risk of an impact on future generations, and that principle of conservation of quality would therefore be breached: at  and .
Impacts on coal reserves
Separately Member Smith considered the climate change risks of the proposed expansion. In line with reasoning previously espoused by higher courts,2 he directly considered that climate change risks were not a reason to refuse approval: at  to .
The issue however entered his reasoning when observing that maintaining the coal reserves now might allow for their future exploitation (at ) in accordance with the conservation of access principle:
they will be available for future generations who perhaps find ways to mine the coal in the future in ways that either completely remove or at least lessened the extent of risk to local landholder groundwater supplies, as well as, perhaps, finding processes of burning or using the energy produced by coal in such ways that no GHG or pollutant effect is caused by the use of the coal mined, thus potentially increasing the value of that coal as a resource in the future.
Member Smith therefore rejected the approval of the mine expansion on grounds of intergenerational equity: at .
Limitations on Land Court recommendation power sought to be side-stepped
Section 190 of the Environmental Protection Act 1994 (Q) (EPA) requires the Land Court recommend that a draft environmental authority be accepted, be accepted with different conditions, or be rejected. Where the environmental authority relates to a coordinated project under the State Development and Public Works Act 1971 (Q) (State Development Act), then any recommended conditions must not be inconsistent with a condition imposed by the Queensland Coordinator-General.
Whilst there is no similar limitation on Land Court recommendations under the MRA, a condition imposed by the Coordinator-General will override any inconsistent condition of the mining lease: section 46 State Development Act.
Member Smith heard evidence from acoustic experts and noted noise limiting recommendations made by former President MacDonald in a previous case. He reached a conclusion about what he considered to be acceptable noise limits from mining activity in the vicinity of residential properties. His conclusions however conflicted with the more generous parameters set the Coordinator-General for the project. Unable to impose his preferred conditions, on that ground alone Member Smith was prepared to recommend rejection of both the mining lease and the environmental authority: at  to .
Despite the clear legislative intent for conditions imposed by the Coordinator-General to prevail, Member Smith sought to impose his alternative preferred condition on any final approval.
Significance for future mining approvals applications
Intergenerational equity impacts
Coal mining, as a large scale extractive industry, inevitably has long term consequences for the environment. Despite rehabilitation of the mine site, some of these, including impacts on groundwater, run well beyond the life of the mine.
Make good agreements, now regularly part of the immediate response to mitigating such risks, may now be treated by the Land Court as only a partial remedy for the management of those risks, depending on the anticipated level of those impacts. Strategies to persuade the Land Court that such issues can be addressed long term for future generations may need to form part of the evidence in similar objections hearings, for coal seam gas projects as well as coal mining.
The conflict between the Land Court's findings and conditions imposed on the project under Queensland’s major project legislation was a contributing reason for one the grounds on which the expansion was recommended for rejection. The room for future inconsistency between unchallengeable conditions imposed by the Coordinator-General and conflicting findings in objections hearings in the Land Court have the potential to create significant uncertainty for mine project proponents and objectors alike.
1. Section 191(g) EPA covering the “standard criteria”, defined in sch 4 to include the principle “intergenerational equity” as set out in the Intergovernmental Agreement on the Environment, which in turn is a schedule to the National Environment Protection Council (Queensland) Act 1994