Coast and Country Association of Queensland Inc v Smith; Coast and Country Association of Queensland Inc v Minister for Environment and Heritage Protection

COURT OR TRIBUNAL

High Court of Australia, Supreme Court of Queensland

DATE FILED (OR FIRST HEARING DATE)

06/05/2014

LITIGATION TYPE

Project Approval - Mitigation

SUBJECT MATTER

Coal mine

REVIEW TYPE

Judicial review

SUMMARY

The Queensland Supreme Court (Douglas J) has refused judicial review of a Queensland Land Court recommendation contemplating the granting of a conditional approval to the Alpha coal mine project, and a decision taken by the Minister for Environment and Heritage Protection to grant environmental authority for the project. In respect of the Land Court recommendation, the applicant contended that: (a) it was not open to the Court to make alternative recommendation; (b) the Court failed to assess the net benefit of the proposal to the local economy; (c) the Court’s decision lacked finality because the alternative recommendations deferred consideration of the central question of whether the mine should proceed; and (d) that the Court failed to adequately consider the adverse climate change impacts attributable to the mine. In respect of the Ministerial decision, the applicant contended that: the decision lacked finality, and, having been made pursuant to the Land Court recommendation, was no more valid. None of the contentions were accepted.

The Queensland Court of Appeal (McMurdo P; Fraser JA; Morrison JA) has dismissed an appeal against a first instance decision refusing judicial review of a Queensland Land Court recommendation contemplating the granting of a conditional approval to the Alpha coal mine project, and of a ministerial decision to grant environmental authority for the project. The appellant’s central contention was that both the Land Court recommendation and the ministerial decision which followed rested on a misconstruction of the Environmental Protection Act 1994 (QLD) in that both failed to give weight to scope three greenhouse gas emissions (emissions from transporting and burning coal, rather thane extracting it). The appellant contended that such emissions would contribute to an increase in the amount of greenhouse gases in the atmosphere, aggravating climate change, and its environmentally harmful effects. The Court perceived no error in failing to give weight to scope three emissions. First, it was beyond the Land Court’s jurisdiction to consider the impact of activities beyond the scope of the proposed mining lease. Scope three emissions, which result from the transportation and burning of coal after its removal from the mine site, were beyond the scope of the lease. In any event, there was a difficult in causally linking scope three emissions to the proposed mine. Significantly, expert evidence indicated that global usage of thermal coal (which was plentiful and cheaply available) would be unaffected whether or not the mine proceeded.

Transcript of application for special leave to appeal proceedings. Hearing follows QLD Court of Appeal proceedings in Coast and Country Association of Queensland Inc v Smith & Ors [2016] QCA 242. Opening outlines that the QLD Land Court made a factual finding that total emissions from this mine would amount to 0.16% of global greenhouse gas emissions which were ‘real and of concern’.

CASE DOCUMENTS

Coast and Country Association of Queensland Inc v Smith; Coast and Country Association of Queensland Inc v Minister for Environment and Heritage Protection [2015] QSC 260
Coast and Country Association of Queensland Inc v Smith [2016] QCA 242
Coast and Country Association of Queensland Inc v Smith [2017] HCATrans 74