: Coal mine to go ahead

Coal mine to go ahead

Kate Galloway
Queensland

On 27 March 2012, the Queensland Land Court handed down its decision in Xstrata Coal Qld Pty Ltd v Friends of the Earth – Brisbane Co-Op Ltd [2012] QLC 013 resulting in a win for Xstrata to undertake extensive coal mining operations in the Wandoan district in Queensland.

The decision considered objections by a number of landowners in the affected area, under the Mineral Resources Act 1989 (Qld) (‘MRA’) and the Environmental Protection Act 1994 (Qld) (‘EPA’), as well as the Friends of the Earth (‘FoE’).

While the Court made some orders in favour of the landowners – notably through the exemption of parts of their land from the mining lease areas – none of the objections resulted in orders to refuse any of the mining lease applications.

In addition to the Court’s methodical consideration of the areas for mining, water issues, dust, noise, social impact and access — all of which impacted upon the landowners, there are two issues of note considered by the Court.

First, the Court found that it did not have jurisdiction in an MRA objection to make recommendations on activities regulated under the Water Act 2000 (Qld). While some of the activities of mining inherently involved water (such as drawdown in the aquifers and water quality) and would properly fall within an MRA objection, other activities are to be treated separately. Specifically, section 235(3) of the MRA does not authorise diversion or appropriation of water without an authority under the Water Act. On this basis, they are not activities authorised by the MRA and are therefore outside the scope of the Court’s authority.

The Court found that ‘the groundwater monitoring program for the shallow and alluvium aquifers … [was] inadequate’, however it was powerless to make a recommendation to the Minister. It did however point out that it is ‘unsatisfactory that the impacts of water extractions and diversions are not properly assessed and considered under the Water Act until after the project has been approved under the MRA and the EPA’.
Second, the FoE objected to the project under the MRA and the EPA on climate change on grounds particularly based on the ‘scope 3’ emissions (such as greenhouse gas emissions arising indirectly from the company’s activities). These would include the shipping of coal and its ultimate consumption as an energy source.
The science of climate change was not disputed – but the applicant miner argued that stopping the project would have no impact on greenhouse gas emissions overall, and that the coal from the project would have negligible impact on climate change.

The Court accepted the applicant’s position taking a cost benefit analysis under which there were significant economic benefits to the public. The environment was not the only relevant consideration. The Court found that it could only consider activities regulated under the MRA, which excluded the scope 3 emissions argued by FoE. Likewise, it was constrained to a consideration of environmental impacts in Queensland.

What these two findings highlight is that the legal framework for consideration of the environment is quite contained and thus inadequate to properly consider the inherently interconnected and complex environment, including climate change as a global issue. The legislative framework – no doubt echoed in other jurisdictions – segregates different aspects of land and environment to different regimes of management. While the MRA and EPA might be connected, other aspects of resource management are not, thus constraining a holistic approach to decision-making, and straining parties’ resources in objecting. The rigid structure of environmental and resource management therefore has impacts both substantively and procedurally.

KATE GALLOWAY teaches law at James Cook University.

(2012) 37(2) AltLJ 137
You are here: Home News & Views DownUnderAllOver DUAO - Vol 37(2) Coal mine to go ahead

Keep in Touch

Twitter Icon
Follow Alt Law Journal on Facebook

Sponsors

Monash University Logo