September 26th 2015

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Articles from this issue:

COVER STORY Abbott era ends as Liberals oust elected PM

EDITORIAL The future of the Liberals after leadership coup

FAMILY AND SOCIETY Vulnerable GLBT youth pawns in plebiscite game

INTERNATIONAL AFFAIRS Cuts in aid trigger mass migration: more to come?

NATIONAL AFFAIRS Labor campaign to 'get' Dyson Heydon backfires

FOREIGN AFFAIRS China's official media hints at power struggle in Beijing

ASIA Taiwan: no longer the Kingdom of Youth

MILITARY HISTORY Antony Beevor at the Australian War Memorial

LIFE ISSUES Assisted suicide and our society of autonomy

SCIENCE You can trust research papers (we think; we hope)

PUBLIC HEALTH Taxpayer funding offers no immunity from failure

MINING Supreme Court dismisses attack on Qld Land Court

CINEMA Technology and the antisocial network: The Social Network

BOOK REVIEW Hollow Heroes: An Unvarnished Look at the Careers of Churchill, Montgomery and Mountbatten, by Michael Arnold


NATIONAL AFFAIRS Turnbull divides party in Cabinet reshuffle

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Supreme Court dismisses attack on Qld Land Court

by Michael Ord

News Weekly, September 26, 2015

In News Weekly of August 15 (“Labor strikes law enacted to stop vexatious litigation”), I drew attention to a pending Supreme Court review of a Queensland Land Court decision. The subject of the decision is Hancock Coal’s Alpha Mine in the Galilee Basin.

Justice James Douglas

The Land Court had recommended that the Alpha Mine be rejected or approved subject to conditions relating to groundwater. However, Environmental group Coast and Country Association Queensland (CCAQ) had objected and entered an application for a review of the Land Court recommendations and also for a review of subsequent decisions by relevant government ministers.

On September 4, Supreme Court Justice James Douglas dismissed the challenge to the Land Court recom­mendations, dismissed the challenge to the ministers’ decisions, and ordered the applicant to pay the costs of the respondent, Hancock Coal.

Four-pronged attack

CCAQ had attacked the Land Court’s recommendations primarily in four ways. First, it submitted that it was not open for the Land Court to make the alternative recommendations it did. Second, it submitted that the Land Court’s reasoning about the environmental harm likely to be caused by the mine, which it should have taken into account, was flawed because it should have assessed whether approval of the mine created a net benefit for the local economy.

Third, it argued that the Land Court decision lacked finality because its recommendations in effect deferred the consideration of central issues, including whether the mine should go ahead. And fourth, CCAQ submitted that the Land Court erred in its conclusions about whether the adverse impact of greenhouse-gas emissions contributing to climate change from the burning of coal from the mine was a relevant consideration.

CCAQ argued that, in any event, whether the question of emissions was relevant or not, the court had erred in the further conclusion that the mine would have “no impact” on such emissions because, if the mine did not proceed, “the coal will simply be sourced from somewhere else”.

CCAQ also attacked subsequent decisions or conduct of the Queensland minister for Environment and Heritage Protection and the Queensland minister for Mines as invalid on the basis that they lacked finality and/or were made pursuant to recommendations of the Land Court that were themselves invalid.

Four thorough answers

In relation to the first claim against the making of alternative recommendations, Justice Douglas cited the provisions under which the Land Court’s function is to make recommendations to relevant decision makers following an objections hearing.

Bearing in mind that the purpose of these provisions is to enable the Land Court to make alternative recommendations, Justice Douglas concluded that it was impractical to construe limitations to the range of recommendations that the Land Court might make.

The outcome for the second claim, an assessment of net benefit for the local economy, included that such a concept should not be added to statutory considerations already required, such as prejudice to public interest and adverse environmental impacts.

Justice Douglas noted that the member of the Land Court who had conducted the review had given lengthy reasons showing he had tackled such concerns and therefore there was no reason to set aside his decision.

On the third claim in relation to finality, Justice Douglas concluded that the Mining Resources Act recognised the need for further statutory process of an approval under the Water Act, which was the case for the Alpha Mine. It was not a lack of finality in the Land Court’s recommendation, but a recognition of reality.

The fourth submission relating to the Land Court decision was the consideration of emissions from the transportation and burning of coal from the proposed mine by others. Justice Douglas concluded with the factual finding that, whether or not the proposed mine proceeded, there would be no effect on global demand for coal and therefore no effect on the amount of greenhouse gases emitted globally. This finding was based on the evidence and was within the Land Court’s jurisdiction to make.

Nor did Justice Douglas’ assess­ment reveal any legal error in the approach to the factual finding by the Land Court.

In relation to the relevant ministers’ decisions, Justice Douglas determined that there had been no lack of finality, and that the applications against the ministers should also fail.

This Supreme Court decision has come at a time when another major Queensland coal project, Adani’s Carmichael coalmine, also in the Galilee Basin, has had its approval overturned by a federal court on a technicality. As a result Federal Environment Minister Greg Hunt has introduced legislation into Federal Parliament to the effect that people only directly affected by mining projects can challenge those projects in the courts.

The legal costs awarded against CCAQ are expected to amount to hundreds of thousands of dollars. CCAQ was given 28 days to appeal.

Michael Ord is a civil engineer and a director of the Institute of Value Management Australia.

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