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Focus: Adani clears latest hurdle in Carmichael Mine approval

12 December 2016

In brief: The Supreme Court of Queensland has upheld the decision of the Chief Executive of the Queensland Department of Environment and Heritage Protection to issue an environmental authority for the Carmichael Mine. In dismissing an application for judicial review by one of the mine's objectors, the Supreme Court clarified the limited scope of the consideration to be given by the Chief Executive when making a final decision to issue an environmental authority. Partner Ben Zillmann (view CV) and Senior Associate Giselle Kilvert consider the court's decision and its impact on future resource projects in Queensland.

How does it affect you?

  • This decision limits the scope for future challenges to a decision of the State Environment Minister (or his delegate) to grant an environmental authority (EA) for mining activities in Queensland.
  • The decision clarifies the matters to be taken into consideration at the various decisionmaking stages. It confirms that the Chief Executive (or his delegate) is not required to specifically consider the precautionary principle or principles of intergenerational equity or conservation of biological diversity (the standard criteria) when making a final decision to grant an EA for a mining project. Nor is the Chief Executive (or his delegate) required to positively satisfy him or herself that their decision is the best way to protect Queensland's environment, while allowing for ecologically sustainable development. Relevant considerations are far more limited.
  • The decision may lead to greater scrutiny of the role and recommendations of the Land Court in objections hearings, as the Land Court is required to take into account, among other things, the standard criteria. (We note that such recommendations have already been the subject of various applications for judicial review in the Queensland Supreme Court and appeals to the Court of Appeal).
  • Proponents of major projects should continue to ensure that they factor in the potential for protracted legal challenges into their project delivery schedule.

Background

This decision relates to Adani's proposed Carmichael Coal Mine Project in Queensland's Galilee Basin.

A brief background to the project is as follows:

  • November 2010: the Carmichael Mine was declared a project of state significance under the State Development and Public Works Organisation Act 1971 (Qld) (SDPWOA).
  • November 2012: Adani submitted an Environmental Impact Statement (EIS) for the project. A supplementary EIS was also later submitted.
  • July 2013: Adani applied for an EA in respect of the mine. The applicant in these proceedings, Land Services of Coast and Country Inc (represented by the Environmental Defenders' Office), made a submission on the application.
  • May 2014: Coordinator-General published his assessment report under the SDPWOA, recommending the mine be approved subject to conditions.
  • August 2014: the administering authority under the Environmental Protection Act 1994 (Qld) (EPA) issued a draft EA for the mine. In response, and pursuant to the relevant statutory process, the applicant nominated to have its submission on the EA taken as an objection to the draft EA. The objection was then referred (along with others) to the Land Court for hearing.
  • March – June 2015: the Land Court heard evidence and received submissions in respect of the mining lease and EA objections.
  • December 2015: the Land Court published its decision, recommending that an EA be issued subject to conditions.
  • February 2016: 'Final' decision made by the Chief Executive's delegate to issue an EA for the Carmichael Mine on conditions different to the conditions in the draft EA in that the conditions included, in addition to the conditions in the draft EA, the conditions recommended by the Land Court as altered in accordance with the expert ecological advice which the delegate had obtained. In making her decision, the delegate had express regard to the Land Court's recommendations and reasons, and the conditions of the draft EA.
  • April 2016: the applicant filed its application for a statutory order of review of the delegate's decision.

Grounds of challenge

The only ground relied upon by the applicant in these proceedings was an error of law. In particular, the applicant argued that:

  • The delegate failed to appreciate that she was required to consider and be positively satisfied that her decision was the best way to protect Queensland's environment while allowing for development that improves the total quality of life, both now and in the future, in a way that maintains the ecological process on which life depends; and
  • The delegate failed to apply herself to the real question to be decided under section 5 of the EPA, which required her to be positively satisfied that in making her decision she was performing her function in the way that best achieves the objects of the EPA.

In making the above arguments, the applicant relied on ss 3 and 5 of the EPA.

Section 3 defines the objects of the EPA as being 'to protect Queensland's environment while allowing for development that improves the total quality of life, both now and in the future, in a way that maintains the ecological processes on which life depends (ecologically sustainable development)'.

Section 5 sets out the obligations of persons to achieve the EPA's object. It states: 'If, under this Act, a function or power is conferred on a person, the person must perform the function or exercise the power in the way that best achieves the object of this Act.'

After considering the parties' submissions, the Supreme Court (constituted by Justice Bond) found that ss 3 and 5 are not to be construed in the way for which the applicant contended. His Honour held (at [17]):

The administering authority was obliged by s 5 to make the final decision which I have described 'in the way that best achieves the object of the Act', namely the object of ecologically sustainable development as defined in s 3. However, the language of s 5 is not language which is calculated to require a particular finding or reach a particular state of positive satisfaction as a precondition to a lawful performance of the function or exercise of the power. Nor is it language which obliges the attainment of a particular objective outcome. Rather it is language which is specifically expressed at a high level of generality because it is language directed to impose a duty on the decision maker which regulates the way in which the decision maker goes about making the decision. It requires the decision maker to make the decision in the way that the decision maker conceives is the way that best achieves ecologically sustainable development.

His Honour went on to distinguish between the roles of different decisionmakers at the various stages of the decision-making process under the EPA, and the contrasting matters to be considered by each of them.

His Honour noted that, while provisions of the EPA expressly require the administering authority (when issuing the draft EA) and the Land Court (when hearing objections and making recommendations to the Chief Executive) to consider a broad range of matters, including the standard criteria, by the time the Chief Executive is required to make the 'final decision', the scope of matters to be considered is far narrower. In particular, s194 provides that the function or power of the administering authority [represented by the Chief Executive or his delegate] in making the final decision on an EA application is the function or power of –

  • deciding between three specified options, namely:
    • that the application be approved on the basis of the draft EA; or
    • that the application be approved, but on stated conditions that were different to the conditions in the draft EA; or
    • that the application be refused;
  • (in light of the fact that the no advice was provided from the Ministers under s193) having regard to two specific matters, namely:
    • the draft EA; and
    • the objections decision from the Land Court. (at [16]).

As stated at [19]-[20]:

The final decision required by s 194 in the present context was not a decision which was at large. It was not a decision which required the delegate to consider afresh all the matters including the 'standard criteria' and other criteria which were assessed (1) at the time of the decision made pursuant to s 176 to issue the draft EA; or (2) at the time of the objections decision made pursuant to s 191 by the Land Court. Nor was it a decision which required consideration afresh of all the evidence which the previous decision makers had before them on those matters. The evident intention of the EPA was that the detailed work in that regard had already been done by the time the s194(4) decision came to be ...

Legislation structured in the way s194(4)(a) was structured limits the mandatory considerations which a decision maker is required to take into account ...

His Honour concluded at [21]:

When one construes ss 3, 5 and 194(4)(a) properly, one is driven to an appreciation that no legal error was made by the delegate of the administering authority in making the final decision in the way she did. She did not consider afresh the full gamut of the considerations which had been considered on previous occasions. But, as I have explained, she was not required to. The delegate addressed the considerations she was required to address and did so in the way she thought accorded with the s 3 object in compliance with her duty under s 5.

What does it mean?

The decision is the latest blow to environmental campaigners who have opposed the Carmichael Coal Mine on multiple legal fronts, as well as other coal mining projects in Queensland in recent years.

The decision will make it harder for objectors to successfully challenge a final decision to issue an EA following an objections hearing. It is unlikely, however, to dampen objectors' spirits in continuing to oppose coal mining projects in other forums or at other points in the decisionmaking process.

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