QLD Land Court recommends refusal of thermal coal mine on climate change and human rights grounds

The Queensland Land Court has recommended that the mining lease and environmental authority for the Waratah Mine be refused, amongst other reasons because of climate change impacts (including scope 3 emissions) and human rights impacts

Snapshot

The Land Court recommended that both the mining lease and the environmental authority be refused on three key grounds:

1. The uncertain but likely impact on the Brimblebox Nature Refuge;
2. Climate change impacts (including ‘scope 3’ emissions); and
3. Human rights impacts.

The Proposed Galilee Basin Coal Mine

Waratah Coal Pty Ltd applied for a mining lease (ML) and an environmental authority (EA) to allow it to mine thermal coal in Queensland’s Galilee Basin.

The Land Court in this instance exercises an administrative function to recommend to the Queensland Minister whether the mining lease should be granted, and to the recommend to the chief executive of the Department of Environment and Science whether an environmental authority should be granted.

The Court emphasised that the decision was not about whether any new coal mines should be approved, but whether this particular coal mine should be approved on its merits. The Court recognised the considerable economic benefits of the mine, as well as its potential benefit to Southeast Asia as a reliable source of energy. However, the Court recommended that both the ML and EA should be refused.

1. The Nature Refuge

The Court heard evidence that it was likely that the Brimblebox Nature Refuge and its ecological values would be seriously and possibly irreversibly damaged, with no credible offset plan and no evidence about whether the harm could be appropriately managed.

2. Climate Change

The Court found that granting permission to mine the coal could not be logically separated from the coal being used to generate electricity. As a matter of law, the Court decided that the mine’s estimated scope 3 emissions could be taken into account in applying the principles of ecologically sustainable development (ESD) and considering the public interest. The Court found that wherever the coal is burnt, the emissions will contribute to environmental harm, including in Queensland. The Court considered that there is sufficient certainty in the science to understand the relationship between emissions and temperature.

The parties agreed that the emissions from the combustion of coal at the mine would be 1.58Gt of CO₂ between 2029 and 2051. That was found to be a material contribution to the remaining carbon budgets to meet the Paris Goals (320Gt to keep temperature to 1.5° in 2100, and 620Gt to keep temperatures to 2° in 2100). The Court found that this mine alone would not be the difference between acceptable and unacceptable climate change, but 1.58Gt of CO₂ is nevertheless a meaningful contribution to the remaining carbon budget.

Substitution Argument

Waratah argued that there would be an adverse environmental outcome if the mine was not approved because lower quality coal would be substituted for Waratah’s coal, resulting in more CO₂ emissions to meet the demand. The Court rejected this argument, finding that although the project’s coal might displace other supply in the market, that supply is most likely to be other high rank coal, with similar greenhouse gas emissions

Economic Argument

Evidence was led to suggest that the proposed mine will result in economic benefits of between $2.5B and $4B. The Court found that this was an uncertain projection due to a declining demand for thermal coal, that there is a real prospect the mine will not be viable throughout its projected life and that not all the economic benefits will be realised. The Court further found that the costs of climate change to the people of Queensland, to which combustion of coal will contribute, had not been fully accounted for.

3. Human Rights

The Queensland Human Rights Act (HRA) requires an administrative decision maker (including the Land Court in this instance) to consider human rights. Under the HRA, an act or decision can limit a human right if the limit is no more than is justified in a free and democratic society, based on human dignity, equality and freedom.

The Court found that the following rights of certain groups of people in Queensland will be limited by the proposed mine:

• • the right to life
  • the cultural rights of First Nations peoples
  • the rights of children
  • the right to property
  • the right to privacy and home; and
  • the right to enjoy human rights equally

The Court was not persuaded that the limits on human rights imposed by the coalmine were demonstrably justified.

Key takeaways

While the decision is significant in terms of the consideration of climate change in the context of the carbon budget and scope 3 emissions, the emphasis of the Court that this decision was about this particular coal mine should be carefully noted.

The full decision can be found here: Waratah Coal Pty Ltd v Youth Verdict Ltd & Ors (No 6) [2022] QLC 21

If you would like to understand what this case means for you, please do not hesitate to get in touch.

By Kathryn Pacey, Partner and Shaun Milligan, Solicitor