The Queensland Court of Appeal today unanimously found the Queensland Conservation Council was denied natural justice by a tribunal that rejected its bid to require an Xstrata mine to offset indirect emissions from the end-use of its coal.
But the ruling is set to prove a hollow victory for the environment group, with Queensland Premier Anna Bligh vowing to legislative next week to “guarantee” the mine's expansion can go ahead.
The Queensland Conservation Council Inc appealed a February Land and Resources Tribunal decision in which tribunal President Greg Koppenol rejected a QCC bid to have tougher conditions imposed on Xstrata’s planned extension of the Newlands coal mine. The conditions would have required Xstrata to offset at least some of the emissions from burning of coal from the mine.
Koppenol questioned climate change science in his February ruling, although the scientific merits were not disputed by Xstrata.
Upholding objections from Xstrata, he also declined a QCC application to amend its particulars and seek orders requiring Xstrata to offset 10% of the indirect emissions associated with transport and use of the mined coal, rather than 100% as QCC had originally sought.
Xstrata had objected that allowing the amended particulars would unfairly prejudice it, as it had obtained expert reports and economic and financial calculations based on a requirement for it to offset 100% of these indirect emissions.
Court of Appeal President Justice Margaret McMurdo held the tribunal had failed to inform the QCC of the reliance it would be placing on a critique of the Stern review that questioned key elements of climate change science. The critique had not been submitted to the tribunal in evidence by either party.
“In the circumstances, this amounted to a denial of natural justice to QCC,” Justice McMurdo ruled.
Justice Kenneth Mackenzie was more scathing, describing President Koppenol’s failure to properly acquaint the parties of the significance he would be placing on his analysis of data from the Stern review and the critique as “a critical failure to observe the requirements of natural justice”.
McMurdo also criticised the tribunal’s decision not to allow QCC to amend its particulars.
“Xstrata’s response to the proposed amendment of the particulars would seem to involve its relevant expert witnesses in relatively straight-forward mathematical recalculations and minor consequential addenda to their reports,” she said.
“On the material before the Tribunal and this Court, QCC should be allowed to amend its particulars in the terms sought at first instance.”
The court remitted the case to the Land Court, which is now responsible for matters previously in the jurisdiction of the Land and Resources Tribunal.
The original orders sought by QCC would have required Xstrata to avoid, reduce or offset all emissions associated with mining the coal, as well as all emissions associated with downstream use by customers.
But the amended orders it is seeking would require the mine to avoid, reduce or offset all GHG emissions directly associated with mining and just 10% of the emissions associated with the transport and use of the coal.
’Technicality’
The appeal court did not set aside the environmental authority for the expansion, but renders it vulnerable to challenge. However, Queensland Premier Anna Bligh was quick to signal the state government would act to give the project certainty.
The QCC’s victory was based on “a legal technicality” and should not be allowed to stall the mine, she said.
“Next week we will legislate to validate the mining lease so that the mine can proceed.” “I am determined that the workers at the mine, as well as its investors, will have certainty that the mine will continue its operations.”
Coordinator of the Queensland Conservation Council, Toby Hutcheon, told CE Daily the QCC was “somewhat bemused” by the premier’s reaction.
Hutcheon said a denial of natural justice could not be dismissed as simply a “legal technicality”.
He added that the QCC was not seeking to have the mine’s operations halted and the proposed amending legislation to allow the expansion to continue was therefore “unnecessary”.
Hutcheon noted it was still not clear what form the amending legislation would take. An “acceptable form” would make it clear operations could continue under current conditions until the matter is reheard. However, it would be unacceptable for the government to give Xstrata permanent approval to mine without offsetting any indirect emissions ahead of the rehearing, he said.
A spokeswoman for Queensland Mines and Energy Minister Geoff Wilson told CE Daily the government would not comment further until the amending legislation was through parliament.
