MINING by Michael OrdNews Weekly
Labor strikes law enacted to stop vexatious litigation
, August 15, 2015
The Queensland Labor government in July 2015 passed a bill (State Development and Public Works Organisation and Other Legislation Amendment Bill 2015) to allow more opportunities for objections to major mining projects by overturning legislation passed by the LNP government in 2014.
Test digging has already taken
place at the Alpha Mine.
The previous LNP government legislation was the result of a commitment to support a strong resources sector by cutting red tape and streamlining regulatory processes. The LNP legislation included restricting the matters the Land Court could consider when hearing an objection to the direct impacts to landowners and local government.
A Parliamentary committee inquiry when the LNP bill was being considered in 2014 heard that the process had increasingly been used to delay projects, affecting investment in the mining sector. The Queensland Resources Council (QRC) submission identified that the right to lodge an objection against a mining lease application and have it considered by the Land Court was at that time unrestricted in relation to both the content of the objection and the standing of objectors, leaving the process open to abuse by vexatious objections.
However, some landowners and groups took offence to these claims and disputed the current framework was being used to “vexatiously” delay projects. And the Land Court confirmed that, in its experience, there was no evidence to suggest that the court process was being used to delay project approvals. Moreover, the Environmental Defenders Office (Qld) (EDOQ) raised concerns about the removal of public rights.
The Department of Environment and Heritage said there was no evidence of vexatious litigation in relation to low-level standard applications but that many objections were received for the larger-impact mines and the notification and objection rights in relation to these mines were not being affected by the change.
Events in the case of the proposed Alpha Mine in the Galilee Basin by Hancock Coal perhaps provide an insight into the claims and counter-claims of vexatious litigation.
In April 2014 Land Court member P.A. Smith decided on objections to the Alpha Mine. One of the objectors was the environmental group Coast and Country Association Queensland (CCAQ), whose solicitors were EDOQ.
Their objections included climate change and that the mine would contribute to dangerous climate change, and if all the emissions are considered, then this is a strong factor weighing against approval.
In the Alpha Mine decision it was noted that many of the arguments put forward were, in effect, a re-run of climate-change arguments considered in the decision on the mining lease objections for the Xstrata Wandoan Mine decision delivered on March 27, 2012 (Xstrata). P.A. Smith referred to CCAQ issuing a notice of contention filed on April 30, 2013, giving notice of its view that Xstrata was in error in confining the Land Court to considering only the direct impacts of coalmining activities.
After carefully considering the CCAQ submission on climate change, P.A. Smith agreed with the conclusions made in the Xstrata case. The conclusions were that claims on climate change did not justify a recommendation to stop the Wandoan Mine and Alpha Mine. Incidentally, P.A. Smith’s order recommended the Alpha Mine be rejected or approved subject to conditions relating to groundwater.
At the time of the Alpha Mine decision, a CCAQ spokesman was reported as saying “it was a ‘great decision’ for opponents of the mine”.
The QRC’s reported view on the decision was that “objections had come from the ‘usual suspects’ of anti-coal activists” and “genuine community concerns should and can be given voice at the Environmental Impact Statement stage of a project’s regulatory process, rather than resorting to expensive and long-winded Land Court objections at the end of the process”. Reasonably it might have been expected that the decision would have ended the objections of the “anti-coal activists”.
However, CCAQ on May 6, 2014, began proceedings against the decision, applying for a statutory order of review in the Supreme Court. CCAQ’s submission was that the Land Court decision was invalid. Further, CCAQ sought application for a statutory order of review for a minister’s decision made apparently on August 29, 2014. In this application CCAQ held that, as the Land Court member’s decision was invalid, it followed that the minister’s decision was invalid.
A Supreme Court judicial review was held in April 2015 and the outcome is to be announced at a later date.
A recent report indicated that the State Development minister was taking a proposal to the attorney-general to place time limits on cases in the Land Court. Meanwhile, approval processes and court actions continue for the Alpha Mine and the Adani Carmichael Mine, major coal projects important to the Queensland economy.
Michael Ord is a civil engineer and a director of the Institute of Value Management Australia.