BY NARELLE BEDFORD

The Adani mine has become synonymous with the ‘lawfare’ debate and issues relating to the suitability of review of mining decisions by courts. The first of the judicial review actions relating to Adani resulted in a consent order, made by Katzman J of the Federal Court, setting aside the federal Environment Minister’s original decision for failure to consider conservation advice on the Yakka Skink and Ornamental Snake. It was this consent order that prompted public comments from the then federal Attorney‑General, George Brandis, characterising the proceedings as ‘lawfare’. However, to date, we have not seen commentary that seeks to draw out the range of challenges that were made, and what we can learn from this. Environmental approvals are a unique area of public administration that traverse both state and federal jurisdictions and involve polycentric considerations.

This blog will consider two major mining proposals in Queensland, one being Adani and the other, Acland. These proposals have highlighted the complexities and challenges that confront those seeking to make use of public accountability mechanisms. The projects are so significant that the decisions fall under both Queensland and Federal legislation and require approval from Ministers at each level. This makes navigating the system for public accountability more convoluted for those challenging the various decisions. In respect of Adani, native title claimants also have interests that bear on these projects, which has added further, but necessary, complexity.

Significant research effort has been put into identifying all of the relevant court challenges. This, in itself, reveals something interesting. While all of the information is publicly available, we do not categorise legal information in such a way that makes it easy to track down all of the challenges that have been lodged in relation to particular projects. The project itself is not central to how the law views these challenges. In the eyes of the law, each challenge is separate and individual; it does not build on or have relationships with other challenges.

Due to the overlap between state and federal legislation covering the same projects, both State and Federal Courts are the relevant accountability mechanisms. This includes the Queensland Land Court. The Land Court is a court of limited statutory jurisdiction as it can only exercise powers conferred on it by statute. Land Court members are appointed for 15-year terms, and the court is required to operate with little formality and the formal rules of evidence do not apply to its proceedings.

There have been numerous actions launched in respect of each project, which have sought to utilise these accountability mechanisms, with some limited successes, and these will be explored below. On issues with potentially diverse and far-reaching impacts on the environment and biodiversity as well as economic development and job creation, it is essential that executive power is subject to comprehensive oversight. Indeed, in the cases of Adani and Acland, judicial review as an oversight mechanism has been utilised by both the mine proponents and environmental/community groups. This indicates that all parties, whatever their perspective, valued the need for independent review over government decision-making.

The legislative context

The major relevant Queensland Acts are the Environmental Protection Act 1994 (Qld) (the EPA) and the Mineral Resources Act 1989 (Qld) (the MRA). In respect of declared significant projects these Acts operate in conjunction with the main Commonwealth environmental act, the Environmental Protection and Biodiversity Conservation Act 1999 (Cth) (the EPBC Act). Relevantly, the EPBC Act was amended in 2013 to include any large coal mine development, which has or is likely to have “a significant impact on water resources”, such that it becomes a matter of “national environmental significance” and therefore requires federal as well as state government approval to proceed. Additionally, amendments to the Water Act 2000 (Qld) in 2016 created a special exemption for advanced projects already subjected to the dual Queensland‑Federal approval process. These had the effect of exempting such projects from a new public objection process for water licence applications. This significant exemption was important as mining operations are major consumers of water resources. It had the practical consequence that Adani was exempt from review of its water licence. The changes did not apply to the Acland project, as it was at an earlier stage in the approval processes and not as far progressed through the regulatory system.

The factual context of Adani and Acland

Adani

The proposed Adani project would involve multiple open‑cut and underground coal mines and an associated 189km railway line to the coast (for transporting the coal to a port facility), all to occur in the Galilee Basin located inland in western Queensland. The proponent of the project is Adani Mining Pty Ltd, a wholly owned subsidiary of the Adani Group from India. The project is also sometimes referred to as the Carmichael Mine, as the Carmichael River runs through the middle of the mine site, while the port facility is the Abbott Point Coal Terminal.

The application for approval of the Adani mine was lodged in 2010. Following that, the Coordinator‑General (of the Queensland Department of State Development, Manufacturing, Infrastructure and Planning) declared the project a “significant project” for which an Environmental Impact Statement (EIS) was required and referred the project to the Commonwealth Minister for the Environment. The EIS was duly prepared and subsequently the Coordinator-General issued a report in 2014 that recommended the mine project be approved. The mine project was accordingly then advertised for objections under the two main Queensland Acts – the MRA and the EPA. Pursuant to the bilateral agreement for significant projects, it was also simultaneously assessed under the federal EPBC Act, and in 2014 received approval from the federal Environment Minister.

Acland

The proposed Acland project (sometimes referred to as ‘New Acland’) would involve an expansion of an existing open cut coal mine designed to extend the capacity of the mine and prolong its operating life. It is located on land adjacent to Acland, a town on the Darling Downs, a farming region on the western slopes of the Great Dividing Range in southern Queensland. The Acland mine expansion is backed by the New Hope Group (referred to as ‘New Hope’), which is a majority Australian owned and operated diversified mining and energy company.

Stage one of the Acland mine commenced operations in 2002, and stage two expanded operations in 2007. Following this, preparations began for the stage 3 expansion. The Queensland Coordinator-General declared stage 3 of the mine a significant or coordinated project in 2007, thus requiring the company to prepare an EIS, which would be used in approval processes under the MRA and the EPA and also for federal approval. An EIS was prepared and submitted to the Coordinator-General in 2009 and public consultations commenced but this was suspended as the company revised the EIS to respond to concerns raised by the incoming Queensland government in 2012. The public consultation process and consideration by the Coordinator-General and the federal Environment Minister re‑commenced, and in 2014 the Coordinator General issued a report approving the expansion. Like the Adani project, following this report the Acland mine project was accordingly then advertised for objections under the two main Queensland Acts. In 2017 the federal Environment Minister approved the project subject to conditions.

Judicial review: Standing, pro bono assistance and access to justice

Judicial review in environmental matters has often been complicated by standing requirements. The leading case of Australian Conservation Foundation (ACF) v Commonwealth of Australia (1980) 146 CLR 493 is just one example.

Queensland government decisions related to the Adani project have been challenged by Land Services of Coast and Country Inc (LSCC), a not for profit community group, with federal decisions challenged by the Australian Conservation Foundation (ACF). Government decisions on the Acland project have been challenged by the Oakey Coal Action Alliance (OCAA), amongst others. According to the OCAA website, it:

is a not-for-profit community group formed in 2011. Our members come from far and wide; we are regional farmers, graziers, croppers, veterinarians, doctors and community members.

Both groups have been supported by the Environmental Defenders Office (EDO) and, additionally, pro bono representation has been received from various senior members of the Queensland and NSW Bar. Assistance from EDO and pro-bono legal services has also been fundamental and necessary to ensure community groups can have effective, and not just theoretical, access to justice.

None of these community groups (LSCC, OCAA, ACF and others) have been denied standing by the courts. Much turns on the provisions of the legislation that the original decision was made under. For example, the EPBC Act (section 487), MRA (section 260) and EPA (section 54) all have broad provisions about who may lodge objections or challenge decisions. Due to the importance of independent scrutiny of government decision-making on major proposals, it is fundamental that legislative regimes that permit a comprehensive scope of involvement for interested parties should be retained to ensure access to justice and public accountability. The federal government at one point, attempted to introduce amendments to the EPBC Act, which would have curtailed the broad standing provisions, but this was ultimately unsuccessful. Any moves that would revisit those changes should be resisted by administrative lawyers.

Accountability Case Study One: Adani

Following the Queensland approval and federal Environment Minister approval of the Adani project, there was a raft of litigation launched which attempted to challenge both the Queensland and federal decisions to approve the mine project. Turning to consider the litigation history and outcomes, it is appropriate to divide the analysis into Queensland litigation and then consider federal litigation.

The importance of factual review – Queensland Land Court

Under the relevant Queensland legislation, the Land Court process allows objections to be made on the basis of factual considerations, including through the provision of new expert evidence, and hence it resembles a merits review process. As the mining applications are lodged by the company proposing the project and decided on that basis, the ability of the Land Court to consider new evidence from potentially contradictory experts stands as an important element of public accountability in government decision‑making. However, the Land Court issues recommendations only, and these are not binding on either the Minister or the Coordinator‑General.

An objection lodged by LSCC challenged the grant of the mining lease (made under the MRA) and the environmental authority (made under the EPA) on a number of grounds including: factual matters related to groundwater impacts; biodiversity protection; the contribution that the burning of the coal from the mine would make to climate change (including contributing in turn to the environmental harm to the Great Barrier Reef World Heritage Area); the economic viability of the mine; and that the project was contrary to the public interest.

The President of the Queensland Land Court considered the objection and issued a detailed decision in December 2015, which featured analysis of the importance of the economic aspects of the project. Specifically, these considerations included global emissions and alternative coal supplies. The Land Court ultimately recommended that the mining lease and environmental authority be granted, subject to further conditions in relation to monitoring of impacts on a particular bird; the black-throated finch.

Following the Land Court’s recommendation, environmental authority was granted under the EPA on 2 February 2016, and the mining lease was granted under the MRA on 3 April 2016.

Queensland Judicial Review of State Minister’s Approval

The LSCC applied on 26 April 2016 to the Supreme Court of Queensland for judicial review of the grant of the environmental authority under the EPA. The court dismissed the judicial review application, as Justice Bond concluded that the decision-maker had addressed all the considerations required to be addressed and did so in a way that accorded with the object of the EPA and therefore was compliant with their statutory duty.

Federal Judicial Review

Turning to the federal approval for the Adani project, there were also numerous judicial review applications and decisions. The first of these actions resulted in a consent order made by Katzman J of the Federal Court referred to in the first paragraph of this blog. Subsequently the federal Environment Minister re-considered the matter together with the conservation advice and decided to grant a second approval.

This second approval was then challenged by the ACF in a judicial review application to the Federal Court, raising the interpretation and application of key provisions of the EPBC Act. The matter was dismissed by Griffiths J and was followed by a decision on costs. Griffiths J held that the matter justified a departure from the general litigation rule that the unsuccessful party pays the entirety of costs of the successful party. Whilst not prepared to make no order on costs (this would mean each party would bear their own costs), Griffiths J didorder that ACF pay only 70% of the Minister’s costs and 40% of Adani’s costs (as opposed to 100% under the general rule). Adani had been added as a party in a consent order, but Griffiths J concluded that Adani had played a larger role in the proceedings than was necessary and he also took into account a range of factors including that the matter raised important and difficult issues of statutory construction.

That substantive decision was in turn appealed to the Full Federal Court which dismissed the appeal and was also followed by a decision on costs. The Full Court ordered that the usual costs rule should apply so that ACF was required to pay the entire costs of the appeal for the Minister and Adani, on the basis that the appeal was based on misconceptions concerning the legislation and that the litigation was therefore misconceived.

The Native Title context and judicial review

The Traditional Owners claiming native title over the land which included the proposed Adani mine site are the Wangan and Jagalingou People. They formally applied for native title under the Native Title Act 1993 (Cth) in 2004. These proceedings are important as native title claimants also have interests that bear on major projects. The native title context forms a critical context to the entirety of the Adani proposal as it is a clear demonstration of the extended impact such major projects can have on those who also claim ownership of the land. These native title proceedings have added further, but necessary, complexity to the accountability framework on the Adani mine project. Entwined with the native title proceedings have been related unsuccessful judicial review proceedings and adverse costs orders have been granted whereby those claiming native title interests have been ordered to pay the legal costs of Adani and the other respondents.

Related challenges associated with the Adani project

There has also been an application to the AAT, under the Great Barrier Reef Marine Park Act 1975 (Cth). Although the community group, North Queensland Conservation Council did not proceed with the action, the application concerned aspects of the decisions to permit expansion of port facilities at the Abbott Point Coal Terminal and its impact on the reef.

Other various community groups, including the Mackay Conservation Group, the Alliance to Save Hinchinbrook and the Whitsunday Residents Against Dumping have been involved in related challenges in the Federal Court under the EPBC Act seeking to challenge other decisions related to the Adani project.

Interaction of state and federal litigation

The extensive use of legal accountability mechanisms in respect of the Adani project illustrate the deep complexity of the regulatory system when such large-scale projects are being considered and government decisions are being challenged. Accountability mechanisms need to keep pace with the realities and complexities of modern government if they are to be effective and not just a veneer. The challenges of effective oversight for executive power are graphically illustrated when the implications flowing from a major proposal such as Adani are examined. Administrative law accountability plays a different role, to political accountability (such as via elections and parliamentary processes) but is complementary and both need to function alongside each other.

Diverse aspects of the decision-making on the Adani project were re-considered during factual and judicial review – such as the impact on different species (skinks, snakes and birds) as well as more over-arching issues such as global emissions, protection of the reef, the public interest and rights of traditional owners.

Accountability Case Study Two: Acland

Queensland Land Court

Following approval of the Stage 3 expansion by the Coordinator‑General, the OCAA, alongside 30 other community members, lodged formal objections under the MRA challenging the approval on the basis of its impact on prime agricultural land and groundwater, as well as the potential damage to community health and well-being. The objection hearings were held in Brisbane and Dalby. The objectors provided various expert evidence in support of these claims.

On 31 May 2017, the Queensland Land Court Member Smith issued a lengthy decision that recommended the Queensland Minister not approve the mine expansion. The successful parties then sought a costs order, which was dealt with via an adjournment as allegations of apprehended bias had been raised concerning Member Smith in the course of the judicial review proceedings described below.

Judicial Review in Queensland Supreme Court

Following the decision of the Queensland Land Court, an application for judicial review was lodged in the Supreme Court by New Hope. Contemporaneously on 14 February 2018 the Queensland Department of Environment and Science made a final decision to refuse the project’s environmental authority under the EPA. The decision for mining approval under the MRA remains pending. (At the Commonwealth level, approval for stage 3 was granted by the federal Environment Minister in December 2016).

Nonetheless, the judicial review matter proceeded, and the Queensland Supreme Court held a five-day hearing before Bowskill J, which commenced on 19 March 2018. That decision was issued on 2 May 2018 and gave a detailed consideration to the apprehended bias claims, as well as the grounds claimed for judicial review. Ultimately, the judicial review application by New Hope was successful and the decision of the Queensland Land Court was set aside and referred back to it for re-consideration in accordance with law. It remains unclear what practical impact this court decision will have, given the public announcement to refuse environmental authority.

The Acland project has been the subject of both factual and legal reviews, so again accountability mechanisms have been well utilised and demonstrated to be a necessary component to ensure good decision-making. In some respects, this project has not attracted the same degree of attention as Adani, this is possibly due to the fact it is an expansion of a mine project that has already been expanded once before.

Conclusions 

There have been positive developments in terms of community groups being able to access review of decisions on the facts in the Queensland Land Court due to generous objector provisions in State legislation. Similarly broad provisions in the applicable Commonwealth legislation have enabled wide access to the courts for judicial review proceedings. Judicial review has been sought by mine proponents and not just environmental/community groups, providing evidence that independent review has been valued and utilised by a range of organisations with vastly differing perspectives. Standing and access to factual and judicial review are all crucial elements of our accountability system and need to be preserved. Respect for these review mechanisms must be maintained, and inflammatory characterisations such as “lawfare” or “greentape reduction” (as used in an actual title of an amending Act in Queensland in 2012) should be avoided. Where such hyperbole is encountered in the public sphere, there must be calm voices prepared to patiently explain the systematic benefits of accountability to ensure good decision-making.

Environmental approvals are a unique area of public administration that traverse both state and federal jurisdictions and involve polycentric considerations. Factual review, as conducted by the Queensland Land Court, has in both projects enabled broader considerations to be re-evaluated. This enabled fresh consideration of global emissions, groundwater impacts and threats to specific species. The advantages of a dual system incorporating both factual and legal review mechanisms has been long recognised in Australia (for example, the establishment of the Administrative Appeals Tribunal at the federal level in 1975). Judicial review, by its nature being limited to legality, can be difficult where decisions are polycentric but this should not diminish its potential value. There are issues, which will require careful attention in the future – such as the impact of adverse costs orders on access to justice and the pressing need for greater availability of factual review. Notwithstanding these pressures, public accountability for government decisions on large-scale, complex projects needs to be detailed given the vast impact such projects may have on a diverse range of interests. Balancing economic development with protecting the environment and biodiversity is a delicate task. Layers of accountability are needed. Complex scrutiny for complex projects is appropriate and needs our ongoing advocacy to ensure it endures.

 

Narelle Bedford is an Assistant Professor teaching Administrative Law (and Canadian Administrative Law) at Bond University in Queensland.

Suggested citation:  Narelle Bedford, ‘Public Accountability Over Major Mining Projects in Queensland’ on AUSPUBLAW  (4 June 2018) <https://auspublaw.org/2018/06/public-accountability-over-major-mining-projects-in-queensland/>