ACF challenge to Adani mine defeated in Federal Court

Issue 
A protest in Brisbane last year against Adani's Carmichael coalmine in the Galilee Basin, Queensland.

Just 10 days after dismissing a challenge from a Queensland traditional owner to the granting of mining leases for Adani's Carmichael coalmine, on August 29 the Federal Court dismissed the application by the Australian Conservation Foundation (ACF) for judicial review of environment minister Hunt's decision to grant mining licences to Adani.

Just 10 days after dismissing a challenge from a Queensland traditional owner to the granting of mining leases for Adani's Carmichael coalmine, on August 29 the Federal Court dismissed the application by the Australian Conservation Foundation (ACF) for judicial review of environment minister Hunt's decision to grant mining licences to Adani.

In an introduction to his decision Justice Griffiths said: “It is important to emphasise at the outset the restricted character of this proceeding. On a judicial review application, the court cannot step into the shoes of the minister and decide for itself whether Adani's action should be approved and, if so, what conditions should apply.

“The parliament has conferred that task and responsibility on the minister and the minister alone. This court's function on a judicial review is significantly more limited, confined as it is to a review of the legality, and not the merits, of the minister's decision. Ultimately, it is the minister who must accept responsibility and be accountable for the merits of his decision.”

ACF first sought judicial review on November 9 last year, after Hunt reissued the environmental approval for Adani's Carmichael project on October 14. This followed a Federal Court decision on August 6 to set aside the minister's first approval of the project, after he failed to consider conservation advice on vulnerable species. The judicial review ran for two days in May this year.

The case was conducted for the ACF by the Queensland Environment Defenders Office (EDO). Commenting on the decision EDO solicitor Sean Ryan said: “Our question was whether Australia's federal environmental laws protected the Great Barrier Reef from its most serious threat — climate change.

“We asked the court to scrutinise if the environment minister was required to consider the climate change impacts from the burning of coal from the Carmichael mine, and disappointingly the Federal Court answered no.

“The court accepted that the minister concluded that the combustion emissions from the proposed mine would have no relevant impact on the Great Barrier Reef.

“While the outcome is disappointing, it is crucial that Australians have the opportunity to question, in an independent court of law, the lawfulness of government decisions surrounding a mine project whose damaging impacts will affect us all.”

ACF CEO Kelly O'Shanassy said in a media statement that Australians would be shocked that Australia's biggest ever coalmine was approved despite the Great Barrier Reef this year suffering the worst coral bleaching on record as "a direct result of global warming".

"If the Carmichael mine proceeds," she said, “its coal will create 4.7 billion tonnes of climate pollution over the proposed life of the mine, wiping out Australia's efforts to reduce pollution and contributing to more frequent and severe bleaching events on the reef.

"Australia's environment laws are broken if they cannot account for the impacts of global warming on the reef, one of our country's most loved national treasures.

"It is extraordinary that in 2016 a federal environment minister can argue in court that a mega-polluting coalmine will have no impact on the climate and the Great Barrier Reef.”

The Australian Marine Conservation Society's Great Barrier Reef campaign director Imogen Zethoven said the federal government will be to blame if the reef dies.

"Regardless of any legal decision, we have a moral responsibility to do everything possible to protect the reef and the communities who rely on it."

Peak conservation group Queensland Conservation Council (QCC) called on federal and state politicians to commit to shelving the mine. QCC Coordinator Dr Tim Seelig said: “It's time we stopped exporting climate change.

“Climate change is real, the role that coal plays in adding to climate change can't be denied, and it's about time climate change itself became a critical factor in environmental approvals.

“The federal and Queensland Governments should take this opportunity to formally shelve Adani's proposed Carmichael coalmine, and other coalmines in the Galilee Basin, on the basis of their prospective threats to the climate and to future generations.

“Federal environment minister Josh Frydenberg should demonstrate his capacity to lead Australia into a new more sustainable economy by ending the addiction to coal for domestic use and the export dollar.

“Meanwhile, the Queensland government can show it takes its options for state-based climate change mitigation seriously by formally committing to cancelling the project and signalling the era of new coal is over in Queensland.

“Future prosperity cannot sustainably be built around the past's technology and economics.”

However it would seem that the environment minister and the Queensland government were immune to these pleas. The new federal Environment and Energy Minister Josh Frydenberg welcomed the Federal Court decision on August 29.

"The finding provides greater certainty for the Commonwealth's decision-making process for approvals under the Environment Protection and Biodiversity Conservation Act 1999," he said in a statement. "The project includes 36 of the strictest environmental conditions in Australian history.”

On August 31, the Queensland Parliament reaffirmed its addiction to coal and wholehearted support for the Adani Galilee Project. Former Labor and now Independent MP Rob Pyne was a lone voice of opposition.

While Adani continues to say it intends to commence work on the project in 2017, it is not a foregone conclusion. The project still remains largely unfunded and opposition from the community has not been stilled.

Emergency demonstrations were held on August 30 in Brisbane and Melbourne and the feeling was that the campaign still had some life.

Further court challenges to the Adani project are current. An application for judicial review by environment group Land Services of Coast and Country in the Queensland Supreme Court is awaiting judgement after a hearing on August 5.

Campaign group Whitsunday Residents against Dumping has applied to the Queensland Supreme Court for judicial review of the Department of Environment and Heritage Protection's decision to grant the authority for Adani's controversial Abbot Point Terminal Zero port expansion.

This case is about whether the department properly assessed the project, as required by law, before it approved the proposal. The hearing has been set for October 7.

GVK Hancock is awaiting decisions on legal challenges to its other proposed mines, Alpha and Kevin's Corner, in the Galilee Basin.

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