Day in court for opponents of Alpha Coal

June 16, 2016

The latest in a series of legal challenges to the opening of the Galilee Basin to new coal mines began in the Queensland Court of Appeal on June 7.

In a one-day session, Queensland's highest court heard arguments on behalf of local environment group Coast and Country Association of Queensland against GVK Hancock's proposed Alpha coalmine in the Galilee Basin.

Hancock first sought approval for its proposed Alpha Coal Project — a 30 million tonne a year coalmine, 360 kilometres south-west of Mackay — in 2008. It was one of a number of proposed mines in the Galilee Basin, including Clive Palmer's Waratah Coal in the Bimblebox Nature Reserve and Adani's huge Carmichael project.

The mine proposals have been met with concerted campaigns of opposition by local residents, farmers, conservation organisations, indigenous communities and the broader environment movement. Critical to community opposition has been a number of legal challenges in the Queensland and Federal courts.

In February 2013 Coast and Country objected to the granting of the mining lease and environmental authority for the Alpha project in the Queensland Land Court due to the impact of the project on groundwater, climate change and economics. A number of landholders also objected. They were represented by the Environmental Defenders Office Queensland (EDO Qld).

The Land Court recommended in April 2014 that the mining lease and environmental authority either be refused or subject to additional groundwater conditions. In August 2014, after considering the Land Court recommendation, the environment minister granted the environmental authority for the project.

Coast and Country applied to the Supreme Court for a judicial review of the minister's decision. The application was dismissed by the Supreme Court on September 4 last year. Coast and Country then appealed to the Queensland Court of Appeal on October 2.

Before the hearing Jo-Anne Bragg of EDO Qld said: “We are here today with a highly specific legal case about how impacts from the burning of coal of proposed coal mines are assessed and considered here in Queensland.

“We all know that burning fossil fuels is contributing to global warming, extreme weather events and severe damage to our Great Barrier Reef.

“Courts have already accepted that emissions from the burning of coal are legally relevant to the public interest in assessing coalmines. Lower courts have already found that the burning of coal from this mine is both real and of concern.

“Our argument today is that, as a matter of law, the impact of the burning of fossil fuels from the Alpha mine should not be disregarded, or given zero weight, because of other mines that may cause similar impacts if the project is refused.

“The idea that coal from other mines would replace the environmental damage of Alpha coal if it did not go ahead is known as the 'substitution argument'. We say, as a matter of law, that argument is simply irrelevant.

“It is just as if someone tried to argue that water pollution from a proposed sewage treatment facility should not be given weight during assessment because another facility with equal water pollution impacts might be built somewhere else instead.

“The fact remains the proposed facility would still have serious impacts that need to be considered and assessed. Just because the harm would be no worse than the alternative, does not make the harm non-existent.

“This is the first time the Queensland Court of Appeal will consider the powers of the Land Court and decision makers under the state Environmental Protection Act 1994 and Mineral Resources Act 1989 in relation to climate change and the substitution argument.”

The decision is expected to be handed down in coming months. Meanwhile, a number of other challenges are currently underway or awaiting decision in relation to new coalmines.

The granting of approval for Adani's Carmichael mine by the Queensland government is being challenged in the Supreme Court and the Australian Conservation Foundation is challenging Commonwealth government approval in the Federal Court.

EDO Qld is representing Oakey Coal Action Alliance in objections to the approval of an environmental authority and two mining lease applications for the proposed Stage 3 expansion of the New Acland coalmine, west of Toowoomba.

EDO Qld is also representing Coast and Country in the Queensland Land Court in their objection to the approval of the mining lease and environmental authority for Hancock Galilee, a subsidiary of the GVK Group. Next to the Alpha coalmine, the Kevin's Corner mine involves an open-cut and underground coalmine.

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