CCAQ v Smith

Crown
Law acted for the Minister for Environment and Heritage Protection and the
Minister for Natural Resources and Mines in Coast
and Country Association of Queensland Inc v Smith [2015] QSC 260 in which Justice Douglas of the Supreme Court delivered judgment on 4 September 2015.

CCAQ sought judicial review of the following decisions about Hancock Coal’s proposed Alpha Coal Mine in the Galilee Basin:

1. Land Court recommendations to the NRM Minister after an objections hearing
under the Mineral Resources Act (the MRA);

2. the NRM Minister’s advice to the EHP Minister that if a mining lease was
granted, the NRM Minister would impose a special condition requiring Hancock to
make arrangements to obtain water licences to satisfy the Land Court’s
recommendations.

CCAQ
submitted to the Land Court that the mining
lease should be refused because of the environmental damage that would be
caused, including by the burning of the coal, most likely in China or
India. CCAQ submitted that the environmental damage to be taken into
account includes carbon emissions caused by mining and transporting the coal.

The
Land Court made recommendations in the alternative; namely that:

(a)
the Minister should not grant a mining lease because of the potential
environmental damage; or

(b)
if the mining lease was to be granted, it should be subject to conditions about
Hancock gaining licences under the Water Act.

CCAQ
claimed that the Land Court could not make recommendations in the alternative,
because of the principle of finality in decision-making.

The
Ministers did not participate in the judicial review of the Land Court
recommendations, but Crown Law on their behalf resisted the review of their conduct or decision. CCAQ
claimed that invalidity of the Land Court recommendations ‘infected’ the
Ministers’ actions. There was also an argument that the NRM Minister proposing
to impose a condition on the mining lease (which had not even been decided by
the Minister for NRM) also offended the finality principle.

Justice
Douglas held:

1. The Land Court recommendations did not offend the
finality principle. The MRA made clear that the Land Court’s function was to
make recommendations which do not bind the Ministers.  Nothing prevented
the Land Court from making recommendations in the alternative.  

2. The Land Court recommendation that if a mining
lease is granted, Hancock should obtain Water Act licences did not offend the
finality principle because the Water Act process was a separate statutory
process to the MRA mining lease process.

3. The Land Court’s approach to the
greenhouse effect of overseas coal combustion, that transportation and use of
coal fall outside the scope of the
'operations’ referred to in the MRA, was correct following the earlier Land
Court decision in Xstrata Coal Queensland Pty Ltd v
Friends of the Earth (2012) 33 QLCR 79.