On 25 November 2022, the Land Court of Queensland (Land Court)1 recommended that decision makers not grant the mining lease and environmental authority required for the development and operation of Waratah Coal Pty Ltd's (Waratah) proposed thermal coal mine in Queensland's Galilee Basin (Project).
This decision2 is a watershed moment in the consideration of human rights, climate change and Scope 3 greenhouse gas emissions the evaluation of project impacts.
The President of the Land Court made a number of key findings, including:
- In considering the potential environmental harm caused by the Project and whether it was in the public interest, the Land Court could take into account the GHG emissions likely to be caused by the combustion of the coal in Southeast Asia where it was to be exported (known as Scope 3 emissions).
- Sufficient certainty exists in the science to understand the relationship between GHG emissions and temperature and in absolute terms, the estimated carbon budget for the project would be a material contribution to the remaining carbon budgets that meet the Paris Agreement goals.
- Several human rights would be limited by the Project, which were not demonstrably justified, being:
- for the owners of a nature refuge (where underground mining is proposed) - their right to property and to privacy and home; and
- in relation to climate change, the rights of certain groups of people - the right to life, the cultural rights of First Nations peoples, the rights of children, the right to property and to privacy and home and the right to enjoy human rights equally.
- For each human right and public interest implications of the potential mine, the Land Court considered that, on balance, the rights should be preserved.
- Waratah's argument that the use of coal from this Project would have a beneficial climate outcome was rejected as any potential displacement of coal already in the market would most likely be of other high rank coal, with similar GHG emissions.
In more detail
This decision significantly contributes to the changing nature of how project impacts are assessed and provides further discourse in considering novel issues:
- The consideration of Scope 3 emissions when applying the principles of ecologically sustainable development and whether the grant of the project approvals were in the public interest.
Scope 3 emissions have been considered as part of decision making and project evaluation3 in New South Wales for some time.
However, the Queensland Court of Appeal has previously held4 that Scope 3 emissions resulting from the transportation and burning of coal was not relevant in the assessment of a project. In the Land Court, Waratah argued that Scope 3 considerations are a matter of policy to be dealt with by governments through international and national commitments.
The Land Court formed the view that it does not subvert international, national and state policy on either climate change or resource development for the Queensland government to take into account the effect of Scope 3 (including combustion) emissions when making a decision on this Project.
The Land Court also did not accept the previous construction of the Queensland Court of Appeal on this issue, instead preferring the New South Wales case law and the position that, in the absence of a clear intention to limit the scope of broadly stated criteria (including the public interest), Scope 3 emissions were a relevant fact when considering recommendations about the grant of the environmental authority for the project.
For completeness, and while not considered by or within the jurisdiction of the Land Court in this matter, when a project undergoes environmental assessment at the federal level, the federal government may request information about all types of GHG emissions which may have a direct or indirect impact on matters protected under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act), however the need or otherwise for that information is considered on a case by case basis.5
- Considering the application of the Human Rights Act 2019 (Qld) (which has had limited judicial consideration to date) and the procedural obligations imposed by that legislation.
In considering whether the grant of the mining lease and environmental authority for the Project would be compatible with human rights, the Land Court reached conclusions about whether human rights would be limited and if so, whether the limit would be lawful in the public interest.
While the Land Court made various findings in relation to the impact of the Project on human rights, which were not demonstrably justified (as discussed above), in relation to the climate change issue the Land Court found that it was not required to find that the mining lease and environmental authority applications "would in fact cause a given level of GHG emissions that causes harm and limits the human rights relied upon."
The Land Court found that the connection between the authorisation of the Project applications and the harm caused by the emission of GHGs when the mined coal is burned establishes a sufficient causal relationship to find the act has the capacity to limit a human right. What the limit means for individual human rights is best considered with reference to the scope of the individual rights.
- Sufficient certainty exists in the science to understand the relationship between GHG emissions and temperature and in absolute terms.
The comment made by the Land Court is indicative of the increasing role played by science in climate change litigation. Though not a determinative factor in the Land Court's decision in this instance, on a global level, the evolving field of attribution science is increasingly informing discussions relating to responsibility and accountability for climate change impacts. It is foreseeable that climate change detection and attributions science will be used in future litigation . We are keeping a close eye on developments in that space.
The Land Court decision is substantial and given the new ground it has covered, it is foreseeable that the grounds of the Court's findings and recommendations having far reaching impacts. The decision of the Land Court is an administrative process and the President's recommendations will now be considered by the Minister for the Department of Resources and the chief executive of the Department of Environment and Sciences respectively, in making their decisions about whether they will grant the required mining lease and environmental authority to enable the Project to proceed. What is certain is that these issues will continue to be agitated, particularly in the context of carbon intensive activities and the appetite for third party stakeholders to strongly engage in project assessment issues.