The Land Court’s decision in Adani Mining Pty Ltd v Land Services of Coast and Country Inc & Ors  QLC 48 has echoed to public interest groups that objections to the grant of mining leases (MLs) and environmental authorities (EAs) on the grounds of climate change are limited to the provisions of the Mineral Resources Act 1989 (Qld) (MRA). The decision, handed down in December 2015, is also noteworthy as it addresses a smorgasbord of objections from the Land Services of Coast and Country Inc (LSCC), including historical arguments from other public interest groups on climate change issues previously settled by the Land Court. The decision also considers two novel arguments canvassed relating to the financial capability of Adani Mining Pty Ltd (Adani) and the economic viability of its Carmichael coal mine project, which has received significant attention due to its potential economic impacts in Queensland.
Although the Land Court’s recommendations favour the grant of the three MLs and an associated EA to Adani, its recommendations also impose further conditions based on the LSCC’s arguments on negative impacts to groundwater and vulnerable and endangered plant and animal species. This article examines some the key issues arising from each objection raised by the LSCC.
The LSCC objected to the Carmichael project on the basis that the cumulative process of winning, extracting, transporting and burning the coal will have an adverse global impact and cause environmental harm to Queensland and the Great Barrier Reef; and, in any case, that adverse impacts from emissions were not authorised by the EA. The LSCC sought to challenge a previous Land Court decision which had restrained the scope of the requirement for the Land Court to consider adverse environmental impacts under the MRA exclusively to the process of winning and extracting the coal (scope 1 and scope 2 emissions). The President of the Land Court declined to expand the scope of the requirements under the MRA, citing a recent Queensland Supreme Court authority to support the position that the impacts on climate change caused by the transportation and burning of the coal (scope 3 emissions) are not required to be considered under the MRA. Similarly, the President cited the same case when deciding not to recognise any adverse impacts for scope 3 emissions as environmental harm not authorised by the EA.
This objection was in relation to the Input/output modelling used as part of the economic assessment in the Environmental Impact Statement (EIS) that Adani had provided. Although the President was satisfied that the matters for consideration by the Land Court listed in the MRA would permit evidence of the economic impact of the mine to be considered, the President was not satisfied that the economic assessment of the mine should lead to a recommendation that the MLs and EA not be granted. Despite this recommendation, it is interesting to note that President determined:
- Adani’s input figures overstated the selling price of coal, and consequently overstated the royalties generated and corporate tax payable; and
- Adani’s estimate that the mine would generate 10,000 fte jobs per annum from 2024 was incorrect, and that the project would increase average annual employment by 1,206 fte jobs in Queensland.
Adani’s financial capability
This objection was based on the premise that Adani does not have the financial and technical capability to carry on mining operations under the proposed ML, and was supported by evidence of the future market for coal, the mine’s profitability, and evidence of Adani’s operations, debts and likelihood of obtaining finance. The President conceded that the future market for thermal coal is uncertain, but that the uncertainty is not such that the project is unviable.
Objections relating to groundwater were based on threats of serious environmental damage by dewatering caused by the mine to the nearby Doongmabulla Springs Complex. The President considered that conditions in both the draft EA and the Commonwealth approval under the Environment Protection and Biodiversity Conservation Act 1999(Cth) (which included conditions on water management and managing threats to ecological communities) to be elements of an adaptive management framework which was appropriate for mitigating the risk of threat to the ecological value of the springs. One further recommendation was made to facilitate further monitoring of the utilization of watering points.
Vulnerable and endangered species
Potential adverse impacts to biodiversity, through the risks posed to the vulnerable Waxy Cabbage Palm (WCP) plant species and the endangered Black-throated Finch (BTF) species, were also raised as objections. The President accepted that the WCP was a vulnerable species, however, concluded that the offset and management conditions in the draft EA are sufficient to avoid, mitigate or offset the potential damage to the WCP. The President also accepted that the BTF is an endangered species, and was satisfied that there will be serious or irreversible environmental damage to the continued survival of any BTF in the infrastructure and open-cut area of the mine. The recommendations for the Minister contain several additional conditions to be inserted into the draft EA to safeguard the population of the BTF, including surveying, conducting assessments and monitoring of habitats, breeding and identification of the population.