Nearly 14 years ago, New Acland Coal Pty Ltd (NAC) applied for a ‘stage 3 expansion’ of its coal mining operations near Oakey in Queensland by seeking two further mining leases and an amendment of its existing environmental authority (‘applications’). Objections, including by the Oakey Coal Action Alliance Inc (OCAA) which represents a group of farmers and other community members, were brought against the applications. Last week – following years of complicated litigation including a finding of apprehended bias and the longest ever hearing in the Land Court of Queensland – the High Court ruled that the applications be referred back to the Land Court for reconsideration.
The decision in Oakey Coal Action Alliance Inc v New Acland Coal Pty Ltd  HCA 2, in keeping with the history of the project, has been met with a mixed reception. Many are overjoyed by the High Court’s decision and the delay it will cause, whilst others have raised concerns over Queensland’s approvals regime and the significant delays that can beset mining projects.
History of the litigation
The original Land Court hearing
Following the objections of OCAA and others, provisions of the Mineral Resources Act 1989 (Qld) (MR Act) and the Environmental Protection Act 1994 (Qld) (EP Act) required the referral of the applications to the Land Court for consideration and recommendation. The recommendations of Member Smith, the presiding member, were made to the Minster for Natural Resources, Mines and Energy under the MR Act and the Chief Executive of the Department of Environment and Science under the EP Act to assist them in making the ultimate decision on the applications.
The hearing in the Land Court lasted for 100 days, spread over more than a year, and involved complex overlapping issues. Member Smith, despite making several findings in NAC’s favour, ultimately recommended that both applications be refused. Member Smith’s recommendation that the applications be refused was made on the basis of three key issues: noise; groundwater; and intergenerational equity.
The Supreme Court review
NAC applied to have the matter judicially reviewed by the Supreme Court, arguing that the decision of Member Smith was affected by apprehended bias.
Justice Bowskill found that the recommendations of Member Smith were not affected by apprehended bias but that they did contain errors of law on each of the three key issues which formed the basis of his recommendations. Her Honour set aside the recommendations and the subsequent decision of the Chief Executive granting the amendment to the environmental authority and referred the matter back to the Land Court. However, her Honour ordered that the rehearing only be on the basis of the three key issues identified by Member Smith in his recommendations and that the parties were otherwise bound by the findings and conclusions of Member Smith.
Rehearing by the Land Court
President Kingham reconsidered the matter over three days and made new recommendations that the applications be approved. Her Honour made it clear that her recommendations might have been different without the constraints imposed by Justice Bowskill’s orders.
Appeal to the Court of Appeal
OCAA challenged the findings of Justice Bowskill that the recommendations of Member Smith were affected by errors of law. NAC brought a cross-appeal seeking to challenge Justice Bowskill’s finding that the recommendations were not affected by apprehended bias.
President Sofronoff (with whom Philippides JA and Burns J agreed) concluded that the recommendations of Member Smith were affected by the errors of law identified by Justice Bowskill and apprehended bias.
Member Smith had been “deeply offended” by an article published in the Courier Mail (that he viewed as being attributable to NAC) that implied that his taking of leave had improperly delayed the decision in the matter and that the result of the delay would be a loss of jobs.1 Member Smith’s reasons “incorporated unnecessary, unsupportable and irrational criticisms of Acland’s commercial behaviour and its litigious behaviour.”2
President Sofronoff indicated that the appropriate orders would be for the qualified order for referral made by Justice Bowskill to be set aside, for the matter to be reconsidered by the Land Court in full, and for OCAA to pay NAC’s costs. However, after permitting the parties to make further submissions on the proposed orders, the Court ultimately made orders limited to a declaration that Member Smith had failed to observe procedural fairness and an order that OCAA pay NAC’s costs.3
Appeal to the High Court
OCAA argued that the new recommendations made by President Kingham were based in part on the findings and conclusions of Member Smith and were therefore affected by the same apprehended bias as that present in Member Smith’s reasoning. OCAA sought orders setting aside President Kingham’s new recommendations and the Chief Executive’s new decision.
However, regardless of whether the Court set aside the recommendations and the new decision, OCAA argued that each was a ‘nullity’ lacking legal foundation. For that reason, the continued existence of the recommendations and new decision could be no impediment to the making of the orders originally advocated for by President Sofronoff.
NAC accepted that the new recommendations were affected by the same apprehended bias as those made by Member Smith. However, it argued that it was nevertheless correct for the Court of Appeal to treat them as valid and binding. Alternatively, the mere fact that the Land Court had made recommendations was enough for the relevant Ministers to make final decisions on the applications, even if the recommendations were affected by apprehended bias. OCAA had “had its day in court” and the High Court should exercise its discretion to refuse to set aside the qualified order for referral made by Justice Bowskill. The matter should not be referred back to the Land Court for another potentially costly and lengthy hearing.
Kiefel CJ, Bell, Gageler and Keane JJ (Edelman J agreeing with the orders but adding reasons) ordered that the qualified order for referral be substituted with an order referring the applications back to the Land Court for full reconsideration. The Court set aside the new decision of the Chief Executive and ordered that each party bear their own costs of the appeal and cross-appeal, with NAC to pay OCAA’s costs of the High Court Appeal. Their Honours gave the following reasons for the decision:
- The qualified order for referral back to the Land Court made by Justice Bowskill reflected her Honour’s conclusion that the findings and recommendations of Member Smith were not affected by apprehended bias. Having found that they were, the Court of Appeal ought to have set aside the order.4
- The force and effect of President Kingham’s recommendations depended upon whether they complied with the express and implied conditions of the exercise of the statutory jurisdictions conferred on the Land Court under the MR Act and the EP Act.5 Central to those implied conditions is that the Land Court observe procedural fairness in conducting the hearing and making the recommendation.6
- Although President Kingham did not act in a way that gave rise to any apprehended bias on her part, the process by which she arrived at her conclusions, as a result of her adoption of the findings and conclusions of Member Smith in accordance with the order of Justice Bowskill, breached a condition of the exercise of the Land Court’s jurisdiction.7
- A recommendation made by the Land Court is insufficient to meet the preconditions to the making of a decision by the Minister under both the MR Act and the EP Act where procedural fairness is not observed.8
- Where statutory duties remain unperformed as a result of circumstances arising in the administrative process, an order referring the decision back to the decision-maker should be made “unless circumstances appear making it just that the remedy should be withheld.”9 Practical inconvenience is not amongst them. OCAA had not “had its day in court” or lost all of its grounds before an independent and impartial tribunal.10
Where to next
The Land Court’s rehearing of the matter in full is likely to be both costly and lengthy. NAC have stated they will be seeking an urgent meeting with the Queensland government to discuss the future of the project.11 The decision has spurred Federal Minister for Resources, Water and Northern Australia Keith Pitt to urge the Queensland Government to reform its approval processes for resources projects.12
The President of OCAA, on the other hand, is relieved and excited by the decision and confirmed the organisation’s intention to continue to challenge the proposed expansion through the next round of hearings.13