In a decision that will have significant ramifications for the coal industry, the Queensland Land Court has found that scope 3 emissions are a relevant consideration and that human rights may be infringed by mining activities.
The Land Court’s landmark decision recommended the refusal of mining lease and environmental authority applications for Waratah Coal’s Galilee Basin Coal Project (the Project). The case is the latest of a growing trend of strategic climate litigation globally and the first time a court has considered in detail climate change in the context of human rights under Queensland’s new Human Rights Act 2019 (Qld).
As outlined in our previous alerts in May 2020, July 2020, September 2020 and March 2022, Youth Verdict, alongside The Bimblebox Alliance Incorporation, objected to the Project on the basis that it would infringe upon human rights and damage the biodiversity values of the Bimblebox Nature Refuge (Bimblebox).
Waratah Project at a glance
Waratah applied for a mining lease and environmental authority for the Project, a proposed thermal coal mine in Central Queensland. The Project would comprise both open-cut and underground mining and would partially underlie Bimblebox, a privately-owned protected area estate. The Project was expected to produce over 750,000 Mt of saleable thermal coal over a 25 to 30 year mine life.
Following objections to the mining lease and environmental authority applications for the Project, the Land Court sat for 25 days, hearing extensive evidence to inform the Court’s recommendation on the mining lease and environmental authority applications for the Project.
Key findings of the Land Court
Scope 3 emissions cannot be separated from the permission to mine
The Court found that the grant of a permission to mine cannot logically be separated from the eventual use of the coal for electricity. Wherever the coal is sold and ultimately used, it will contribute negatively to emissions.
Her Honour found that the impacts of scope 3 emissions can be taken into account in consideration of whether the applications are in the public interest. This marks a significant development in the treatment of scope 3 emissions by Queensland Courts.
Limited options for achieving the Paris Agreement goals if Project is approved
The Court found that 1.58 Gt of CO2 would be emitted from combusting the Project coal and this would constitute a ‘meaningful contribution’ to the ‘carbon budget’, which has been calculated to meet the long-term temperature goal of the Paris Agreement. Her Honour noted the almost linear relationship between CO2 emissions and increased global temperatures and found that making the coal available for combustion would limit the options for meeting the Paris Agreement’s temperature goal.
Waratah submitted that approving the mine would make no difference to total emissions, as the Project coal would displace other lower quality coal. Her Honour rejected Waratah’s reliance on this ‘perfect substitution’ argument and noted that the nature of the market meant that if the Project coal displaced other supply, it would most likely be other high rank coal.
Social and economic benefits do not outweigh the Project’s impact
Allowing the Project to proceed would have unacceptable climate change impacts for people and property in Queensland, even when taking into account the social and economic benefits of the Project. While Waratah submitted that the economic benefits would be considerable, the Court found that the social impact would be mixed, and that the economic benefit was optimistic, referring to the Project as being ‘a price sensitive mine, proposed at a time of uncertainty about the future market for coal’.
Her Honour also considered that the ecological impacts and climate change implications had not been fully accounted for, particularly given that the emissions from combustion were excluded.
Human rights limits are not justified
The Court found that a number of human rights would be limited if the Project were to proceed, and the limits were not justified in the circumstances. This is not a legal ruling as to the compatibility of the Project with human rights, rather it forms part of the public interest test in deciding the applications.
The Court considered:
· the right to life
· cultural rights of First Nations peoples
· the rights of children
· the right to property and to privacy and home
· the right to enjoy human rights equally
The test required the Court to balance the purpose and importance of the limits on human rights, and consider any less restrictive alternatives. In justifying limiting these rights, Waratah had referred to energy security in Southeast Asia as being a legitimate purpose, as well as the economic and other benefits associated with the Project. Her Honour found that the importance of preserving the human rights in each case was more important than the purposes of the Project.
Ecological value of Bimblebox
Bimblebox has been declared a protected area under the Nature Conservation Act 1992 (Qld). Under the current mine plan, the Project would see an impact to two thirds of the refuge area.
While Bimblebox can by law be mined, the Court found that the Project would result in an uncertain degree of subsidence and serious, possibly irreversible, loss of ecological values for Bimblebox. In conjunction with Waratah’s failure to present an adequate offset plan, this meant that the Court was unable to assess the level of harm that would be authorised under the environmental authority, and whether that harm could be appropriately managed.
What happens next?
While the Land Court has recommended both the mining lease and environmental authority applications be refused, the final decision on the approval of the Project now rests with the Minister for Resources and the chief executive of the Department of Environment and Science.
The Land Court’s recommendation may also be subject to an application for judicial review.
A separate challenge to the Project is underway in relation to a decision made under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) to approve the Project, on the basis of substantial new information available about the Project’s impacts on matters of national environmental significance.
Conclusion
The impact of the Land Court’s decision cannot be overstated. Her Honour has comprehensively considered the impact of the Project on the climate, first drawing an intrinsic link between the approvals and the scope 3 emissions, and then considering the impact that those emissions will have on the climate.
It is inevitable that the decision will be subjected to further scrutiny – by mining companies, law firms, government departments, and of course the Courts. This is not the end of the road for Waratah, but it certainly calls into question what the final destination will be.
With this decision, Queensland’s Human Rights Act joins the ranks of human rights legislation around the world that has been successfully relied on in Court challenges to compel governments into stronger, faster action on climate change. The Land Court’s conclusions are not relevant only to thermal coal mines, but may have far reaching consequences. How influential the decision will be on governments and activists is yet to be seen, but all proponents should understand its implications.
