This article was written by Matthew Austin and Sarah McCamley.
The Supreme Court has recently handed down a much anticipated decision concerning the New Acland mine expansion (available here). The proponent sought judicial review of the controversial decision of the Land Court in May 2017 to recommend refusal of the New Acland Stage 3 Project expansion. The Supreme Court decision provides some helpful clarification on the role and function of the Land Court when assessing resource project approvals. This decision may breathe some life and hope for the New Acland mine expansion, with the project being referred back to the Land Court for further consideration.
Jurisdiction of the Land Court
The potential for groundwater impacts associated with the expansion project to arise were central to the Land Court’s review and acted as a key reason for recommending refusal of the mining lease and environmental authority amendment applications. A key ground of the judicial review application considered by the Supreme Court was whether the Land Court could hear objections on the groundwater impacts arising from the expansion.
At the time New Acland’s expansion was conceived, taking, or interfering with, groundwater in the area of a mining tenure was regulated under the Water Act 2000 (Qld). Amendments in the Water Reform and Other Legislation Amendment Act 2014 (Qld) ultimately transitioned regulation of underground water to the Mineral Resources Act 1989 (Qld) from 6 December 2016. These amendments were introduced to permit incidental use of groundwater that could not be reasonably avoided in extraction of mineral resources. As New Acland’s application had been made but not decided at the time of these amendments, the application was caught by transitional provisions in the Mineral Resources Act 1989 (Qld) that required the Land Court to assess New Acland’s expansion under the pre-amended scheme.
The Supreme Court held the Land Court only had jurisdiction to hear objections dealing with issues within the Mineral Resources Act 1989 (Qld) and the Environmental Protection Act 1994 (Qld). This includes jurisdiction to consider the merits of mining lease applications, objections to mining lease applications and applications to amend an environmental authority. While the Land Court can take into account broader considerations, such as whether a public right or interest will be prejudiced, the Land Court cannot “fully consider” activities not authorised under these statutes. Accordingly, the Supreme Court held that the Land Court erred in concluding it had jurisdiction to hear objections against the New Acland expansion regarding groundwater as, at the time of the New Acland application, activities were governed by the Water Act 2000 (Qld).
The Supreme Court additionally observed that the 6 December 2016 amendments to the Mineral Resources Act 1989 (Qld) now provide the Land Court jurisdiction to consider groundwater objections. The Land Court will apply this jurisdiction when reviewing future mining lease or environmental authority applications.
Other Grounds of Review
Apprehension of bias
A further ground of review raised by New Acland concerned whether a fair-minded observer might have reasonably apprehended that the primary Land Court judge did not bring an impartial or unprejudiced mind when making his recommendation on the mine expansion. New Acland contended that media reports surrounding the Stage 3 Project expansion, including reports of potential job loss associated with the project and delays in the hearing date, influenced the making of the Land Court’s decision. After thorough consideration of the circumstances and legal rules of apprehended bias, the Supreme Court held that the fair-minded observer would not have been left with an impression of bias. This ground of appeal was dismissed.
New Acland also contended that the decision involved a breach of the rules of natural justice, in that the Land Court judge made adverse conclusions in circumstances where he failed to properly put relevant concerns to New Acland’s witnesses. The Supreme Court found that there had been a breach of the rules of natural justice in this respect but this finding did not of itself have a bearing on the outcome of the review proceedings. The Supreme Court considered that in order to give rise to particular relief, it would be necessary to show that the rejection of evidence resulted in some reviewable error in relation to the decision.
A key determination made by the Land Court was that the New Acland expansion would breach the principles of intergenerational equity by interfering with groundwater. New Acland challenged this determination, contending the Land Court failed to properly interpret the principle of intergenerational equity and incorrectly applied the principle as a ground for recommending the mining lease be refused.
As the decision of the Land Court on groundwater was held to be beyond the Land Court’s jurisdiction, the Supreme Court did not conclude on whether the Land Court’s consideration was appropriate on the facts. The Court instead held that it was preferable that future Land Court decisions explore the role that intergenerational equity plays in application assessments.
The primary Land Court judge had determined that the appropriate noise levels to be set as a condition of the amended environmental authority should be different to those recommended by the Coordinator-General. This formed a key ground of the Land Court’s recommendation to refuse the expansion. New Acland contended that the Land Court had erred in determining that different noise limits to those contained in the Coordinator-General’s conditions should be preferred and that a conflict was not a valid ground to recommend application refusal.
The Supreme Court held that the Land Court could consider the subject matter of a Coordinator-General’s condition, including noise. The Land Court is not bound to make a recommendation consistent with the Coordinator-General simply because the Coordinator-General has considered and imposed conditions. However, the Land Court was held to have made an error in deciding that a more stringent noise condition should apply and recommending application refusal in reliance of this condition. The Supreme Court held this ground of appeal was established.
The Supreme Court decision clarifies the role and jurisdiction of the Land Court. However, it is important to recognise that the decision was reached under Queensland’s previous groundwater regulation regime. Assessment of other project applications in the future will be informed by the legislation in force at the time of the application.