CHOICE membership

NSW court rejects coal mine, climate change a key reason


#1

Breaking news from the Land and Environment court

It’s been a long time coming but the legal system is at last catching up. Climate change is recognised as a consideration in coal mining approvals.

For those who think that the individual and small groups cannot beat big business and foolish governments - you can.

For those who think politics always Trumps science - not always.

This will be a landmark case used as a precedent.

I find that the negative impacts of the Project, including the planning impacts on the existing, approved and likely preferred land uses, the visual impacts, the amenity impacts of noise and dust that cause social impacts, other social impacts, and climate change impacts, outweigh the economic and other public benefits of the Project. {Preston CJ}

The world is changing.


#2

This would have to be a first for Australia…!

About time…


#3

Not really. The Queensland Sustainable Planning Act 2009 has identified climate change since its enactment in 2009.

It states (s5):

take account of short and long-term environmental effects of development at local, regional, State and wider levels, including, for example, the effects of development on climate change

What is often misrepresented in the media is that potential impacts on environment, such as climate change, are only one consideration/an overriding consideration when assessing development applications in Queensland. An applicant is required under the Act to also assess other impacts such as that on relating to social and economic aspects of the development.

When applications are assessed, they are assessed on its merit and considers all impacts in balance. The balance also includes compliance with/assessment against other local, state and commonwealth legislation.

If one aspect, e.g. climate change, was in effect a vetoing aspect, all develop would cease as every development has an impact on climate change to some scale or intensity. In such case any individual/groups opposition could be based solely on climate change which would in effect result in the refusal of the development application.


#4

I guess politics is catching up with the scientific realities on the point of balance.


#5

There is a big difference between what is on the books and what is given force by court decisions. Has any court used the provision you refer to to effect in QLD?

There are many high sounding concepts in NSW environmental and developmental law, such as references to ecological (environmental) sustainable development, intergenerational equity and the precautionary principle that never seem to get dusted off and used.

Add to this the way that legislation (in NSW) allows Ministers to reduce the capacity to even hold merits appeals. The case in question was unusual in that the Dept of Planning did not recommend the development and the delegated PAC rejected it but because the mInister set it up so that merits appeals were possible the proponent had a second swing at the ball@@. Normally, when the Dept supports a coal mine and the PAC approves it the right of appeal has been carefully removed.

In the last few decades merits appeals have been rare birds, mostly the courts have been asked to rule on questions of law and process not merits. So when we see what happens when the court gets its teeth into the issues it is significant.

So I am still of the view that this court action will have wider ramifications, certainly in NSW, but possibly further still.


@@ Actually the proponent has had many swings at this project over the years, the proposal examined this time was a complete re-work as they were given the hint by Planning that their first version wouldn’t get off the tee.


#6

Yes, it has been tested…however, as highlighted above, it is one consideration of many considered by the court or assessment manager.

Opposition (objector) groups in Queensland have tried to use the provision as a prohibiting provision overriding any other considerations. The court (or assessment manager in the case of local or state government making decisions) is required to consider all aspects/impacts of development.

These opposition groups have received media attention with their catestrophic climate change impacts of (any) development. Unfortunately (or fortunately) the Act is about assessing an application on merits rather that views of a particular objector without consideration of other aspects.


#7

At least a Court has now set a precedent, so even if politicians decide not to stop a project then the public can mount a case using this case law to help and as it acknowledges Climate Change as was noted above in the first post.

We have loads of legislation on the books regarding approvals but often they are just that “on the books” but no real effort is put into practice…Adani as an example with the Qld Govt helping it go ahead then after the fact trying to say it is not what they wanted…I remember well Premier Palaszczuk dismissing concerns about Adani and focusing instead on the “10,000 jobs” it was going to create (which it never was going to do even as admitted by Adani).


#8

This is the court’s decision…

https://www.caselaw.nsw.gov.au/decision/5c59012ce4b02a5a800be47f#_Toc431221

Climate change was one of many considerations, and in balance including all aspects, the application was refused by the court.

There could be other circumstances where a different decision is made based on the balance of impacts.


#9

699 in part but most definitely strongly stated “Wrong time because the GHG emissions of the coal mine and its coal product will increase global total concentrations of GHGs at a time when what is now urgently needed, in order to meet generally agreed climate targets, is a rapid and deep decrease in GHG emissions.” A very clear statement about Climate Change and not at all ambiguous in it’s thrust.


#10

For decades, science has been reporting the increasing weight of evidence on anthropogenic global warming. Commerce has tried to deny it. Politics has tried to ignore it. Law has finally acknowledged it.

Weight shifts balance. That’s the point here.


#11

Peter Hannam has more to say on the process and what he thinks it means.


#12

The balance has shifted.

Justice Brian Preston didn’t just allow the EDO to provide expert evidence of the role greenhouse gas emissions play in driving climate change. He also accepted it as part of the critical reasons to reject the mine. “The decision forms part of what is a growing trend around the world on using litigation to fight climate change,” Martijn Wilder, a prominent climate lawyer from Baker & McKenzie, says. “While early on some of this litigation was not successful, increasingly it is.”

Moreover, decisions like Justice Preston’s also reflect the fact that “courts unlike some of our political representatives will accept sound scientific evidence on the causes of climate change,” Wilder adds. “It will make it harder for courts to ignore it.”

the climate litigation door is now ajar and it will be harder for future cases to ignore the climate impacts of digging up or drilling for fossil fuels - even if somebody other than Australians burn them.


#13

And to round it off - the lawyers’ view.

I particularly liked “the drug dealer’s defence”.

An interesting side view is that the proponent did everything they could to not mine steaming coal, they were going to throw away any ply in the strata that wasn’t coking coal.


#14

Getting picked up overseas (Use your browser to translate)

www.nrc.nl a well read paper from the Netherlands


#15

Humour aside. :wink:

Resource recovery efficiency is obviously not about minimising waste? It is about maximising profits.

Independent of the environmental outcomes, perhaps royalties should apply to all of an uncovered resource, not just the portion mined, recovered and exported?

Eating only trimmed eye fillet vs the whole of a beast?

The same principal could apply to any exploitable national resource. :thinking:


#16

In principle the Mining Act (NSW) covers this, I don’t know about other States. It says a development may not sterilize a resource (or words to that effect) that is you should not waste a resource that it may be inconvenient to extract now so that future generations cannot have it. I am not aware of any case where this has been brought up in court and it wasn’t this time. The respondents have to limit their costs and hence the grounds that they run in the case and so they choose those most likely to be important.


#17

Yes, it is one of many of the lease conditions. However it is common mining practice to bypass seams or partings on the basis that they are not economically viable. Although they could be recovered.

The unwanted coal if over burden becomes broken and mixed through the waste on the low wall side of a mine. If in an over lying seam in an underground it is in theory left for some future yet to be created method of recovery. Both responses have been acceptable to state governments previously.

There are surface mining methods and equipment suitable for taking thin partings or seams. The added cost in most instances is greater than the value in today’s market.

The unknown is by what means and logic (EG grade, quality, mineralisation, accessibility etc) any mineral is considered a resource.


#18

And from QLD academia


#19

shared it on my Fb page


#20

and then the lights went out…