Qld Supreme Court to rule on greenhouse gas emissions appeal lodged by Qld Conservation Council

The Queensland Conservation Council ("QCC") has lodged an appeal in the Supreme Court against the recommendation of the Queensland Land and Resources Tribunal ("LRT") in its 15 February 2007 decision on greenhouse gas emissions and new coal mining projects - see our Alert here.

The Supreme Court's decision could have significant implications on mining lease applications in Queensland.

Background

In the original decision by President Koppenol, the LRT dismissed greenhouse gas emissions based objections for a major Queensland coal mining lease application. President Koppenol's original decision held that it would be "arbitrary and unfair" to impose conditions on an individual mine for greenhouse gas reductions or carbon offsets. President Koppenol criticised the Stern Review and the Intergovernmental Panel on Climate Change and held that he was

"…not satisfied that … a causal link between the mine’s GHG emissions and any discernible harm – let alone any "serious environmental degradation" – caused by global warming and climate change…has been shown by QCC to be valid".

The decision set a clear distinction between how Queensland would deal with greenhouse gas issues affecting development of coal mines, as opposed to other States.

Grounds of appeal

Queensland Conservation Council is appealing on the following grounds:

• The QCC alleges that early on in the hearing, the LRT had already decided to reject the evidence of the QCC's expert witnesses. The QCC then alleges that the LRT was obliged to inform the QCC of this during the hearing and to give the QCC the opportunity to present further evidence or submissions (including closing submissions) to overcome this early rejection.
• During the hearing the QCC wanted to amend the list of Greenhouse Gas abatement conditions that the QCC wanted imposed on the mining operation. The QCC now alleges that the LRT was incorrect in refusing to allow the QCC to do this or at least should have still considered those matters as being relevant to the Tribunal's decision.
• The QCC alleges that the LRT mistakenly considered the QCC was required to demonstrate a causal link between the mine's greenhouse gas emissions and a discernable environmental impact.
• The QCC alleges that the LRT was mistaken by not correctly applying the Precautionary Principle on the basis that when "there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as reason for postponing measures to prevent environmental degradation."

Orders sought

The QCC is seeking that the original decision be set aside and the original hearing matters be heard again by a differently constituted LRT. This would most likely mean a panel of Deputy President Smith of the LRT and other people assisting Deputy President Smith.

Timeframe

The outline of argument from the QCC is due to be filed on 4 April 2007. Normally a decision of the Supreme Court of Appeal in this sort of matter would not be handed down for at least six months.

Impact on Newlands development

If the Supreme Court decides against the appeal, Xstrata will be able to proceed to the grant of the mining lease application.

If the Supreme Court grants the appeal, then the matter will be referred back to the LRT for re-hearing. This process would likely not result in a final LRT determination before December 2007 (and the issue could be decided for or against XStrata at that time). Further, XStrata and any future Queensland coal mining lease applications will need to reconsider how to deal with greenhouse gas issues.

On the best case scenario, it is likely to be at least 4 months before this issue is resolved. This could place future and current EIS/mining lease applications and any applications for amendment of existing Environmental Authorities, in an uncertain state.

We will keep you posted as more information comes to hand, but in the meantime if you require further information, please contact one of the persons listed below.