Alert

Who does this affect?

Anyone seeking approval to develop or expand a coal mine as well as any other industry or development projects requiring approval that have the potential to directly or indirectly create greenhouse gas emissions.

What do you need to do?

Ensure that the potential environmental impacts from greenhouse gas emissions are considered as part of regulatory approval processes. Be aware that the law, policy and science relating to climate change issues is rapidly evolving.

Author
Matthew Austin  
Special Counsel

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Stephen Davis  
Partner
T +61 3 9643 4107

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Sydney
David O'Donnell  
Debra Townsend  

Melbourne
Stephen Davis  

Perth
Laurence Iffla  

Brisbane
David Bell  

Canberra
Chris Wheeler  

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Following the decision in Gray v Minister for Planning and Ors the Queensland Land and Resources Tribunal has recommended expansion of a coal mine in central Queensland be approved without conditions requiring the offsetting of greenhouse emissions.

In Xstrata v Queensland Conservation Council, the Tribunal examined in a merits review hearing, objections raised by the Conservation Council about the potential impact greenhouse gas emissions would have from the mining, transportation and use of coal.

In its decision of 15 February 2007, the Tribunal dismissed Conservation Council’s objection. In making its recommendation, the Tribunal evaluated expert evidence and gave weight to a recent paper criticising the 2006 Stern Review. The Tribunal found that in the context of temperature fluctuations over the last 10,000 years, a 0.45ºC temperature increase over 55 years was “surprisingly low” and that a causal link had not been established between the mine's greenhouse gas emissions and any discernable harm to the environment.

View a summary of the proceedings

What does it mean for you?

While the Tribunal has dismissed the Conservation Council’s objection to the mine expansion, these proceedings are further evidence of environmental decision-making processes being challenged on climate change grounds.

The Tribunal’s recommendations and key findings on global warming may influence the outcomes of other Queensland Tribunal or Court proceedings and be relevant to other jurisdictions which are called on to examine the merits of projects with the potential to cause greenhouse gas emissions.

What is the issue?

Xstrata applied to expand one of its mining leases in the Bowen Basin. The Conservation Council objected to the expansion and made submissions to the Tribunal that a condition should be imposed on Xstrata to "avoid, reduce or offset emissions of GHG that are likely to result from the mining, transport and use of the coal from the mine".

The role of the Queensland Land and Resources Tribunal

The Tribunal has powers to consider objections to mining proposals and determine whether mining applications should be recommended for ministerial approval. When considering whether to recommend the approval of an application, the Tribunal must take into account:

• any adverse environmental impact caused by the mining operations
• any prejudice to public right and interest
• any good reason for the refusal of the mining lease
• the principles of ecologically sustainable development as set out in the “National Strategy for Ecologically Sustainable Development” which include the principle that decision- making processes should effectively integrate long and short-term economic, environmental, social and equity considerations and where there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation.

Reasons for the Tribunal’s decision

The Tribunal recommended that Xstrata's application should be approved without the conditions sought by the Conservation Council. The reasons for the Tribunal’s recommendation are set out below.

• Any adverse environmental impact caused by the proposed coal mine could be managed by the draft environmental authority and the mine would not prejudice public rights and interests.
• Ecologically sustainable development principles do not require the conditions advocated by the Conservation Council. The Conservation Council argued that the Tribunal should take into account ecologically sustainable development principles "to mitigate the serious environmental degradation caused by global warming". The Tribunal was not satisfied that there was a causal link between the mine's greenhouse gas emissions and any discernable harm to the environment.
• The Conservation Council failed to show that even if the mine's greenhouse gas emissions were completely eliminated that there would be the slightest effect on global warming or climate change.

Critical to the Tribunal’s recommendation was its rejection of evidence given by two key Conservation Council witnesses. Emeritus Professor Ian Lowe AO gave evidence that the proposed mine would contribute to the cumulative impacts of global warming and climate change. Professor Lowe sought to compare the MineLife emissions with total global annual emissions and found that figure to be 0.24% of the current annual global emissions. The Tribunal found that when annual emissions from the mine were compared with global annual emissions, emissions from the mine would have been 0.016% of global emissions. The Tribunal also rejected the Conservation Council’s economic expert’s evidence, suggesting that he had exaggerated references in the British Government’s 2006 Stern Review and translated possibilities in the Stern Review into certainties.

The significance of this decision also rests on the Tribunal’s criticism in the findings of the Stern Review. The Tribunal gave weight to recently published papers by Professor Robert Carter and Professor Sir Ian Byatt which criticised the Stern Review for being biased and scientifically flawed.

The Tribunal also considered the Fourth Assessment Report of the Intergovernmental Panel on Climate Change’s Summary for Policymakers released on 2 February 2007 which set out increases in average temperatures globally since the mid-20th century. The Tribunal questioned the extent of global warming itself when it observed that a temperature increase of only about 0.45ºC over 55 years seemed “a surprisingly low figure” upon which to base concerns about its inducing many serious changes in the global climate system during the 21st century.

Finally, the Tribunal considered that, in the absence of universally applied policies for greenhouse gases, it would be arbitrary to require the mine to reduce or limit its emissions.