Alpha Coal Mine Case

This case involves a landmark challenge by local graziers and conservation groups against a large coal mine proposed to be constructed in the Galilee Basin of central Queensland. It shows the importance of public objection rights and independent review by courts of large projects.

The Alpha Coal Mine is proposed to be constructed by a joint venture of GVK, an Indian company, and Hancock Prospecting, an Australian company.

If it proceeds, the mine is intended to produce 30 million tonnes of thermal coal per annum over 30 years. It is proposed to operate alongside another new mine, Kevin’s Corner, which is the subject of a separate case study. Coal from the two mines is proposed to be shipped by a new rail line to the Port of Abbot Point for export.

The mine is proposed to consist of six open-cut pits, each of 4 x 4 km in area, stretching 24 km in a north-south line. A bulk coal sample pit was dug on the site in 2010-2011 as part of the exploration phase for the mine but is very small compared to the proposed mine.

The Alpha and Kevin’s Corner mines began their application process in 2008 and have not yet been fully approved or commenced operation.

In Queensland, the major approvals required for large mines under State and Federal legislation are:

• a mining lease under the Mineral Resources Act 1989 (Qld) (MRA);
• an environmental authority under the Environmental Protection Act 1994 (Qld) (EPA); and
• approval under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act).

The Queensland Coordinator-General declared the Alpha Coal Mine and rail project a “significant project” in 2008 (this designation later changed to being a “coordinated project”) under the State Development and Public Works Organisation Act 1971 (Qld).  This legislation provides an environmental impact statement (EIS) process for large projects but does not actually approve the projects occurring. An EIS under it is fed-back into other approval processes.

An EIS was prepared for the mine and rail project in 2009-2012 and the Coordinator-General issued a report in 2012 recommending the mine be approved.

Concurrently with the Queensland assessment of the mine, it was assessed under the EPBC Act using a bilateral agreement and subsequently approved by the Commonwealth Environment Minister in 2012.

Following the Coordinator-General’s report, the mine was publicly advertised for objections under the MRA and EPA.

A number of objections were received, including from graziers around the property such as Bruce and Annette Currie and Janeice Anderson, who objected to the potential impacts of the proposed mine on groundwater. Paola Cassoni, who operates the Bimblebox Nature Refuge and cattle property to the south of the mine, objected on the basis of groundwater impacts and other environmental impacts of the mine.

A number of conservation groups also objected to the proposed mine on the basis of groundwater impacts and the contribution that the mine would make to climate change. The objection of one of those groups, Coast and Country Association of Queensland Inc (CCAQ), is the focus of this case study.

Objections hearing in the Land Court

The Land Court of Queensland heard the objections to the mine in 2013 and upheld their concerns regarding groundwater impacts of the mine.

The Land Court recommended that the applications for the mine be refused or, alternatively, that the applications be granted subject to further assessment of the groundwater impacts under  under the Water Act 2000 (Qld).

Judicial review in the Supreme Court

CCAQ challenged the validity of the Land Court’s decision through judicial review in the Supreme Court of Queensland. The basis of this challenge was that the Land Court misunderstood the legal tests to be applied to the applications and in relation to the environmental harm caused by the mine’s contribution to climate change.

Following the Land Court’s decision, the Queensland Minister for Environment and Heritage Protection granted the application for an environmental authority, subject to further assessment of the groundwater impacts. The Queensland Minister for Mines has not yet made a decision regarding the grant of the mining lease.

CCAQ also challenged the Ministers’ decisions through judicial review on the basis that the decisions lacked finality and had not followed the correct legal process.

The judicial review challenges were heard by the Supreme Court of Queensland at Brisbane on 22-23 April 2015.

The Supreme Court dismissed the application on 4 September 2015.

Appeal to the Court of Appeal

CCAQ appealed the Supreme Court’s dismissal of its application for judicial review to the Queensland Court of Appeal in relation to the consideration of greenhouse gas emissions.

The Court (McMurdo P and Fraser and Morrison JJA) dismissed the appeal.

Application for special leave to appeal to the High Court

CCAQ applied for special leave to appeal the Court of Appeal’s decision to the High Court of Australia on 25 October 2016 in relation to the consideration of greenhouse gas emissions.

The High Court (Kiefel CJ and Keane J) dismissed the application for special leave on 7 April 2017 on the basis that the application “was not a suitable vehicle” for addressing the questions raised regarding the application.

The Drug Dealers’ Defence for Australian coal mines

This case is the leading example of the Drug Dealers’ Defence for Australian coal mines. This defence is used to avoid legal liability for the contribution the burning of coal from a mine makes to climate change. It says: “if we didn’t supply the coal, another mine would, so allowing this mine will have no impact on climate change.”

The decisions of the Queensland Court of Appeal and the High Court, in effect, approved this defence as lawful for Australian coal mines (though, while lawful, it remains subject to being accepted or rejected based on different factual findings by the relevant decision-maker on the merits).

This defence would not avoid criminal liability for a person charged with drug dealing. A drug dealer cannot avoid liability by saying, “if I didn’t sell them the drugs, someone else would.” Yet it succeeded for many years and, subject to some important exceptions discussed below, continues to be used by the coal and gas sectors and governments that wish to approve major fossil fuel projects.

Drug Dealers’ Defence rejected in the USA

In the USA, the US Court of Appeals for the 10th Circuit rejected the Drug Dealers’ Defence in WildEarth Guardians v Bureau of Land Management 870 F.3d 1222 (10th Cir. 2017) under the National Environmental Policy Act of 1969 (42 U.S.C. §§ 4321–4370h) (NEPA).

That case concerned the environmental impact statement (EIS) for granting leases to extend massive coal mines in Wyoming, totaling 2 billion ton of coal. The US Bureau of Land Management (BLM) had concluded in the EIS that:

“even if it did not approve the proposed leases, the same amount of coal would be sourced from elsewhere, and thus there was no difference between the proposed action [of approving the mine] and the no action alternative in this respect.”

The Court of Appeals rejected this – the Drug Dealers’ Defence – finding:

“Here, the blanket assertion [by the BLM] that coal would be substituted from other sources, unsupported by hard data, does not provide ‘information sufficient to permit a reasoned choice’ between the preferred alternative and no action alternative. It provided no information.

Even if we could conclude that the agency had enough data before it to choose between the preferred and no action alternatives, we would still conclude this perfect substitution assumption arbitrary and capricious because the assumption itself is irrational (i.e., contrary to basic supply and demand principles).”

The future application of this defence for Queensland coal mines remains uncertain, particularly as it contradicts basic economic principles of supply and demand.

Drug Dealers’ Defence rejected in NSW

In 2019 Chief Judge Preston of the New South Wales (NSW) Land and Environment Court rejected the Drug Dealers’ Defence raised by a coal mining company in Gloucester Resources Limited v Minister for Planning [2019] NSWLEC 7.

That groundbreaking decision is the subject of a separate case study – the Gloucester Resources case.

Drug Dealers’ Defence rejected in Queensland

In 2022, President Kingham of the Land Court of Queensland rejected the Drug Dealers Defence in the Waratah Coal case, which is the subject of a separate case study.

Postscript: poor coal market puts mines on hold

Since 2013 both the applications for the Alpha Coal Mine and the Kevin’s Corner coal mine have largely stagnated:

• The mining lease for the Alpha Coal Mine has been delayed, apparently at the request of the proponents; and
• The proponents supported lengthy delays in the lead-up to the objections hearing for the Kevin’s Corner Mine in 2015 (in stark contrast, most mine applicants seek expedited hearings to minimise delays).

The reason for the proponents’ support for the delays appears to be due to them deciding the mines were not financially viable with the low price of thermal coal from 2012-2016 and the poor outlook for the coal market.

While the applications for the mines have not been withdrawn and continue at this point in time, whether the mines actually proceed in the future appears to be dependent on a substantial recovery of the coal price and outlook for the coal market.