Carmichael Coal (“Adani”) Mine Cases in Queensland courts

This case study involves a major dispute in the Land Court of Queensland over the Carmichael Coal Mine (commonly known as the “Adani Mine”) proposed in the Galilee Basin of central Queensland and a subsequent judicial review challenge to the mine’s approval in the Supreme Court of Queensland.

Due to its enormous scale (as originally proposed) and its potential contribution to the climate crisis and ongoing collapse of ecosystems such as coral reefs, the campaign against it became the biggest environmental campaign seen in Australia since the Franklin campaign in the 1980s:

“It is talismanic. It’s the litmus test. Adani has become shorthand for ‘are you serious about climate change?’.” (Labor figure, May 2017)

After obtaining approval, the mine struggled to obtain finance from banks and other lenders, leading to speculation that Adani’s promise to self-fund the mine was:

“keeping the project on life support helps avoid a painful billion-dollar writedown; perhaps a sufficient level of taxpayer subsidy might be enough to salvage something from the wreckage.”

In the Land Court hearing considered in this case study, Adani’s own economic expert, Mr Jon Stanford, agreed the mine is “an extremely risky project” financially.

In addition to the enormous political campaign against the mine and its financial difficulties, it has faced multiple court cases. Some of those cases that have received heavy media coverage. Those cases are not the focus of this case study but are explained below to minimise confusion over the different cases against this mine and associated infrastructure.

Four cases in the Federal Court of Australia for judicial review of the Commonwealth Environment Minister’s decisions to approve the mine and associated water infrastructure are the subject of a separate case study.

Background to the mine

The Carmichael Coal Mine was proposed in 2010 by Adani Mining Pty Ltd, a subsidiary of the Adani Group from India operating as Adani Australia for its Australian projects (Adani). The group has a complex corporate structure involving:

“a labyrinth of trusts interposed between private companies and Indian stock market-listed companies with ties to, and in some cases ownership in, tax havens stretching from Singapore to Mauritius, on to the Cayman Islands and the British Virgin Islands.”

Professor van der Laan, a forensic accounting specialist who heads the discipline of finance at the University of Sydney, notes:

“The structure of Adani seems to be developed to obfuscate or confuse or to hide things … They would potentially be seeking to hide inter-company transfers, inter-company loans, transfer pricing of goods and services between related entities. … Adani Mining is in a very fragile, even perilous, financial position.”

The amount of coal Adani proposes to mine has changed substantially over time:

• In 2010 Adani initially proposed to extract up to 60 million tonnes per annum of product coal for 150 years from an estimated coal resource of 8.3 billion tonnes.
• By 2015 Adani had reduced the project lifetime to 60 years and estimated total production of 2.3 billion tonnes of thermal coal.
• In 2018 Adani announced it would build a much smaller version – initially exporting 10 million tonnes a year, with annual production ramping up “over time” to 27 million tonnes; however, it still plans to eventually produce 55 million tonnes per year.

Adani’s proposal to produce 55 or 60 million tonnes of thermal coal per year makes the mine one of the largest coal mines in the world and the mining and burning of coal from it will generate an estimated 4.7 billion tonnes of greenhouse gas emissions. These emissions are over 0.5% of the remaining carbon budget to have a likely chance of limiting global temperature rises to 2 degrees Celsius above pre-industrial levels.

Coal from the mine was originally proposed to be transported by a new 189km rail line to the Port of Abbot Point for export principally to India to be burnt for electricity production. Adani also originally proposed to expand the Port of Abbot Point to increase its capacity. The port expansion was the subject of other litigation that is not the focus of this case study.

Due a poor outlook for the project, lack of finance and to save money, in August 2018 Adani substantially slimmed down its proposed port expansion and, in September 2018, shifted to using the existing rail line (to, thereby, avoid the capital expense of constructing a major new rail line) for the initial stage of the project. The revised mine’s proposed output has been reduced to 10 million tons per annum (although the approvals granted for the mine do not limit its output to any level so the mine’s production can be increased). The capital investment has been reduced from $16.5 billion to $2 billion.

In addition to climate change, one of the major impacts of the mine is on groundwater. Moses 3 Lagoon, part of the Doongmabulla Springs Complex that lies outside the mining lease boundaries but which may be severely affected by the mine due to impacts on groundwater, is shown in the following aerial footage to illustrate the landscape in which the mine is proposed (Nb. “Doongmabulla” means “the place of many waters” in the language of the Traditional Owners of the area, the Wangan and Jagalingou People).

In Queensland, the major approvals required for large mines under State and Federal legislation were at the time the mine was first proposed by Adani in 2010:

• 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).

A range of other approvals may be required depending on the nature and location of a mine and its associated infrastructure, such as a water licence to extract groundwater or surface water under the Water Act 2000 (Qld); however, changes to the Water Act on 10 November 2016 created a special exemption for the Carmichael Coal Mine to avoid it undergoing a further public objection process for its water licence.

The Queensland Coordinator-General declared the mine and rail project a “significant project” in 2010 (the term for 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 occuring. An EIS under it is fed-back into other approval processes such as under the MRA and EPA.

An EIS was prepared for the mine and rail project in 2011-2013 and the Coordinator-General issued a report in 2014 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 2014. However, the Federal Court set aside this approval by consent on 4 August 2015. The Minister reconsidered the application and granted a second approval under the EPBC Act on 14 October 2015.

The applications for the mining lease and the environmental authority for the mine under Queensland law were the subject of an objections hearing in the Land Court of Queensland, considered in the next section.

Objections hearing in the Land Court of Queensland

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 a conservation group, Land Services of Coast and Country Inc (LSCC), which objected to the grant of the mining lease and the environmental authority on a number of grounds, including:

• the impacts of the mine on groundwater and groundwater-dependent ecosystems, particularly the Doongmabulla Springs Complex and Mellaluka Springs Complex;
• the impacts of the mine on biodiversity, particularly an endangered bird species, the Black-throated Finch (Poephila cincta);
• the contribution that the burning of the coal from the mine will make to climate change, thereby contributing to environmental harm to the Great Barrier Reef World Heritage Area due to climate change;
• that the mine is not economically viable; and
• that approval of the mine is contrary to the public interest.

The hearing of the evidence for the objections to the proposed mine under the MRA and EPA occurred in the Land Court of Queensland for five weeks, from 31 March – 1 May 2015. Closing submissions were delivered on Thursday 14 May 2015.

The Land Court delivered its decision on 15 December 2015. It recommended that the mining lease and environmental authority be granted subject to further conditions in relation to monitoring of impacts on Black-throated Finch.

Following the Land Court’s recommendation, the environmental authority for the mine was granted under the EPA on 2 February 2016.

The mining lease for the mine was granted under the MRA on 3 April 2016.

Judicial review of the environmental authority

LSCC applied on 26 April 2016 to the Supreme Court of Queensland for judicial review of the grant of the environmental authority under the EPA.

The application was originally based on an error of law or failure to consider a relevant consideration in the obligation in section 5 of the EPA to exercise a power or function under the Act in the way that best achieves the object of the Act, stated in section 3, of ecologically sustainable development.

While the obligation in s 5 of the EPA was not recognised in the statement of reasons for the decision to grant the environmental authority, in response to the application the delegate who made the decision affirmed an affidavit stating that she was aware of ss 3 and 5 at the time she made her decision.

In response to the affidavit LSCC sought leave to amend its application and proceeded on the basis that the delegate had erred in law in relation to the obligation imposed by s 5 of the EPA.

The amended application was heard in the Supreme Court (Bond J) at Brisbane on Friday 5 August 2015. The court dismissed the application on 25 October 2016.

Judicial review of the EPBC Act approvals for the mine

Separate litigation for judicial review (the subject of a separate case study) by the Mackay Conservation Group in the Federal Court in Sydney against the Commonwealth approval of the mine under the EPBC Act led to the approval being set aside on 4 August 2015 by consent (see the EDONSW website).

No judgment was delivered but the Court later issued a statement that the parties agreed the Commonwealth Environment Minister had failed to consider approved conservation advices for two listed threatened species,  the Yakka Skink and the Ornamental Snake, contrary to the requirements of section 139(2) of the EPBC Act.

Following the EPBC Act approval being set aside by the Federal Court, the Minister reconsidered the application for the mine and granted a second approval under the EPBC Act on 14 October 2015.

The second EPBC Act approval was also the subject of separate litigation for judicial review (again, the subject of a separate case study) by the Australian Conservation Foundation in the Federal Court in Brisbane.

That case commenced on 9 November 2015 and was heard in the Federal Court at Brisbane before Justice Griffiths on 3 and 4 May 2016. The Court dismissed the application.

The Full Federal Court dismissed ACF’s appeal from that decision on 25 August 2017.

ACF commenced a third judicial review challenge in the Federal Court on 4 December 2018, challenging the Minister’s consideration of the impacts of associated water infrastructure for the mine. The ACF website has a useful summary of that case. In June 2019 the Minister conceded an error had been made in making the decision and it was set aside by consent (i.e. ACF won).

ACF commenced a fourth judicial review application in 2020 against a decision by a delegate of the Minister that a proposed action comprising the North Galilee Water Scheme Infrastructure Project to supply water to the mine did not require assessment under the EPBC Act’s water trigger. On 25 May 2021 the Federal Court (Perry J), granted the application for judicial review, finding (at [11] and [114]) “an action will involve a large coal mining development for the purposes of the water trigger controlling provisions if the action is so closely associated with the mining of coal as to be integral to it.”

Other litigation against the mine involving native title

Several other disputes (also not the subject of this case study) about the mine involve native title issues raised by the Traditional Owners of the land on which the mine was proposed, the Wangan and Jagalingou People.

The first of these disputes involved hearings in  the National Native Title Tribunal (NNTT) and the Federal Court under the Native Title Act 1993 (Cth) (NTA) after the Wangan and Jagalingou People rejected an Indigenous Land Use Agreement (ILUA) proposed by Adani for the grant of the mining lease for the mine.

The Wangan and Jagalingou People applied in 2004 for recognition of their native title for an area northwest of Emerald in central Queensland. The northewestern part of the claimed area includes the land on which the mine is proposed. The NNTT has registered the Wangan and Jagalingou People’s native title claim but the application has not yet been decided. Registration of their native title claim gives the Wangan and Jagalingou People a right to negotiate in relation to government decisions that may affect their native title interests, such as the grant of a mining lease, under the future acts regime of the NTA.

When negotiations for an ILUA were unsuccessful, Adani applied to the NNTT for determination of a grant of a mining lease for the mine under the NTA. The Tribunal held in 2013 that it had jurisdiction to hear the application. It subsequently determined on 8 April 2015 that the mine could proceed under the future acts regime of the NTA. An elder of the Wangan and Jagalingou People, Adrian Burragubba, appealed this determination to the Federal Court but the application was dismissed. An appeal from that decision was dismissed by the Full Federal Court in August 2017.

A second dispute concerning native title issues involved an application by elders of the Wangan and Jagalingou People in the Supreme Court of Queensland for judicial review of the grant of the mining lease under the MRA based on native title grounds. That application was also dismissed. An appeal in the Queensland Court of Appeal was also dismissed in August 2017.

Further litigation regarding the ILUA was dismissed in August 2018.

Wangan and Jagalingou elder Adrian Burragubba speaks about the mine in the following film from a story about the dispute on The Guardian website.

Related litigation against expansion of Abbot Point

In addition to litigation against the Carmichael Coal Mine itself, a number of cases have been brought against expansion of the Abbot Point Coal Terminal to allow export of the large increase in coal production associated with the mine and other new mines in the Galilee Basin.

These associated proceedings have been brought in both the Adminstrative Appeals Tribunal (AAT) and the Federal Court for various issues associated with the dredging, dredge spoil disposal and expansion of the port.

The first of these cases, commenced in early 2014 by the North Queensland Conservation Council in the AAT, challenged a permit granted under the Great Barrier Reef Marine Park Act 1975 (Cth) for dredge spoil disposal in the Great Barrier Reef Marine Park. The proponent later abandoned this proposal and the hearing before the AAT did not proceed. On 26 June 2015 the AAT ordered the cancellation of the permit with the consent of the parties.

A second case, commenced in mid-2014 by the Mackay Conservation Group, sought judicial review in the Federal Court of the EPBC Act approval for dredging and disposal of the dredge spoil in the Great Barrier Reef Marine Park and World Heritage Area. The proponent later abandoned the proposal to dispose of the dredge spoil in the Great Barrier Reef but the case has not yet been resolved.

A third case, commenced in early 2015 by the Alliance to Save Hinchinbrook conservation group, sought judicial review in the Federal Court of decisions under the EPBC Act to fast-track the assessment of a proposal to dispose of dredge spoil for the expansion of Abbot Point in the nearby Caley Valley Wetlands. The case is now over as the new Queensland Government officially withdrew its application under the EPBC Act for this proposal on 12 March 2015.

A fourth case, commenced in 2016 by the Whitsunday Residents Against Dumping conservation group challenged the lawfulness of the Queensland Government’s decision to approve an environmental authority under the EPA for Adani’s Abbot Point coal terminal expansion in the Queensland Supreme Court. The application was dismissed on 15 June 2017.

Due the poor outlook for the project, lack of finance and to save money, in August 2018 Adani substantially slimmed down its proposed port expansion.

Adani commenced clearing and removal of overburden for the mine in 2020. It reached part of the coal seams in June 2021.

Photographs of the mine pits at the end of 2022 are available at this link.

Related litigation about access to information

Another related piece of litigation in 2019 involved an application by ACF to the Office of the Information Commissioner (OIC) for access to an expert report about impacts of the mine on Black-throated Finch (BTF) commissioned by the Queensland Department of Environment and Science (DES).

ACF had applied for access to the report under the Right to Information Act 2009 (Qld) (RTI Act), but DES failed to decide the application within the timeframe stipulated by the RTI Act, and was therefore deemed to have refused access to the requested information.

ACF applied to the OIC for external review of DES’s deemed refusal of access.

Adani opposed ACF’s application on a number of grounds but the OIC rejected them.

On 4 December 2019 the OIC found that the report was not exempt information under the RTI Act, and nor would its disclosure, on balance, be contrary to the public interest. As such, there are no grounds under the RTI Act to refuse access to it (i.e. ACF won).

Lectures & seminars on the mine

The mine is presented as a case study for mining law in Queensland in the following lecture (commencing at 7:10 on the counter):

The following seminar on ‘Making sense of the Adani coal mine approval in the midst of coral bleaching’ was delivered for the Global Change Institute at the University of Queensland on 27 April 2016:

Richard Dennis, writing in The Monthly in May 2018, provided an interesting and insightful analysis of the politics and symbolism of the Adani mine that is well worth reading.

The next section provides key documents for the objection hearing in the Land Court and subsequent judicial review challenge to the grant of the environmental authority under the EPA in the Supreme Court.