Waratah Coal v Youth Verdict (Galilee Coal Project)

This is a current, important case in the Land Court of Queensland involving hearing of objections to a proposed major new coal mine on grounds that include human rights and climate change.

The mine

The mine is part of the “Galilee Coal Project (Northern Export Facility)”, which consists of two open cut operations and four underground longwall mining operations, coal handling preparation plants, a rail transportation network to Abbot Point and a proposed port facility at Abbot Point.

The mine is proposed by Waratah Coal Pty Ltd (Waratah Coal), a wholly-owned subsidiary of Mineralogy Pty Ltd, which is the parent company of Clive Palmer‘s corporate group.

If the mine is approved, Waratah Coal intends to:

• mine 56 million tonnes per annum (Mtpa) of run-of-mine (ROM) coal, which will be later processed to produce 40 Mtpa of product coal;
• initially commence operations with a 10 Mtpa open cut mine, eventually ramping up to 56 Mtpa several years later; and
• mine up to 1.4 billion tonnes of thermal coal over 25 years.

The original mine layout comprised underground mines to the west and two open cut mines to the east; however, in 2021 Waratah Coal revised the mine plan to abandon parts of the open-cut pits that would have destroyed the Bimblebox Nature Refuge. The new mine plan proposes 2 open cut pits (outside of the nature refuge) and 4 underground longwall mines.

Approvals & EIS process

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 mine and rail project a “coordinated project” in 2010 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 2010-2014 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 2015.

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

Objections to the mine

Youth Verdict Ltd and The Bimblebox Alliance Inc (TBA), both represented by the Environmental Defenders Office (EDO), lodged identical objections to the mining lease under the MRA and objections to the environmental authority under the EPA.

The grounds of the objections include the contribution the direct and indirect greenhouse gas emissions from the mine will make to climate change and the impacts on human rights.

Land Court hearing

The hearing of the objections is currently being held in the Land Court of Queensland and is scheduled to run for 6 weeks.

President Fleur Kingham is the presiding member hearing the objections.

In a legal first for mining objections, the hearing began with First Nations people in Gimuy/Cairns and the Torres Strait Islands of Erub and Poruma giving evidence to the Land Court on Country and in accordance with First Nations protocols.

The actual hearing in the Land Court begins on 26 April 2022. Members of the public are welcome to attend the Land Court on Level 8 of the Magistrates Court Building, 363 George St, Brisbane in Court Room 40.

TBA has provided details of the schedule of witnesses to be called this week at this link.

Etiquette for attending court

The hearing is open to the public and anyone is welcome to attend. A few things to remember if you are attending court for the first time are:

• Dress formally as a sign of respect for the court.
• Turn your mobile phone to silent in court.
• Don’t make noise when the presiding member of the Land Court, President Kingham, is in the courtroom.
• If the court is empty when you arrive, take a seat in the public seating area. Stand when President Kingham enters and bow  before being seated (you can copy the lawyers at the front of the court in doing this).
• If the court is sitting (i.e. the presiding member is in the courtroom) when you arrive, bow to her on entering the courtroom and take a seat in the public sitting area.
• If you need to leave while the court is sitting, bow before you leave the room.

Further reading

Several of President Kingham’s past publications and speeches provide helpful further reading in relation to the human rights and climate change issues raised in the hearing. These include:

• ‘Rights-based environmental advocacy—coming to a court near you’, speech delivered at QELA updates from the bench: developments in practice, procedure and case law, Brisbane, 25 March 2021.
• ‘Climate Change Litigation‘,  seminar paper delivered to the Environmental Defenders Office Climate Law Update, Banco Court, 18 September 2018.