Today, the High Court of Australia unanimously made an order to send the New Acland mine stage 3 expansion proposal back to the Queensland Land Court for a new hearing.
The 4.5 Mtpa New Acland Coal Mine, located north-west of Oakey in Queensland, is operated by New Acland Coal Pty Ltd, a wholly-owned subsidiary of the New Hope Group. In order to expand the mine, New Acland applied for additional mining leases and for an amendment to its existing environmental authority in 2007.
The EIS process stalled in 2012 but was followed by a revised proposal in 2014. In response to the proposal, the Oakey Coal Action Alliance Inc (Oakey) and others lodged objections which were referred to the Land Court in 2016. On 31 May 2017, it was recommended that the applications for the mining leases and the amendment to the environmental authority be rejected (Land Court’s first decision).
On 15 June 2017, New Acland filed an application for judicial review in the Supreme Court of Queensland seeking to have the Land Court’s decisions declared invalid, quashed and set aside.
Following reconsideration by a different Member, the Land Court made recommendations that New Acland’s applications for mining leases and an amendment to its environmental authority be approved subject to conditions (Land Court’s second decision).
The amendment to New Acland’s environmental authority was subsequently granted by a delegate of the Chief Executive of the Department of Environment and Science (Chief Executive).
On appeal from the Supreme Court’s decision, the Court of Appeal allowed a cross-appeal by New Acland, holding that the recommendations made in the Land Court’s first decision were affected by apprehended bias.
Yet, rather than setting aside the qualified order for referral back made by the Supreme Court and remitting the matter to the Land Court for full reconsideration, the Court of Appeal made consequential orders limited to a declaration that the Land Court failed to observe procedural fairness in making the first decision.
Following a grant of special leave to appeal to the High Court, Oakey argued that as the Land Court’s second decision was affected by the same apprehended bias found by the Court of Appeal to have affected the Land Court’s first decision, being based in part on the first decision-maker’s findings and conclusions, the Court of Appeal should have set aside the Land Court’s second decision and the Chief Executive’s subsequent decision to approve the variation to New Acland’s environmental authority.
The High Court held that by adopting the findings and conclusions in the Land Court’s first decision, the Land Court’s second decision involved jurisdictional error in that it failed to observe the requirements of procedural fairness by reason of apprehended bias.
Accordingly, the Court made orders setting aside the declaration made by the Court of Appeal and in its place ordered that the qualified order for referral made by the Supreme Court be set aside, that New Acland’s applications be referred back to the Land Court to be reconsidered according to law, and that the decision of the delegate of the Chief Executive be set aside.
The Lock the Gate Alliance (LGA) said farmers from the Oakey Coal Action Alliance are “relieved and excited after the High Court of Australia found in their favour”.
The LGA said the Court found in favour of the Alliance on all counts and that New Hope was required to pay costs of proceedings and that the decision means that the issue will be sent back to the Queensland Land Court for a new hearing on the merits of the proposal.
OCAA secretary, Paul King, said the result was a win on all counts.
“It is a better outcome than we could have hoped for,” he said.
Federal Minister for Resources, Water and Northern Australia, Keith Pitt, on the other hand, said the High Court decision on Oakey’s New Acland mine shows the urgent need for the Queensland Government to reform its approval process for resources projects. Minister Pitt said the decision to send the matter back to the Land Court puts hundreds of jobs in jeopardy.
“It is extremely frustrating for the many workers trying to plan their lives around the mine’s future who are now back to square one,” the Minister said.
Member for Groom, Garth Hamilton, commented that the decision creates more uncertainty for the people of Oakey.
“It’s 14 years since New Hope first lodged an application to build this mine with the potential for new jobs and to secure hundreds of existing jobs in the region,” Mr Hamilton said. “I urge the Premier to work directly with New Hope to find a solution that allows the company to proceed with the New Acland coal mine.”
