ENVIRONMENTAL DEFENDERS
OFFICE (QLD) INC.
On Friday 12 October 2007 the full Queensland Court of Appeal handed down its decision in Queensland Conservation Council’s (QCC) climate change appeal against Xstrata Coal Queensland Pty Ltd, finding in favour of QCC.
In the appeal QCC, represented by EDO (Qld) and top environmental barristers Stephen Keim SC and Chris McGrath , argued that the Land & Resources Tribunal made legal errors when finding against QCC and recommending approval of a coal mine expansion without conditions relating to greenhouse gas emissions.
The Court of Appeal allowed QCC’s Appeal with costs and remitted the matter to the Land Court for rehearing.
In short, the Court of Appeal found that QCC was denied natural justice as the Land & Resources Tribunal should have given QCC the opportunity to respond to the Tribunal’s doubts regarding the science of climate change. The Court of Appeal also found that QCC should have been given leave to amend its particulars to reduce the amount of offsets it sought to be imposed.
Citation: Queensland Conservation Council Inc v Xstrata Coal Queensland Pty Ltd & Ors [2007] QCA 338.
Earlier this year, in the first case of its kind, the Queensland Conservation Council (QCC) argued in the Land & Resources Tribunal that an application by Xstrata Coal Queensland for a mine expansion should not be approved unless conditions are imposed to require Xstrata to offset the greenhouse gas emissions from the mining, transport and use of the coal. Upon considering expert opinion regarding the calculation of emissions and the costs of offsetting the emissions, QCC sought to amend its particulars to reduce the amount of offsets required for indirect emissions (emissions from the transport and use of the coal) from 100% to 10%. However, the Tribunal refused leave for the amendment.
During the hearing in the Land & Resources Tribunal, expert witnesses gave evidence regarding the effects of climate change, the economic impacts of climate change, the calculation of emissions and the costs and methods available to offset the emissions. The fact that climate change is occurring and that greenhouse gas emissions contribute to it was common ground between the parties at the hearing.
After the hearing had concluded, the President of the Land & Resources Tribunal wrote to the parties seeking submissions on two further documents not in evidence during the hearing. The first document was the Fourth Report of the IPCC which had just been released and the second document was a critique by Carter Bryant and others entitled “The Stern Review: A Dual Critique”. In written submissions, counsel for QCC argued that the Critique should not be considered and that it was unclear as to what use the Tribunal intended to made of the document.
In his judgment, the President of the Land & Resources Tribunal appeared to favour the sceptic’s view of climate change presented in the Dual Critique and found against QCC. President Koppenol recommended that the application for the mining lease be approved without the conditions sought by QCC to reduce greenhouse gas impacts - Re Xstrata Coal Queensland Pty Ltd & Ors [2007] QLRT 33.
QCC appealed against that decision and argued in the full court of the Court of Appeal that the decision should be set aside. The grounds for the appeal were:
The Court of Appeal found in favour of QCC on the first and second grounds. On that basis, the Court of Appeal found it was unnecessary to consider and make a finding on the third and fourth grounds.
The matter will now be remitted to the Land Court which has recently taken over the jurisdiction of the Land and Resources Tribunal.
The appeal involved a lot of time and hard work by many. Big thanks to super barristers Stephen Keim SC and Chris McGrath and thanks to our client Toby Hutcheon from QCC.
If you have any queries about the appeal, please contact Anita O’Hart at: aohart@edo.org.au.