New Acland is a coal mine in the Darling Downs of Queensland, right next door to the small town of Acland, and surrounded by some of the best farming land in Australia.
The mine began operations in 2002, with Stage 2 of the project opening in 2006. However the proposed Stage 3 expansion of the mine would swallow the town of Acland and impact surrounding farms.
EDO has acted on behalf of local landholders and townspeople to protect precious groundwater and defend the rights of the community to protect their environment.
Land Court Recommends Refusal
In March 2015, EDO launched a landmark case against the proposed Stage 3 expansion in the Queensland Land Court on behalf of more than 60 local people who formed the Oakey Coal Action Alliance Inc.
EDO argued that the Stage 3 expansion would impact on Queensland’s best and richest farmland, could cause unacceptable impacts to groundwater and would affect the health of local people through increased noise and worsening air quality. The 99-day public hearing became the longest running in the history of the Land Court.
In May 2017, the Land Court backed the community’s concerns and recommended the mine be refused. During the case it was also revealed that the mine’s job figures had been inflated, there was a high risk of the project exceeding air quality and noise limits unless unproven controls were in place, that the government would see just 7% of the royalties due to historical tenure arrangements favouring New Hope, and that the groundwater modelling was unable to properly predict the impacts.
Following the historic Land Court decision in 2017, the Queensland Department of Environment and Science refused approval for the mine. However, the mining company had already applied for a judicial review of the Land Court’s decision.
In May 2018, the Supreme Court found the Land Court was not legally able to decide on the groundwater quantity impacts of the mine, invalidating its findings on this as well as intergenerational equity, which was linked to groundwater.
However, New Hope was unsuccessful on the majority of grounds for its judicial review, including that the Land Court’s decision was affected by apprehended bias.
The case was referred back to the Land Court in 2018 to reconsider its legal conclusions on noise, but was bound by most of the findings and conclusions of the original Land Court Member. The Land Court recommended the environmental approvals be granted with improved noise level restrictions, and in March 2019, the department of Environment and Science granted the approval.
Protecting Groundwater For Farmers
In May 2018, EDO lawyers took this crucial case to the Court of Appeal on behalf of the local community and farmers. EDO made the case that groundwater impacts should be able to be considered in mining objection hearings as they always had been.
EDO argued that the decision of the Judicial Review could apply to other mine decisions – and potentially even brings into question the validity of groundwater EA conditions in existing approvals.
The mine also appealed the Supreme Court’s finding that the original Land Court decision was not affected by apprehended bias.
In September 2019, the Court of Appeal found that the original Land Court decision was affected by apprehended bias, and that groundwater was not a valid consideration for the Land Court in the original Land Court hearing.
This finding calls into question the approvals for other mines that have been through mining objections hearings where groundwater was considered. EDO is advocating for a change to the law to ensure farmers and community members can access the justice system to protect the water that underpins their land and their livelihoods. Read more.
The mine still needs to secure more approvals from the Queensland Government before the expansion can proceed, including its mining leases, regional interests development approval, and associated water licence for taking or interfering with underground water.
Acland Farmers Granted Special Leave To Appeal To High Court
In June 2020, the High Court granted a special leave application for Environmental Defenders Office client the Oakey Coal Action Alliance Inc (OCAA) to appeal the 2019 Court of Appeal decision which concerned the validity of a prior Land Court decision.
Usually a finding of apprehended bias would invalidate the whole judgement. However, on November 1 2019, the Court of Appeal gave final orders in the case and chose not to set aside the original decision.
This throws into doubt a Land Court re-hearing of the noise arguments in the case, which was largely bound by the findings of the original Land Court decision – the judgement that has been found to be unfair.
The Environmental Defenders Office applied for special leave to appeal to the High Court on behalf of OCAA, so that they can have clarity around the decision which has profound impacts on their homes and livelihoods and ensure they can have their day in court in a hearing that’s not overshadowed by claims of bias and unfairness.
EDO Queensland is the legal entity acting in this case. EDO Queensland agreed to merge with EDO Ltd in 2019.