EDO today represents farmers and concerned community members in the High Court against a coal mine expansion on prime agricultural land.
Local community group, Oakey Coal Action Alliance (OCAA), has reached Australia’s highest court in their epic legal battle to defend some of the best farming land in Queensland from New Acland Coal’s stage 3 expansion of their thermal coal mine on the Darling Downs.
Proposals to expand the controversial mine were first rejected by the Newman LNP government in 2012 and the revised application was then again rejected by the Palaszczuk ALP government in 2018 following a recommendation of refusal by the Land Court in 2017.
Pictured (left to right): Andrew Kwan (EDO), Oliver Jones (barrister), Paul King (OCAA), Jeremy Kirk SC, Dr Chris McGrath (barrister) and Sean Ryan (EDO).
Appeals by the mining company first led to the project receiving environmental approval in March 2019, and then in late 2019 to the Land Court refusal recommendation being found to have not observed principles of fairness. However, the tainted Land Court decision was allowed to stand to affect subsequent decisions.
On behalf of OCAA, EDO will be arguing that it is in the interests of justice that a completely fresh Land Court hearing, unconstrained by decisions found to have not observed procedural fairness.
The Acland farmers deserve a fair hearing.
Acland Farmers Granted Special Leave to Appeal Coal Mine Case To High Court
5 June 2020
The Acland community will head to the High Court to ask for a Land Court hearing unclouded by questions of fairness – part of a long-running battle to protect prime agricultural land from coal mining.
Today the High Court granted a special leave application for Environmental Defenders Office client the Oakey Coal Action Alliance Inc (OCAA) to appeal a 2019 Court of Appeal decision which concerned the validity of a prior Land Court decision.
It’s the next step in the Acland community’s fight to protect their high-quality farmland and groundwater from the massive Stage 3 expansion of the New Acland Coal mine.
The full High Court hearing is likely to take place later this year.
EDO Principal Solicitor Sean Ryan said:
“This is a significant step for our client and the Acland community which has been fighting for years to protect their groundwater and prime agricultural land.
“Today’s decision to allow special leave to appeal represents a significant hurdle that has been cleared but it’s not the end of the matter.
“It’s fundamental to the administration of justice that courts and their decisions are fair and impartial – that is why it is so important for the questions around this case to be resolved in the High Court.
“The original Land Court decision was found to have failed to observe the requirements of procedural fairness, however it continued to affect subsequent decisions.
“Our client, OCAA, is now asking for clarity. The Acland farmers deserve decisions unclouded by questions of fairness, and OCAA is asking this High Court whether the correct law has been followed in this instance.
“In considering an application for the grant of a mining lease, the Minister for mines must consider any Land Court recommendation for the application.
“The Queensland Government is right to wait for the outcome of this High Court process to clarify whether the existing recommendation is valid.”
Acland is under threat
The community in and around Acland has been fighting for more than a decade to protect their land and their way of life from New Acland Coal’s mine.
The revised Stage 3 mine would completely surround the town of Acland and impact neighboring farms, which are situated on land which is among the best 1.5% of agricultural land in Queensland.
In 2017, the Land Court recommended refusal of the mine due to groundwater, noise and intergenerational equity impacts. New Acland Coal appealed and succeeded in excluding groundwater considerations, but failed to show the decision was affected by apprehended bias.
OCAA appealed the decision of the Supreme Court to the Court of Appeal, and the mine cross-appealed arguing the original decision was affected by apprehended bias. The cross appeal was successful with the Court of Appeal finding that the Land Court hearing “failed to observe the requirements of procedural fairness”.
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.
To add to the confusion, New Acland Coal had already conceded that pursuing the apprehended bias claim was the ‘nuclear’ option which, if successful, would require a new Land Court hearing. The Court of Appeal gave NAC the opportunity to withdraw that position after articulating precisely what the position would be if they pressed the argument on apprehended bias and it was successful. .
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.