The case challenging the approval of Winchester South Mine: Australia’s largest proposed new coal mine

In the first week of this eight-week hearing, our clients gave their opening statement on Monday, as did Whitehaven, the coal company behind the project.

Representing our clients, Senior Counsel Emrys Nekvapil SC outlined why the Winchester South Mine should be refused. He spoke about the principles of Queensland’s Environmental Protection Act, which require decision makers to take into account the precautionary principle and the principle of intergenerational equity.

Senior Counsel Nekvapil explained that: “The Environmental Protection Act is intended to protect our life sustaining habitat for future generations… If it be acceptable for one development to degrade those ecological processes even slightly, then what of the hundred developments or the thousand? By a thousand cuts, little degradations can sum to an irreversible degradation of the ecological processes on which life depends… thereby denying that which we have inherited to our children and their children and on down the line: the future generations.”

What is the precautionary principle?

Senior Counsel Nekvapil explained that the precautionary principle guides decision makers when it is difficult to know whether development will cause environmental degradation, and how much, until it is actually undertaken. A principle developed at international law, the precautionary principle effectively says that if there is scientific evidence of a threat of irreversible harm, but uncertainty, we should take steps to prevent environmental degradation.

Court continues in the field

On Wednesday and Thursday, the court convened in the field, inspecting threatened species habitat that Whitehaven plans to clear, and biodiversity offset sites the company says will compensate for the habitat lost.

We were able to walk along the bed of the Isaac River and see, smell and hear first-hand the rich and varied habitat that it supports along its banks.

Whitehaven believes its plan to buy and revegetate properties near the project will provide adequate refuges for the animals displaced by the bulldozers. Our clients, supported by expert evidence, will argue that there are several flaws in these plans.

This week has been about setting the scene – establishing the legal framework for the Court’s consideration; and being able to see and understand the actual site of the proposed mine. In the course of this week, the International Court of Justice also handed down its advisory opinion regarding the obligations of States to address climate change under international law.

In the second week of the hearing, several witnesses were called to give evidence. Including senior representatives of Whitehaven Coal who outlined their arguments for the mine to go ahead.

Whitehaven Coal’s Chief Finacial Officer admitted that if coal prices dropped even just 3% from the price assumed in the cost benefit analysis, the proposed project would not achieve a specific internal rate of return (IRR). According to Whitehaven Coal’s own Annual Report, achieving a specified minimum IRR is one of the Whitehaven Coal Board’s requirements for the project to continue.

We also heard from Professor Martine Maron – an expert in terrestrial ecology and biodiversity offsets – who co-wrote a report on the proposed mine’s potential ecological impacts.

Professor Maron was asked about impacts the mine would have on an already degraded habitat that supports threatened species, including the Australian painted snipe, squatter pigeon, koala, ornamental snake, and greater glider.

Professor Maron shared concerns about the integrity of Whitehaven’s plans to offset the environmental harm caused by clearing habitat for the mine. Professor Maron flagged in particular the uncertainty around the quality of the eventual rehabilitation, particularly with respect to the quality of water; and the potential presence of contaminants of concern in pit lakes, following the rehabilitation of the site. She noted the potential for these contaminants to have future impacts on wildlife were they to move in the system, through groundwater.

Professor Maron’s evidence also discussed the challenges and pitfalls of biodiversity offsets and the impacts this mine would have on the local environment, and the threatened species that are already fighting for survival.

On Monday of week three, representing our clients, Senior Counsel Emrys Nekvapil SC cross examined Whitehaven’s Executive General Manager Marketing and Logistics. The witness conceded that Vietnam is one of the main markets for Winchester South’s coal despite the Vietnamese government recently committing to ending coal for electricity generation by 2050. 

Our clients’ Counsel, Ms McAuliffe-Lake, then cross-examined Whitehaven’s Executive General Manager of Health, Safety & Environment. Whitehaven’s record of environmental and safety breaches was under the spotlight.  

The witness for Whitehaven confirmed that in FY 2020, Whitehaven mines were issued with 13 Penalty Infringement Notices (PIN). PINs are issued when companies or individuals break environmental laws. Whitehaven’s 13 PINs were for a range of offences at different mines including: polluting waters, exceeding noise limits, pollution blast plumes, and failure to rehabilitate after exploration drilling. 

We also heard from a range of experts, engaged by the mining company, who were asked to assess the mine’s potential impacts on groundwater, air quality, surface water, noise and geochemical waste.  

The discussion in Court focussed on whether the cumulative impacts of other mines in the area were seriously considered when assessing the Winchester South mine.

What happened in week four? 

The evidence of week four was on the topic of aquatic ecology. Scientia Professor Richard Kingsford AM was called by our clients Mackay Conservation Group and Australian Conservation Foundation. Whitehaven called Mr Adrian Caneris on water birds and Ms Lauren Thorburn on other aspects of aquatic ecology. This evidence was heard concurrently which is colloquially known as “hot tubbing”. 

Professor Kingsford gave evidence about the potential cumulative impacts of this project in the context of the large number of mines in the region. He used the analogy of losing rivets from an aeroplane: “if you lose a certain number of rivets; you’re not going to fall out of the sky. But suddenly that will happen at some point.” 

What happened in week 5? 

Week five involved Whitehaven’s barristers cross-examining our client’s experts Professor Nathan Bindoff on climate systems and Dr Cherie McCullough on rehabilitation and mine closure.  

Our clients’ barristers also cross-examined the experts nominated by Whitehaven on mine rehabilitation and closure (Mr Adrian Caneris on impacts to fauna and Dr Andrew Daniel on impacts to flora).  

In Queensland, with some very limited exceptions, mining companies are no longer able to leave voids which don’t have a post mining land use once the project concludes. For Winchester South, instead of backfilling all of the voids, Whitehaven plans to leave two mine pits which will be used for water storage for stock drinking water.  

Dr McCullough gave evidence that this proposal is not appropriate as the pit water may not be of high enough quality and proper assessment of heavy metal contamination and other water quality parameters had not taken place. 

Week six

In week six, we heard evidence from expert witnesses and from the decision maker who decided to grant the draft Environmental Authority for the project. The expert witnesses covered offsets; social impacts; the costs to Queensland of climate change; and the climate scenarios that are used to understand the potential climate impacts in the future of the decisions that we make now. Dr Setu Pelz gave evidence that the future coal demand projected by the expert engaged by Winchester is consistent with climate scenarios where global temperatures rise by around 4°C. 

Week seven

Week seven was the final week that the Court heard evidence. The coal markets and economics experts gave evidence in two concurrent evidence sessions. First, the coal markets experts explained their views on the demand and supply of coal over the life of the Winchester South project. They agreed that it is not possible to accurately predict what the market will be for coal from the project. Secondly, the economics experts gave evidence on the costs and benefits of the proposed project and agreed that the economic benefits that Whitehaven claims the project will bring depend, amongst other things, on whether the markets for the project coal remain sufficiently robust to 2050. The evidence from the economists included whether and how the climate impacts of emissions from coal produced by the project should be considered. The limitations of a traditional cost benefit analysis to grapple with climate change impacts were explored by both experts, providing different perspectives for the court’s consideration.