Miner beware can a changed mine-plan derail hearings into mining lease application

Key Insights

• In Waratah Coal Pty Ltd v Youth Verdict Ltd & Ors (No 4) [2022] QLC 3, the Court considered whether revising a mine-plan after it had already been assessed would result in a fundamentally different application such that the Land Court would not have jurisdiction to hear the associated mining lease and environmental authority applications.
• The Court ultimately found that the degree of change – whether to activities or impacts or both – is the critical factor and, given the revised mine-plan only resulted in a lesser environmental impact and did not add any new activity or involve expansion of the mine activities, the revised mine-plan still fell within the scope of the applications and therefore within the Land Court's jurisdiction.
• Miners should be conscious that revising a mine-plan after the plan has been assessed has the potential to impact, and possibly derail, the approval process for the mine.  

Objections to Waratah Coal's original applications for its Galilee Basin coal mine development

In 2019, Waratah Coal Pty Ltd applied for a mining lease and environmental authority in respect of its proposed Galilee Basin coal mine development.  Landholders and activist groups lodged various objections to the applications.  

We reported on the Land Court's finding that it had jurisdiction and is obliged to consider objections made under the Human Rights Act 2019 (Qld) last year in our Qld Land Access Year in Review 2020–2021 article "Human rights objections pass first test in Land Court", 27 September 2021.

New objections to revised mine-plan

The case of Waratah Coal Pty Ltd v Youth Verdict Ltd & Ors (No 4) [2022] QLC 3 concerned Waratah's applications for a mining lease and environmental authority as part of its Galilee Basin coal mine.  Waratah Coal's mine-plan included, among other things, two proposed open cut pits which would have affected the Bimblebox Nature Reserve.  Youth Verdict Ltd and The Bimblebox Alliance Inc took issue with that mine-plan, and Waratah subsequently revised its plan by abandoning the proposal for the pits.

However, Youth Verdict and The Bimblebox Alliance, who were objectors to the mining lease application, argued that the Land Court of Queensland did not have jurisdiction to make recommendations to the Minister on the mining lease and environmental authority applications due to the revisions to the mine-plan, with the original plan having already been assessed.  

The principal question for President Kingham was whether the Land Court had such jurisdiction where – it was argued – the revision resulted in a materially different application which had not been assessed under the statutory framework.

The revised mine-plan did not result in a fundamentally different application 

Youth Verdict and The Bimblebox Alliance argued that, because of the revision, the mine-plan had not been assessed during the earlier mandatory steps in the statutory process.  They argued it resulted in a fundamentally different application, including in terms of the project's impacts, and accordingly that the Land Court did not have jurisdiction to make recommendations as to whether the Minister should approve the applications.  

Importantly, it was agreed by all parties that the degree of change, whether to activities or impacts or both, is the critical factor.

While Waratah accepted that a change to a mining project could be so significant that it amounts to a different project, it argued that its change to the mine-plan did not meet that threshold.  It did not add new activities; it did not expand activities initially described in the original plan; and abandoning the two pits would reduce the mine's impacts. 

The Land Court was not satisfied that the revised mine-plan was substantially and materially different such that the mining lease application was fundamentally different.  Although the revised mine-plan resulted in a difference in impact to the environment, the fact that it resulted in a lesser impact and did not add any new activity or involve expansion of the activities the mine would undertake, meant that the Land Court found that it still fell within the scope of the applications.  

The Court should not adjourn the hearing so the revised mine-plan can be assessed

The statutory party to the proceeding – the Chief Executive of the Department of Environment and Science – identified four circumstances in which the Land Court might decline to proceed with a hearing in order to uphold procedural fairness.

• Firstly, where the Statutory Party has received additional information and it becomes clear that the re-assessment of the draft environmental authority would not be practicable or possible.
• Secondly, where the Court found the changes sought are outside Waratah's applications as referred to the Court.  
• Thirdly, where the original objections to the mining lease and environmental authority applications are not wide enough to consider the effects which derive from the changed activities. 
• Fourthly, where the processes, procedures or considerations of fairness of the Court would not permit adjustments to be made in the course of the objections hearing.  

The Land Court found that none of these circumstances applied in this case.

The Land Court should continue to hear the applications and objections despite the revised mine-plan

The Land Court ultimately found that the revised mine-plan did not result in mining lease and environmental authority applications that were substantially and materially different from the original applications.  As considerations of procedural fairness did not warrant an adjournment and re-assessment of the revised mine-plan, the Court decided it could and should hear the applications and objections based on the revised version.

Authors: Connor Davies, Senior Associate and Dillon Mahly, Paralegal.