(applicant) v Ellen Roberts

Mineral Resources Act 1989

Land Court Act 2000

Aradon Pty Ltd, Re [2001] QLRT 35

BHP Coal Pty Ltd v Chief Executive, Department of Environment, Science and Innovation [2024] QLC 7

Hail Creek Coal Holdings Pty Ltd v Michelmore [2020] QLC 16

Kenneth James Willis, Re [2001] QLRT 29

Lithgow City Council v Jackson (2011) 244 CLR 352

Mineralogy Pty Ltd v Western Australia [2020] QSC 344

Queensland Conservation Council Inc v Xstrata Coal Queensland Pty Ltd [2007] QCA 338

Townsville City Council v Chief Executive, Department of Main Roads [2005] QCA 226; [2006] 1 Qd R 77

Waratah Coal Pty Ltd v Youth Verdict Ltd & Ors (No 6) [2022] QLC 21

Woolworths Ltd v Director of Liquor Licensing [2013] WASCA 227; (2013) 45 WAR 446

• [1] Sungela Pty Ltd and Bowen Investment (Australia) Pty Ltd operate the Ensham thermal coal mine in the western part of the Central Bowen Basin. Sungela is wholly owned by Sungela Holdings Pty Ltd - a joint venture between Thungela Resources Australia, Mayfair Corporations Group Pty Ltd and Audley Energy Limited.
• [2] The mine operates over seven existing mining tenements. The applicants have applied for a new mining lease, MLA700061 which would abut the existing tenements to the west. The MLA forms part of a project which, if fully realised, would extend the life of the mine by 20 years and the life of the entire project, including rehabilitation and remediation, to 2050.
• [3] The applicants have foreshadowed further applications seeking extensions on their existing leases. An environmental authority for the extension project, including the MLA, has already been granted.[1]
• [4] There were four objectors to the MLA. One objection was withdrawn. The remaining three objectors did not elect to be active in this proceeding and they have provided no evidence or submissions to the Court to support their objections. None of the remaining objectors are landowners proximate to the MLA.
• [5] Because there are objectors to the MLA, the application has been referred to the Court for a recommendation to the Minister for Natural Resources and Mines, Manufacturing and Regional and Rural Development (Natural Resources) whether the MLA ought to be granted in whole or in part.
• [6] Section 269 of the _Mineral Resources Act 1989 (_MRA) prescribes the matters I must consider when making a recommendation. Section 269 does not function as a checklist, but section 269(4) does list the factors which must be weighed and balanced to reach an overall conclusion and recommendation.[2]

• [7] Although there are no active objectors, I must still have regard to their objections. In broad terms, they are:

(a) Flaws in the assessment process;

(b) Land rehabilitation;

(c) Land use and biodiversity;

(d) Effect on priority agricultural area and strategic cropping land;

(e) Surface and groundwater impacts;

(f) Impacts to endangered and threatened species;

(g) Cumulative impacts;

(h) Economic demand for coal;

(i) Greenhouse gas emissions and climate change;

(j) The Human Rights Act implications have not been considered properly;

(k) Adverse environmental impacts on water resources and ecosystems; and

(l) That the mine will affect a priority agricultural area and endangered habitats.

• [8] It must be frustrating for miners to be forced into a mining objection hearing before the Court and then find that the objectors have "run dead" by not filing any material. Even so, the Court is required to exercise its discretion and needs evidence to do so.
• [9] When there is no contradictor to a proceeding, the Court must take particular care to ensure that the evidence can support the recommendation. General assertions as to a particular state of affairs, without evidence to support those assertions, are unhelpful.
• [10] Despite the applicants nominating expert witnesses in the areas of geotechnical engineering, hydrogeology, groundwater, geophysics and ecology, in the end, the applicants relied on affidavits from:

(a) Robert Hammond, a consultant at Sungela and executive chairman of Mayfair;[3]

(b) Matthew Lumb, the general manager and site senior executive of Ensham Resources, the operator of the mine;[4] and

(c) Tayla Carins, the environmental superintendent employed by Ensham.[5]

• [11] Because the witnesses are connected with the applicants, there is a risk that they lack the necessary objectivity and independence the Court usually requires from witnesses speaking to technical matters. I note that the witnesses give opinions about matters that are outside their expertise and, on occasion, swear to the issue.
• [12] Section 7 of the Land Court Act 2000 provides that the Court is not bound by the rules of evidence. This does not mean I can disregard the rules of evidence entirely. Section 7 does not permit any unverified information or opinions to be admitted and considered.[6] Ultimately, whether or not the evidence can be accepted is a question of relevance and weight.

Section 269(4)(a) - Have the applicants complied with provisions of the MRA?

• [13] The objectors take issue with the fact that the Department of Environment, Tourism, Science and Innovation (DETSI) has approved a major amendment to the applicants' environmental authority (EA) even though the proposal had no approval from the Federal Government under the Environmental Protection and Biodiversity Conservation Act 1999 (EPBC Act). That is not a matter that falls within the remit of the MRA.
• [14] The applicants filed a Declaration of Compliance pursuant to sections 252A to 252B of the MRA. The Department of Natural Resources raised no concerns about the applicants' compliance with the MRA.
• [15] There is no evidence to suggest that the applicants have not complied with the provisions of the MRA.

Section 269(4)(b) - Is the area of land mineralised?

• [16] One objector asserted that the area of land applied for is not sufficiently mineralised and the other purposes for which the lease is sought are inappropriate. It did not provide any supporting reasons or material.
• [17] Ms Carins exhibited a coal mine resource report dated 31 December 2023 prepared by Measured Group Pty Ltd.[7] The report shows the total estimated coal resource in the MLA is 85 million tonnes, comprised of 21 Mt measured resource and 64 Mt indicated resource.[8] It is classified as high energy, low ash thermal coal and has reasonable prospects of extraction by underground mining.
• [18] The evidence shows that the MLA is sufficiently mineralised.

Section 269(4)(c) - Is there an acceptable level of development?

• [19] The applicants submit the MLA would allow for the expansion project and for the estimated 85 Mt of coal in the MLA to be mined over the length of the proposed term.
• [20] Ms Carins provided evidence that the resource would be mined by extending the current underground operations. There will be no need for new infrastructure.
• [21] I am satisfied that the proposed MLA would provide an acceptable level of development.

Section 269(4)(d) - Is the MLA an appropriate size and shape?

• [22] The applicants submit that the shape is necessary to take advantage of the defined resource and that it covers the most economical and feasible coal reserves.
• [23] Ms Carins states that the applicants considered a range of alternatives for the shape of the MLA.[9] She says that the proposal before the Court aligns boundaries with existing leases allowing clear, identifiable boundaries to be used on the surface for that part of the MLA.[10]
• [24] She also states the footprint of the extension project would deliver:[11]

a lower capital investment requirement, less disturbance and minimal impacts on surface agricultural activities and strategic cropping areas. A reduced footprint and less infrastructure as proposed also reduces the potential for GHG emissions that would be caused by the MLA.

• [25] I accept the applicants' submissions. The evidence shows that the size and shape of the MLA is appropriate given the location and potential of the mineralised land.

Section 269(4)(e) - Is the term sought appropriate?

• [26] The applicants want a 25-year term. The applicants submit the term is appropriate because it allows for the project to be realised, maximises resource extraction, and gives time for rehabilitation in accordance with their environmental authority obligations.
• [27] Without the MLA, or the realisation of the project, mining activities are projected to cease by 2028. Ms Carins says that based on updated estimates available to the applicants, they mining to run through to 2044.[12] Mr Lumb shares that view.[13]
• [28] The applicants' Progressive Rehabilitation and Closure Plan (PRCP)[14] states that underground mining will cease in approximately 2037 with rehabilitation to be completed by December 2043.[15] A term through to 2050 will allow for rehabilitation and closure of the mining site.
• [29] An objector says that the proposed lifespan of the extension project is not appropriate because it will exceed the timeframe in which a carbon budget for temperature increases of 1.5°C or well below 2°C above pre-industrial levels, requires achieving net zero emissions.[16]
• [30] The Court has been referred to the Paris Agreement, made by the Conference of Parties of the United Nations Framework Convention on Climate Change (UNFCCC) to support that proposition:

Recognising that the ongoing risks to human wellbeing of continuing to emit greenhouse gases unchecked are too high to accept, governments around the world have agreed under the Paris Agreement to holding the increase in the global average temperature to well below 2°C above pre-industrial levels and pursuing efforts to limit the temperature increase to 1.5°C above pre-industrial levels, recognising that this would significantly reduce the risks and impacts of the harm caused by accretion of greenhouse gases in the atmosphere.[17]

• [31] An additional 20 years of mining operations is significant - for the environment, for the community of Emerald, and for the applicants.
• [32] However, considering the time the applicants have estimated for mining operations and rehabilitation and closure of the MLA, I am satisfied that a term of 25 years is appropriate. How that interacts with the provisions of the Paris Agreement is a different issue.

Section 269(4)(f) - Do the applicants have the necessary financial and technical capabilities?

• [33] Each of Sungela's parent companies (Thungela, Mayfair and Audley) provided a statement of financial and technical capacity to the Department of Natural Resources on its application to acquire an interest in the existing mining leases.
• [34] Ms Carins says there are experts both employed by and available to the mine through its majority shareholder who could provide technical expertise in coal processing, geological modelling and reporting, geology (production), geotechnical and mine planning.[18] She also exhibited a technical personnel capability statement[19] and a technical capability statement.[20]
• [35] Again, although these statements pre-date Sungela's acquisition, I take notice of the fact that the mine has been operating under the new regime since August 2023 and that at least one of the parent companies has considerable expertise in coal mining.
• [36] I am satisfied that the applicants have the necessary financial capacity and technical expertise.

Section 269(4)(g) - has the applicants' past performance been satisfactory?

• [37] As I have already mentioned, Sungela has operated the mine since August 2023. Ms Carins states that, notwithstanding the short period of time, the applicants' past performance has been satisfactory.[21]
• [38] Ms Carins states the applicants:[22]

(a) are the holders of seven mining leases (constituting the mine) and two mineral development licences, all of which are in good standing with the Department of Natural Resources;

(b) have had no show cause notices issued to them;

(c) have had no cancelled tenures;

(d) have not been issued with any penalties or convictions under the MRA; and

(e) have good environmental records.

• [39] Ms Carins also states that to the best of her knowledge:[23]

(a) there were no environmental matters requiring regulatory action against the previous owners or Bowen with respect to the mine;

(b) the mine has had no systematic or ongoing substantiated breaches of environmental laws, nor has the mine's operations caused any serious environmental harm or had any serious environmental incidents;

(c) from time to time, the mine identifies exceedances of trigger limits for various analytes that require an investigation to be completed. She is not aware of any investigations conducted that have correlated the exceedance of a trigger limit with environmental harm caused by mining or rehabilitation activities;

(d) no environmental licence or authority associated with the mine has been suspended or revoked;

(e) no prosecution or any Court proceeding has been brought against the mine or Ensham Resources for a breach of environmental law or conservation law; and

(f) no prosecution or any Court proceedings have been commenced against Bligh or more relevantly Bowen (as a continuing applicant) for a breach of environmental law or conservation law.

• [40] Against this, one objector who is also a local landowner, pointed to unremedied erosion within an area which was subject to progressive certification. He stated that the erosion occurred in 2021, DETSI asked the mine to submit a remediation report in or around March 2023, and, as at June 2023, there had been no remediation.
• [41] There are three things to note about this objection. Firstly, the objector has since withdrawn his objection. Secondly, the acts of non-performance occurred before the current applicants took control of the mine. Finally, it is only one complaint about a large and complex operation.
• [42] On balance, I am satisfied that there is nothing in the applicants' past performance to recommend refusal of the application.

Section 269(4)(h) - Is there any disadvantage to holders of existing exploration permits and mineral development licenses?

• [43] The MLA overlaps an authority to prospect and a Potential Commercial Area - Petroleum. Both are held by Denison Gas (Queensland) Pty Ltd.
• [44] The area of overlap is small. Denison has indicated that the MLA does not interfere with its plans under the authorities[24].
• [45] I am satisfied there is no evidence of disadvantage to permit or license holders from granting the MLA.

Section 269(4)(i) - Will the proposal conform with sound land use management?

• [46] The applicants' environmental authority and PRCP provide a detailed assessment of the land use on the MLA.[25]
• [47] The MLA will involve underground mining only, with minor surface disturbance for necessary installations, allowing the use of the surface to continue in conjunction with agriculture throughout the life of the project and post mining.
• [48] The applicants state that proposed Bord and Pillar mining method should not cause subsidence impacts to surrounding land uses and ecosystems greater than the natural variance measured of the soil.
• [49] The EA has a suite of conditions that address the rehabilitation and closure of the mine. DETSI recommended additional subsidence monitoring, further groundwater monitoring and further rehabilitation.
• [50] The PRCP details the milestones the applicants are required to achieve through their progressive rehabilitation. The rehabilitation outcomes will ensure that the approved land use is maintained by rehabilitating any surface cracking, ponding and impacted drainage features caused by the activities and ensure the land reaches a stable condition.
• [51] The MLA includes strategic cropping land and priority agricultural area. The Regional Planning Interest Act 2014 requires a regional interests development approval before the commencement of any construction. GT Environmental prepared a report[26] which indicates that an impact on strategic cropping land or a priority agricultural area is unlikely.
• [52] I am satisfied that the proposal will conform with sound land use management.

Section 269(4)(j) - Will there be an adverse environmental impact caused by the proposal? If so, are those impacts appropriately managed?

• [53] The objectors raised concerns about potential impacts on the Brigalow Belt Bioregion, koala, great glider, southern snapping turtle and Fitzroy River turtle habitats, and the palustrine woodland.[27] The objectors also say the project will impact groundwater-dependent ecosystems through drawdown.

• [54] The applicants filed a Matters of National Environmental Significance report dated 3 April 2020;[28] a Fauna Technical Report dated 5 May 2020;[29] and a Flora Technical Report dated 12 August 2020[30] all prepared by AECOM.
• [55] The Matters of National Environmental Significance report concluded that no direct or indirect impact to threatened species or ecological communities is expected, as there is no clearing or surface infrastructure proposed, no increase in traffic numbers, lighting or noise beyond the current conditions and no material subsidence.
• [56] The Fauna Technical Report concluded that most of the fauna habitat was of low conservation value although the riparian zones and remnant woodlands did provide movement opportunities for fauna. It noted that fauna habitat has been subject to disturbance from cattle grazing, selective clearing, weeds and pests which has led to a general lack of native understory growth. Again, the report concluded that no direct or indirect impact to threatened species or ecological communities is expected.
• [57] The Flora Technical Report concluded that the brigalow present on the MLA, except for patches adjacent to the Nogoa River, were isolated and near dysfunctional. The patches on the river were categorised as "near functional".[31]
• [58] Field studies of the groundwater dependent ecosystems showed a lack of wetland flora indicator species, evidence of water stress or high availability of preferential freshwater surface flows. The report concluded that these signs confirmed the low likelihood of these communities' ability to use and rely on groundwater.[32] The report also noted the high salinity and discontinuous saturation zones were likely to limit vegetation use and reliance.[33]
• [59] Again, the report concluded that no direct or indirect impact to threatened species or ecological communities is expected.[34]

• [60] The objectors say the extension project will impact surface water and groundwater quantity, and the information and assessment of those impacts undertaken is inadequate.[35] They refer to the Independent Expert Scientific Committee on Water Resources. They say the purported deficiencies in the information and assessment process have been identified by that committee, among other places. They do not identify any specific deficiency.
• [61] The applicants have filed a Groundwater Impact Assessment report prepared by SLR Consulting dated October 2022;[36] a Peer review of Groundwater Impact Assessment report by Associate Professor Claire Côte of The University of Queensland dated 18 October 2022;[37] a Water Balance report prepared by SLR Consulting dated October 2022;[38] a Water Quality Assessment report prepared by SLR Consulting dated November 2022;[39] and a Flooding and Hydrology assessment report prepared by SLR Consulting dated October 2022.[40]
• [62] Those reports show the maximum drawdown of groundwater does not intersect the wetland identified or any active springs, but it does intersect part of a surface expression GDE where the coal measures sub-crop the alluvium, parts of a low confidence surface expression GDE, and parts of low confidence terrestrial GDEs in the northwest of the extension project.[41]
• [63] The reports predict no impacts on the groundwater quality.[42] The applicants have a comprehensive groundwater monitoring program in place for the existing approved operations at the mine. The monitoring network is considered fit for purpose to detect any groundwater level or quality changes resulting from the project, with the addition of one extra monitoring bore to the west of the MLA to confirm the predicted drawdowns to the west".[43]

• [64] The applicants provided reports as to the impacts of the MLA on surface water: Hydro Engineering & Consulting Pty Ltd (HEC) prepared the Surface Water Quality Assessment dated August 2021;[44] the HEC Water Balance Model Development;[45] the amendment to the HEC Water Balance Model Development dated August 2021;[46] SLR Consulting Water Balance report dated October 2022;[47] SLR Consulting Water Quality assessment dated November 2022;[48] and SLR Consulting Flooding and Hydrology assessment dated October 2022.[49]
• [65] These reports indicate that inflows to the MLA are consistent with current approvals, there is sufficient water available to satisfy the MLA's water requirements, there is sufficient storage capacity onsite, and the annual average releases are predicted to be similar to the current operations.
• [66] The reports on water quality indicate that the MLA will have a minimal impact on surface water quality during release events, the operation of managed releases and current contaminant limits to protect downstream environmental values are suitable, average annual release volumes are predicted to be similar, and no environmentally significant impacts to surface water quality are expected.
• [67] Due to predicted low levels of subsidence, the reports predict no surface cracking or ponding and, therefore, no changes to surface water quality from instability or erosion, the long-term stability of the mine layout is maintained, there is no need for any changes to the landscape or surface infrastructure, the existing approved levee is adequate, and the MLA is not predicted to impact the current flooding scenarios.
• [68] The reports also conclude that if there will be no further surface construction, additional release points or additional surface disturbance points, the water quality in the Nogoa River in the vicinity of the MLA will not be impacted.[50]
• [69] The applicants are subject to a comprehensive EA which contains 20 separate conditions which relate to groundwater (Schedule I), 38 which relate to surface water (Schedule C), and 39 which relate to dams and levees (Schedule D).
• [70] I also note that the applicants have an environmental management system and employ "a department" that supports the implementation of the plan.

• [71] There are several coal mines already operating within the vicinity of the MLA, including the existing Ensham mine of which the MLA is an extension.
• [72] The applicants' reports have considered the potential cumulative impacts. If the Nogoa River is influenced by releases from mines upstream, the applicants must limit releases to maintain river water quality. The groundwater impact assessment concludes that there are no cumulative impacts from mines within a 30 km radius due to interbedded low permeability layers separating the coal seams.[51] The stygofauna assessment found that the risk of impact is low.[52]
• [73] I am satisfied that the environmental impacts of the MLA are low and can be appropriately managed through the EA conditions.

Section 269(4)(k) - Will the public right and interest be prejudiced?

• [74] The objectors raise concerns about the economic and social benefits of the mine and the potential effect of the mine on climate change.
• [75] Greenhouse gas (GHG) emissions and climate change are inextricably linked. I will deal with those topics separately.
• [76] As to the economic and social benefits of the mine, the objectors raise concerns regarding the future price and demand for coal. They say a decline in both may result in stranded assets.[53]
• [77] The applicants, in response, are confident that thermal coal will have a significant place in the energy mix for many years to come. They point to the usual benefits to the Central Highlands and Queensland that accrue from an operating mine: royalties, taxes, employment, investment and expenditure.
• [78] The applicants submitted a report entitled Coal Market Outlook to 2040 from Commodity Insights dated December 2022.[54] That report notes the growth in the seaborne thermal coal market from 2011 to 2021 and predicts that demand will continue to grow. The assessment is based on known new coal-fired capacity being commissioned, government policy targets for the electricity generation mix, competition from renewables and other sources (i.e., nuclear, hydro, biomass etc) in the energy mix, the adoption of carbon capture and storage (CCS), population forecasts from the United Nations and electricity demand forecasts for each country.[55]
• [79] The report acknowledges a falling demand but also forecasts a reduction in supply, based on known operating mines and approved development projects. It concludes that demand will still exceed supply.[56]
• [80] However, I note the caveat in the report:

There is less clarity and certainty around the energy plans and policies of many countries than several years ago. This is due to several reasons - the impact of Covid, the energy shortages in Europe last northern winter, and particularly the Russian invasion of Ukraine and the resulting energy market dislocation. The latter has resulted in a refocusing of governments on energy security as a key pillar of their energy platform (and linked closely to national security), whereas previously it held a lower priority. This has also resulted in rapid changes in energy policy (e.g., Taiwan and Europe). All forecasts should be viewed considering this heightened uncertainty globally.[57]

• [81] The report is somewhat out of date and, therefore, not particularly helpful. The future price and demand for coal are matters that the applicants will consider in their business decisions. If global demand for coal wanes, and the applicants are left with a stranded asset, then that is a commercial matter for them.
• [82] If the mine is ultimately non-viable, the potential economic benefits to the Central Highlands and Queensland will cease. That is not a good reason to recommend refusal at a time when the mine is, apparently, viable.

Section 269(4)(l) - Is there any good reason to refuse the grant?

• [83] The primary issues to examine in considering whether there is a good reason to refuse the grant are GHG emissions, climate change and human rights.

• [84] The objectors say that an approval of this mine is contrary to the Queensland Government's transition to renewable energy and its emission reduction targets.
• [85] Australia is a signatory to instruments which say that there will be significant and severe consequences if global emissions are not reduced. Those instruments, and their importance, have been acknowledged by the applicants' themselves.[58]
• [86] The Commonwealth Government is working towards emissions reductions under Australia's Long Term Reduction Plan.[59] The Queensland Government is also taking active steps towards implementing its Climate Transition Strategy.[60] These strategies underpin the Government's commitment to pursuing the international goal of net-zero emissions by 2050.[61]
• [87] GHG emissions are an unavoidable consequence of mining, exporting and burning coal. GHG emissions exacerbate the climate change consequences. GHG emissions from the MLA will contribute to climate change directly and indirectly.
• [88] The previous owner of the mine, Idemitsu, submitted a GHG analysis as part of the approval process.[62] That analysis detailed the methodology and calculations used to predict emissions. The analysis consisted of a base case and a mitigated case. The projected emissions in the mitigated case were, of course, lower.
• [89] Assuming the mitigated case, the estimated emissions over the life of the mine he will be 6.6 Mt CO2-e, with an operational average annual emission rate of 0.36 Mt CO2-e. The mitigated average annual GHG emissions from the mine represents 0.07% of Australia's 2017/2018 emissions, and 0.22% of Queensland's 2017/2018 emissions.
• [90] Idemitsu submitted a further analysis of GHG emissions in connection with an application to amend the EA.[63] Again, the analysis consisted of a base case and a mitigated case. This time, the analysis was restricted to Zone 1, which includes the MLA. Unsurprisingly, the projected emissions in the mitigated case were lower.
• [91] Again, assuming the mitigated case, the estimated emissions over the life of the project are estimated at 5.69 Mt CO2-e with an average annual Scope 1 and 2 emission rate of 0.38 Mt CO2-e. The average annual Scope 1 and 2 GHG emissions from the Project operations represent 0.08% of Australia's 2020 emissions, and 0.24% of Queensland's 2020 emissions. Under the revised analysis, the project's contribution to total emissions was higher.
• [92] Mr Hammond is responsible for the reporting of GHG emissions from the mine and for forecasting GHG emissions.
• [93] He recalculated the estimated, Scope 1 and Scope 2 emissions from the MLA relying on National Greenhouse and Energy Reporting Scheme reports (NGERs) prepared by the previous owners. He estimated the emissions over the life of the project at 2.28 Mt CO2-e with an average annual Scope 1 and 2 emission rate of 0.102 Mt CO2-e. He calculated the average annual Scope 1 and 2 GHG emissions from the Project operations at 0.028% of Australia's emissions. He did not calculate the percentage of Queensland's 2020 emissions.[64]
• [94] The applicants submitted a report from Katestone Environmental Pty Ltd dated October 2024 that assessed the Scope 3 emissions.[65]
• [95] The Scope 3 emissions resulting from activities in the MLA are estimated to be 63.619 million tonnes of carbon dioxide equivalent (Mt CO2-e) over the life of the activities (estimated to be 20 years). The average annual emissions are estimated to be 3.181 Mt CO2-e. Maximum annual emissions are estimated to be 6.476 Mt CO2-e.
• [96] The primary sources of Scope 3 emissions are:[66]

(a) combustion of sold coal product over the life of the MLA;

(b) domestic combustion estimated to be 1.184 Mt CO2-e and 1.86% of total;

(c) international combustion estimated to be 61.040 Mt CO2-e and 95.95% of total;

(d) transportation of coal estimated to be 1.198 Mt CO2-e and 1.88% of total.

• [97] The average annual contribution of the domestic Scope 3 emissions inventory for the MLA to the annual GHG emissions inventory of Australia and Queensland is 0.0160% and 0.0557%, respectively. The maximum annual contribution of the domestic Scope 3 emissions inventory for the MLA to the annual GHG emissions inventory of Australia and Queensland (updated Dec 2023) is 0.0583% and 0.203%, respectively. Scope 3 emissions from domestic combustion will cease in 2035.[67]
• [98] The average annual contribution of the total Scope 3 emissions inventory for the MLA to the annual global GHG emissions inventory is 0.00639%. The maximum annual contribution of the Project's total Scope 3 emissions inventory to the annual global GHG emissions inventory is 0.0130%.[68]
• [99] Unfortunately, the applicants do not address how the MLA will contribute to the Queensland Government's transition to renewable energy and its emission reduction targets, save for saying that they will increase the percentage of metallurgical coal from their thermal coal mine.
• [100] The applicants say that the MLA will not result in an increase in the total annual ROM coal being produced. That is true but ignores the fact that the annual production will continue for an additional 20 years.
• [101] The applicants also state that some of the coal is suitable as a substitute for metallurgical coal and that they intend to increase the tonnage of coal available for that purpose. They estimate that this product may constitute as much as 10% of future production. The applicants make broad assertions about the demand for such coal, none of which are supported by expert evidence.
• [102] The EA requires the applicants to develop a GHG emissions reduction management plan. No such plan has been provided to the Court.
• [103] The applicants say that they are taking steps "in a proactive manner" to reduce its GHG emissions.[69] One of the measures it will take is flaring the CH4 gas, converting it to CO2 which reduces the CO2-e content. I emphasised the word "will" because the applicants have been making that a part of their mitigation strategy since the first GHG analysis and, yet I can find no evidence that they have actually progressed that strategy.
• [104] Similarly, I have no evidence that the applicants have prioritised a suite of energy efficiencies There is no evidence that they not only investigated decarbonisation pathways or put the finding of those investigations into operation. I have no evidence that they installed infrared sensors to measure gas concentration more accurately. I have no evidence that they adopted a selection of fuel-efficient engines for use at the MLA.[70]
• [105] What, if any of the 19 measures identified in the submissions[71] have the applicants actually done?
• [106] The MLA may only be small part of the GHG emission scenario, but it is still a part. The evidence necessary to support a recommendation for grant is not before the Court. Unless and until the applicants show real and significant progress towards mitigating their GHG emissions, I cannot recommend the grant of the MLA.

Human Rights Act

• [107] The Court is subject to s 58(1) of the Human Rights Act 2019 (Qld) (HR Act) in its recommendatory jurisdiction because it is a public entity for that purpose.
• [108] The objectors say that granting the mining lease would limit certain human rights protected by the HR Act beyond an extent which is reasonable or demonstrably justifiable.[72]
• [109] The objectors say that the following human rights would be limited:

(a) the right to recognition and equality before the law (section 15);

(b) the right to life (section 16);

(c) property rights (section 24);

(d) the right to privacy (section 25(a));

(e) a child's right to protection (section 26(2)); and

(f) the rights of Aboriginal peoples and Torres Strait Islander peoples (section 28).

• [110] By contrast, the applicants say that the only human rights invoked are property rights and the right to privacy. They take that position because they say, correctly, that there is no evidence before the Court that suggest any breach of the right to recognition and equality before the law, the right to life, or a child's right to protection.

• [111] There is no evidence that any person will be arbitrarily deprived of their property. There is no evidence that the MLA will interfere with anyone's property rights, or that anyone will be deprived of property. There is no evidence that there will be any destruction of property or any restriction of any person's use or enjoyment of property.

• [112] The impacts from noise, dust and vibration have the potential to impact a person's home in a way that would constitute a breach of the right to privacy.
• [113] Bearing in mind that the mine has been operating for a substantial period and has not been the subject of any complaints, I am satisfied that no right to privacy will be engaged by the MLA

• [114] Mr Lumb provided a copy of a cultural heritage assessment[73] which has an overview of the area's ethnohistory, existing cultural heritage sites and potential cultural heritage sites. The report identifies potential impacts on cultural heritage. It concludes that the MLA will not impact on any known cultural heritage values and is unlikely to impact any unknown cultural heritage values. Any impacts will be managed through existing cultural heritage management plans and a native title agreement for the MLA with the Western Kangoulu People.[74]
• [115] I am satisfied that, if the rights of Aboriginal people in the area are engaged, the evidence that their rights are limited is minimal and the impacts will be adequately managed.

• [116] The Land Court of Queensland has already identified a potential threat to the right to life and the protection of children from any activity that increases GHG emissions. These rights are engaged, and the evidence suggests that the rights will be limited by the proposal.
• [117] The Court in Waratah[75] identified that:

...the limitation to the right to life would arise from the combustion emissions from the Project coal. The continued accretion of GHGs in the atmosphere will, among other things, cause increasingly adverse impacts to the environment, including people in Queensland. These include increased fatalities in Queensland due to bushfires and bushfire smoke, heat waves, mosquito borne diseases, floods and cyclones.[76]

The evidence presents a clear and pressing threat to the right to life that is now experienced by people in Queensland and will only be exacerbated by increasing emissions, to which the Project would make a material contribution.[77]

• [118] The applicants suggest that, because the MLA's contribution to climate change will be "very small" the limitation on these rights "cannot be fairly attributed to the MLA but to other activities".[78]
• [119] I agree that the link between the MLA and a potential breach of human rights is more tenuous in this case than it was in Waratah.[79] The main reason for that is the lack of evidence from the objectors which is not, of itself, justification for dismissing the potential impact.
• [120] The applicants also say that the balance between the potential breach of human rights and the MLA has been dealt with by DETSI issuing an EA under the EP Act_.[80]_
• [121] Section 3 of the EP Act states that the object of the Act is to protect Queensland's environment while allowing for development that improves the total quality of life, both now and in the future, in a way that maintains the ecological process on which life depends. Section 6A states that the EP Act is to be administered having regard to the principles of environmental protection. The principles of environmental protection include the precautionary principle, intergenerational equity and the public interest.
• [122] While it is theoretically possible that DETSI's application of these principles would necessarily involve a consideration of human rights implications, there is no evidence before me that DETSI did, in fact, undertake that task. At best, the EA states that there should be no environmental harm.
• [123] The applicants cannot rely on the EA process to demonstrate that the potential breach of human rights is appropriate.
• [124] The right to life and right to protection of children are engaged and will be breached by the GHG emissions from this mine. Whether or not those breaches are reasonable or justifiable depends, to some extent, on the applicants' GHG mitigation strategies. As I have already noted, the evidence on this point is lacking.

• [125] The applicants have reminded me that this proceeding does not include a challenge to the EA. For that reason, I have refrained from examining the EA conditions in depth. I accept that they sufficiently address the potential for environmental harm, but I do not accept that they "cover the field" for any potential breach of human rights. Unless and until DETSI articulates that it has considered human rights, the Court must assume that it has not.
• [126] I accept there is a continuing market for thermal coal and that a small proportion of the coal from the MLA may be used as a substitute for metallurgical coal.
• [127] President Kingham in Waratah adopted the Queensland Resources Industry Development Plan statement that "the coal projects in Queensland will continue to be supported as long as they stack up economically, environmentally, and socially".[81]
• [128] This MLA stacks up economically and environmentally (in the sense of impacts to local flora, fauna and water). Whether it stacks up in the broader sense of the environment is open to question. Whether it stacks up socially is open. I reiterate my opening comments about the paucity of expert evidence available to the Court. I suspect that, with some further exposition, my concerns about the wider environmental impacts and social acceptability of this proposal can be allayed.

1. I recommend to the Honourable Minister responsible for the Mineral Resources Act 1989 that MLA 700061 not be approved unless and until the applicants show real and significant progress towards mitigating their GHG emissions.
2. I direct the Registrar of the Land Court to provide a copy of these reasons to the Honourable Minister administering the Mineral Resources Act 1989.

[1] Ex [SUN.0009A] to the Affidavit of Tayla Carins affirmed 9 October 2024 ('Carins Affidavit').

[2] Re Kenneth James Willis [2001] QLRT 29, [43]; Re Aradon Pty Ltd [2001] QLRT 35 [40]; [44].

[3] Affidavit of Robert Hammond affirmed 4 October 2024 ('Hammond Affidavit').

[4] Affidavit of Matthew Alexander Lumb affirmed 8 October 2024 ('Lumb Affidavit').

[6] Townsville City Council v Chief Executive, Department of Main Roads [2005] QCA 226; [2006] 1 Qd R 77 [94]; Woolworths Ltd v Director of Liquor Licensing [2013] WASCA 227; (2013) 45 WAR 446 [463].

[8] Ex [SUN.0004] to the Carins Affidavit 42.

[11] Carins Affidavit [36](d). Ms Carins' evidence here extends beyond statements of fact, to opinion. I do not find her evidence on the potential for reduction in GHG emissions of any utility.

[14] Ex [SUN.0009B] to the Carins Affidavit.

[16] Ex [SUN0007A] to the Carins Affidavit.

[17] Paris Agreement, opened for signature 22 April 2016, 3156 UNTS 54113 (entered into force 4 November 2016).

[19] Ex [SUN.0003Y] to the Carins Affidavit.

[20] Ex [SUN.0003Z] to the Carins Affidavit.

[24] Ex [SUN.0006] to the Carins Affidavit [55].

[25] Ex [SUN.0009A] and [SUN.0009B] to the Carins Affidavit.

[26] Ex [SUN.0008HH.020] to the Cairns Affidavit.

[27] Ex [SUN.0007C] to the Carins Affidavit, 3.

[28] Ex [SUN.0021] to the Carins Affidavit.

[29] Ex [SUN.0008QQ] appendix to the Amended Environmental Impact Statement.

[30] Ex [SUN.0008NN] appendix to the Amended Environmental Impact Statement.

[35] Ex [SUN.0007A] to the Carins Affidavit [6]-[8].

[36] Ex [SUN.0013] to the Carins Affidavit.

[37] Ex [SUN.0016] to the Carins Affidavit.

[38] Ex [SUN.0017] to the Carins Affidavit.

[39] Ex [SUN.0018] to the Carins Affidavit.

[40] Ex [SUN.0019] to the Carins Affidavit.

[44] Ex [SUN.0008TT] appendix to the Amended Environmental Impact Statement.

[45] Ex [SUN.0008UU] appendix to the Amended Environmental Impact Statement.

[46] Ex [SUN.0008VV] appendix to the Amended Environmental Impact Statement.

[52] Ex [SUN.0014] to the Carins Affidavit 6.

[53] Ex [SUN.0007B] to the Carins Affidavit 1.

[54] Ex [SUN.0016] to Lumb Affidavit.

[58] Ex [SUN.0008R] to the Carins Affidavit [16.2].

[59] Waratah Coal Pty Ltd v Youth Verdict Ltd & Ors (No 6) [2022] QLC 21 ('Waratah') [688].

[62] Ex [D2034-5] to the Hammond Affidavit; Hammond Affidavit [16].

[69] Applicants' Outline of Submissions dated 1 October 2024 [129].

[70] This can be contrast with the position of the applicant in BHP Coal Pty Ltd & Ors v Chief Executive, Department of Environment, Science and Innovation [2024] QLC 7 [26].

[71] Applicants' Outline of Submissions (n 69) [129].

[73] Ex [SUN.002V.0001] to Lumb Affidavit, appendix to the Amended Environmental Impact Statement.

[75] [2022] QLC 21.

[76] [2022] QLC 21, [1488]; BHP Coal Pty Ltd & Ors v Chief Executive, Department of Environment, Science and Innovation [2024] QLC 7 [42].

[77] [2022] QLC 21, [1505]; BHP Coal Pty Ltd & Ors v Chief Executive, Department of Environment, Science and Innovation [2024] QLC 7 [42].

[78] Applicants' Outline of Submissions dated (n 69) [154].

[79] [2022] QLC 21.

[80] Applicants' Outline of Submissions (n 69) [156].

[81] [2022] QLC 21 [690].