Adani in court again

An environmental authority (EA) was granted for Adani's Carmichael mine on 2 February 2016. This followed a recommendation by the Land Court of Queensland, on 15 December 2015, that it be granted. The decision, by Member Carmel MacDonald, had conditions attached relating to the monitoring of the impacts of the mine on the by-now notorious Black-Throated Finch (BTF), whose core population, the case had evidenced, lives on the proposed mine site.

The Land Court case had been brought by conservation group Land Services of Coast and Country, who objected to the Carmichael mine on the grounds of its potential impact on groundwater and groundwater-dependent ecosystems, and on biodiversity; the contribution of the mine's vast output to global carbon emissions and subsequent harm to the Great Barrier Reef due to climate change; and the dubious economic viability of the mine. Evidence was presented between March and May, 2015: see several blog posts during that time, starting with Another Little Bird, from 1 April, 2015.

Member MacDonald did not address any of the above issues, therefore, except one aspect of the biodiversity.

The case revealed the same concerns expressed during previous cases brought against other proposed mega mines in the Galilee Basin: that not enough is known about the hydrogeology of this arid region  to be able to guarantee no impact on precious artesian water supplies to farmers and communities. And that the economic modelling required by an environmental impact statement is inadequate for a realistic assessment of the costs to and benefits for communities (local and wider) of such a huge mine.

Coast and Country went to the Supreme Court in Brisbane yesterday for a judicial review of the granting of Adani's EA on the grounds it was unlawful under the state's Environmental Protection Act 1994 (EPA). In particular, it failed under Section 5 of the EPA which places a duty on decision makers such as Member MacDonald 'to exercise their power in the way that best achieves the ecologically sustainable development object [objective] of the Act'. Coast and Country were represented by the Environmental Defenders Office Queensland. The picture at the top shows EDO CEO Jo-Anne Bragg and Derec Davies of Coast and Country walking into the Supreme Court.

The whole day's evidence revolved around sections 3 and 5 of the EPA, and what the legislature intended when they worded the Act as they did. Section 3 says:

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 processes on which life depends (ecologically sustainable development).

EDO's QC argued that Section 5 was specifically created so that a decision maker would consider whether their decision furthered the object of the Act. The section's purpose is not aspirational: the language is unambiguous. It has work to do with regard to a decision maker's function and power.

If, under this Act, a function or power is conferred on a person, the person must [my italics] perform the function or exercise the power in the way that best achieves the object of this Act.

Furthermore, she argued, Member MacDonald had not engaged with the question begged by the object of the Act when she recommended approval of Adani's EA. She had not fulfilled her obligation under Section 5 and asked herself the ultimate question: would the Adani project be ecologically sustainable?

Damian Clothier QC, for Adani, defended Member MacDonald's reasoning for recommending the EA be granted. In order to achieve the best possible of outcomes, she attached additional conditions (for BTF monitoring) to the draft EA before her, but otherwise considered it consistent with her findings in the Land Court, which is what she considered to be her obligation. She did not regard any other considerations to be significant.

I have sat in a number of Land Court and higher court cases, and conservationists winning against big coal are as rare as hen's teeth. That doesn't stop me hoping, however. No indication was given of when a judgment will be handed down, but it is highly unlikely that the Queensland government will in the end have to rescind Adani's EA. They may not believe that the Carmichael coal mine will ever become a reality, but they're relying on the market making sure it doesn't happen rather than rising to the challenge of rescuing Queensland's biodiversity and investing in renewables for jobs.