The Land Court has spoken
The Land Court was established in 1898 (by the Land Act 1897) as a court of record of the State of Queensland, and has a wide remit relating to land and resources. It deals with compensation claims relating to the compulsory acquisition of land; appeals against decision-making by ministers and departments under a long list of acts; and disputes in connection with mining activities.
During its first half-century the Court arbitrated mainly in disputes arising out of the Crown leasehold system. Gradually it acquired further roles, and today some 45 State Acts confer jurisdiction on the Court, including the Mineral Resources Act 1989, the Environmental Protection Act 1994 and the Water Act 2000.
The Land Court's website says:
The Land Court hears and determines matters in a manner similar to the Supreme Court and District Court with some variations, as the procedure of the Court is governed by equity and good conscience and the strict rules of evidence do not apply. Land Court Members are judicial officers appointed by commission and have many of the powers of a Judge of the Supreme Court in exercising the Court’s jurisdiction.
I observed the Land Court's modus operandi in the capable hands of Member Smith when attending Hancock Coal Pty vs Kelly & Ors last year (see Farmers vs Big Coal and The Big Issue posts, September 2013, and Meanwhile, back in Court, October 2013). He pointed the way to cattle graziers representing themselves in the face of legalistic objections by Hancock Coal's slick lawyers, and patiently explained procedural subtleties.
Yesterday we returned to Brisbane Magistrates Court to hear his judgement.
The big issues of the case were the risk to farmers' groundwater from drawdown by nine proposed mega mines in Central Queensland's Galilee Basin; the threat to biodiversity by their construction; damage to the Great Barrier Reef by the further dredging of coal ports and increasing numbers of coal carriers; and the contribution of carbon emissions from the products of huge mining operations to climate change.
Member Smith's recommendations were 'in the alternative', which is unusual I believe, and means he gave the ministers responsible for the Mineral Resources Act and the Environmental Protection Act two options: first, that they refuse the mining lease application by Hancock Coal; or that, in the case of the MRA, the mining lease be granted but subject to Hancock obtaining water licences so that 'all concerns pursuant to the precautionary principle are resolved'; or alternatively in the case of the EPA, that the mining lease be granted subject to Hancock obtaining the water licences as above, as well as providing three additional water level monitoring points (on each of the objecting landowners' properties) to produce 12-hourly water level data readings, and entering into make-good agreements with each landowner within 12 months or before mining activities begin, whichever is the sooner.
I hadn't known what to expect of the decision. I had been encouraged, during Member Smith's summing up in October, by his inclination to be guided by the precautionary principle. Now I was hearing the phrase again, with reference to possibly the most vital concern: whether or not the geology of the Galilee's aquifers is sufficiently well understood for groundwater modelling to adequately predict the risks of mining to the region's water sources; and whether the cumulative impact of the water demands of so many extremely large mines should be assessed before any excavators get to work.
The feeling among the objectors and their supporters was that Member Smith's recommendations were the best they could have hoped for. Coast and Country Association of Queensland left court with a spring in their step (top). One supporter was so pleased she felt like dancing on the table. And so she did.
Unfortunately, Member Smith's recommendations are not binding, and the fates of all parties in the case are back in the hands of the Queensland Government. Back in 2012, when UNESCO expressed serious concern about the Great Barrier Reef as a result of planned coal port expansion, Premier Campbell Newman famously explained, 'We are in the coal business'.
Newman's ministers would surely be foolhardy to completely ignore the Land Court's pronouncement. It will take time to resolve 'all concerns pursuant to the precautionary principle'.
And in the meantime thermal coal prices may continue to fall ($140 a tonne to $80 in the last two years). The financial viability of mining the Galilee is not likely to improve in a world (excluding Australia) increasingly inclined towards renewables.
I was greatly encouraged by the Land Court's recommendations in this case. Now I hope for 'equity and good conscience' on the part of two Queensland government departments. I cannot overstate the magnitude of their responsibility.
This post was last edited on 10 April 2014