In Coast and Country Association of Queensland Inc v Smith & Ors [2016] QCA 242, the Queensland Court of Appeal held among others that the Land Court was correct not to include emissions from the burning of coal ex Australia, in the environmental impact assessment part of permitting decisions relating to Queensland coal mines: ‘It is outside the Land Court’s jurisdiction under s 269(4)(j) Mineral Resources Act 1989 (Qld) to consider the impact of activities beyond those carried on under the authority of the proposed mining lease, such as the impact of what the Land Court described as “scope 3 emissions.” These include environmentally harmful global greenhouse gas emissions resulting from the transportation and burning of coal after its removal from the proposed mines.’
As BakerMcKenzie note (a good summary of the issues which I happily refer to), this does not mean that such impact may not be taken into account at all: It can be considered when weighing up whether “the public right and interest is prejudiced”, and as to whether “any other good reason has been shown for a refusal”. However the Land Court tends not to have much sympathy for that view: contrary to eg the Dutch approach in the Urgenda case, the Land Court views the coal market as essentially demand driven: if no Australian coal is used, other coal will be – so one might as well make it Australian.
The High Court of Australia, Baker report, have now confirmed (without formally endorsing the approach), that Land Courts decisions wil not be subject to further appeal on these grounds. (So far I have only found the reference to the case on the Court’s ledger).
Not much prospect for well to wheel considerations in Queensland /Australia therefore. Interesting material for a comparative environmental law class.
Geert.
gavc law - geert van calster 