The case concerned the creation of a coal mine in North Queensland and the review of two Ministerial decisions via the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the “ADJR Act”). The decisions in question related to assessing the proposed coal mine as not a controlled action as per the Environment Protection and Biodiversity Conservation Act 1999 (Cth).

The Minister’s original decisions were based on the fact that although there would be a few listed species that ‘may occasionally make use of the site’ it is not critical habitat and there only exists fragmented low quality remnant vegetation in the area, so therefore no matters of national significance would be detrimentally affected by project.

The Applicants in this case asserted that this decision did not take into account the fact that over the 9 year life time of one of the mines approximately 18 million tonnes of coal would be removed for the ultimate purpose of burning for power generation. The effect of the greenhouse gases released from this burning on global warming was not considered by the Minister. It was asserted that;

‘when the ultimate greenhouse gas emissions are considered the proposed action is likely to have a significant impact on matters of national environmental significance, including the World Heritage Areas.’

The Justice agreed that in the considerations of greenhouse gases from burning there was no evidence to suggest that these specific mining proposals would increase the amount of coal burnt in any particular year. But if there was such an increase the gases released from this amount would be only marginal and the increase of ‘global warming effect’ as a direct cause would be minimal and therefore not significant.

The Justice noted that global warming is listed as a key threatening process pursuant to s 183 of the EPBC Act, however, it must also be practically limited to conduct that is still likely to have a significant impact on a protected matter instead of having a blanket prohibition on any act that could contribute to it. It was decided as such that for these reasons the original decision was just in finding that the coal mines were not controlled actions.

• The full decision is available on Austlii