Queensland Judgments
Authorised Reports & Unreported Judgments
  • sclq logo
  1. Caselaw
  2. QLC
  3. 2024
  4. Jellinbah Group Pty Ltd v Chief Executive, Department of Environment, Science and Innovation - [2024] QLC 15

Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

Jellinbah Group Pty Ltd v Chief Executive, Department of Environment, Science and Innovation[2024] QLC 15

Jellinbah Group Pty Ltd v Chief Executive, Department of Environment, Science and Innovation[2024] QLC 15

LAND COURT OF QUEENSLAND

CITATION:

Jellinbah Group Pty Ltd & Ors v Chief Executive, Department of Environment, Science and Innovation [2024] QLC 15

PARTIES:

Jellinbah Group Pty Ltd, Tremell Pty Ltd, Marubeni Coal Pty Ltd, Sojitz Coal Resources Pty Ltd

(applicants)

v

Chief Executive, Department of Environment, Science and Innovation (formerly Department of Environment and Science)

(respondent)

FILE NO/s:

EPA528-23

DIVISION:

General Division

PROCEEDING:

Hearing of application for environmental authority under the Environmental Protection Act 1994

DELIVERED ON:

2 August 2024

DELIVERED AT:

Brisbane

HEARD ON:

Submissions closed 12 June 2024

HEARD AT:

Heard on the papers

MEMBER:

ND Loos

ORDER:

  1. The Court recommends, pursuant to subsection 190(2)(a) of the Environmental Protection Act 1994, that the proposed PRCP schedule contained within the affidavit of Ms Linney filed on 9 May 2024 at pages 81 to 131 of the exhibits, be approved.
  1. The Court directs the Registrar to provide, as soon as practicable, a copy of this recommendation and the affidavit of Ms Linney filed on 9 May 2024, to the administering authority under the Environmental Protection Act 1994.

CATCHWORDS:

ENERGY AND RESOURCES – MINERALS – COURTS OR TRIBUNALS EXERCISING JURISDICTION IN MINING MATTERS – QUEENSLAND – LAND COURT – where application was referred for recommendation under the Environmental Protection Act 1994 on proposed environmental authority – where the parties agree on the terms of amended proposed environmental authority – whether the Court should recommend the application for amended environmental authority be approved

Environmental Protection Act 1994 s 172, s 185, s 190, s 191

Human Rights Act 2019 s 58

New Acland Coal Pty Ltd v Smith (2018) 230 LGERA 88, applied

Cement Australia (Exploration) Pty Ltd & Anor v East End Mine Action Group (No 4) [2021] QLC 22, cited

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

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

APPEARANCES:

Written submissions for the applicants prepared by LV Sheptooha, instructed by MinterEllison.

Written submissions for the respondent prepared by A Hellewell, instructed by the Department of Environment, Science and Innovation.

Introduction

  1. [1]
    This is an application for a Progressive Rehabilitation and Closure Plan (“PRCP”) schedule. It has been referred to the Court under subsection 185(1) of the Environmental Protection Act 1994 (“EP Act”). The parties have agreed on the terms of an amended proposed PRCP schedule. 
  1. [2]
    The Court must consider the matters set out in section 191 of the EP Act and make a recommendation to the administering authority about the proposed PRCP schedule. The administering authority is the Department of Environment, Science and Innovation.
  1. [3]
    For the reasons outlined below, pursuant to subsection 190(2)(a) of the EP Act, the Court recommends that the proposed PRCP schedule be approved.

Background

  1. [4]
    Jellinbah Coal Mine is:
  1. located in the Bowen Basin region of central Queensland;
  1. about 24 kilometres north of Blackwater and 190 kilometres west of Rockhampton;
  1. an open cut mine which has been in operation since 1989;
  1. predominantly produces coal for pulverised coal injection, which is used in blast furnaces for the production of iron;
  1. made up of three active mining areas and two currently inactive mining areas.  The active mining areas consist of Jellinbah Central, Jellinbah Central North and Mackenzie North. Jellinbah South and Jellinbah Plains were previously mined, are inactive, but will resume activity in the future;
  1. subject to environmental authority EPML00516813 dated 8 September 2022 which authorises a number of environmentally relevant activities at the site.[1]
  1. [5]
    On 22 December 2020, the respondent issued the applicants with a notice under section 754 of the EP Act requiring the applicants to provide a proposed PRCP (which includes a PRCP schedule).[2]
  1. [6]
    On 23 November 2021, the applicants provided a proposed PRCP.[3]
  1. [7]
    On 17 October 2023, the respondent approved the proposed PRCP schedule subject to conditions, pursuant to subsection 172(3)(a) of the EP Act.[4]  A detailed Assessment Report was prepared by the respondent and signed on the same day (“Assessment Report”).[5] A decision notice was issued to the applicants under section 181 of the EP Act.
  1. [8]
    On 14 November 2023, the applicants gave the respondent a notice requesting the Department refer the application to the Court.[6]
  1. [9]
    On 17 November 2023, the respondent referred the application for a PRCP schedule to the Court.[7]
  1. [10]
    On 1 December 2023, the Court ordered the parties to attend a court-supervised mediation.
  1. [11]
    On 8 March 2024, the parties attended that mediation and reached an in-principle agreement to amend the PRCP schedule. The PRCP schedule which was further refined and the agreement between the parties was finalised on 12 March 2024.[8]

Proposed amendments to the PRPC schedule

  1. [12]
    The applicants filed an affidavit of Mr Ball, the ‘Manager Sustainability’ at Jellinbah. Exhibited to his affidavit, Mr Ball provided a table showing with tracked changes, the proposed amendments to the PRCP schedule. The table also contains an explanation of how the points of disagreement were resolved between the parties.
  1. [13]
    The applicants’ written submissions presented the information from Mr Ball’s affidavit in the form of Annexure A to those submissions. That Annexure set out the proposed amendments to the PRCP schedule conditions. The proposed amendments are:
  1. amendment to condition PRCP2;
  1. amendment to condition RM14;
  1. amendment to condition RM15;
  1. the insertion of a new condition RM19; and
  1. amendment to Section C – Post mining land uses, Tables (RA1) – (RA9) Rehabilitation area.
  1. [14]
    In summary, the amendments are meant to achieve:
  1. flexibility on the timeframes for rehabilitation milestones, so that each rehabilitation milestone must be achieved as soon as practicable after the land to which it relates becomes available for rehabilitation;
  1. changes to the vegetative groundcover requirements, as suggested in the ‘Erosion Stability Assessment: Addendum Report’ prepared by AARC Environmental Solutions Pty Ltd at the request of the applicants and provided to the respondent;
  1. changes to the water quality requirements during the operational phase of the mine so that ground water and surface water requirements are a final stage of rehabilitation rather than an interim milestone.[9]
  1. [15]
    The respondent’s written submissions state that, “having considered the further material provided by the applicants, [the respondent] is satisfied that the amendments to the Draft PRCP Schedule do not affect the outcomes stated in the Assessment Report”.[10] The respondent supports the proposed amendments to the PRCP schedule conditions.[11]

Section 191 of the Environmental Protection Act

  1. [16]
    This proceeding is an “objections decision” which requires the Court to consider the matters identified in section 191 of the EP Act. That provision states:

191 Matters to be considered for objections decision

In making the objections decision for the application, the Land Court must consider the following—

(a) the application;

(b) any response given for an information request;

(c) any standard conditions for the relevant activity or authority;

(d) any draft environmental authority or draft PRCP schedule for the application;

(e) any objection notice for the application;

(f) any relevant regulatory requirement;

(g) the standard criteria;

(h) the status of any application under the Mineral Resources Act for each relevant mining tenure.

  1. [17]
    The process to be undertaken by the Court has been explained by this Court and by the Supreme Court. In New Acland Coal Pty Ltd v Smith (2018) 230 LGERA 88, Bowskill J (as her Honour then was) described the process at paragraphs [39] to [74] of the reasons for judgment.  This Court summarised the principles and considerations in Waratah Coal Pty Ltd v Youth Verdict Ltd & Ors (No. 6) [2022] QLC 21 at [50], [53], [54], [56]-[58] and [69]-[75].[12]

Consideration of the section 191 matters raised by this application

  1. [18]
    Subsections 191(c), (e) and (h) of the EP Act are readily considered because:
  1. there are no standard conditions for the relevant activity or authority;[13]
  1. there are no objection notices for the applicants’ application;[14]
  1. there is no application under the Mineral Resources Act for any mining tenure.[15]
  1. [19]
    That leaves subsections 191(a), (b), (d), (f) and (g) to consider.

Subsection 191(a) – the application

  1. [20]
    A copy of the application was filed with the Court on 17 November 2023 as referral document number 4 of the Form 06D – Referral of Environment Authority Objections (“Form 06D”).
  1. [21]
    Neither party directed attention to any specific part of the application.
  1. [22]
    The application is a detailed document. It includes spreadsheets of technical information and a separate, substantial, report prepared by the applicants’ environmental consultants. The application reflects an earlier iteration of the proposed rehabilitation schedule, vegetative groundcover requirements and water quality requirements. The position on those matters evolved as the available information was supplemented and further examined.

Subsection 191(b) – any response given for an information request

  1. [23]
    The material provided to the Court reveals that there were a number of ‘pre-lodgement’ requests for information and, separately, a number of informal requests for information. Those preceded the formal information request period, which concluded on 30 January 2023.
  1. [24]
    On 30 January 2023, the applicants responded to the information request. A copy of the response was provided to the Court as referral document number 7 with the Form 06D. That response took the form of an email from the applicants’ environmental consultant (AARC Environmental Solutions Pty Ltd) to the Department’s Acting Team Leader (Assessment). The email attached a PRCP report prepared by the environmental consultants, an information request table and a PRCP schedule.
  1. [25]
    The information request table contained columns setting out information request items and corresponding “AARC Completed Actions”. The latter identified steps taken on behalf of the applicants to respond to the information request. The response to the information request included additional technical information.
  1. [26]
    The Assessment Report stated that the response to the information request was considered by the assessing officer.[16] As with the application, the position evolved after the response to the information request as the applicants provided additional information which permitted the parties to further examine and negotiate the contentious matters.

Subsection 191(d) – any draft environmental authority or draft PRCP schedule for the application

  1. [27]
    The agreed draft PRCP schedule was exhibited to Ms Linney’s affidavit.[17] It contained the following sections:
  1. Section A – Conditions of PRCP schedule;
  1. Section B – Final site design and reference maps;
  1. Section C – Post mining land uses;
  1. Section D – Non-use managements areas;
  1. Section E – Attachments.
  1. [28]
    Section A – Conditions of PRCP Schedule – contained General conditions PRCP1 – PRCP7. Section C – Post mining land uses – contained the Rehabilitation Area (RA) tables and the Rehabilitation Milestone (RM) conditions.
  1. [29]
    A review of the PRCP schedule reveals that the proposed amendments are a modest component of the rehabilitation plan.

Subsection 191(f) – any relevant regulatory requirement

  1. [30]
    In her affidavit Ms Linney stated, “[t]here are no regulatory requirements for the Applicants’ application”.[18] The affidavit of Mr Gonzo filed by the respondent put it a different way with reference to section 191(f), stating:[19]

20. I can confirm that the decision of whether to approve the proposed PRCP Schedule for the plan, the Department must:

(a) comply with any relevant regulatory requirement; and

(b) subject to paragraph (a), have regard to each of the following—

(i) the site-specific application;

(ii) the proposed PRC plan;

(iii) any response given for an information request for the proposed PRC plan;

(iv) the standard criteria;

(v) the guidelines under section 550;

(vi) any relevant advice, report or guidance published by the rehabilitation commissioner under section 444K.

(c) consider section 176A of the EP Act, which provided for the decision criteria for Non Use Management Areas (NUMAs). I can confirm that these matters were considered in section 5.1 of the Assessment Report.

(d) consider section 176A(2)(viii) of the EP Act, which provided for decision maker have regard to any relevant advice, report or guidance published by the rehabilitation commissioner under section 444K. I can confirm that these matters were considered in section 5.2 of the Assessment Report.

(e) consider the transitional provisions of the EP Act, which were considered in section 5.3 of the Assessment Report. This section details where the outcome identified in the land outcome document is the same or substantially similar to the outcome identified in the land outcome document.

(f) in making the PRCP schedule decision, carry out a PRCP objective assessment against each PRCP objective and PRCP performance outcome for each objective mentioned in schedule 8A of the EP Regulations. I can confirm that these matters were considered in section 5.4 of the Assessment Report.

  1. [31]
    The Court has considered each of the provisions referred to in paragraph 20 of Mr Gonzo’s affidavit.

Subsection 191(g) – the standard criteria

  1. [32]
    The ‘standard criteria’ is a term defined in Schedule 4, Dictionary, of the EP Act.
  1. [33]
    In his affidavit, Mr Gonzo stated:

“I can confirm that the amendments to the draft PRCP Schedule agreed to by the parties, do not vary the Department’s assessment of the standard criteria contained in the Assessment Report”.[20]

  1. [34]
    That section of the Assessment Report is exhibited to the affidavit of Ms Linney at pages 186-189. It showed that each of the relevant standard criteria was assessed as being “satisfied”, with an explanation given for each one. It is evident that the changes now proposed would not cause a different view to be reached as to satisfaction of the standard criteria.

Conclusion about section 191 matters

  1. [35]
    The applicants’ rehabilitation proposal was refined and more fully explained as the application process unfolded. After the matter was referred to this Court, the applicants provided further technical information to justify some of their proposed changes. After a mediation, the parties were able to formulate an agreed set of conditions.
  1. [36]
    The Court has reviewed the explanations for the proposed changes, considered the matters set out in section 191 of the EP Act and reviewed the PRCP schedule itself. Within the context of those matters, the proposed changes are modest, appropriate and ought to be approved.

Human Rights

  1. [37]
    In making an objections decision, the Court is a public entity acting in an administrative capacity and is therefore subject to section 58(1) of the Human Rights Act 2019 (“HR Act”).[21] The Court has articulated a five-step process for applying human rights.[22]
  1. [38]
    The Court’s task in making an objections decision is to properly consider human rights relevant to the decision, not to make a legal ruling that the application would not be compatible with human rights.[23]
  1. [39]
    The first step in the five step process in applying human rights relates to ‘engagement’ – that is, to ask: whether the prospective decision is relevant to a human right (and which right).
  1. [40]
    The respondent submitted that:

“there are no human rights which may be invoked by the decision to approve the amended PRCP schedule. The environmental authority and mining leases have already been granted. The PRCP schedule implements a regime for the completion of rehabilitation milestones which are already imposed upon the Applicants in the environmental authority”.[24]

  1. [41]
    The respondent further submitted that:

“there is no evidence that any human right may be limited as there is no evidence (or reasonable inference or suggestions) before the Court that:

(a) property rights  may be affected (s 24(2), HR Act);

(b) the right to privacy (home) is affected (s 25(a), HR Act);

(c) any religious or cultural rights is affected [sic] (ss 20(1)(b), 27 and 28, HR Act);

(d) the human rights protections needed by any child are affected (s 26(2), HR Act);

(e) the decision may disproportionately affect the human rights of any person (section 15, HR Act); or

(f) the liberty or security of any person is affected, by for example environmental injury (s 29(1), HR Act).”[25]

  1. [42]
    The applicants made no submissions about the HR Act.
  1. [43]
    The Court accepts the respondent’s submission that there is no evidence that any human rights are engaged by the decision to issue the PRCP schedule for the PRCP and that the Court need not consider the remaining four steps under section 58 of the HR Act.[26]

Orders

  1. The Court recommends, pursuant to subsection 190(2)(a) of the Environmental Protection Act 1994, that the proposed PRCP schedule contained within the affidavit of Ms Linney filed on 9 May 2024 at pages 81 to 131 of the exhibits, be approved.
  1. The Court directs the Registrar to provide, as soon as practicable, a copy of this recommendation and the affidavit of Ms Linney filed on 9 May 2024, to the administering authority under the Environmental Protection Act 1994.

ND LOOS

MEMBER OF THE LAND COURT

Footnotes

[1]Affidavit of Ms Linney filed 9 May 2024, Exhibit ASL-1, pages 144 to 145.

[2]Applicants’ Outline of Submissions filed 9 May 2024, paragraph 8; Respondent’s Outline of Submissions filed 23 May 2024, paragraph 8.

[3]Ibid.

[4]Ibid paragraph 9.

[5]A copy of the Assessment Report, dated 17 October 2023, was exhibited to Ms Linney’s affidavit at ASL-1, pages 140 to 203.

[6]Applicants’ Outline of Submissions filed 9 May 2024, paragraph 10; Respondent’s Outline of Submissions filed 23 May 2024, paragraph 9.

[7]Applicants’ Outline of Submissions filed 9 May 2024, paragraph 10.

[8]Affidavit of Mr Ball filed 9 May 2024, paragraph 8; Affidavit of Ms Linney filed 9 May 2024, paragraph 11.

[9]Applicants’ Outline of Submissions filed 9 May 2024, paragraph 20; Annexure A to the Applicants’ Outline of Submissions filed 9 May 2024.

[10]Respondent’s Outline of Submissions dated 22 May 2024, paragraph 13.

[11]Ibid paragraph 21.

[12]Noting that some of the provisions of the EP Act have been renumbered and amended since the date of that decision.

[13]Affidavit of Ms Linney filed 9 May 2024, paragraph 15.

[14]Affidavit of Ms Linney filed 9 May 2024, paragraph 18.

[15]Affidavit of Ms Linney filed 9 May 2024, paragraph 22.

[16]Affidavit of Ms Linney filed 9 May 2024, Exhibit ASL-1, pages 193 to 203.

[17]Ibid pages 81 to 131.

[18]Affidavit of Ms Linney filed 9 May 2024, paragraph 19.

[19]Affidavit of Mr Gonzo filed 23 May 2024, pages 3 to 4.

[20]Ibid paragraph 22.

[21]See section 24.

[22]Cement Australia (Exploration) Pty Ltd & Anor v East End Mine Action Group (No 4) [2021] QLC 22 at [55]-[57], that approach having been endorsed in BHP Coal Pty Ltd v Chief Executive, Department of Environment, Science and Innovation [2024] QLC 7 at [44].

[23]Waratah Coal Pty Ltd v Youth Verdict (No 6) [2022] QLC 21 at [1705].

[24]Respondent’s Outline of Submissions filed 23 May 2024, paragraph 18.

[25]Ibid paragraph 19.

[26]Ibid paragraph 20.

Close

Editorial Notes

  • Published Case Name:

    Jellinbah Group Pty Ltd & Ors v Chief Executive, Department of Environment, Science and Innovation

  • Shortened Case Name:

    Jellinbah Group Pty Ltd v Chief Executive, Department of Environment, Science and Innovation

  • MNC:

    [2024] QLC 15

  • Court:

    QLC

  • Judge(s):

    ND Loos

  • Date:

    02 Aug 2024

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
BHP Coal Pty Ltd v Chief Executive, Department of Environment, Science and Innovation [2024] QLC 7
2 citations
Jump To
Cite 1 - [2024] QLC 7
Cite 2 - [2024] QLC 7
Cement Australia (Exploration) Pty Ltd & Anor v East End Mine Action Group Inc (No 4) [2021] QLC 22
2 citations
Jump To
Cite 1 - [2021] QLC 22
Cite 2 - [2021] QLC 22
New Acland Coal Pty Ltd v Smith & Others (2018) 230 LGERA 88
2 citations
Jump To
Cite 1 - (2018) 230 LGERA 88
Cite 2 - (2018) 230 LGERA 88
Waratah Coal Pty Ltd v Youth Verdict Ltd & Ors (No 6) [2022] QLC 21
3 citations
Jump To
Cite 1 - [2022] QLC 21
Cite 2 - [2022] QLC 21
Cite 3 - [2022] QLC 21

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.