Bowen Basin Coal Pty Ltd v Department of Environment, Tourism, Science and Innovation [2025] QLC 12

LAND COURT OF QUEENSLAND CITATION: Bowen Basin Coal Pty Ltd v Department of Environment, Tourism, Science and Innovation [2025] QLC 12 PARTIES: Bowen Basin Coal Pty Ltd (applicant) v Chief Executive, Department of Environment, Tourism, Science and Innovation (respondent) FILE NO: EPA411-24 PROCEEDING: Referral to the Land Court under the Environmental Protection Act 1994 DELIVERED ON: 25 June 2025 DELIVERED AT: Brisbane HEARD ON: Submissions closed 11 June 2025 HEARD AT: Heard on the papers MEMBER: WA Isdale ORDERS: 1. The Land Court recommends, pursuant to section 190(2)(a) of the Environmental Protection Act 1994, that the proposed Progressive Rehabilitation and Closure Plan schedule contained within the affidavit of Ms Linney filed on 11 June, 2025 at page 197 to 239 of exhibit ASL-1 be approved. 2. The Registrar of the Land Court is to provide, as soon as practicable, a copy of this recommendation and the affidavit of Ms Linney filed on 11 June, 2025, to the administering authority under the Environmental Protection Act 1994. CATCHWORDS: ENERGY AND RESOURCES – MINERALS – MINING FOR MINERALS – ENVIRONMENTAL PROTECTION LEGISLATION – where respondent approved applicant’s Progressive Rehabilitation and Closure Plan (‘PRCP’) subject to conditions – where applicant disagreed with the conditions and requested the application be referred to the -- 1 of 6 -- 2 Land Court – where parties reached agreement to amend the PRCP schedule at court-supervised mediation – whether Land Court should recommend to the administering authority that the agreed amended PRCP schedule be approved Environmental Protection Act 1994 (Qld) s 185, s 190, s 191, s 192 Human Rights Act 2019 (Qld) s 58 APPEARANCES: Not applicable [1] On 1 October, 2024, the Chief Executive, as administering authority, referred an application for a mining activity to the Land Court for a decision pursuant to section 185 of the Environmental Protection Act 1994 (‘the Act’). [2] The relevant activity is the applied for Progressive Rehabilitation and Closure Plan which had been submitted in relation to the Lake Vermont mine. [3] The matter proceeded to mediation and on 12 May, 2025 the mediator issued a certificate which was filed in the Court on 9 June, 2025. [4] The mediator certified that the applicant, Bowen Basin Coal Pty Ltd and the Chief Executive agreed that – (a) the Progressive Rehabilitation and Closure Plan (‘PRCP’) should be amended in accordance with Schedule 1 to the mediation agreement; and (b) to do everything necessary and expedient to resolve the proceeding in the Court, including preparing joint submissions to the Court. [5] In pursuance of this, joint submissions, an affidavit of A.S Linney dated 11 June, 2025 and a draft consent order were provided to the Court on 11 June, 2025. [6] Section 190 of the Act sets out the requirements of this objection decision. There must be a recommendation to the administering authority. This is that recommendation. [7] Section 191 of the Act sets out what this Court must consider in making the objections decision. Section 192 requires that notice of this decision must be given to the Minister as specified in that provision. [8] In the present case, the applicant and the Chief Executive agree that the amended Plan as agreed to by them is suitable to satisfy the requirements for the progressive rehabilitation and closure of the Lake Vermont mine. The applicant and Chief -- 2 of 6 -- 3 Executive submit that the Court should make its recommendation in accordance with what they have agreed. [9] Section 191 of the Act provides as follows – 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. [10] As the matter has been resolved by mediation and there is nothing remaining in dispute, consideration of these matters now involves reference to the affidavit of Ms Linney, in particular to paragraphs [18] to [26] thereof. It is there declared that – Section 191(a) - the application 18. A copy of the application for a proposed PRCP schedule was provided to the Land Court as part of the Department's referral under section 181 of the EP Act. To avoid duplication on the Land Court's file, I have not included a copy of this application in exhibit ASL-1. Section 191(b) - any response given for an information request 19. A copy of responses given for the Department's information requests was provided to the Land Court as part of the Department's referral under section 185(1) of the EP Act. To avoid duplication on the Land Court's file, I have not included a copy of this application in the exhibit ASL-1. Section 191(c) - any standard conditions for the relevant activity or authority. 20. There are no standard conditions for the relevant activity or authority. Section 191(d) - any draft PRCP schedule for the application -- 3 of 6 -- 4 21. The parties have reached agreement on a draft proposed PRCP schedule. A copy of that draft proposed PRCP schedule appears at pages 197 to 239 of exhibit ASL-1 to this affidavit. Section 191(e)- any objection notice for the application 22. There are no objection notices for the Applicant's application. Section 191(f) - any relevant regulatory requirement 23. There are no regulatory requirements for the Applicant's application. Section 191 (g) - the standard criteria 24. The Department's Assessment Report dated 30 August 2024 contains the Department's initial assessment of the standard criteria at section 5.6 to the report. The Assessment Report appears at pages 248 to 348 of exhibit ASL- 1 to this affidavit. 25. On 11 June 2025, I received a letter from the Department which confirmed that the Department has considered the standard criteria and that the agreed amendments do not vary the Department's assessment of the standard criteria contained in the Assessment Report. The letter appears at page 349 of exhibit ASL-1 to this affidavit. Section 191(h) - the status of any application under the Mineral Resources Act for each relevant mining tenure 26. There is no application under the Mineral Resources Act for any mining tenure. [11] In view of the agreement reached, it is not necessary to set out the material referred to above, which is significantly voluminous. It is important to note that the proposed schedule is set out on pages 197 to 239 of the first exhibit to this affidavit. Human Rights [12] The Court must consider this aspect. The Human Rights Act 2019 is addressed in the joint submissions. The Court is satisfied that the parties’ agreement correctly reflects the legislative position created under that Act. The parties submit that – The requirements of the HR Act 25. There are five steps in applying human rights under section 58. (a) Section 58(1)(a) – ‘Engagement’: whether the prospective decision is relevant to a human right (and which right); (b) Section 58(1)(a) – ‘Limitation’: if so, is that right limited by the decision. This is part of the compatibility question; (c) Section 13 – ‘Justification’: whether such limits as do exist are reasonable and can be demonstrably justified (the second part of the -- 4 of 6 -- 5 compatibility question: ss 8 and 13). There are two overlapping requirements within this ‘step’: (i) Legality: it encompasses both procedure and substance. Any limitation must be in accordance with the procedure prescribed by law (the procedural requirements) and compatible with the rule of law, that is, sufficiently certain, accessible and non-arbitrary (the substantive requirement); (ii) Proportionality: human rights, not being absolute, must be balanced against one another and against other competing private and public interests, balancing the protection of human rights (which may conflict with one another) and the need to limit those rights to achieve other legitimate purposes. (d) Section 58(1)(b) – ‘proper consideration’: even if the limits be lawful and proportionate, the decision made must give proper consideration to the rights said to be engaged; (e) Section 58(2)- ‘inevitable infringement’: if the Court could not reasonably act differently or make a different decision because of a statutory provision or under law. Section 58(1)(a) HR Act – ‘Engagement’ 26. The relevant question for the ‘engagement’ step is: ‘whether the prospective decision is relevant to a human right (and which right)’. 27. It is 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 Applicant in the environmental authority. 28. The obligation to act compatibly with human rights depends in the first instance on whether ‘any of the rights are engaged’. There is no evidence that any human rights are engaged by the decision to issue the PRCP schedule for the PRCP and the Court need not consider the remaining four steps under section 58 of the HR Act. (citations omitted) [13] The Court is satisfied that there is no evidence before it that any human rights are engaged in this matter. [14] The Court is satisfied, in view of the agreement between the parties, that the amendments agreed by the parties are necessary and desirable and satisfy the requirements for the progressive rehabilitation and closure of the Lake Vermont Mine. -- 5 of 6 -- 6 Orders: 1. The Land Court recommends, pursuant to section 190(2)(a) of the Environmental Protection Act 1994, that the proposed Progressive Rehabilitation and Closure Plan schedule contained within the affidavit of Ms Linney filed on 11 June, 2025 at page 197 to 239 of exhibit ASL-1 be approved. 2. The Registrar of the Land Court is to provide, as soon as practicable, a copy of this recommendation and the affidavit of Ms Linney filed on 11 June, 2025, to the administering authority under the Environmental Protection Act 1994. -- 6 of 6 --