Department of Environment, Tourism, Science and Innovation v BHP Coal Pty Ltd & Ors [2025] QLAC 1

LAND APPEAL COURT OF QUEENSLAND CITATION: Department of Environment, Tourism, Science and Innovation v BHP Coal Pty Ltd & Ors [2025] QLAC 1 PARTIES: Chief Executive, Department of Environment, Tourism, Science and Innovation (formerly Department of Environment, Science and Innovation) (appellant) v BHP Coal Pty Ltd, QCT Mining Pty Ltd, Mitsubishi Development Pty Ltd, QCT Resources Pty Ltd, QCT Investment Pty Ltd, Umal Consolidated Pty Ltd, BHP Queensland Coal Investments Pty Ltd, Whitehaven Daunia Pty Ltd (respondents) FILE NOs: LAC002-24 EPA503-23 PROCEEDING: Appeal from the Land Court of Queensland ORIGINATING COURT: Land Court of Queensland DELIVERED ON: 5 March 2025 DELIVERED AT: Brisbane HEARD ON: 9 December 2024 HEARD AT: Rockhampton THE COURT: Crow J Clarke DCJ, Acting Member of the Land Court ND Loos, Member of the Land Court ORDERS: The appeal is dismissed. The parties may make written submissions about costs within 21 days. CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – where the respondents made an application for an environmental authority under the Environmental Protection Act 1994 (Qld) – where the Department decided the application was not properly made in accordance with sections 126C(1)(d) and 754(3)-(5) because it was inconsistent in its description of the size of the voids purportedly approved and the extent of community engagement undertaken – where the respondents appealed -- 1 of 11 -- 2 that decision on the basis that the Department had misapplied the legislation – where the Court below determined the application was properly made and remitted the matter to the Department for reconsideration – where the Department appealed the decision of the Court below – where the Department argues that the Court below ought to have found the environmental authorities did not approve voids in the size espoused by the respondents, failing the tests in section 754(3)-(4) – where the Department argues that the Court below ought to have found that the respondents did not meet the requirements of community consultation in accordance with section 126C(1)(d) – whether the application for the proposed progressive rehabilitation and closure plan was a properly made application in accordance with those sections Environmental Protection Act 1994 (Qld) s 126C, s 126D, s 754(3)-(4), s 755 SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362, cited The Queen v A2 (2019) 269 CLR 507, cited APPEARANCES: Mr J Horton KC with Ms A Hellewell (instructed by In- House Legal, Department of Resources) for the appellant Mr S Holt KC with Mr J Underwood (instructed by Allens) for the respondents THE COURT: Introduction [1] The Daunia coal mine requires a Progressive Rehabilitation and Closure Plan (PRCP). BHP1 applied for one. The Department decided that BHP’s application was not properly made. That prevents the application from being assessed and decided. [2] The application was said to be not properly made because it included reference to 503 hectares of Non-Use Management Areas (NUMAs). Those are, effectively, areas to be left unrehabilitated.2 The Department considered 503 hectares to be too large an area. It said that an area of that size was inconsistent with the existing environmental 1 On 2 April 2024, the Respondents sold their interests in the Daunia mine to Whitehaven Daunia Pty Ltd. Whitehaven Daunia Pty Ltd was added as a party to this proceeding by Order of 6 December 2024. 2 “Non-use management area” is defined in section 112 of the Environmental Protection Act 1994 to mean “an area of land the subject of a PRCP that cannot be rehabilitated to a stable condition after all relevant activities for the PRCP carried out on the land have ended.” -- 2 of 11 -- 3 authority and had not been accurately communicated in the community consultation process. [3] Whether the application was properly made or not was the subject of internal review.3 The internal review confirmed the original decision. [4] The Department appealed the internal review decision to the Land Court. That Court determined that the application had been properly made. [5] The Department appeals that decision. The grounds of appeal [6] The Department says the Land Court erred by: (a) finding condition E9 of the environmental authority constituted an ‘outcome for the land’ with respect to proposed residual mining voids for the purposes of section 754(3) of the Environmental Protection Act 1994 (EP Act); (b) finding BHP was not required to comply with the requirements of subsections 126C(1)(g) and 126C(1)(h) of the EP Act for the proposed PRCP (by misconstruing section 743(3) of the EP Act and its reference to ‘outcome for the land’); (c) failing to find the PRCP did not comply with subsection 126C(1)(d)(i) of the EP Act because it did not state the extent to which the NUMAs were consistent with the outcome of community consultation because the consultation was not specific enough about the proposed outcomes for the land. The statutory scheme [7] The grounds of appeal turn on the correct construction of the statute, specifically sections 126C, 743 and 754 of the EP Act. The principles of statutory construction are well known.4 [8] Section 127 of the Act provides that an application is properly made if it complies with Chapter 5, Part 2, Division 3. The contentious provisions in that division are 3 Appeal Book, Volume 2, pages 543–54. 4 SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362 [14]; The Queen v A2 (2019) 269 CLR 507 [32]–[37]. -- 3 of 11 -- 4 subsections 126C(1)(g) and (h). Those concern what must be included in a PRCP application. [9] The Daunia mine was approved before the EP Act required a PRCP. As a result, the mine is subject to transitional provisions which work to fit existing mines into the new PRCP framework. The transitional provisions relevant to this appeal are sections 743 and 754. [10] The PRCP framework, including the transitional provisions, aims to ensure miners create a plan for the rehabilitation of a mine site at the end of the mining activity. Each mine site requires an environmental authority and a PRCP. A PRCP schedule can set rehabilitation milestones decades into the future. [11] The statute discourages NUMAs by permitting them only in limited circumstances.5 There is, however, express provision for NUMAs to be a component of a concluded mine. Ground 1 – what is an ‘outcome for the land’ [12] Section 754(3) contains the phrase ‘outcome for the land’. The meaning of that phrase in its context, is the essence of ground 1. Section 754(4) provides important context for subsection (3). [13] Subsections (3) and (4) state: (3) The holder is not required to comply with a requirement under section 126C(1)(g) or (h) or 126D(2) or (3) for the proposed PRCP schedule for the plan in relation to land if— (a) an outcome for the land has been identified under a land outcome document; and (b) the outcome for the land is the same as, or substantially similar to, the outcome for the land if it were a non-use management area under a PRCP schedule. Example of an outcome for land— A residual void or pit authorised under an environmental authority may constitute the outcome for the land on which the void or pit is located, even though the environmental authority or any other land outcome document does not expressly state anything about the outcome for the land, other than authorising the void or pit. 5 Environmental Protection Act 1994 s 126D(2). -- 4 of 11 -- 5 (4) However, if the environmental authority or any other land outcome document does not state sufficient detail to identify either the location or area of the land to which the outcome relates, the proposed PRC plan must state— (a) if the area is not identified—how the total area of the land to which the outcome relates will be minimised; and (b) if the location is not identified—how the mining EA holder will ensure the location of the land to which the outcome relates minimises risks to the environment. [14] The effect of section 754(3) would be to exclude BHP from having to comply with sections 126C(1)(g) or (h) for the proposed PRCP schedule in relation to land, if an outcome for the land has been identified under a land outcome document. [15] Section 750 defines ‘land outcome document’ to include ‘an environmental authority for a resource activity on the land’.6 BHP’s position before the Court below was that the Environmental Authority was a land outcome document. It clearly is. The focus was on Condition E9 of that Environmental Authority. [16] Condition E9 provides: Residual void outcome Complete an investigation into residual voids and submit a report to the administering authority proposing acceptance criteria and landform design criteria for departmental review and comment. On acceptance of the criteria proposed in the Residual Void Management Plan, the criteria must be specified in the environmental authority. The investigation must at a minimum include the following: a) a study of options available for minimising final void area and volume; b) develop design criteria for rehabilitation of final voids; c) a void hydrology study, addressing the long-term water balance in the voids, connections to groundwater resources and water quality parameters in the long term; d) a pit wall stability study, considering the effects of long-term erosion and weathering of the pit wall and the effects of significant hydrological events; e) a study of void capability to support native flora and fauna; and f) a proposal/s for end of mine void rehabilitation success criteria and final void areas and volumes. These studies will be undertaken during the life of the mine, and will include detailed research and modelling. 6 Ibid s 750, definition of “land outcome document” at (a). -- 5 of 11 -- 6 [17] The Court below concluded:7 … the environmental authority authorises a final void, the details of which are left to be worked out in time in accordance with Condition E9. This is the identified “outcome” required by s 754(3)(a). [18] The Department submits that conclusion was wrong because:8 (a) E9 does not identify any outcome, it merely provides a mechanism by which an outcome is to be reached; (b) E9 does not authorise any residual voids on the land; (c) the Coordinator General’s report contemplated much smaller voids, as small as 100 hectares. The Department’s first point [19] Senior counsel for the Department described this as the main point in the appeal.9 [20] The Department submits that as Condition E9 states a mechanism or process, until it accepts the acceptance criteria and landform design criteria referred to in the condition, there is no “outcome”. It says that Condition E9 does not authorise a void – it merely provides a mechanism to obtain future authorisation. [21] The Department says that the submission of a ‘proposal’ which contains success criteria and final void areas and volumes which are then subject to department ‘review and comment’ cannot be an outcome. [22] The Environmental Authority plainly contemplates a residual void. That is evident not just in Condition E9, but also in Condition E5 (read with Table E2). In that way, the Environmental Authority identifies residual voids as an “outcome” for the land. [23] On the terms of subsection 754(3)(a), it is not a question of what has been “authorised”. It is a question of what has been “identified”. To read that as meaning “authorised” is not possible because there are documents that fall within the definition of “land outcome document” that are incapable of authorising anything.10 7 BHP Coal Pty Ltd & Ors v Chief Executive, Department of Environment, Science and Innovation [2024] QLC 9 [41]. 8 Appellant’s Outline of Submissions, paras 28, 35, 40. 9 T 1-6, line 2. 10 EP Act s 750. For example, “an EIS assessment report”. -- 6 of 11 -- 7 [24] Reading subsections 754(3) and (4) together, we consider that the Department’s approach frames the word “outcome” in the provision too narrowly. Condition E9 identifies an outcome for the land, in the form of a void. The size and details of that void are left for future determination. [25] While we do not rely on the example that appears after s 754(3) to construe the provision, the construction we have reached is consistent with that example. The Department’s second point [26] The Department submits, with reference to Condition A1 of the Environmental Authority that the residual voids are not authorised because they are subject to future Departmental acceptance. [27] BHP submits that that misses the distinction between residual voids being “authorised” as opposed to “identified”. [28] Section 754(3)(a) requires that an outcome for the land has been identified. In this instance, Conditions E5 and E9 identify a “final void” and a “residual void” as an outcome for the land. The Department’s third point [29] The Department submits that a report prepared by the Coordinator General as part of the 2010 approval of the mine, contemplated much smaller voids.11 It says that any ‘outcome’ must be consistent with the Coordinator General’s report and the EA. [30] Section 754(5) contains a mechanism for resolving inconsistency between more than one “land outcome document”. The mechanism operates here to place the EA higher in the hierarchy than the Coordinator General’s report. The Department, however, says that there is no inconsistency – that both documents ought to be complied with. It says that the Coordinator General’s report contemplated smaller voids (as low as 100 hectares) and that that remains a requirement. 11 The Coordinator General’s report is also a “land outcome document” as defined by section 750. Section 754(5) deals with the situation of there being inconsistency between different land outcome documents. Here, the Environmental Authority would prevail over the Coordinator General’s report. -- 7 of 11 -- 8 [31] BHP submits that both land outcome documents contemplate voids. It says that the Coordinator General’s report “[c]learly identifies voids as an “outcome for the land””, but does not identify the size and location of residual voids. [32] If there is inconsistency, the EA prevails and the Coordinator General’s report does not operate to require smaller voids. If there is no inconsistency, both documents speak of voids without clearly stating how large or small those voids are to be. Either way, the Department’s point does not lead to a conclusion that the application was not properly made because that application failed to “comply” with a land outcome document. Ground 2 – the obligation to comply with sections 126C(1)(g) and 126C(1)(h) [33] The Department submits that the approach adopted by the Court below relieves BHP from having to comply with sections 126C(1)(g) and 126C(1)(h). Those provisions state that a proposed PRCP must – (g) for each proposed non-use management area, state the reasons the applicant considers the area can not be rehabilitated to a stable condition because of a matter mentioned in section 126D(2); and (h) for each matter mentioned in paragraph (g), include copies of reports or other evidence relied on by the applicant for each proposed non-use management area; [34] The Department says that accepting BHP’s position would mean: (a) the administering authority would be denied the opportunity to assess necessary matters pursuant to section 755(1) – meaning that BHP would have “bypassed an assessment of this vital component of the project”; and (b) that section 176A(3) would not apply to the assessment of the matters in sections 126C(1)(g) or (h) or 126D(2) or (3). [35] Both of those submissions assume that the Department will be obliged to approve the PRCP application if it is determined to be properly made. That is not so. The Department will not be forced to accept something that it regards as unacceptable. The remedy, if it does consider the proposed PRCP unmeritorious, is to refuse the application.12 If the proposed PRCP does not include copies of reports or other evidence relied on for each proposed NUMA, the Department can request further 12 Having regard to the matters identified in the EP Act s 176A(2). -- 8 of 11 -- 9 information or, again, refuse the proposed PRCP. If the Department considers 503 hectares of NUMA is unacceptable, it can refuse the application. [36] On each of the above scenarios, BHP would then have a right to a merits appeal of that decision in the Land Court. [37] The transitional provisions operating to exclude the application of section 176A(3)13 does not leave the Department powerless to refuse on other grounds. [38] No error has been demonstrated in respect of ground 2. Ground 3 – the adequacy of the public consultation [39] A PRCP application usually undergoes a process of community consultation. The statute requires that a proposed PRCP must state the extent to which each post mining land use (PMLU) and each NUMA is consistent with the outcome of consultation with the community in developing the plan.14 [40] The statute emphasises the importance of community involvement in the administration of the Act in section 6.15 Section 126C(1)(d) sets out the requirement for a PRCP for consultation with the community. The Department says that BHP failed to comply with that provision. [41] BHP’s initial PRCP application16 included information about community consultation.17 That was later supplemented18 with additional information that BHP says “made explicit the ‘outcome(s) of consultation with community in developing the PRCP and extent to which each proposed [PMLU] or NUMA identified in the proposed PRCP schedule for the plan is consistent with those outcomes’”.19 The supplementary information was provided prior to the Land Court decision in this matter. [42] The Department argued the point before the Court below. BHP informed the Court about the provision of the supplementary information. It told the Land Court that 13 EP Act s 755(4). 14 Ibid s 126C(1)(d)(i). 15 Within Chapter 1, Part 2 – the Object and achievement of Act. 16 Submitted on 29 June 2023. 17 Appeal Book, pages 802–24. See also Respondents’ Outline of Submissions, para 83; Appellant’s Outline of Submissions, paras 21(c), 58, 60. 18 By the filing of an amended PRCP on 1 March 2024. 19 Respondents’ Outline of Submissions, para 84, page 31. -- 9 of 11 -- 10 compliance with community consultation had been achieved.20 The Court accepted that submission.21 [43] The Department submits that acceptance was wrong because: (a) the PRCP application did not state the outcomes of consultation; or (b) the consultation was undertaken on a false or incomplete footing. The Department’s first point [44] The Department takes the position22 that whether the application was properly made or not must be assessed based on the application in its original form. That is, the Department says that the supplementary information provided by BHP cannot be considered. [45] Neither party provided an authority about whether the Land Court ought to have had regard to the supplementary information provided by BHP. [46] The point is not determinative here. With or without the supplementary information, the statutory scheme does not specify a level of detail, or a level of accuracy, that community consultation must meet. No error has been demonstrated in the Land Court having regard to the supplementary information. This Court does not need to have regard to it to determine this appeal. The Department’s second point [47] The Department points to parts of the Consultation Register23 that showed that Traditional Owners, the Isaac Regional Council, the Moranbah Smart Transformation Advisory Council and various State government departments were told about “Approved PMLUs and NUMAs”. That is wrong because the NUMAs are not approved. The Department says that the underlying and adjacent landholders were not told about NUMAs at all. [48] BHP does not accept that what it did was false or incomplete, but responds with two points: 20 BHP Coal Pty Ltd & Ors v Chief Executive, Department of Environment, Science and Innovation [2024] QLC 9 [55], footnote 11. 21 Ibid [55]. 22 Appellant’s Outline of Submissions, para 46 and footnote 13, page 10. 23 Appeal Record Book, pages 285–8, 1272–5. -- 10 of 11 -- 11 (a) the statute does not actually require the community consultation to be adequate – it simply requires the PRCP application to state the extent to which that application was consistent with the outcome of consultation with the community; or (b) in any case, if the consultation was false or incomplete, that can be corrected in the information request phase of the application. [49] It is correct that the statute does not specify a standard which the community consultation must satisfy. That is not to say that false or incomplete consultation is permitted or encouraged. An applicant who conducts a consultation process with information that is false or incomplete can expect to be required, through the information request process, to do the consultation again. [50] An applicant would, of course, be saved the time and expense of repeating community consultation if it was done properly the first time. [51] No error has been demonstrated in respect of ground 3. Orders 1. The appeal is dismissed. 2. The parties may make written submissions about costs within 21 days. -- 11 of 11 --