A proposed coal mine near Bundaberg is back on the table after the Supreme Court found the Minister who rejected the licence application on the grounds of public interest, did not conduct a proper assessment.
Fox Coal and Zimprops Coal challenged the decision made by Resources Minister Scott Stewart in April last year, under the Mineral Resources Act 1989 (Qld), in relation to their 2019 application for a mineral development licence (MDL) on the 7818-hectare site.
Mr Stewart based his decision on “significant adverse community sentiment” about the licence, “particularly in relation to the potential negative environmental, agricultural and social impacts in the Bundaberg region”.
The miners applied for a review under the Judicial Review Act 1991 (Qld) citing four grounds of review: that an error of law had been made, that the Minister failed to take into account relevant considerations, that the Minister took into account irrelevant considerations, and that the decision was unreasonable.
In her decision published on Friday, Justice Hindman stated that central to all of the grounds advanced by the miners was determining what was required for an assessment by the minister of the “public interest” under Section 186(2) of the Act, which states: “the minister may refuse to grant a mineral development licence if the minister considers the grant is not in the public interest”.
The miners argued an evaluative process was required.
“The applicants say that no evaluative process was here undertaken. Instead, the minister substituted the question of what constituted the community sentiment in place of a proper consideration of whether the MDL Application was in the public interest,” Justice Hindman said.
She said the miners submitted the Minister was required to consider and determine the public interests affected, whether the application was consistent with the objects of the Act, and whether community sentiment (positive or negative) toward the application had a proper factual basis.
Crown Law argued such an evaluative process was not needed, and all that was required was for the minister to identify a relevant factor that showed the application was not in the public interest, such as community sentiment.
Justice Hindman determined the Minister was required to identify relevant factors, considering the scope and purpose of the Act, then weigh up those factors.
She said the decision and the reasons supplied for it suggested the Minister had not done this.
“If the decision is taken by itself, on its face, there could be no confidence that the minister has turned his mind in any real way to identifying the factors that might be relevant to the public interest issue or that he has engaged in a process of weighing up those factors,” she said.
“Read as a whole, I consider that the reasons demonstrate that the minister did not carry out an evaluative process and did equate his finding of negative community sentiment as being sufficient, of itself, to result in the MDL application not being in the public interest.
“That was not the correct approach. Public interest in this context is wider than a consideration of community sentiment. Factors relevant to public interest, both for and against, ought to have been identified and then an evaluative process undertaken.”
Justice Hindman found the other separate grounds for challenging the decision were not made out.
She ordered the decision be set aside and the parties make submissions as to costs.
In a shareholder update published after the decision on Friday, the board of Fox said it was committed to advancing the project, which it said could become an underground coking coal mine.