Is the Carmichael Court win a mere technical hitch?

By EDO NSW Principal Solicitor Sue Higginson

5 August 2015

No it is not.

Today the Carmichael decision has been described as a “bureaucratic stuff up”, a “technical administrative hitch” and a “technical legal error”.

The Court has set aside the decision of the Federal Environment Minister because his decision was legally and fatally flawed. This amounts to a substantive legal error not a mere hitch.

What in fact happened is our client, the Mackay Conservation Group, challenged the Minister’s decision to approve the mine on a number of legal bases. These included:

-       The failure to take into account the scope 3 greenhouse gas emissions  that will result from the burning of the coal that is mined, and the impact of those emissions on the World Heritage listed Great Barrier Reef

-       The failure to take into account Adani’s poor environmental history

-       The failure to take into account two Approved Conservation Advices for two nationally threatened species that will be significantly impacted by the mine – the Yakka Skink and the Ornamental Snake.

The Minister and Adani conceded defeat on the last ground. They did this because this is a significant legal error that could not be simply overcome.

Approved Conservation Advices are scientific and legal documents that essentially go to explaining the conservation requirements of species to avoid their extinction. The failure to consider them has been determined by the Courts of Australia to be a fundamental error of law.    

So where to from here?

The Minister can remake a decision about the Carmichael mine. He has the power to refuse the mine and he has the power to approve the mine again, as long as he does so in accordance with the laws of Australia.

However, in our view this is not a simple straight forward task for the Minister. Clearly he would have to properly consider the impact that the proposed mine will have on nationally listed threatened species including the Yakka Skink and the Ornamental Snake.

Importantly, the two other matters that were before the Court remain unresolved. Our client says that the Scope 3 emissions from the proposed mine will contribute in a significant way to climate change which is the biggest threat to the World Heritage listed Great Barrier Reef. There is also evidence about Adani’s environmental history now before the Minister.

There is a plethora of new independent expert evidence about the impacts of the mine on matters that are entirely relevant to the Federal Minister that are in the public domain as a result of the EDO QLD Land Court challenge to the State Government approval of the mine. This includes evidence about the significant impacts on the nationally endangered Black-Throated Finch and the economic viability of the mine. 

To describe the community win as a mere technical hitch is an affront to the rule of law and the substantive legal protections the law rightly provides for the environment.