Sunland Cattle Co’s High Court application against Olive Downs mine dismissed

A Central Queensland cattle breeding company has lost its latest battle against a proposed $1 billion mine and ensuring its operations do not impact water supplies in the region.

A Central Queensland cattle breeding company has lost its latest battle against a proposed $1 billion mine and ensuring its operations do not impact water supplies in the region.

Pembroke Olive Downs Pty Ltd proposes to construct a coal mine (Olive Downs) in an area about 40kms southeast of Moranbah and has applied for five mining leases.

The project, announced during the Queensland election in 2020, is expected to create 500 construction jobs, 1000 mining jobs and contribute an estimated $8 billion to the local economy and more than $10 billion to Queensland’s economy over its 79-year lifespan.

One of the entities affected by the leases is Sunland Cattle Co Pty Ltd which owns Bombandy Station – a 110 kmsq cattle property which is downstream from the proposed mine site and fronts the Isaac River.

The river runs through or along the boundaries of the proposed leases.

Sunland objected to the leases on the grounds the operation would adversely affect its property and operations at Old Bombandy Station.

There were two other objectors – Namrog Investments and Balanced Property – but they were not parties of the application before the Supreme Court of Queensland where Sunland sought decisions by the Land Court and Natural Resources, Mines and Energy Minister regarding the approval of leases be set aside and the matter be sent back to the Land Court for reconsideration.

The president of the Land Court had recommended to the Minister that four leases be granted and the fifth be granted with a reduced area.

Sunland’s application for the decisions to be set aside were based on three grounds – failure to observe the required procedures by the Land Court (in particular, investigating matters of public interest), a failure to consider relevant matters and the decision was unreasonable.

Sunland made a number of objections to the granting of the leases, but principally on the basis the mining proposal would have adverse impacts and potentially severe and long-term adverse impacts on the quantity, quality and ecology of the water in the Isaac River.

The particular grounds were: adverse environmental impacts would be caused by the mining operation, which was not in the public interest; loss of agricultural land contrary to the public interest; adverse impacts upon Sunland’s agricultural enterprise; and inappropriate land use dealing with surface water and groundwater.

The proposed mine location would be within the headwaters of the Isaac sub-catchment of the greater Fitzroy Basin, with five surface water users located upstream and five downstream of the proposed mine, and a further of unknown locations.

The surface water licences are used for mining, diverting flow, irrigation, stock, impounding water, construction and domestic supply.

The Supreme Court decision, written by Justice Glenn Martin, stated a joint expert report prepared for the Land Court considered the effect of the proposed mining activities on, among other things, the flow duration of the Isaac River.

Sunland claimed the Land Court did not comply with the “statutory scheme” in the Mineral Resources Act 1989 in that the president, Fleur Kingham, did not investigate matters of public interest so far as they concerned entities that were further downstream from Sunland.

Justice Martin referred to comments by High Court Justice Ninian Stephen in the decision of Sinclair v Maryborough Mining Warden from 1975 where Justice Stephen concluded the task of considering the public interest was not the task of the then mining warden (equivalent to the Land Court members in this case).

“While the statement by Stephen J is not part of the ratio of the decision, it nevertheless is consistent with the other judgments given and carries weight,” Justice Martin wrote.

Justice Martin concluded section 268(2) provided the Land Court the discretion to “inform itself in such manner as it considers appropriate... allow it to conduct a hearing by reference only to the matters raised in the objection which have been filed and evidence which the parties provide in the hearing”.

He concluded that was inconsistent with Sunland’s claims.

With regards to Sunland’s claim the decision was unreasonable, Justice Martin wrote:

“(Sunland) was not confined to matters which had only a direct effect on it.

“It could have directed its own expert to investigate these matters.

“But now, it says that the first respondent (Ms Kingham) failed by not doing something that nobody asked her to do at the hearing.”

He concluded Sunland had not demonstrated, because its argument was based on the rejected requirement for the Land Court to undertake its own investigations, that the decision was unreasonable.

Justice Martin dismissed the application based as Sunland had not proven any of the grounds in the application.