EDO’s client the Lock The Gate Alliance (LTG) fought for transparency over Queensland Government decisions behind the transfer of the Blair Athol coal mine to new owners.
The mine, in Queensland’s Bowen Basin, was mothballed by a Rio Tinto joint venture in 2012 after 30 years of operation.
In 2016, the site was sold for $1 to junior miner Orion Mining. EDO brought two related cases on behalf of LTG after repeated failed attempts by the community group to get answers from the Queensland Government on its role in facilitating the transfer of approvals for the mine. LTG held serious concerns about the new owner’s ability to pay for the clean-up of the mine site after it closes.
In the first case, in late August 2017, EDO filed a court application on behalf of LTG to compel the Queensland Minister for Natural Resources and Mines to provide a statement of reasons for granting an indicative approval under the Mineral Resources Act 1989 for transfer of the mining lease.
LTG had made several requests for formal reasons for the decision from the Department. However, they were continually rejected on the basis that LTG’s interests in the decision were not enough to have standing to be a ‘person aggrieved’. LTG wanted to know how the Government found that Orion has the resources to effectively operate and rehabilitate the Blair Athol site, and how the public interest was considered in the lease transfer.
In the second case, LTG sought transparency in how the Government calculated the amount of financial assurance required by the mine in light of significant rehabilitation that will be needed at the mine site. By selling the mine, Rio Tinto shifted its responsibility to rehabilitate the mine to Orion, which may not have sufficient resources to meet rehabilitation requirements – this is despite Rio giving Orion $79.6 million as part of the sale transfer.
In January 2018, it was reported that the Queensland Government had refunded Orion’s parent company $5 million in ‘surplus’ funds from the $80 environmental assurance fund shortly after the company took over the mine.1
In February 2018, the Supreme Court refused Lock the Gate’s applications to obtain statements of reasons for both Queensland Government decisions relating to transfer of Blair Athol mine.
Justice Bowskill QC essentially found that, despite being involved in numerous activities relating to the mine and rehabilitation law reform, LTG did not have the required interest in either decision that was beyond that of an ordinary member of the public. As such, LTG did not have ‘standing’ to request the reasons.
Separately, in 2017 LTG had also applied under the Right to Information Act 2009 to the Queensland departments of Natural Resources and Mines and Environment and Science for access to the documents regarding the respective decisions. TerraCom objected to the release of certain documents, including claiming they were commercial in confidence.
However, both departments largely allowed access to documents. TerraCom then sought external review of those decisions by the Office of the Information Commissioner. The departments’ decision were affirmed, with the Commissioner finding in each case ‘there is no basis under the RTI Act to refuse access to the information in issue’ (see here and here).
TerraCom then appealed to the Queensland Civil and Administrative Tribunal and arguing the Commissioner made errors of law. In August 2019, EDO went on the record to represent LTG. As part of those proceedings, TerraCom then released most of the subject information to LTG, which was largely acceptable to LTG. TerraCom then discontinued its appeals.
