Living Wonders climate litigation update
Cases in court
The Living Wonders climate cases are due to be considered by the Federal Court in Melbourne next month - October 2023.
The cases have generated a lot of public interest, so the purpose of these updates is to provide factual information about the proceedings and where they are up to.
The two proceedings filed by the Environment Centre of Central Queensland (ECoCeQ) are the first court challenges to a coal or gas decision made by Australia’s current Environment Minister.
ECoCeQ is seeking a judicial review of the Minister’s decisions, which effectively refused to recognise the climate risk associated with plans to extend Mount Pleasant and Narrabri coal mines in NSW for decades to come.
The mines
A subsidiary of Whitehaven Coal Limited plans to extend underground mining operations at the Narrabri thermal coal mine in NSW until 2044.
MACH Energy plans to expand open cut thermal coal extraction at its Muswellbrook Mount Pleasant mine site until 2048, making it the largest open cut coal mine in NSW.
Mining companies join proceedings
A case management hearing was held in Melbourne on 21 June 2023 before the Hon Justice McElwaine.
Narrabri Coal Operations Pty Ltd, the proponent of the Narrabri underground coal mine extension, and MACH Energy Australia Pty Ltd, the proponent of the Mount Pleasant Optimisation Project, successfully applied to be joined as respondents in each of the Living Wonders cases.
During the case management hearing, the Minister’s legal representatives indicated to the Court that following the companies joining as Respondents, the Minister would take on a Hardiman position* at the substantive hearing of the matters and take a less active role in relation to the questions of fact at the hearing.
The matters have been listed to be heard together before the Hon Justice McElwaine in the Federal Court in Melbourne from 18 September 2023, estimated to run until 22 September 2023.
Parties involved in the Federal Court proceedings:
The two applications are referred to as the Mt Pleasant judicial review proceeding and the Narrabri judicial review proceeding.
MOUNT PLEASANT JUDICIAL REVIEW PROCEEDING
Applicant: Environment Council of Central Queensland Inc.
First Respondent: Minister for the Environment and Water, The Hon Tanya Plibersek MP
Second Respondent: MACH Energy Australia Pty Ltd
NARRABRI JUDICIAL REVIEW PROCEEDING
Applicant: Environment Council of Central Queensland Inc.
First Respondent: Minister for the Environment and Water, The Hon Tanya Plibersek MP
Second Respondent: Narrabri Coal Operations Pty Ltd
Other proceedings
Bushfire Survivors for Climate Action, represented by EDO lawyers, previously launched separate judicial review proceedings in the Land and Environment Court of NSW challenging the Independent Planning Commission’s approval for the extension of the Narrabri Underground coal mine extension.
The judicial review application was heard in February 2023 and was dismissed by the Land and Environment Court on 5 July 2023
The Denman, Aberdeen, Muswellbrook, Scone Healthy Environment Group Inc, represented by EDO lawyers, has also commenced proceedings against MACH Energy and the Independent Planning Commission of NSW, in the Land and Environment Court of NSW, in relation to the Mount Pleasant Optimisation Project. The hearing is currently listed for 7 November 2023.
*See: R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13.
