With an election pending and Queensland’s LNP and ALP both rusted on supporters of coal production, the Barrier Reef’s future could now hang on a Federal Court challenge. By James Rose.

Abbot Point and Barrier Reef loom large in Qld election

Coal production in the coastal wetlands of Abbot Point.

When Ross Williams looks over the lush wetlands surrounding Abbot Point, in the heart of the Great Barrier Reef, he sees “a healing place”. A representative of the Juru people, the Indigenous custodians of the land, he says the space “keeps the calm in my mob and in myself”. That sense is being tested as the Queensland Newman government puts its Can-Do credo into overdrive. The upgrading of the existing port at Abbot Point, which Williams admits is currently “small enough and not an eyesore”, will make it Australia’s biggest coal port, serving what is proposed to be the country’s biggest coalmine.

Williams and his people are not alone in feeling disgruntled about the Abbot Point expansion and the challenges to the plans have come thick and fast.

The reef looms large in the current Queensland election campaign with hitherto safe Liberal National Party seats such as Whitsunday, where the port is situated, being called early for the Labor Party, according to Reachtel/Channel Seven/ABC data published on January 20. Yet, historically, neither the LNP nor the ALP have backed away from Queensland’s coal future. In fact, the Bligh Labor government was keen to develop both the Galilee Basin and Abbot Point. 

So no matter who takes a majority in the Queensland legislative council in next Saturday’s state poll, the battle for the reef looks set to go on. 

Concerns for the reef end rather than start at the contentious Abbot Point site and its proposal to dump dredged silt on the wetlands. The port facility is, to its opponents, more like an aching tooth, with the nerve pathway tracking the proposed rail link back to Galilee Basin, just under 200 kilometres to the south-west. The nerve centre is the clutch of proposed coalmine leases in this region, specifically the massive Carmichael lease owned by Indian power distribution company Adani.

Moira Williams, a community campaigner with the climate change activist group, who is closely connected to protesters in and around Abbot Point, says the government is “bending over backwards” to support the coal industry. 

“It’s quite illogical when the world is moving away from coal.”

She cites research by the Institute for Energy Economics and Financial Analysis (IEEFA) that concludes the projects will face significant problems getting bank backing. In a briefing note on the Galilee Basin coal proposals published in October 2014, the institute warns the proposals bring “an almost unprecedented level of financial complexity and risk”.

The paper argues that major investment banks are highly unlikely to back the projects, citing examples of many big banks that have already said they won’t touch a coal project the size of Galilee Basin. 

According to IEEFA, the largest coal industry equity raising in Australia between 2011 and 2013 was $400 million for the Whitehaven project in 2011. The two most advanced projects in the Galilee Basin have a total capital construction cost of $25 billion, says IEEFA, with Carmichael accounting for $15 billion of that. 

It’s still not clear exactly how much public money has been or will be invested in the Carmichael mine, as both the government and Adani have remained vehemently tight-lipped. 

An Adani spokesman offered no figures upon request from The Saturday Paper, stating that the process “reflects the longstanding practice of governments of both sides in Queensland investing in infrastructure such as rail lines to help achieve economic growth for Queensland”.

He added: “A number of top-tier banks and export credit agencies are in play prior to a final investment decision due late this year, and these discussions are progressing well.”

A request for details from the office of the Queensland deputy premier and minister for infrastructure and planning Jeff Seeney received no response. 

The likely commitment of some billions of dollars to the Carmichael project puts Premier Campbell Newman’s centrepiece election launch spending announcement earlier this month of $1 billion for new schools into some perspective. 

Proposed asset sales and leases of ports, water pipelines, electricity generators and power distribution firms – so called poles and wires – are being lined up to raise funds.

It’s a hot issue. High-rotation election campaign ads running in Queensland, particularly from the Palmer United Party, are making much of the premier’s goading of the former ALP premier Anna Bligh’s keenness to sell the furniture. Party leader Clive Palmer holds one of the leases for the Galilee Basin.

Traditionally, this may play more in the inner city of Brisbane and in the few Labor and swing seats left after the LNP’s evisceration of the opposition in 2012. But the latest polls suggest a shifting landscape, even in the LNP heartland. 

Legal challenge

Last week, a legal challenge aimed at the federal government and Adani, from the Mackay Conservation Group and the Environmental Defenders Office NSW, was launched to test the notion that the Commonwealth’s decision to sign off on the Galilee Basin project falls short in the application of existing law. 

The case, to be heard in the Federal Court, rests on a section of the Environment Protection and Biodiversity Conservation Act (1999), the nation’s environmental protection law, which states that all considerations for approvals of developments deemed to have an environmental impact must take into account “the principles of ecologically sustainable development”.

The plaintiffs interpret this to include considerations of the significant greenhouse gas emissions the mined and exported coal from the Galilee Basin will make in global terms, because this will impact negatively on the ecological wellbeing of the Great Barrier Reef. While emissions generated in the mining and transportation of the commodity have been factored into the various environmental plans, the emissions generated by their ultimate use as a source of electricity have not.

According to Samantha Hepburn, associate head (research) of the school of law at Deakin University, the outcome of this case could be “a potential game changer in relation to mining law in Australia”.

She says the current approach to environmental impact is “not specific but greenhouse gas emissions are indirectly included”.

The law, she says, is “ripe for interpretation”.

Ellen Roberts, co-ordinator of the Mackay Conservation Group, suggests there is a gap in the law. “The greatest threat to the Great Barrier Reef is climate change and that is not disputed even by Greg Hunt himself,” she says.

In a statement announcing the action, Roberts said, “By approving Adani’s Carmichael proposal, the Australian government is in major breach of its own environmental regulations. It is unacceptable at this time that any responsible government should wilfully ignore the climate implications of what could be one of the most polluting mines in the world.”

According to the Mackay Conservation Group figures, the Carmichael mine, if running at its intended full capacity, would be exporting 60 million tonnes of coal a year to India. When consumed for electricity, this coal will produce 128.4 million tonnes of carbon a year, or four times the carbon output of New Zealand.

Professor Hepburn argues the decision is likely to depend on the economic approach taken by the court. She draws a distinction between “standard economics” and “ecological economics” and argues the use of the latter would result in a broader interpretation of the current law in relation to Carmichael. 

“Consideration of intergenerational equity would make it virtually imperative to take into account global warming,” she told The Saturday Paper.

“I can’t say that [the decision to go ahead with the Carmichael project] is legally irresponsible, as the law is yet to be tested. But to not conduct a broad review of the act in light of climate change science is legally irresponsible.” 

Whatever the outcome of the case, the environment minister has no obligation to halt the Carmichael development. He is simply required to reconsider the case and to offer a subsequent finding. 

A spokesman for the environment minister declined to offer a response on the legal thrust of the case. An Adani spokesperson referred to a statement put out by the company that reads: “Adani will continue working with the Commonwealth and Queensland governments in ensuring our projects are undertaken in accordance with all relevant legislation, as we have done since 2010.” 

Samantha Hepburn says an unwillingness to confront the details of the challenge may be an opportunity lost. 

“I would hope that if the court sends a strong message, that a reform process would be carried out.

“There is a lot of reform that needs to be conducted in national environmental legislation in 2015, in light of numerous IPCC [Intergovernmental Panel on Climate Change] reports.”

The Labor opposition in Queensland has sought to gain traction from public concern for the LNP’s approach to the reef by stating a Labor government will not fund the port until Galilee Basin is sorted, will not sell assets to help the mines get over the line, and will ban wetland dredge-spoil dumping when Abbot Point does go ahead. But they too, like the LNP, seem ultimately comfortable with a coal-fired future and increased ecological pressure on the reef.

With the Federal Court legal challenge, potential funding problems, and with a UNESCO decision on whether the reef is at risk as a world heritage site to be delivered midyear, the forces against the contentious developments surrounding Abbot Point and the Galilee Basin seem to have broken the shackles of political cycles and electoral politics. As Indigenous leader Ross Williams looks over his beloved wetlands and considers his legal options, he may have to get in line to make his case. The battle for the reef has no clear conclusion in sight.

This article was first published in the print edition of The Saturday Paper on Jan 24, 2015 as "Reef motif". Subscribe here.

James Rose
is a journalist and author who has also worked nationally and internationally as a policy and media adviser.