Judge dismisses court battle against Whitehaven

The Vickery coal mine. Image: Whitehaven Coal.

A Federal Court judge has thrown out proceedings that would prevent Whitehaven Coal’s Vickery extension project in New South Wales from receiving Environment Minister approval.

Justice Mordecai Bromberg dismissed the proceeding on May 27 – made by eight Australian children and their litigation representative, 86-year-old nun Sister Brigid Arthur – which sought to prevent approval of the Vickery extension project.

The applicants said Australian Environment Minister Sussan Ley had a duty of care to protect young people from the future impacts of climate change, and an injunction should be issued for the Vickery extension.

Justice Bromberg dismissed the case on the grounds that the applicants had not proven Ley would breach her duty of care by approving the extension.

“The applicants have not satisfied the Court that the extent of the restraint they seek is justified by the imposition of liability in negligence,” Justice Bromberg said.

“The applicants have not satisfied the Court that it is probable that the Minister will breach the duty of care in making her decision as to whether or not to approve the extension project.”

“The applicants’ failure to satisfy the Court that a breach of the duty is reasonably apprehended, together with my concern that the applicants have not established that a restraint in the form sought is warranted, suffice to support my conclusion that an injunction should be refused.”

Justice Bromberg acknowledged the Minister has a duty of care for children, but said an approval of the Vickery extension would not breach that duty of care.

“The court is satisfied that a duty of care should be recognised. Accordingly the court has determined that the Minister has a duty of care to take reasonable care not to cause the children personal injury when exercising her power,” Bromberg said.

Whitehaven Coal welcomed the decision and said the company is looking forward to receiving Environmental Protection Biodiversity and Conservation Act (1999) approval for the Vickery extension.

“Our consistent position has been that this legal claim was without merit,” Whitehaven said in a media release.

“The company sees a continuing role for high-quality coal in contributing to global CO2 emissions-reduction efforts while simultaneously supporting economic development in our region.”

The company said there is strong demand for coal sourced from Vickery, with the open cut coal mine to produce up to 10 million tonnes per annum with the extension.

The mine is currently approved to extract 4.5 million tonnes per annum.

“There is strong market demand for the high-quality product of the type Vickery will produce,” Whitehaven stated.

The project extension was approved by the New South Wales Independent Planning Commission on August 12, 2020.

It is expected to create 500 jobs during its construction phase and 450 jobs during operations.

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