The Great Debate Between Agriculture, Mining and Environment

Can we really have it all?  The pursuit of the harmonious intersection of Australia’s agricultural and resources industries and the environment.

Australia Agriculture, Mining & Environment

Rebecca Hoare

August 5, 2021 07:00 AM

This paper was originally published in The Best Lawyers in Australia 2022 edition and written by Rebecca Hoare, Partner1.

As a nation rich in agricultural and mineral resources, Australia proudly asserts itself as a leader in both sectors on the world stage. Domestically, however, it is no secret our critical industries have come to blows. Where a parcel of land is both mineral-rich and agriculturally fertile, what is our priority? Can the law support both to thrive without compromising the environment?

Lawmakers have long grappled with these questions, but now they are undertaking this delicate balancing act under the watchful eye of a population which is more socially and environmentally astute than ever before.

Our planning and environment law landscape as it stands today is the product of sustained attempts to find a fair middle ground and answer the question¾can we really have it all?

Towards Sustainable Mining

Resources regulation has been an active area of reform over the past couple of years. A number of recent developments across jurisdictions have sought to increase efficiency, transparency and accountability.

With the Mineral and Energy Resources and Other Legislation Amendment Act 2020, Queensland has bolstered environmental performance, requiring mining companies to develop Progressive Rehabilitation and Closure Plans. The Act has also heightened scrutiny of the financial and technical capabilities of a resource authority holder when there is a change in ownership.

The New South Wales Minerals Strategy, published in 2019, also includes improved compliance and reporting requirements for rehabilitation. In a similar spirit, amendments to Victoria’s Mineral Resources (Sustainable Development) Act 1990 have established a Mine Rehabilitation Authority, which will monitor, maintain and manage declared mining land.

At a Commonwealth level, a statutory review of the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) resulted in a Final Report published in January 2021, which was scathing of the cumbersome instrument and its inability to protect Australia’s environment. A centerpiece of the report was the recommendation for legally enforceable National Environmental Standards. While this report is now with the Commonwealth Government for consideration, implementation would no doubt impact the resources industry through stronger compliance and enforcement obligations.

Regulation aside, resources companies are increasingly recognising environmental accountability, social responsibility, and profitability go hand in hand. To be considered a leader in the resources sector¾and not run foul of the company’s social license to operate¾a sustainability strategy is now a ‘must have’ rather than a ‘nice to have’. Considerable dollars are being invested in research and innovations that can secure better environmental outcomes. The Australian Minerals Industry has also adopted ‘Towards Sustainable Mining’, an accountability framework applicable to all members of the Minerals Council of Australia, which promotes transparency and best practice. It ‘recognises that access to land is earned by demonstrating responsible land stewardship throughout the mining lifecycle’.2

Regulation aside, resources companies are increasingly recognising environmental accountability, social responsibility, and profitability go hand in hand."

Protecting Agricultural Land

Agricultural purposes account for 55% of Australia’s land use and are responsible for 11% of the nation’s goods and services exports.3 Mineral-rich land is often found within thriving agricultural hubs, giving rise to complex negotiations for land access and compensation.

In recent years there have been a number of legislative endeavours aimed at giving landholders greater protection.

Queensland’s Regional Planning Interests Act 2014 earmarked land considered ‘areas of regional interest’, ‘priority agricultural areas’, ‘strategic cropping areas’ and ‘strategic environmental areas’. The Act introduced an assessment framework to manage the impact of resource activities on the abovementioned areas, necessitating a ‘regional interest authority’ for those resources activities that do not fall within an exemption provision. Developments such as coal seam gas, underground coal gasification, mining, urbanisation and permanent forest plantations are now assessed under this regulative regime.

Underground resources activities have proved to be a hot topic of discussion, particularly in terms of determining fair and adequate compensation. While the activity may be conducted underground, the potential for subsidence should be considered, particularly where this might interfere with productive cropping land. The impact this has on landholders was acknowledged by the New South Wales government in 2017, with the introduction of the Coal Mine Subsidence Compensation Act, which instituted fairer and quicker claims processes for surface damage caused by underground operations.

At a Federal level, the Landholders’ Right to Refuse (Gas and Coal) Bill 2015, which was extensively debated until 2019, constitutes one of the more bold attempts to influence the balance of power in favour of agriculture. While the bill was ultimately unsuccessful, it is a pertinent example of the balancing exercise that defines the ever-evolving relationship between Australia’s agriculture and resources industries and the environment.

Environmental Awakening Infiltrates Litigation

Environmental litigation, particularly as it applies to the approval of resources activities, often necessitates a consideration of the ‘public interest’. As concerns around climate change and human rights dominate public discourse, these are now finding their way into litigation across Australian jurisdictions.

Human rights (as affected by climate change) debated in the court room
The Australian Capital Territory, Victoria and Queensland now have their own human rights acts, which are proving increasingly relevant for planning and environment lawyers. In the recent Queensland Land Court matter of Waratah Coal Pty Ltd v Youth Verdict Ltd & Ors (No 2),4 objectors to the grant of a mining lease argued the grant of a lease and an associated environmental authority would be incompatible with the Human Rights Act 2019, limiting a number of rights, namely: the right to life; the right not to have one’s privacy, family, home or correspondence unlawfully or arbitrarily interfered with; property rights and the cultural rights of Aboriginal and Torres Strait Islander peoples; among others.5 While this argument was not determined by the Land Court, it did require the objectors to provide an exhaustive list of classes of individuals whose human rights they say will be limited by the grant of a mining lease.

Consideration of climate targets
The New South Wales Land and Environment Court case of Gloucester Resources Ltd v Minister for Planning is also noteworthy.6 The judge decided a proposed coal mine development would be “in the wrong place at the wrong time”, this being a reference to "the greenhouse gas emissions of the coal mine and its coal product [that] will increase global total concentrations of greenhouse gasses at a time when what is now urgently needed, in order to meet generally agreed climate targets, is a rapid and deep decrease in greenhouse gas emissions".7

Duty of care
Most recently in the Federal Court, Justice Bromberg held that the Federal Minister for the Environment had a duty to take reasonable care in the exercise of powers when assessing and deciding whether to approve the extension to the Vickery coal mine near Gunnedah in New South Wales under the EPBC Act.8 That duty was expressed as a duty to avoid causing personal injury or death to persons who were under 18 years of age and ordinarily resident in Australia arising from the emissions of carbon dioxide into the Earth’s atmosphere. This demonstrates that while an individual mine may not on its own make a significant contribution to climate change, this case shows the judiciary is conscious of community expectation and the need for a holistic view of climate change.


Recent history indicates there will not be one single point at which all parties¾agricultural, resources, and environment advocates alike¾agree on a perfect equilibrium. Each industry, along with environmental activists, will have its own agenda at the fore. What is clear, though, is societal expectations are shaping the law and best practice standards of these key industries. While it might be a case of give and take to an extent, the voices of our agricultural and environmental proponents are growing louder.

To operate harmoniously, no one sector can ‘have it all’. The legal landscape will continue to evolve as lawmakers attempt to find this delicate balance and keep pace with burgeoning environmental needs and community expectations.

1 The author acknowledges the assistance of Lauren Reddiex, Seasonal Clerk.
2 ‘Land Use’, Minerals Council of Australia (Web Page, 15 July 2021) <>.
3 ‘Snapshot of Australian Agriculture 2021’, Australian Government Department of Agriculture, Water and the Environment (Web Page, 15 July 2021) <>.
[2021] QLC 4.
5 Ibid [6].
6 [2019] NSWLEC 7.
7 Ibid [699].
8 Sharma by her litigation representative Sister Marie Brigid Arthur v Minister for the Environment [2021] FCA 560

Rebecca Hoare is an environment and planning lawyer and partner in the Brisbane office of Norton Rose Fulbright Australia. She has nearly 20 years’ legal experience and is recognized in Best Lawyers for 2022 for her work in mining law, planning and environment law, climate change law, and land use and zoning law.

Related Articles

Checks and Balances

by Michael Sullivan

Ensuring probity and above-board behaviour in both the public and private sector is always important—and that importance can be particularly stark during a major crisis like the pandemic. An overview of a year’s worth of commissions and inquiries.

Australian Commission Governance Structure

The Partnership Opportunity

by David Harley, Shaun Whittaker, Tony Rutherford and Troy Lewis

Doing well and doing good need not be mutually exclusive. Housing developments that provide both solid long-term returns and positive social outcomes, often through public-private partnerships, are an idea whose time has come throughout Australia.

Housing Developments in Australia

A Climate Duty

by Lara Douvartzidis and Samantha Daly

Converging trends in Australia and the Netherlands: reasonable foreseeability in climate change law and other novel developments.

Climate Change Law in Australia

What Does It Take to Join The Best Lawyers in Australia?

by Best Lawyers

We asked The Best Lawyers in Australia: What advice would you give your younger self?

Nominate a Lawyer in Australia

Outcomes Focus: Environmental Impact Bonds are All About Results

by Jeremy King

Environmental Impact Bonds offer governments, investors and non-government participants the opportunity to focus on outcomes rather than activities.

Environmental Impact Bonds

Australasian In the Law: Legal News From Our Recently Awarded Countries

by Gregory Sirico

Best Lawyers highlights the top legal stories out of Australia, New Zealand, Japan and Singapore, in conjunction with the 2024 Australasian launch.

Suited man sitting at table using a tablet

The Best Lawyers in Australia™ 2024 Launch

by Best Lawyers

Best Lawyers is excited to announce The Best Lawyers in Australia™ for 2023, including the top lawyers and law firms from Australia.

Australian Parliament beside water at sunset

Canadian Women in the Legal Profession: From Non-‘Persons’ to Chief Justices

by Sara Collin

We take an in-depth look at the challenges and optimistic future of women in the Canadian legal sector.

Canadian Women in the Legal Profession

Best Lawyers Through the Ages: Our past. Our today. Our future.

by Rachel Shrewsbury

Best Lawyers is celebrating its 29th edition for 2023 continuing to be the original, trusted source for legal awards.

Skyscrapers against evening sky with water

Announcing The Best Lawyers in Australia™ 2023

by Best Lawyers

The results include an elite field of top lawyers and firms from Australia.

The Best Lawyers in Australia™ 2023

How Peer Review Powers Industry Referrals

by Best Lawyers

Best Lawyers combines the trust of industry referrals with state-of-the-art technology to help clients find the right lawyer.

Man and woman sitting at desk with laptops

Celebrating Lawyers From Around the World: Annabel West

by Rebecca Blackwell

We are honoring the achievements and career of Annabel West, lawyer and wife of South Australian Premier Peter Malinauskas.

Accomplished Australian Lawyer Annabel West

Georgia Laws Taking Effect in 2022

by Gregory Sirico

Three new pieces of Georgia legislation aim to improve medical bill transparency, lower the sales tax on vehicles and enact further safeguards to protect children in foster care.

New Georgia Laws Enacted in 2022

Cost to Boss

by Gregory Sirico

New Colorado legislation aims to stop employers from dodging direct negligence claims.

Employers Dodge Direct Negligence Claims

South Florida "Lawyer of the Year"

by Best Lawyers

Jerry Hamilton is honored as 2022 "Lawyer of the Year" in Admiralty and Maritime Law for Miami.

South Florida "Lawyer of the Year"

Tampa 2022 "Lawyer of the Year"

by Best Lawyers

George F. Gramling III is honored as 2022 "Lawyer of the Year" in Environmental Law for Tampa.

Tampa 2022 "Lawyer of the Year"

Trending Articles

The 2024 Best Lawyers in Spain™

by Best Lawyers

Best Lawyers is honored to announce the 16th edition of The Best Lawyers in Spain™ and the third edition of Best Lawyers: Ones to Watch in Spain™ for 2024.

Tall buildings and rushing traffic against clouds and sun in sky

Best Lawyers Expands Chilean 2024 Awards

by Best Lawyers

Best Lawyers is pleased to announce the 14th edition of The Best Lawyers in Chile™ and the inaugural edition of Best Lawyers: Ones to Watch in Chile™, honoring the top lawyers and firms conferred on by their Chilean peers.

Landscape of city in Chile

The Best Lawyers in Spain™ 2023

by Best Lawyers

Announcing Spain's recognized lawyers for 2023.

Flag of Spain

Announcing The Best Lawyers in South Africa™ 2024

by Best Lawyers

Best Lawyers is excited to announce the landmark 15th edition of The Best Lawyers in South Africa™ for 2024, including the exclusive "Law Firm of the Year" awards.

Sky view of South Africa town and waterways

Announcing the 2023 The Best Lawyers in America Honorees

by Best Lawyers

Only the top 5.3% of all practicing lawyers in the U.S. were selected by their peers for inclusion in the 29th edition of The Best Lawyers in America®.

Gold strings and dots connecting to form US map

The Best Lawyers in Portugal™ 2024

by Best Lawyers

The 2024 awards for Portugal include the 14th edition of The Best Lawyers in Portugal™ and 2nd edition of Best Lawyers: Ones to Watch in Portugal™.

City and beach with green water and blue sky

The Best Lawyers in Peru™ 2024

by Best Lawyers

Best Lawyers is excited to announce the landmark 10th edition of The Best Lawyers in Peru, the prestigious award recognizing the country's lop legal talent.

Landscape of Peru city with cliffside and ocean

The Best Lawyers in South Africa™ 2023

by Best Lawyers

Best Lawyers proudly announces lawyers recognized in South Africa for 2023.

South African flag

The Best Lawyers in Chile™ 2023

by Best Lawyers

The results include an elite field of top lawyers and firms in Chile.

White star in blue box beside white box with red box on bottom

The Best Lawyers in Colombia™ 2024

by Best Lawyers

Best Lawyers is honored to announce the 14th edition of The Best Lawyers in Colombia™ for 2024, which honors Colombia's most esteemed lawyers and law firms.

Cityscape of Colombia with blue cloudy sky above

Announcing the 2024 Best Lawyers in Puerto Rico™

by Best Lawyers

Best Lawyers is proud to announce the 11th edition of The Best Lawyers in Puerto Rico™, honoring the top lawyers and firms across the country for 2024.

View of Puerto Rico city from the ocean

The 2023 Best Lawyers in Portugal™

by Best Lawyers

Announcing the elite group of lawyers recognized in Portugal for 2023.

Green and red Portuguese flag

Unwrapping Shrinkflation

by Justin Smulison

Through the lens of the United States, we take a closer look at the global implication of companies downsizing products while maintaining and often raising prices.

Chocolate bar being unwrapped from foil

Best Lawyers: Ones to Watch in America for 2023

by Best Lawyers

The third edition of Best Lawyers: Ones to Watch in America™ highlights the legal talent of lawyers who have been in practice less than 10 years.

Three arrows made of lines and dots on blue background

2021 Best Lawyers: The Global Issue

by Best Lawyers

The 2021 Global Issue features top legal talent from the most recent editions of Best Lawyers and Best Lawyers: Ones to Watch worldwide.

2021 Best Lawyers: The Global Issue

Announcing the 2023 The Best Lawyers in Canada Honorees

by Best Lawyers

The Best Lawyers in Canada™ is entering its 17th edition for 2023. We highlight the elite lawyers awarded this year.

Red map of Canada with white lines and dots