NuCoal Resources Ltd v New South Wales: The mining industry and potential health impacts of investor-state dispute settlement in Australia.

Abstract

The Climate Council and Climate and Health Alliance have detailed the adverse health impacts of coal on Australian citizens and their environment. Such reports confirm established evidence that coal mining not only releases atmospheric toxins but destroys prime farming land and rivers. This column examines how the revocation of coal mining leases after proven corruption by disgraced New South Wales politicians, upheld by the High Court (NuCoal Resources Ltd v New South Wales (2015) 255 CLR 388; [2015] HCA 13), was challenged using mechanisms in the Australia-United States Free Trade Agreement, and potentially the Trans-Pacific Partnership Agreement (TPP). It is likely that foreign investors in the Australian coal mining and fracking industries will circumvent imprecise exceptions and use investor-state dispute settlement clauses in the TPP to initiate claims for damages before panels of conflicted investment arbitrators, alleging appropriation of their investments as a result of Australian legislation or policy taken against the coal industry on public health grounds. This issue is explored through analysis drawn from an extant investor-state dispute involving the mining industry in North America.