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17 Sep 2020

Human rights objections to coal mine accepted by the Land Court of Queensland

By Mark Geritz, Jon Prentice and Claire Bolton

It is likely that there will be an increase in the number of human rights based objections to mining lease and environmental authority applications.

In the decision of Waratah Coal Pty Ltd v Youth Verdict Ltd & Ors [2020] QLC 33 the Land Court of Queensland has dismissed an application to strike out objections made under the Human Rights Act 2019 (Qld) (HRA) by environmental groups. Youth Verdict Ltd and The Brimblebox Alliance Inc objected to Waratah Coal Pty Ltd's mining lease (ML) and environmental authority (EA) in respect of Waratah Coal's proposed coal mine development in the Galilee Basin, the Galilee Coal Project, on the basis that the decision to grant the mining lease and EA would not be compatible with human rights, and therefore unlawful under section 58(1) of the HRA.

Waratah Coal applied to strike out those objections which relied on the HRA or obtain a declaration that the Land Court does not have jurisdiction to hear those objections. The Land Court rejected this application and found that it had jurisdiction, and is obliged, to consider the objections made pursuant to the HRA.

This decision is the first indication of the Land Court's approach to considering resource authority applications where there have been objections made on the basis of incompatibility with human rights arising within the new regime of the HRA.

Objections to Waratah Coal's Galilee Coal Project

In respect of its proposed Galilee Basin coal mine development, Waratah Coal applied for a mining lease and environmental authority in 2019. Objections to these applications were lodged by landholders and environmental groups. 

Under the Mineral Resources Act 1989 (Qld) (MRA) and the Environmental Protection Act 1994 (Qld) (EPA), the objections were referred to the Land Court.  The Land Court is required to make a recommendation to the ultimate decision makers, with respect to the grant of the ML and EA applications.

Youth Verdict Ltd and The Brimblebox Alliance Inc objected to the applications on the basis that the decision to grant the mining lease and EA would not be compatible with human rights, and therefore unlawful under section 58(1) of the HRA. The objectors advanced that the human rights to property would be adversely impacted by the development of the Galilee Coal Project and that the greenhouse gas emissions emitted from the coal when exploited would limit the right to life and other rights protected under the HRA. 

Section 58(1) of the HRA

On 1 January 2020, the HRA commenced in Queensland. Section 58(1) of the HRA provides:

(1)     It is unlawful for a public entity–

  1. to act or make a decision in a way that is not compatible with human rights; or
  2. in making a decision, to fail to give proper consideration to a human right relevant to the decision. [emphasis added]

Ultimately, it was not in dispute that the Land Court is a "public entity" for the purposes of section 58(1) when acting in an administrative capacity in making a recommendation on the grant of a ML under the MRA or an EA under the EPA. 

Waratah Coal application to strike out

Waratah Coal applied to strike out the human rights objections to the extent that they relied on the HRA or, in the alternative, obtain a declaration that the Land Court does not have jurisdiction and was not obliged to consider those objections.

The Land Court rejected this application and in doing so framed its reasons around 4 propositions. For the purpose of this article it is convenient to summarise the Court's findings with respect to these propositions: 

  • The Land Court's recommendation on an application for a ML or EA is, by applying the ordinary meaning of the words, both an "act and a "decision" as those terms are used by section 58(1) of the HRA and there was no reason to read down the provision. The Land Court also found that the recommendation would have a practical benefit to the ultimate decision-makers, who themselves would be bound by section 58(1).
  • The Land Court not only has jurisdiction to consider objections based on the HRA in hearing objections to ML and EA applications but is compelled, as a public entity, to itself make a decision in a way that is compatible with human rights pursuant to the HRA.
  • The objectors to a ML and EA application can rely on section 58 of the HRA, without seeking a remedy or separate relief under section 59 of the HRA. The objectors would be entitled to seek relief in the event the Land Court failed to make a recommendation in a way that was compatible with human rights pursuant to the HRA.
  • As there was no requirement for the objectors to establish a right to relief or remedy under section 59 of the HRA, there was no need to determine the issue of the corporate objectors' standing as "persons" capable of seeking such relief.

What do resource authority applicants need to do?

Because of this decision, it is likely that there will be an increase in the number of human rights based objections to ML and EA applications.  

Mining project proponents should continue to monitor developments of this case. The Land Court is still to consider the substantive merits of the objections to the grant of the ML and EA including the purported link between climate change impacts of the Galilee Coal Project and the impact on human rights under the HRA.

If the Land Court ultimately decides in this case to recommend the grant of the ML and the EA including that the grant is compatible with human rights, the objectors may seek a judicial review of the Land Court's decision and it is at that stage the objectors will need to establish that they have standing to seek relief under the HRA.

The general question that arises is whether Parliament specifically contemplated that Land Court recommendations with respect to ML and EA applications be captured by the HRA. If this was not the case, there may need to be consideration to legislative amendment to clarify the position.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.