Legal development

Human rights objections pass first test in Land Court

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    • In Waratah Coal Pty Ltd v Youth Verdict Ltd & Ors [2020] QLC 33, the Land Court dismissed an application to strike out objections made under the Human Rights Act 2019 (Qld) (Human Rights Act).  Environmental groups objected to Waratah Coal Pty Ltd's mining lease and environmental authority applications in respect of its proposed Galilee Basin coal mine development.
    • The Land Court found that it has jurisdiction and is obliged to consider objections made under the Human Rights Act.
    • Resource companies should prepare to address human rights issues when making mining lease and environmental authority applications.

    Objections to Waratah Coal's Galilee Basin coal mine development based on human rights grounds

    The decision in Waratah Coal Pty Ltd v Youth Verdict Ltd & Ors [2020] QLC 33 related to Waratah Coal's application for a mining lease and environmental authority for its proposed Galilee Basin coal mine development.  Landholders and activist groups lodged various objections to the applications, including on the basis that their grant would be incompatible with human rights.  

    The objectors argued that the development's impact on local environments would impermissibly affect human rights to property, while consequential greenhouse gas emissions from the coal when used would limit the right to life and other protected rights.

    Strike out application by Waratah Coal

    Waratah Coal applied to strike out the human rights objections on the grounds that the Land Court was not obliged, and had no jurisdiction, to consider objections made under the Human Rights Act.

    The Land Court concluded that it is both able and obliged to consider human rights objections and that it does have jurisdiction to do so.

    The Land Court rejected Waratah Coal's argument that, because the objectors were not seeking relief or a remedy under the Human Rights Act, they could not rely on section 58 of the Human Rights Act to found their objections. 

    Waratah argued that the objectors did not have standing to make their human rights objections because they are corporate entities, not natural persons.

    The Land Court reasoned that there was no need to determine the issue of the objectors' standing as they were not seeking a remedy at this stage in the proceeding, but only pressing the Court to take human rights into its consideration.  Essentially, the Court was of the view that the objectors were entitled to advocate a position on human rights through an objection, given the Human Rights Act obliged the Court to take human rights issues into account.

    However, the Court foreshadowed that a question of standing may become pertinent at a later stage.  

    For more information about the Human Rights Act and the Land Court's decision, see our 10 September 2020 Energy & Resources Alert Human rights objections pass first test in Qld Land Court.

    Implications for future resource authority applications

    This decision represents the first indication of the Land Court's approach to the Human Rights Act in the context of resource authority applications.  

    Waratah Coal's strike out application was heard and ruled on by the President of the Court after carefully considered and structured reasoning.  Unless and until there is a contrary ruling by a superior court, we can likely expect to see more human rights-based objections to mining objections hearings in the Land Court.

    Of course, it remains to be seen how such objections will play out in substantive hearings and decisions of the Land Court.  For now, it can be taken that the Court is of the view that it can and must, at least, entertain such objections.

    It also remains to be seen whether and how human rights-based arguments might work their way into other types of Land Court cases beyond mining objections hearings (eg applications for the determination of compensation).

    The resources sector would be well advised to prepare to meet similar human rights objections at least when making mining lease and environmental authority applications, especially those relating to coal mining developments.

    Author: John Briggs, Partner

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