Mining lease application objections hearing – Land Court finds that the human rights of First Nations witnesses requires evidence to be given on country

Key Insights

• The Land Court has held that First Nations witnesses' cultural rights under the Human Rights Act 2019 (Qld) would be unduly limited by confining their evidence to written evidence (Waratah Coal Pty Ltd v Youth Verdict Ltd & Ors (No 5) [2022] QLC 4).  The Court therefore ordered that evidence from the First Nations witnesses be taken orally on country.
• The decision is the first time a Queensland Court has considered the scope of "cultural rights" under the Human Rights Act, and also the first time the Land Court took  on country evidence from First Nations witnesses as part of a mining lease objection hearing.
• More generally, the Land Court found that "written evidence from First Nations witnesses is a poor substitute for oral evidence given on country and in the company of those with cultural authority".  We expect this finding will be raised in other forums and processes involving First Nations people.

Objections to Waratah Coal's Galilee Basin coal mine development

In 2019, Waratah Coal applied for a mining lease and environmental authority in respect of its proposed Galilee Basin coal mine development.  Landholders and activist groups lodged various objections to the applications.  

The objections were referred to the Queensland Land Court under the Mineral Resources Act 1989 (Qld) and the Environmental Protection Act 1994 (Qld).  Under these regimes, the Land Court's recommendations inform the final decisions about whether to grant applications.

Some of the objections to the applications were on the basis that decisions to grant the approvals would be incompatible with human rights.  

We reported last year on the Land Court's finding that it had jurisdiction and is obliged to consider objections made under the Human Rights Act 2019 (Qld) in our Qld Land Access Year in Review 2020-2021 article "Human rights objections pass first test in Land Court", 27 September 2021.

Application for on country evidence based on human rights grounds

As part of this ongoing objection matter, the Land Court was required to decide how evidence should be given by First Nations witnesses. 

In Waratah Coal Pty Ltd v Youth Verdict Ltd & Ors (No 5) [2022] QLC 4, the Land Court found that First Nations witnesses' cultural rights under the Human Rights Act would be unduly limited if their evidence was confined to written evidence. 

The objectors applied for an order permitting the Court to take on country evidence from four First Nations witnesses, an event which has not previously occurred in mining lease objection hearings.  The application was based on cultural preference and practice in imparting traditional knowledge, having already provided the Court with written evidence in chief.  

Waratah Coal opposed the application on the basis that the giving of on country evidence was unnecessary and involved disproportionate costs.  

Communal element of cultural rights is crucial determinant of how evidence of First Nations people should be given

The Land Court rejected Waratah Coal's arguments; it concluded that allowing the First Nations witnesses to give on country evidence was not only in the interests of justice, but necessary in order for the Court to conduct the hearing in a way that is compatible with human rights. 

The Court noted that whether the conduct of a hearing is compatible with human rights depends on whether the protected right (in this case, the cultural rights under section 28(2)(a) of the Human Rights Act) is limited and whether that limitation is reasonable and demonstrably justifiable.  

The Land Court discounted arguments about the disproportionate costs that would result from taking evidence on country.  The Court instead favoured the argument that the oral evidence would allow the "best evidence" to be given by the First Nations witnesses, and allow the Court to discharge the "administrative and evaluation function" of the mining lease objection hearing.

Importantly, the Land Court emphasised that the cultural rights under section 28 of the Human Rights Act are communal in nature, and that the Court would therefore benefit from the First Nations witnesses' evidence about the impact of climate change on their community's ability to enjoy and maintain these rights in the community concerned. 

Further, President Kingham found that "written evidence from First Nations witnesses is a poor substitute for oral evidence given on country and in the company of those with cultural authority".  The Court expressed a clear preference for oral rather than written evidence of First Nations witnesses where the adjudicative task in the proceeding was evaluative, rather than merely 'fact-finding', in nature.  

The Land Court also noted that while taking on country evidence is not a routine feature of mining objection hearings, it is familiar to courts hearing native title and cultural heritage related matters.  

Implications for future environmental and resource-related proceedings

The resources sector should expect courts to consider the collective nature of cultural rights in the future, including in relation to the manner in which evidence will be given in proceedings, and other contexts where decision-makers must have regard to human rights. 

The Land Court has given its clear approval and indeed preference for First Nations witnesses' evidence to be given on country in these circumstances, so the costs and logistics of facilitating this ought to be borne in mind when considering how objection hearings are likely to be conducted in future.  

Stop press – Land Court recommends that mining lease application and environment authority application be refused

On 25 November 2022, the Land Court recommended that both the mining lease and environmental authority applications for Waratah Coal's proposed mine be refused (Waratah Coal Pty Ltd v Youth Verdict Ltd & Ors (No 6) [2022] QLC 21).  The recommendation was based largely on environmental, climate change and human rights grounds. 

• Environmental considerations: The Land Court held that the Bimblebox Nature Refuge has "very high ecological values" which the mine would likely "seriously and possible irreversibly" damage; 
• Climate change: The Land Court held that Scope 3 emissions can be taken into account in considering whether the mining lease and environmental authority applications are in the public interest.  It rejected Waratah Coal's "perfect substitution" argument.
• Human rights:  The Land Court found the right to life, the cultural rights of First Nations peoples, the rights of children, the right to property and to privacy and home and the right to enjoy human rights equally would all be limited by the proposed mine and that these limits were not justified in the circumstances.

Where to from here?

The Land Court's recommendations are not the end of the road for this matter.  The outcome of the mining lease application will ultimately be decided by the Queensland Minister for Resources, and the environmental authority application by the Chief Executive of the Department of Environment and Science.

Waratah Coal has until late December 2022 to apply for judicial review of the Land Court's  recommendations.