Human rights objections pass first test in Qld Land Court

What you need to know

• The Land Court has dismissed an application to strike out objections made under the Human Rights Act 2019 (Qld) (HRA).
• Environmental groups objected to Waratah Coal Pty Ltd's (Waratah Coal) 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 HRA.

What you need to do

• Prepare to address human rights issues when making mining lease and environmental authority applications.
• Watch for further developments in this case.  The substantive objections hearing in this matter will provide further insight into how the Land Court will approach objections made under the HRA.

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) (MRA) and the Environmental Protection Act 1994 (Qld) (EPA).  Under these regimes, the Land Court's recommendations will inform the final decisions about whether to grant the applications.

Objections based on human rights grounds

Youth Verdict and Bimblebox Alliance Inc., two environmental groups, objected to the applications on the basis that decisions to grant them would be incompatible with human rights.  

These objections have attracted substantial media attention and might represent an important new development in the way mining lease and environmental authority applications are considered and decided in Queensland.

The objectors argue 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.

Key provision: section 58(1) of the HRA

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

(1) It is unlawful for a public entity–

(a) to act or make a decision in a way that is not compatible with human rights; or

(b) in making a decision, to fail to give proper consideration to a human right relevant to the decision.

The objectors submitted that this provision applies human rights obligations not only to the final decisions on the applications but also to the Land Court in making its recommendations.

Waratah Coal conceded that, in the context of objections hearings, the Land Court is a "public entity" for the purposes of section 58(1).  The Court considered this a well-made concession: section 58(1) is intended to apply to administrative functions of government and, as is now well accepted, the making of recommendations in an objections hearing is an administrative function of the Land Court.

Strike-out application by Waratah Coal

Despite this concession, Waratah Coal maintained its application to strike out the human rights objections.  It contended that the Land Court was not obliged, and had no jurisdiction, to consider objections made under the HRA.

The Land Court approached the strike-out application by resolving the following questions.

Q: Does the Land Court "act" or make a "decision"? A: Yes

The Court began its analysis by considering whether its function of making recommendations in objections hearings falls within the scope of section 58(1) of the HRA as either an "act" or a "decision".  After thorough consideration of a range of textual and contextual issues, the Court concluded that it did.  

In particular, the Court distinguished the scope of the expression "decision" as it appears in the HRA from its interpretation in the context of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act).  The textual factors which favour a narrow interpretation under the ADJR Act are missing in the HRA, while a broad interpretation is consistent with the HRA's purpose of promoting human rights.

The Court also emphasised the practical consideration that, if human rights objections may not be considered, the final decision-maker would be required to comply with section 58(1) without the benefit of the Land Court's analysis.

The Court concluded that its recommendations in an objections hearings are both a "decision" and an "act" within the meaning of section 58(1).  As such, the Court is able and obliged to consider human rights objections.

Q: Does the Land Court have jurisdiction? A: Yes

Waratah Coal submitted that the Land Court is unable to hear human rights objections to mining lease and environmental authority applications because of its limited jurisdiction.  
Previous authorities have emphasised that objections hearings are not open-ended inquiries and that the scope of the Land Court's jurisdiction is clearly defined by statute. Additionally, nothing in the MRA or EPA specifically allows the Land Court to consider human rights issues in objections hearings.

However, the Court pointed to section 108 of the HRA.  This section applies the HRA to "all Acts and statutory instruments, whether passed or made before or after the commencement".

The Court found that, upon a proper construction of section 58(1), the Land Court would be required to consider human rights in an objections hearings regardless of whether they were specifically raised.  The Court reasoned that if it was obliged to consider human rights issues it must necessarily have jurisdiction to do so.

Q: Can the objectors rely on section 58 without seeking a remedy? A: Yes

The Land Court also rejected Waratah's third argument that, because the objectors were not seeking relief or a remedy under the HRA, they could not rely on section 58.  This argument was based on an interpretation of section 59 of the HRA which the Court ultimately rejected.

The objectors conceded that they had not sought relief or a remedy in making their objections.  The Court accepted their submission that such a claim could not be raised until the Land Court had made its recommendations.  

Consideration of section 58(1) of the HRA was regarded as a matter affecting the lawfulness of granting the relevant applications.  As such, human rights objections were matters which arose directly in the performance of the Court's function and did not, as Waratah submitted, represent a collateral review of its own decision-making process.

Q: Do the objectors have standing? A: not necessary to decide

Waratah argued that Youth Verdict and Bimblebox Alliance Inc did not have standing to make their human rights objections as they are corporate entities, not natural persons.

The Land Court reasoned that, because the objectors were not seeking a remedy at this stage in the proceeding but only pressing the Court to take human rights into its consideration, there was no need to determine the issue of the objectors' standing.  Essentially, the Court was of the view that the objectors were entitled to advocate a position on human rights through an objection given the HR 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.  The Court referred hypothetically to where the Land Court might eventually decide to recommend the grant of Waratah's applications.  If the objectors at that stage applied to the Supreme Court  for judicial review of the Land Court's recommendations and "piggybacked" a human rights challenge onto its judicial review application, the Supreme Court would need to determine the question of the standing of the party or parties who bring those applications in the Supreme Court.

Implications for future resource authority applications

This decision represents the first indication of the Queensland Land Court's approach to the HRA 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 any such objections – including those of Youth Verdict and Bimblebox Alliance Inc – 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.

Authors:  John Briggs, Partner; Thomas Kent, Graduate.