Objections are before the Land Court of Queensland (Land Court) to the grant of a mining lease and environmental authority (EA) to Waratah Coal Pty Ltd (Waratah Coal), a company owned by Clive Palmer, for the Galilee Coal Project.
The objections made by Youth Verdict Ltd and The Brimblebox Alliance Inc include objections that the grant of the mining lease and EA would not be compatible with human rights, and therefore unlawful under section 58(1) of Queensland’s new Human Rights Act 2019 (HR Act). More information about this human rights and climate change challenge is available in our previous alert.
Waratah Coal applied to strike out those objections that rely on the HR Act or obtain a declaration that the Land Court does not have jurisdiction to consider those objections.
The Land Court rejected this application. The Land Court decision in Waratah Coal Pty Ltd v Youth Verdict Ltd & Ors  QLC 33 makes clear that:
- The Land Court’s recommendation on an application for a mining lease or an EA is an ‘act’ or ‘decision’ as those terms are used in section 58(1) of the HR Act.
- The Land Court has jurisdiction to consider HR Act issues in a mining lease objections hearing.
- The objectors can rely on section 58 of the HR Act, and the Land Court is required to consider human rights, without the objectors needing to seek separate relief or remedy under section 59 of the HR Act.
- As the Land Court is required to consider human rights and to not act or make a decision that is not compatible with human rights, it was not appropriate to determine whether Youth Verdict Ltd and The Brimblebox Alliance Inc as corporate entities, had standing as ‘persons’ capable of seeking relief or remedy under section 59 of the HR Act.
More detail about these issues is set out below.
The Land Court’s recommendation on an application for a mining lease or an EA is an ‘act’ or ‘decision’
Section 58(1) of the HR Act makes it unlawful for a public entity to act or make a decision in a way that is not compatible with human rights, or in making a decision, to fail to give proper consideration to a human right relevant to the decision.
The Land Court is a public entity when it acts in an administrative capacity making recommendations on a mining lease under the Mineral Resources Act 1989 (Qld) (MR Act) or an EA under the Environmental Protection Act 1994 (Qld) (EP Act). This point was conceded by Waratah Coal.
Waratah Coal argued that the Land Court making a recommendation is not an ‘act’ or making a ‘decision’. The Land Court rejected these arguments, finding that its recommendations fall within both ‘making a decision’ and an ‘act’ for the purposes of section 58(1).In coming to this conclusion, the court relied on textual and contextual factors for section 58(1), finding that it is not necessary or appropriate to read down the ordinary meaning of the words. President Kingham considered also the practical effect that if the question of compatibility with human rights is beyond the Land Court’s jurisdiction, then both the Minister for Natural Resources Mines and Energy and the Chief Executive of the statutory party would not have the benefit of a recommendation made after consideration of engaged human rights.
The Land Court has jurisdiction to consider HR Act issues in an objections hearing
As the MR Act and EP Act both list the scope of the matters the Land Court is able to consider in an objections hearing, Waratah Coal argued that without specific statutory provision, the Land Court cannot consider human rights issues when making its recommendation on a mining lease or EA.
This argument was rejected by the Land Court, given section 108(1) of the HR Act states that the HR Act applies to all Acts and statutory instruments, whether passed or made before or after the commencement.
As section 58(1) applies to the Land Court making a recommendation under the MR Act and the EP Act, President Kingham found that the Land Court necessarily has jurisdiction to consider human rights issues in making its recommendations.
Objectors can rely on section 58 of the HR Act without seeking a relief or remedy under section 59 of the HR Act
A breach of section 58(1) of the HR Act is not an offence and it alone does not confer a cause of action on any person. Instead, under section 59 of the HR Act, a person seeking a remedy for unlawfulness under section 58, must ‘piggy-back’ this to another right to seek relief or remedy about the act or decision.
Waratah Coal argued that the objectors could not rely on section 58 without seeking a relief or remedy captured under section 59, submitting that the effect of the Land Court hearing these objections is that the Land Court would have to undertake an internal review of its decision in the course of making its recommendation.
The Land Court rejected this argument, observing that if section 58(1) applies, the Land Court is subject to the substantive and procedural limbs of section 58(1). Whether the grant of the mining lease or EA would, on a proper consideration of the relevant human rights, be not compatible with human rights, and therefore unlawful, is an issue that arises directly for the Land Court’s consideration in the performance of its function.
Waratah Coal argued that Youth Verdict Ltd and The Brimblebox Alliance Inc did not have standing to make a claim under section 59, because they are corporate entities and only individuals possess human rights.
Having found that section 59 does not apply to the court’s hearing of the objections, as the Land Court is subject to section 58(1) of the HR Act, President Kingham held that it was not appropriate to resolve this question. Her Honour noted that if the Land Court makes positive recommendations, and if the objectors seek judicial review of those recommendations, their standing under section 59 of the HR Act will likely be in contest at that stage.
This decision is confirmation by the Land Court of the Land Court’s jurisdiction to consider human rights arguments in mining lease objection hearings. The objections by Youth Verdict Ltd and The Brimblebox Alliance Inc are the first time the HR Act has been considered by the Land Court in mining lease objections hearings, and the first time that a climate change challenge to a coal project is based on human rights arguments.
That said, this is a decision on procedural matters, and given the Land Court’s status as a public entity in objections hearings, a point conceded by Waratah Coal, these conclusions about section 58 of the HR Act are unsurprising.
The content of the objections and the link between the climate change impacts of the Galilee Coal Project and the impact this has on human rights are still to be considered by the Land Court.
The general question of whether only individuals posses human rights and can make a claim under section 59 of the HR Act remains unresolved.