As outlined in our previous alerts in May 2020, July 2020 and September 2020, a legal challenge has been commenced against Waratah Coal’s application for a mining lease and environmental authority for its Galilee Basin mining project. The legal challenge raises for the first time whether the grant of a mining lease will infringe human rights identified in the Human Rights Act 2019 (Qld).
While the Land Court has not yet considered the substantive matters raised by the legal challenge, the Court has recently handed down two decisions dealing with important issues in the case, including a decision on the need for evidence of First Nations witnesses to be taken on country in order to uphold the witnesses’ human rights under the Human Rights Act.
We consider each of the recent decisions further below.
1. Impact of Waratah’s revised mine plan on the Court’s jurisdiction
In Waratah Coal Pty Ltd v Youth Verdict Ltd & Ors (No 4)  QLC 3, Youth Verdict (YV) and The Bimblebox Alliance (TBA) brought a challenge to the jurisdiction of the Court ‘to hear applications for permits and objections to their grant’ based upon a revised mine plan submitted by Waratah. The challenge was brought on the basis that the revised mine plan amounted to a substantially and materially different project to the initial application for the mining lease made by Waratah. Waratah had revised its mine plan by abandoning open cut mining in the Bimblebox Nature Refuge (BNR) following YV and TBA’s objections. The Parties also disputed whether the jurisdictional question should be heard later, at the substantive hearing, or as a question at first instance.
The Court had two issues to consider:
- Whether to determine the jurisdictional question at a later date; and
- Whether it had jurisdiction to make recommendations on the revised mine plan.
The Court concluded in line with the principle of ‘first duty’ that the jurisdiction of the Court to hear the matter is a threshold question and should be decided first.
On the second issue, the Court concluded it had jurisdiction. The changes made to the revised mine plan were confined to Waratah abandoning open cut mining in the BNR. The revised mine plan still contained details of the underground mining planned to take place in the BNR. The underground mining in the revised mine plan had not been expanded or otherwise varied.
As such, the Court concluded the revised mine plan still fell within the scope of the original application, as the abandonment of the mining pits is not a fundamentally different application.
2. Rights of First Nations witnesses under the Human Rights Act
2.1 Issue before the Court
In Waratah Coal Pty Ltd v Youth Verdict Ltd & Ors (No 5)  QLC 3, the Court considered whether evidence to be given by four First Nations witnesses should be given on country in order to uphold the witnesses’ human rights under the Human Rights Act. This evidence would involve the Parties and Court going to sites of cultural significance to hear the evidence of the First Nations witnesses with Elders present.
2.2 Arguments made by the Parties
YV and TBA argued for the admission of on country evidence on the basis that:
- oral evidence given on country will allow the Court greater insight into the cultural and environmental impacts the proposed mining work could have on the community; and
- on country evidence is needed to uphold the human rights of the witnesses pursuant to s28(2)(a) of the Human Rights Act, which provides for the protection, control and development of cultural heritage and knowledge. The witnesses would be giving sensitive cultural information, that based on cultural practices, needs to be given on country and in the presence of Elders. YV and TBA argued that to deny on country evidence would be to breach the rights of the witnesses under the Human Rights Act.
Waratah argued that the evidence would be unnecessary and result in disproportionate costs. Waratah pointed to the fact it was not disputing the written evidence given by the witnesses and did not wish to cross-examine the witnesses.
2.3 The Court’s decision
The President acknowledged that substantial costs could be borne by the Parties and the Court to hear the evidence on country. However, the President gave significant weight to the rights of the First Nations Witnesses to have the evidence, which was culturally and communally significant, heard on country and in the presence of Elders as is required by the witnesses’ cultural protocols.
The President also observed that while Waratah did not wish to contest the evidence, the evidence to be heard was being given for evaluative reasoning and not fact-finding. The basis for the evidence was to better understand and analyse how climate change would affect cultural rights. The degree to which the President determines the proposed activities will impact cultural rights is a highly important factor to be considered when making the final recommendations. As such, evidence to be heard from these witnesses was highly relevant and needed to be considered carefully.
President Kingham stated that:
In my experience as a lawyer and judicial officer, written evidence from a First Nations witness is a poor substitute for oral evidence given on country and in the company of those with cultural authority."
The evidence on country was deemed admissible as on country evidence was needed to uphold the human rights of the witnesses and was in the interests of justice.
2.4 Key Takeaways
This decision highlights the importance that is being placed behind the hearing of sensitive cultural evidence from First Nations witnesses on country and in the presence of Elders. The President not only found that abstaining from hearing the evidence on country would be inconsistent with the witnesses’ human rights, but further found that relying solely on the witnesses written statements would not allow for a proper analysis of the evidence. The hearing to determine the final recommendations will likely draw greatly on this evidence and we will be monitoring the Court’s movements closely to keep you updated on the case.