Written by Tessa Boardman and Dayne Kingsford.
Further to our alert in May, advocacy group Youth Verdict have now made their objections to Waratah Coal's project (Project) public.[1]
In the first human rights based challenge to a mining project in Australia, the group will argue that the Land Court must recommend the refusal of the environmental authority (EA) and mining lease (ML) applications for the Project because of its incompatibility with human rights.
Youth Verdict and another group, the Bimblebox Alliance Inc., have challenged the Project on human rights grounds under the new Human Rights Act 2019 (Qld) (HR Act). The groups joined 60 fellow objectors to the Project, which is proposed to extract 40 million tonnes per annum of thermal coal over 25-30 years.
According to the Bimblebox Alliance, if the Project proceeds, it will involve open cut mining more than half of the Bimblebox Nature Refuge (the Nature Refuge). The remainder will be subject to underground mining. The Nature Refuge is almost 8,000 hectares in size and is comprised of remnant semi-arid woodlands. The woodlands are home to a diverse range of birds, reptiles and other animals.
The Human Rights Grounds
The first hearing of the challenge occurred on 19 June 2020, which identified May 2021 for the hearing of the objections. The Land Court will hear the objections, however the hearing itself is not an appeal or judicial review of a decision. The Land Court is empowered to make a recommendation following the objections hearing, including to the Director-General of the Department of Environment and Science under the Environmental Protection Act 1994 (Qld) (EP Act) on the grant of an environmental authority and to the Minister under the Mineral Resources Act 1989 (Qld) (MR Act) on the grant of a mining lease for the Project.
The grounds of objection argue that the Land Court, during an objections hearing to a mining project, acts in an administrative capacity and is therefore a 'public entity' within the meaning of the HR Act. The grounds state that the Land Court would act unlawfully if its recommendation is not compatible with human rights or fails to properly consider human rights.
Specifically, the groups will argue that the Land Court should not recommend that the Project be approved as:
a. The Project will limit the human rights identified in the following sections of the HR Act:
- Section 15 (recognition and equality before the law) as the contribution of the Project to climate change will have disproportionate impacts on older people, people living in poverty, other disadvantaged people, and Aboriginal and Torres Strait Islander peoples;
- Section 16 (the right to life) as the Project will significantly contribute to climate change. Climate change causes adverse impacts to human life and health in Queensland, which will become decreasingly capable of supporting human life with the continued accretion of greenhouse gases into the atmosphere;
- Sections 24 (property rights) and 25(a) (the right not to have the person's privacy, family, home or correspondence unlawfully or arbitrarily interfered with) as the destruction of the Nature Refuge will have deep and irreversible impacts on individuals who have invested their time, effort and resources into the Nature Refuge over the past 20 years;
- Section 26(2) (the rights of children, without discrimination, to the protection that is needed by them, in their best interests, because they are children) as the Project will involve the extraction, exportation and burning of thermal coal which will emit around 3 billion tonnes of greenhouse gases. This process will contribute to climate change which puts children at ever-increasing risk, particularly to poorer health outcomes and premature mortality;
- Section 28 (the cultural rights of Aboriginal and Torres Strait Islander peoples) as the Project will disrupt the traditional cultural practices of those peoples, who rely on a connection to place and ecological systems. Further, the Project will result in displacement from traditional lands, impediments to the continuation, preservation and development of culture into the future and for future generations, irreversible harm to their traditional lands and waters, and other limits to their rights; and
b. The limits placed on these human rights is beyond the extent that is reasonable or demonstrably justifiable under section 13 of the HR Act and granting the ML and EA would be incompatible with the proper construction of these human rights.
Other Grounds of Objection
The groups have also raised several more traditional grounds of objection, based on specific statutory criteria in the EP Act and MR Act respectively. They intend to argue that the relevant statutory requirements are not satisfied.
Non-compliance with the EP Act
The groups argue that the Project ought to be refused because it is incompatible with the object of the EP Act which seeks to promote Ecologically Sustainable Development (ESD). Further, the groups argue the Project is inconsistent with a number of the EP Act's 'standard criteria'[2], such as:
- best practice environmental management;
- intergenerational equity;
- the precautionary principle;
- Commonwealth and State standards and requirements of environmental protection and ESD; and
- the public interest.
Non-compliance with the MR Act
The groups argue that the following impacts arising from the Project will be inconsistent with the MR Act, including:
- 'an unacceptable risk' that there will not be 'an acceptable level of development and utilisation' of the Project area's mineral resources;[3]
- 'significant adverse environmental impacts',[4] such as social and economic impacts; and
- a prejudicing of public rights and interests.[5]
In the alternative, the groups argue that if the Project's ML and EA applications are approved, they should be subject to a number of conditions to address the shortcomings raised in the objections.
Non-statutory grounds
Finally, the groups argue that 'no new fossil fuel development is consistent' with the climate targets of the Paris Agreement. If the Project's ML and EA are approved, the groups say this would be inconsistent with the aims of the Paris Agreement by exceeding a 2°C 'carbon budget'.
Conclusion
The commencement of the HR Act in Queensland brings a new dimension to the factors the Land Court may need to consider when weighing objections to a mining project. We will continue to monitor the proceedings and will provide further updates in due course.
[1] Identical copies of the objections filed by Youth Verdict were posted to the Bimblebox Alliance's website by the Environmental Defenders Office who is representing both groups.
[2] Environmental Protection Act 1994 (Qld), schedule 4, definition of standard criteria.
[3] Mineral Resources Act 1989 (Qld), s 269(4)(c).
[4] Mineral Resources Act 1989 (Qld), s 269(4)(j).
[5] Mineral Resources Act 1989 (Qld), s 269(4)(k).
