This article was written by Tessa Boardman and Dayne Kingsford.
Since our alert in July, Waratah Coal has made an application in the Queensland Land Court (the Court) to strike out a number of objections to its Galilee Coal Project (the Project), including the challenges brought on human rights grounds by advocacy groups Youth Verdict and the Bimblebox Alliance.
The challenges brought by Youth Verdict and the Bimblebox Alliance join a number of other Australian proceedings commenced to challenge government decision-making relating to climate change impacts. Other recent challenges, such as the injunction to prevent the Federal Environmental Minister granting the Vickery coal mine extension, reinforce that climate litigation is an emerging concern for the mining sector more broadly.
On Friday, 28 August 2020, her Honour President Kingham announced her orders refusing Waratah Coal's application. Her Honour's reasons were published in Waratah Coal Pty Ltd v Youth Verdict Ltd & Ors [2020] QLC 33 on 4 September 2020.
In its application, Waratah Coal sought to strike out any objections relying upon the new Human Rights Act 2019 (Qld) (the HR Act) or obtain a declaration that the Court did not have jurisdiction to consider those objections. Waratah Coal based its argument on four propositions:
- The Court's recommendation on an application for a mining lease or an environmental authority is not an 'act' or a 'decision' as those terms are used in section 58(1) of the HR Act.
- It is beyond the Court's jurisdiction to consider objections based on the HR Act.
- The Court cannot consider HR Act objections in the absence of a claimed right or remedy under section 59 of the HR Act.
- The Objectors do not have standing to make such a claim under section 59 because they are corporate entities and only individuals possess human rights.
1 The Court's recommendation on an application for a mining lease or an environmental authority is both an 'act' and a 'decision'
Youth Verdict and the Bimblebox Alliance argue in their objections that the Court, in making an 'objections decision' in response to an objection to a mining project, acts in an administrative capacity and is therefore a 'public entity' within the meaning of the HR Act.
Under section 58 of the HR Act, it is 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, fail to give proper consideration to a human right relevant to the decision.[1]
Youth Verdict and the Bimblebox Alliance argue the Court would act unlawfully if its recommendation is not compatible with human rights or fails to properly consider human rights.
In its strike out application, Waratah Coal accepted that the Court is a public entity when fulfilling its functions under the Mineral Resources Act 1989 (Qld) (the MR Act) and the Environmental Protection Act 1994 (Qld) (the EP Act). However, it argued that a distinction should be drawn between the conduct of the hearing and the making of a recommendation.[2] In conducting the hearing, the Court is performing an 'act'. Waratah Coal argued that the Court's recommendation following the hearing is neither an 'act' nor a 'decision' for the purposes of section 58 of the HR Act. As the objections were directed to the Court's recommendation, not to the conduct of the hearing, it is beyond the jurisdiction of the Court to hear those objections.
President Kingham disagreed, finding that the Court's recommendation amounts to both a decision and an act for the following reasons:
- the words 'make a decision' must be interpreted by reference to the text, scope and purpose of the statute;[3]
- on its ordinary meaning, the words 'decision' and 'act' are broad enough to encompass the Court's decision on what to recommend;[4]
- the textual context does not suggest it is necessary or appropriate to read down the ordinary meaning of the words;[5]
- as for contextual indications, a broad interpretation of 'make a decision' is consistent with the purposes of the HR Act as 'consideration of human rights is intended to become part of decision-making processes at all levels of government';[6]
- it would be incongruent with the purpose of the HR Act to draw a distinction between the conduct of the hearing and the making of a recommendation without a clear expression of that intent;[7] and
- if the question of compatibility with human rights is beyond the Court's jurisdiction, as contended by Waratah Coal, the Minister and Chief Executive in making their final decision on the relevant application would not have the benefit of a recommendation made after consideration of the human rights engaged. Both decision makers would likely have to develop an additional process to comply with section 58(1) of the HR Act and, given the role the Court's recommendation plays in the final decision-making process, an interpretation that avoids that added burden better achieves the purpose of the HR Act.[8]
2 The Court has jurisdiction to consider objections based on the HR Act
Waratah Coal contended that, absent a specific provision in the MR Act and the EP Act, the Court cannot consider human rights issues when making its recommendation.
Her Honour disagreed, highlighting the submission overlooked section 108(1) of the HR Act which applies the HR Act to 'all acts and statutory instruments, whether passed or made before or after the commencement.'[9] The Court in making its recommendation is subject to the substantive and procedural requirements imposed upon it as a public entity, including the substantive requirement not to act or make a decision incompatible with human rights and the procedural requirement to give proper consideration to a relevant human right.[10]
Even if an objector did not specifically raise a human rights based objections, the Court would be required to consider human rights in making its recommendation.[11] Therefore, the Court necessarily has jurisdiction to consider human rights in making its recommendation.[12]
3 The Court can consider HR Act objections in the absence of a claimed right or remedy
Waratah Coal submitted that unlawfulness under section 58 of the HR Act cannot be raised absent an application for relief or remedy under section 59. The objectors, on the other hand, argued that they were not relying on, nor were they constrained by, section 59 of the HR Act. The Court does not have the power to grant 'any relief or remedy' when making its recommendation. It is only once the Court has made its recommendation that any relief or remedy can be sought.
What the objectors were asking the Court to do was to consider whether the grant of the applications under the MR Act and EP Act would, on a proper construction of human rights, be incompatible with human rights and therefore unlawful. Her Honour agreed with the objectors that this was an issue which arose directly for the Court's consideration.[13]
4 Standing to make a claim under section 59
Another ground of the strike out application concerned whether only individuals have standing under the HR Act. It was argued that Youth Verdict and the Bimblebox Alliance, as incorporated entities, are not permitted to seek 'relief or remedy'.
Given the objectors were not relying on section 59 of the HR Act in making their objections, President Kingham did not consider this argument to be one her Honour was required to address on the strike out application. However, her Honour noted that the issue of standing may well arise at another stage of the applications – particularly if the Court were to make positive recommendations, and the objectors sought judicial review of those recommendations.
Interestingly, President Kingham commented:
'If s 58(1) applies to the Court in its administrative function, there need be no mover to raise human rights issues, because that section requires the Court to properly consider engaged human rights and to not act or make a decision that is not compatible with human rights.'[14]
Her Honour dismissed the applications filed by Waratah Coal and ordered they pay the costs of Youth Verdict and the Bimblebox Alliance.
We will continue to provide updates as the matter progresses.
[1] Human Rights Act 2019 (Qld), s 58(1).
[2] Waratah Coal Pty Ltd v Youth Verdict Ltd & Ors [2020] QLC 33, [26].
[3] Ibid, [37].
[4] Ibid, [29] and [64].
[5] Ibid, [39] and [64].
[6] Ibid, [43].
[7] Ibid, [44].
[8] Ibid, [53].
[9] Ibid, [72].
[10] Ibid, [73]-[74].
[11] Ibid, [76] and HR Act, s 58(1).
[12] Ibid, [77].
[13] Ibid, [87].
[14] Ibid, [90].
