17 July 2015

Queensland Land Court update: Community objection rights restored while Land Court Members receive certainty

This article was written by Priscilla Lal, Lachlan Fahey and Justin McDonnell.

This afternoon, the Queensland Government has passed changes that will restore community objection rights in relation to mining projects. This could lead to increased objections and delays for major projects. In fact, the Minister for State Development and Natural Resources and Mines, Mr Lynham, expressly stated that the urgency for these changes is so that they will apply in time for the New Acland Coal Mine Stage 3 Project.

Amendments to the Land Court Act 2000 (Qld) (LCA) were also introduced to quash uncertainty about the immunity of Land Court Members when presiding over objection hearings.

The amendments are contained in the State Development and Public Works Organisation and Other Legislation Amendment Bill 2015 (the Bill) which has been passed today.

Community objection rights restored

The previous government removed community objection rights in relation to mining projects by amending the State Development and Public Works Organisation Act 1971 (Qld) (“he Public Works Act) to include a new section 47D. This had the effect of preventing any objections to the Land Court being made about an environmental authority application for a proposed mining activity that had been assessed by the Coordinator-General. The Bill deletes this section from the Public Works Act and therefore restores the right to object to mining activities. Reinstating these rights was an election commitment made by the current government. There has also been increased pressure from local groups, including a petition signed by 4000 local residents of the Darling Downs who are concerned about the New Acland project. Mr Lynham stated in parliament that he understands the amendments will apply to the New Acland project. These changes will pave the way for protest groups to object to major projects. However, it appears that the Land Court still cannot make any conditions to an environmental authority that are inconsistent with those made by the Coordinator-General.

Certainty for Queensland Land Court Members’ immunity

Section 35 of the LCA currently gives Land Court Members presiding over a “proceeding” the same immunity as Supreme Court judges. However, uncertainty arose from the decision of the Queensland Supreme Court in BHP Biliton Mitsui Coal Pty Ltd v Isdale & Ors [2015] QSC 107 (please see our alert dated 6 May 2015) which decided objection hearings are not “proceedings” for the purposes of the Land Court Rules 2000 (Qld). As a result, Land Court Members were concerned that this would affect their immunity and decided not to deal with objection hearings until the matter is resolved. This has caused significant delays for mining lease applicants who have been tied up with stalled objection hearings in the Land Court. The proposed amendments will provide Members with certainty about their immunity when presiding over matters, including objections to mining lease applications. Once passed, section 35 will reflect the legal position that was thought to have existed previously and objection hearings should proceed as normal.

Key contacts

KWM Belt & Road Center for International Cooperation and Facilitation

In March 2019, King & Wood Mallesons (KWM) established the Belt & Road Center for International Cooperation and Facilitation (BRCICF).

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