Land Court considers its jurisdiction to consider objections based on human rights in application to strike-out those objections brought by miner

In Brief

The matter of Waratah Coal Pty Ltd v Youth Verdict Ltd & Ors [2020] QLC 3 concerned an application brought by Waratah Coal Pty Ltd (Miner) to strike-out objections made by Youth Verdict Ltd, The Bimblebox Alliance and others (Objectors) which rely upon human rights considerations under the Human Rights Act (Qld) 2019 (Human Rights Act).

The Miner is the applicant for a mining lease and environmental authority to develop a thermal coal mine in the Galilee Basin. The Objectors have objected to the applications. The grounds of objection include (amongst other things) that to grant of the applications would conflict with various human rights, including the right to life, the rights of a child, cultural rights of Aboriginal and Torres Strait Islander Peoples, and freedom from discrimination (as vulnerable people will suffer the most from the impacts of climate change). The Objectors therefore contended that the grant of the application would be unlawful under the Human Rights Act. The Miner sought to strike-out those objections on the basis that:

1. The Land 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 s.58(1) of the Human Rights Act;
2. It is beyond the Land Court’s jurisdiction to consider objections based on the Human Rights Act;
3. The Land Court cannot consider the Human Rights Act objections in the absence of a claimed right or remedy under s.59 of the Human Rights Act; and
4. The Objectors do not have standing to make such a claim under s.59 of the Human Rights Act because they are corporate entities and only individuals possess human rights.

Does the Land Court ‘act’ or make a ‘decision’ within the meaning of the Human Rights Act?

The Land Court began its assessment with a consideration of its functions and the purpose of its recommendations in an objections hearing with reference to s.58 of the Human Rights Act, which states that it is unlawful for a ‘public entity’ to (1) act or make a decision in a way that is not compatible with human rights; or (2) in making a decision, fail to give proper consideration to a human right relevant to the decision.

Relevantly, the Land Court observed that:

1. On its ordinary meaning, the words ‘decision’ and ‘act’ are broad enough to encompass the Land Court’s decision on what to recommend;
2. A broad interpretation of ‘make a decision’ is consistent with the purposes of the Human Rights Act as ‘consideration of human rights is intended to become part of decision-making processes at all levels of government’;
3. It would be incongruent with the purpose of the Human Rights Act to draw a distinction between the conduct of the hearing and the making of a recommendation without a clear expression of that intent; and
4. From a practical perspective, if human rights objections may not be considered by the Land Court, the final decision-maker would be required to comply with section 58(1) without the benefit of the Land Court's analysis.

The Land Court therefore concluded that its recommendation in an objections hearing amounts to both an ‘act’ and ‘decision’ and, as such, it must have regard to objection in relation to human rights.

Does the Land Court have jurisdiction to consider objections based on the Human Rights Act?

The Land Court considered past decisions in which it was held that objection hearings ‘are not open ended inquiries’ but held that those decision could be distinguished due to the operation of s.108 of the Human Rights Act which states that it applies to ‘all Acts and statutory instruments, whether passed or made before or after the commencement’.

On that basis, the Land Court concluded that it is obliged to consider human rights in making its recommendations in an objections hearing – even if objectors do not specifically raise an objection based on human rights.

Can the Land Court consider the Human Rights Act objections in the absence of a claimed right or remedy under it?

The Miner contended that the Objectors were precluded from raising allegations of ‘unlawfulness’ under s.58 of the Human Rights Act without specifying a relief or remedy under s.59 of the Human Rights Act. The Objectors contended that they were not constrained by s.59 of the Human Rights Act.

The Land Court observed that the purpose of an objection hearing was not to review the ‘lawfulness’ and validity of an act or decision made under s.58 of the Human Rights Act. Rather the Objectors were inviting the Land Court to conclude that it should not recommend the grant of the applications because, to do so, would not be compatible with human rights and would therefore unlawful. On the basis of this distinction, the Land Court concluded that the Human Rights Act does not operate to preclude the Objectors from making objections based on human rights.

Do the Objectors have standing to make a claim under the Human Rights Act in circumstances where they are corporate entities?

The Land Court concluded it was not appropriate to resolve the issue of standing as it is obliged to consider human rights in making its recommendations in an objections hearing regardless of whether objectors specifically raise an objection based on human rights.

Implications

This decision represents the first time the Land Court has considered its obligations under the Human Rights Act – although it remains unseen how such considerations or objections may influence the Land Court’s recommendations in an objections hearing. In any event, it is clear that objections based on human rights will feature in objection hearings and the resource sector should therefore be prepared to meet those objections in making applications for mining leases and environmental authorities – particularly those concerning coal mines.