Waratah Coal Pty Ltd v Youth Verdict Ltd & Ors [2020] QLC 33

Date: 28 August 2020 (orders made); 4 September 2020 (reasons delivered)
Court: Land Court of Queensland
Judicial Officer: President Kingham
Human Rights Act 2019 (Qld) Sections: Ss 58, 59.
Rights Considered: N/A
Other Legislation: Acts Interpretation Act 1954 s 14A(1); Environmental Protection Act 1994 (as at 14 March 2013) ss 219, 220(2), 222, 223, 225; Land Court Act 2000, ss 4(1), 5(1), 12A(1)(a); Mineral Resources Act 1989 ss 265, 267A(1), 267, 268, 269, 271, 271A
Keywords: Planning and Environment

The respondents presented objections to Waratah’s application for a mining lease and an environmental authority to build a coal mine in the Galilee Basin. They relied on sections of the Human Rights Act 2019 (Qld) in their objections. These objections were referred to the Land Court. (The Land Court’s role is to hear both sides and make a recommendation to the Minister and Chief Executive.) Waratah sought to strike these grounds out on the basis that the Court did not have jurisdiction to consider these objections. The Court found that it could consider the Human Rights Act 2019 (Qld) and discussed sections 58 and 59. The Court ultimately dismissed the application.

This case concerned a dispute between Waratah Coal Pty Ltd (‘Waratah’) and Youth Verdict Ltd and The Bimblebox Alliance Inc (‘the objectors’). Waratah applied for a mining lease and an environmental authority to develop a thermal coal mine in the Galilee Basin, which was objected to by the respondents. The grounds for objection included that granting the applications ‘would not be compatible with various human rights’ and would be ‘unlawful’ under section 58(1) of the Human Rights Act 2019 (Qld): at [2]. Waratah sought to ‘strike out’ the objections that relied upon the Human Rights Act 2019 (Qld) or obtain a ‘declaration that the Court does not have jurisdiction to consider those objections’: at [3]. The Court was therefore tasked with determining the scope and meaning of section 58(1) and whether it had jurisdiction to consider human rights issues.

Section 58(1) provides that it is unlawful for a public entity (a) to act or make a decision in a way that is not compatible with human rights; or (b) in making a decision, to fail to give proper consideration to a human right relevant to the decision.

In determining the scope of section 58(1), the Court held that it was a ‘specialised judicial tribunal’ and ‘in conducting this hearing’ was ‘performing functions conferred on it’ by the Mineral Resources Act 1989 (Qld) and Environmental Protection Act 1994 (Qld): at [19]. The parties agreed that the Court’s function was administrative and, therefore, it was a public entity under s 9 of the Human Rights Act 2019 (Qld): at [19].

The Court analysed the meaning of ‘act’ and ‘making a decision’ contained in section 58(1)(a). Although Waratah agreed that ‘in conducting the hearing, the Court acts’ (our emphasis), it drew a distinction between ‘the conduct of the hearing and the making of a recommendation,’ the latter of which it argued was neither an ‘act’ nor a ‘decision’: at [26]-[27]. The objectors contended that ‘making a recommendation [was] an “act,”’ but argued that the making of a decision was a ‘more apt description of the activity’: at [27].

The Court went on to discuss whether it had jurisdiction to consider human rights issues in an objections hearing. The objectors contended that the granting of applications would be in breach of section 58(1) and therefore incompatible with human rights: at [70]. In contrast, Waratah argued that the Court did not have jurisdiction to consider human rights at all due to a lack of a specific provision to this effect in the Mineral Resources Act 1989 (Qld) and Environmental Protection Act 1994 (Qld): at [71]. The Court disagreed, noting that section 108(1) of the Human Rights Act 2019 (Qld) states that the Human Rights Act 2019 (Qld) applies to ‘all Acts and statutory instruments’ regardless of their commencement: at [72]. The Court confirmed that if section 58(1) was to apply, ‘it is directed to the administrative function’ the Court performs, ‘not the proposed activities of the miner’: at [73].

Waratah also submitted that the objectors were not ‘persons’ under section 59 of the Human Rights Act 2019 (Qld), but corporate entities (at [88]), however the Court declined to address this issue: [89].

The Court ultimately dismissed the application and ordered Waratah to pay the objectors’ costs of the application.

Visit the reported judgement: https://archive.sclqld.org.au/qjudgment/2020/QLC20-033.pdf