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Cement Australia (Exploration) Pty Ltd & Anor v East End Mine Action Group Inc & Anor (No 4) [2021] QLC 22

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Date: 30 June 2021
Court/Tribunal: Land Court of Queensland
Judicial Officer/Tribunal Member: JR McNamara
Human Rights Act 2019 (Qld) Sections: ss 2, 8, 13, 24, 58, 59
Rights Considered: Property rights
Other Legislation: Acts Interpretation Act 1954 (Qld) sch 1; Charter of Human Rights and Responsibilities Act 2006 (Vic) s 20; Environmental Protection Act 1994 (Qld) sch 4, ss 3, 4, 150, 197, 217, 222, 223, 251, 559; Mineral Resources Act 1989 (Qld) ss 235, 265(2), 268(3), 269, 276, 334ZP, 391A; Water Act 2000 (Qld) ch 3, s 839
Keywords: Planning and Environment

The case concerned objections to an application for a mining lease and an amended environmental authority. The Court discussed that they were required to consider the Human Rights Act 2019 (Qld) and were subject to both substantive and procedural obligations under section 58. The Court identified some principles underlying the five steps of engagement in applying human rights obligations placed on public entities identified in previous case law. The Court ultimately determined that there would be property right impacts associated with the mine’s expansion but considered that the deprivation of property was not arbitrary and was reasonable and demonstrably justifiable, and the recommendation would not differ based on the consideration of the human right to property.

The case concerned objections to an application for a mining lease and an amended environmental authority regarding the East End limestone mine near Gladstone operated by Cement Australia: at [1].

The Court referred to Waratah Coal Pty Ltd v Youth Verdict Ltd & Ors [2020] QLC 33 (‘Waratah (No 1)’) to establish that the Land Court was a public entity that would act or make a decision in making recommendations on the applications within the meaning of section 58(1) and that, while no human rights-based objection had been made as the Human Rights Act 2019 (Qld) had not commenced when the relevant opportunity for lodging objections ended, there need be no mover for the Court to raise human rights issues: at [49] – [51].

The Court then set out, at [52]-[54]:

  • The object of the Human Rights Act 2019 (Qld)
  • Section 58 of the Human Rights Act 2019 (Qld), which places an obligation on public entities when acting in an administrative capacity • The definition of the term ‘compatible with human rights;’
  • That section 8 of the Human Rights Act 2019 (Qld) acknowledges that human rights are not absolute and may be subject to limitation; and
  • That any limitations on rights must have a clear legal basis and must be reasonable and demonstrably justifiable in the circumstances.
  • The Land Court is required to consider the Human Rights Act 2019 (Qld) and is subject to the obligations under section 58, as accepted by President Kingham in Waratah Coal Pty Ltd v Youth Verdict Ltd & Ors (No 2) [2021] QLC 4 (‘Waratah (No 2)’)
  • The obligations under section 58(1) of the Human Rights Act 2019 (Qld) are both substantive and procedural
  • The substantive obligation under s 58(1)(a) makes it unlawful for a public entity to act or make a decision in a way that is incompatible with a human right
  • The procedural obligation in section 58(1)(b) notes that it would be unlawful for a public entity in making a decision to fail to give proper consideration to a relevant human right; and
  • President Kingham in Waratah (No 1) discusses the distinction between these obligations at length: at [53]-[54].

The Court, at [55]-[57], then provides that it would address the five steps of engagement in applying human rights obligations placed on public entities under section 58, which were identified by the Department of Environment and Science in Waratah (No 2) and adapted from the five-stage roadmap for assessing incompatibility under similar provisions of the Charter of Human Rights and Responsibilities Act 2006 (Vic). The five steps of engagement in applying human rights obligations involve a consideration of, at [55]:

  • What rights might be engaged;
  • What limitations might be alleged;
  • How a limitation on rights might be justified, considering procedural and substantive legality, and proportionality;
  • Whether the decision gave proper consideration to the rights engaged; and
  • Whether the Court could not reasonably act differently or make a different decision because of a statutory provision or under law.

The Court later discusses how, under section 24(2) of the Human Rights Act 2019 (Qld), a person must not be arbitrarily deprived of their property: at [382]. The protection against being deprived of property is “internally limited to arbitrary deprivation of property:” at [382]. In the absence of a definition of property, arbitrariness or deprivation in the Human Rights Act 2019 (Qld), the Court refers to the definition of property in the Acts Interpretation Act 1954 (Qld) and the interpretation of ‘arbitrary’ to mean both ‘illegality’ and ‘unjustly’ and concern capricious, unpredictable and unreasonable conduct that is not proportionate to the legitimate aim sought by the High Court: at [383] – [384]. The Court establishes that the ‘deprivation’ of property is not arbitrary when there is an appropriate relationship between the means and ends: at [385].

The Court then considered the three principles distilled from PJB v Melbourne Health and Another (Patrick’s Case) that, at [388]:

  • deprivation of property encompasses economic interests and deprivation in a broad sense
  • formal expropriation is not required and de facto expropriation of property is sufficient to breach the right; and
  • the right to ownership and peaceful enjoyment of property are key features of the common law.

The Court considered the objections and evidence raising a number of interests relating to the objector’s property which may be affected by the mine expansion and concluded that, at [390] - [393]:

  • the additional ground water losses as a result of the mine expansion might affect private bores in the East End, with no evidence of current use of bores for irrigation;
  • the modelling of flood impacts demonstrated no significant adverse effects on the adjoining properties and that velocities were such that scouring of grazing land soils and grasses not predicted to occur, and that, in relation to stream losses, the evidence that recirculation of mine dewatering delivers an immediate top up to the affected streams; and
  • the loss of Mrs Derrington’s views as a result of the mine and construction of the bund/levy may affect the common law right to peaceful enjoyment of property.

The Court considered that it needed to determine whether the limitation was in accordance with the procedure prescribed by law and compatible with the rule of law: at [394].

The Court discussed that the process of justification would usually rest with the party asserting the right however in this matter, no party has raised human rights but, in the absence of objections, President Kingham in Waratah (No 2) said that the Court is required to consider a range of criteria identified by the governing legislation, regardless of whether they are raised in the objections; and that the procedure prescribed by law limiting these rights are demonstrably justified: at [395].

The Court then considered that the limitation on the human rights must be proportionate to other competing private and private and public interests: at [398]. The Court considered that it could be argued that reduced landholder access to groundwater and visual amenity was reasonably and demonstrably justified by the mitigation actions in the make good provisions and the public benefits regarding regional employment and community engagement and interactions, and through royalties which accrue to the State: at [400].

The Court discussed that the element of arbitrariness corresponds with section 269(4)(k) of the Mineral Resources Act 1989 (Qld) that requires a consideration of whether the public right and interest will be prejudiced and that, upon consideration, it could be concluded that the public right and interest will not be prejudiced and that the proposed extension is proportionate to the public interest: at [401]. It was considered that the deprivation of property is not arbitrary because there is an appropriate relationship between the means of expanding the mine and the property rights which will be affected, and that there is a proportionate and appropriate relationship between the deprivation and the public interest served by the expansion: at [402].

The Court then considered that the fourth step in Waratah (No 2) states that even if the limits are lawful and proportionate, the decision must give proper consideration to the rights engaged: [403]. As the parties did not raise human rights in their objections, the Court considered the human rights in deciding what recommendation to make in the initial engagement step: at [404].

The Court then had to consider whether a statutory provision or law prescribes a different decision and considered that, while precluded from hearing the objector, the Court was not precluded from considering human rights generally in making recommendations, as discussed in Waratah (No 2): at [405].

The Court accepted that there will be property right impacts associated with the expansion of the East End mine but, considering the elements of the human right to property, determined that the deprivation of property was not arbitrary and was reasonable and demonstrably justifiable and, having considered the five steps in Waratah (No 2), concluded that the recommendation would not differ based on the consideration of the human right to property: at [406].

Visit the judgment: Cement Australia (Exploration) Pty Ltd & Anor v East End Mine Action Group Inc & Anor (No 4) [2021] QLC 22