Date: 28 September 2022
Court/Tribunal: Land Court of Queensland
Judicial Officer/Tribunal Member: JR McNamara
Human Rights Act 2019 (Qld) Sections: 24, 25, 28, 58
Rights Considered: Property rights; Right to privacy and reputation; Cultural rights.
Other Legislation: Environment Protection and Biodiversity Conservation Act
1999 (Cth) ss 130, 133; Fossicking Act 1994 (Qld) ss 28, 43, 44; Human Rights Act 2019 ss 24, 25, 28, 58; Mineral Resources Act 1989 ss 234, 250, 252, 268, 269, 271, 271A, 279, sch 2.
Keywords: Planning and Environment: Property rights; right to privacy and reputation; Cultural rights

The case concerned an application for a mining lease. The Court briefly discussed its obligation to properly consider human rights, although the Human Rights Act 2019 (Qld) had commenced after objections had been lodged. The Court then provided an outline of the submissions that the applicants had made on human rights, but did not make any further remarks. The objections were addressed so as not to preclude a grant of the mining lease, but a number of steps still preceded its possible grant.

The case concerned an application for one of the mining lease applications related to an open cut mine proposed for the Bowen Basin, and objections to that application.

Although there were no objections relating to the Human Rights Act 2019 (Qld), and the Act had not come into force at the time the objections were lodged, the Court nonetheless was conscious of its obligation to consider any engaged human rights and not make a decision that was incompatible with human rights: at [21], [76]. The court cited factors set out in Cement Australia Exploration Pty Ltd & Anor v East End Mine Action Group & Anor (No 4) [2021] QLC 22, which it was to consider in its application of section 58 of the Human Rights Act 2019 (Qld): at [77].

  1. Engagement: which rights might the objector seek to invoke?
  2. Limitation: how might it be alleged that the rights are limited?
  3. Justification: if the rights are limited, is/are the limitation/s reasonable and demonstrably justified? Is the limitation in accordance with procedural requirements and not arbitrary? Is the limitation on the human rights proportionate to other competing private and public interests?
  4. Proper consideration: even if the limits are lawful and proportionate has the decision given proper consideration to the rights engaged?
  5. Inevitable infringement: Does a statutory provision or law prescribe a different decision?

The court considered these factors in relation to Property rights, the Right to privacy and reputation and Cultural rights. Property rights were not infringed as all affected landholders had reached agreements or were finalising compensation: at [80]. Privacy rights were not infringed as there would be no interference on private land: at [81]. In relation to Cultural rights, a cultural heritage management agreement had been reached: at [82]. Consequently, these three rights would not be prejudiced.

Visit the judgment: Hannigan and Associates Pty Ltd & Anor v Da Cunha & Anor [2022] QLC 14