New Acland Coal Pty Ltd v Oakey Coal Action Alliance Inc. & Ors (No 2) [2021] QLC 44

Date: Date: 17 December 2021
Court/Tribunal: Land Court of Queensland
Judicial Officer/Tribunal Member: PG Stilgoe OAM
Human Rights Act 2019 (Qld) Sections: ss 13, 24, 25, 28, 58, 108
Rights Considered: Property rights; Right to privacy and reputation; Cultural rights of Aboriginal and Torres Strait Islander people.
Other Legislation: Environmental Protection Act 1994 (Qld) ss 3, 4, 8, 9, 14, 15, 21, 203, 319, 326, 326A, 326B, 326C, 326D, 440ZB, 452, 453, 454, 455, 456, 457, 458, 459, 460, 461, 466, sch 4; Environment Protection and Biodiversity Conservation Act 1999 (Qld); Mineral Resources Act 1989 (Qld) ss 268, 269; State Development and Public Works Organisation Act 1971 (Qld) s 26
Keywords: Planning and Environment

The case concerned an application for a mining lease and environmental authority. There is considerable litigation history between the parties. This particular case was a remitted hearing following a decision of the High Court in February 2021.

The Court considered that the limits imposed on property rights, right to privacy and cultural heritage rights that were engaged by the application were reasonable and justifiable. The Court also considered that, although the right to fair hearing was infringed as the Oakey Coal Action Alliance objections could not make submissions on the issue because their objections did not reference human rights, the Court could not reasonably have acted differently because of the limitation imposed by the Mineral Resources Act 1989 (Qld).

The case concerned an application for a mining lease and environmental authority to extend a mine near Acland, which was objected to by Oakey Coal Action Alliance and others. The Court determined that it was subject to section 58 of the Human Rights Act 2019 (Qld) when it makes a recommendation on a mining objection, citing Waratah Coal Pty Ltd v Youth Verdict Ltd & Ors (No. 2) [2021] QLC 4 (‘Waratah (No 2)’): at [10].

The Court discussed how the question of whether the Human Rights Act 2019 (Qld) applies to recommendatory proceedings in the Land Court had been canvassed in President Kingham’s decision in Waratah Coal Pty Ltd v Youth Verdict Ltd & Ors [2020] QLC 33, where it had been concluded that the Human Rights Act 2019 (Qld) did apply to mining objection hearings: at [266].

The Court heard argument about whether the Human Rights Act 2019 (Qld) should be considered in these proceedings which commenced prior to the commencement Human Rights Act 2019 (Qld). Ultimately, however, they did not need to decide the question because they found that while there were limitations on human rights, they were reasonable and justifiable: at [268].

However, in line with a quote from President Kingham in Waratah (No 2) that stressed the role and benefits of the Court in considering the question of compatibility with human rights for the decision-making process, the Court decided that it should still briefly consider the five step process identified by the Department of Environment and Science to consider the impact of the Human Rights Act 2019 (Qld): at [269]-[270].

The Court considered that property rights, right to privacy and cultural heritage rights might be engaged: at [271]-[274]. The Court applied section 13 of the Human Rights Act 2019 (Qld) in deciding whether a limit to a human right is reasonable and justifiable.

The Court discussed how any limitation to property and privacy rights will have been considered though the hearing itself: at [279]. The limits to human rights would thus be the result of a legal process in which the affected people had a right to participate in: at [279].

The Court focused on section 13(2)(g) of the Human Rights Act 2019 (Qld) which requires consideration of the balance between the human right and the purpose of the limitation, and section 269(4)(k) of the Mineral Resources Act 1989 (Qld) requires consideration of public right and interest, with all these tests speaking of balance: at [280]. The Court had considered the question of balance when deciding whether to recommend the grant, was satisfied that a proper balance existed and therefore considered that the limits can be demonstrably justified: at [280].

Applying the test of proper consideration from Department of Environment and Science, citing Castles v Secretary of the Department of Justice, the Court found it had carefully considered the impacts on nearby residents, considered that the Environmental Authority would protect the neighbourhood from all but a few impacts on property rights and privacy, that the impacts will be adequately managed, and that the balance of competing factors favours imposing a limit on human rights: at [282].

Visit the judgement: New Acland Coal Pty Ltd v Oakey Coal Action Alliance Inc. & Ors (No 2) [2021] QLC 44