Waratah Coal Pty Ltd v Youth Verdict Ltd & Ors (No 5) [2022] QLC 4

Date: 18 March 2022
Court: Land Court of Queensland
Judicial Officer: President Kingham
Human Rights Act 2019 (Qld) Sections: ss 13, 28, 58
Rights Considered: Cultural rights of Aboriginal and Torres Strait Islander peoples
Other Legislation: Environmental Protection Act 1994 (Qld) s 220; Land Court Act 2000 (Qld) ss 7, 7A; Mineral Resources Act 1989 (Qld) s 268(1)
Keywords: Planning and Environment; Political Freedoms: Cultural Rights; Civil Procedure

Waratah Coal Pty Ltd (Waratah) sought a mining lease and authorisation to mine thermal coal in Queensland’s Galilee Basin. This hearing concerned an application for an order to take evidence from First Nations witnesses on country. The Court balanced the cultural rights of Aboriginal and Torres Strait Islander peoples under section 28 of the Human Rights Act 2019 (Qld) against the public and private interests of minimising the inconvenience and cost of litigation. The Court held that refusing the application for on country evidence was not reasonable and demonstrably justifiable in the circumstances of the case.

This hearing concerned an application for an order adopting a protocol drafted by the active objectors for taking evidence from First Nations witnesses on country. It was proposed that the Court would take on country evidence from four of the First Nations witnesses and conduct site inspections. The Court noted that site inspections were a routine feature of mining objection hearings while taking on country evidence was not: at [5]. However, the Court recognised that taking on country evidence was familiar process for a court hearing native title and cultural heritage claims: at [5].

The active objectors submitted that under the Human Rights Act 2019 (Qld), the Court must not act incompatibly with the witnesses’ protected rights in conducting the hearing and deciding the application: at [15]. The Court confirmed that it was unlawful for the Court to conduct the hearing in a way that was not compatible with human rights, stating that incompatibility was dependent on whether a protected right was limited and whether that limitation was reasonable and demonstrably justifiable: at [17].

The Court considered that the evidence about the cultural protocols was central to the objection that the evidence related to: at [22]. The Court observed that refusing the request for on country evidence would limit the witnesses’ ability to enjoy and maintain their cultural heritage, to uphold their cultural protocols, and to determine how their traditional knowledge is imparted: at [22].

The Court confirmed that section 13 of the Human Rights Act 2019 (Qld) was a proportionality test which defined when a limitation of a protected right was lawful: at [23]. The Court held that it must balance the competing interests of society while the onus for justifying a limitation on human rights would rest with the party seeking to uphold it: at [25].

Waratah argued that the cost was disproportionate and that the on country evidence would not further assist the Court: at [26]. The Court discussed that the nature and purpose of the limitation on the cultural rights of Aboriginal and Torres Strait Islander peoples, at section 28 of the Human Rights Act 2019 (Qld), would be to avoid the commitment of time and resources in taking the evidence on country: at [27]. The Court considered that time and expense were relevant considerations, and that a court should be prudent in making directions about the conduct of proceedings as it has a responsibility to wisely use public resources to discharge its functions fairly and efficiently without imposing an unjustified burden on litigants: at [28]. The Court acknowledged that declining the proposed orders would help to achieve that purpose: at [28].

The Court considered that, while it would be possible for the witnesses to give evidence on country using videoconferencing technology, it would limit the ability of the witnesses to fully observe the ceremonial aspect of imparting traditional knowledge: at [29]. In the application, the active objectors proposed that the witnesses would give evidence in the presence of people who have the collective authority to speak about matters of place and culture, and noted that the cultural rights of Aboriginal and Torres Strait Islander peoples at section 28 of the Human Rights Act 2019 (Qld) framed cultural rights in collective terms: at [35]. It was noted that the High Court has long accepted the communal nature of rights: at [36].

The witnesses were to give evidence about the future impacts of climate change on their community’s ability to enjoy and maintain their cultural rights: at [33] and [37]. The Court held that it would be assisted in its evaluative function by seeing and hearing this evidence being given in that community: at [37]. Further, the Court found that there was utility in the evidence being given in the way proposed, that it would not impose an unreasonable and disproportionate burden on the parties or the Court, and that it would ensure that the best evidence would be received from the First Nations witnesses: at [41]-[43]. The Court considered that refusing the request to give evidence on country would not respect the cultural and group identity of the witnesses: at [40].

In deciding the application, the Court balanced the collective right to enjoy and maintain culture against the public and private interests in minimising the inconvenience and cost of litigation: at [44]. The Court recognised that confining the First Nations witnesses to their written statements was a limit to their individual and collective right to maintain their culture and how they passed on traditional knowledge: at [44]. The Court was not persuaded that the limit was reasonable and demonstrably justifiable in the circumstances of the case: at [44].

Visit the judgement: Waratah Coal Pty Ltd v Youth Verdict Ltd & Ors (No 5) [2022] QLC 4