Waratah Coal Pty Ltd v Youth Verdict Ltd & Ors (No 6) [2022] QLC 21

Date: 25 November 2022
Court: Land Court
Judicial Officer: President Kingham
Human Rights Act 2019 (Qld) Sections: ss 15, 16, 24, 25, 26, 28
Rights Considered: Right to recognition and equality before the law; Right to life; Property rights; Right to privacy and reputation; Right to protection of families and children; Cultural rights of Aboriginal and Torres Strait Islander peoples
Other Legislation: Environmental Offsets Act 2014 (Qld); Environmental Offsets Regulation 2014 (Qld); Environmental Protection Act 1994 (Qld); Land Court Act 2000 (Qld); Mineral Resources (Common Provisions) Act 2014 (Qld); Mineral Resources Act 1989 (Qld); National Greenhouse and Energy Reporting Act 2007 (Cth); Nature Conservation Act 1992 (Qld); State Development and Public Works Organisation Act 1971 (Qld)
Keywords: Planning and Environment; Political Freedoms: Cultural Rights

The case concerned an application for a mining lease and environmental authority. The Court provided a detailed consideration of the mine’s human rights impacts through its contribution to climate change, and effect on the surrounding area. The Court ultimately concluded that the limitations to human rights imposed by the mine were unjustifiable.

The case concerned an application by Waratah Coal Pty Ltd (Waratah) for a mining lease and environmental authority. The project would involve mining on several properties north of Alpha in Central Queensland, including Glen Innes, a protected area under the Nature Conservation Act 1992 (Qld) known as the Bimblebox Nature Refuge (Bimblebox).

Human rights arguments were raised by the objectors to the mine relating to climate change and impacts to Glen Innes. The ‘climate change’ argument was that adverse consequences of greenhouse gas emissions, including those from combusting the coal, would unjustifiably limit the enjoyment of several human rights: at [1293]. The Court determined there was a logical and rational connection between authorising the applications and emissions causing harm: at [1352]. Meanwhile, the ‘Glen Innes’ argument was that the rights to property and to privacy and home of particular landowners would be limited by the impacts of mining due to the environmental nuisance caused by noise and dust, predicted to exceed the draft environmental authority levels; and significant subsidence impacts across the property that could not be remediated at all, or not without causing further ecological damage: at [1294], [1659].

Purpose of the mine

Economic benefits would be generated, including profits to the miner, royalties and taxes to the State, and social and economic benefits in regional employment and associated activity: at [1428]. The project would also provide electricity to Southeast Asia, in line with the United Nations Sustainable Development Goal to ensure access to affordable, reliable, sustainable and modern energy for all: at [1429]. These purposes were consistent with a free and democratic society based on human dignity, equality and freedom: at [1430].

The interrelationship between human rights, the environment and sustainable development is recognised internationally; in Queensland through the objectives of the Environmental Protection Act 1994 (Qld) and Mineral Resources Act 1989 (Qld); and at Commonwealth and State level through relevant policy articulating an ongoing role for exporting thermal coal, albeit in a declining market: at [1431]-[1433].

There is a close relationship between the limitation and its purpose, with the mine generating economic and employment benefits, and supplying electricity in Southeast Asia: at [1434].

Fossil fuels cannot be replaced entirely by other sources immediately and will continue to play a part in energy supply for some time: at [1439]. However, renewable energy storage and transmission technologies are rapidly developing, and renewable sources will increasingly replace thermal coal due to its declining costs and increasing reliability: at [1439]. Lower emission gas supplies can supplement renewables to achieve a less restrictive alternative: at [1440]. There is sufficient supply to meet demand for thermal coal in currently operating mines and approved projects: at [1440]. Providing additional supply of thermal coal that is cost competitive could have the consequence of increasing consumption or delaying the transition to lower emission electricity generation: at [1440]. The mine would presumably be an important source of Queensland government revenue, with that revenue being applied for the benefit of the Queensland people: at [1445]. However, the assessed economic benefits are uncertain in a market with declining demand for thermal coal, and do not fully consider the costs to the environment and of climate change: at [1446]. In any case, the cost of carbon is not a mere accounting exercise, but relates to real impacts on people, and their property and livelihoods: at [1447].

The negation of private financial interests needs to be balanced against the public interest, considering ecological costs, climate change contributions and human rights implications: at [1451].

Climate change ground

Right to life

The right to life imposes a negative obligation to refrain from conduct causing arbitrary deprivation of life: at [1454]. The relevant conduct is the decision to approve the application, and the limit is the climate change impact: at [1454]. The right cannot be interpreted restrictively; there is interconnectedness between humans and the physical environment; the right to life can be violated by a life-threatening situation, without the loss of life occurring; and environmental degradation, climate change, and unsustainable development constitute pressing and serious threats to the ability to enjoy the right to life: at [1480]: ‘Arbitrary’ means unpredictable, unjust or unreasonable due to not being proportionate to the legitimate aim sought, which requires a broad and general assessment of whether the interference extends beyond what is reasonably necessary to achieve the purpose: at [1482]-[1483]. The interference here is the threat to life posed by the project’s contribution to climate impacts, and the purpose is the project’s economic benefit: at [1484].

Determining what is reasonably necessary involves a value judgment about relative costs and benefits: at [1485]. The mine is not the only way to generate economic benefit and meet the needs of electricity consumers: at [1485]. Approving the project is necessary for Waratah to secure its financial benefit, but individual interest must be weighed against the public interest in limiting the extent that climate change threatens the lives of people in Queensland: at [1485]. The project’s contribution to climate change impacts is not proportionate to the economic benefits and supplying coal to Southeast Asia: at [1486]. The limit is unreasonable because it extends beyond what is reasonably necessary to achieve the project’s purpose: at [1485]. The limitation to the right to life would arise from the resulting emissions: at [1488]. A clear and pressing threat to the right to life is now experienced by people in Queensland, which will only be exacerbated by increasing emissions: at [1505]. Emissions will cause increasingly adverse impacts to the environment, including increased fatalities in Queensland due to bushfires and bushfire smoke, heat waves, mosquito borne diseases, floods and cyclones: at [1488]. The level of future climate change impacts is not certain, so the precise risk to human health cannot be quantified: at [1488].

The importance of the limitation’s purpose needs to be balanced against the importance of preserving the human right, given its nature and extent: at [1507]. The assessed economic benefit, while considerable, was optimistic, and did not fully cost likely environmental damage, or climate change impacts, including public health and property costs: at [1508]. There would be regional benefits in increased employment and economic activity, and a mixed experience of social benefit, with landowners experiencing it more negatively and residents of Alpha more positively: at [1509]. The coal will contribute to meeting demand for electricity in Southeast Asia, but there is already adequate supply, and providing additional supply could lead to increased consumption or delay the energy transition in that market: at [1510]. The purpose of energy security in Southeast Asia can be pursued by less restrictive means: at [1510].

Climate change will, and already does, limit the right: at [1512]. Approving the project would contribute to foreseeable and preventable life-terminating harm: at [1512]. The importance of preserving the right to life, considering the nature and extent of the limitation, weighs more heavily than the economic benefits of the mine and furthering energy security for Southeast Asia: at [1513].

Rights of First Nations people

Cultural rights are of fundamental importance to First Nations peoples, set against the background of systematic dispossession and destruction of culture: at [1537]. Their importance should also be seen in the context of native title, with cultural rights being consonant with, accompanying and enhancing the protection conferred by the Native Title Act 1993 (Cth): at [1541]. The Queensland Government has identified protecting these rights as an important step towards a reframed relationship between the government and First Nations peoples: at [1541].

First Nations peoples will be disproportionately affected by climate change impacts: at [1542]. The evidence provided on the nature and extent of the limitation was comprehensive and wide-ranging: at [1549] and [1551]. A striking and enduring theme in the evidence from the First Nations witnesses was their active commitment to and participation in caring for country which is critical, given the environmental impacts of climate change and the specific protection of the right to conserve and protect the environment and the productive capacity of land, waters, and other resources: at [1557]. Climate change impacts will have a profound impact on cultural rights and, for some peoples who will be displaced from their country, it risks the survival of culture: at [1565].

Previous observations on balancing the purpose and limitation in its consideration of the right to life apply to this right equally, but additional factors weigh the scale more firmly in favour of the importance of preserving the right: at [1567]. The Torres Strait Island peoples face an existential risk from sea level rise, and First Nations peoples in the north of Australia are already experiencing the effects of climate change impacts on their ability to enjoy, maintain, control, and develop culture: at [1568]. More severe impacts result in greater interference with cultural rights: at [1568]. Displacement has the potential to destroy culture, which is something that cannot be measured in monetary terms: at [1568]. This is at odds with the purpose of the right and counts against the project being approved: at [1568].

Right to protect children

The scope of the right encompasses the project’s climate change implications due to the vulnerability of children to, and the disproportionate burden of, climate change impacts on present and future children: at [1586]. The importance of the right lies in the special vulnerabilities of children and their inability to control the decisions that affect them: at [1587]. The intergenerational nature of climate change is critical to the proportionality exercise: at [1588].

The adverse impacts of climate change will disproportionately affect present and future children at an ever-increasing level, and present and future children will be at a disproportionately greater risk of poorer health outcomes and premature mortality: at [1589]. Young children are more prone to heat stress: at [1590]. There are as-yet unquantified impacts on babies whose mothers are pregnant during hazardous fire events, and on young children, whose risk of developing asthma or having an episode is increased: at [1590]. As they grow and age, children will be affected by an increasingly hostile environment that will affect their learning, recreation, and working conditions: at [1591]. As life expectancy has improved, and older people are at greater risk during extreme heat, today’s children will be disproportionately affected as they enter their middle and late years, with the impacts of rising temperatures becoming increasingly dangerous over time: at [1592]. Moreover, there is an intergenerational imbalance in the effects of climate change itself: at [1594]. The burden of drawing down accumulated carbon dioxide from the atmosphere will fall to today’s children who will become adults in the future: at [1596].

The intersection of rights and impacts for First Nations children is an additional consideration: at [1601]. Increased temperatures already hamper the efforts of the First Nations parents to teach their children about their sea country: at [1601]. The displacement of children from their country will risk severing their relationship to country and culture: at [1601].

Previous considerations regarding the balance between the limitation and the right also apply here, but there is an additional aspect to the balancing exercise here: at [1602]. The intergenerational aspect of climate change risks makes the rights of children paramount: at [1603]. The principle of intergenerational equity places responsibility with today’s decision makers to make wise choices for future generations: at [1603]. The children of today and of the future will bear both the more extreme effects of climate change, and the burden of adaptation and mitigation: at [1603]. As their best interests are not served by project, this weighs the balance against approving the applications: at [1603].

Right to property

Climate change impacts will include property destruction, or a sufficient restriction on the ability to use and enjoy property which amounts to a de facto expropriation: at [1611]. Property will be lost or damaged due to the increased severity and frequency of weather events such as bushfires and floods; displacement from properties will increasingly occur because of extreme weather events and sea level rise; and large areas of Queensland will become unliveable: at [1609]. The project would clearly contribute to the de facto deprivation of property for at least thousands of Queenslanders: at [1610]. The Torres Strait Islands are particularly vulnerable to both heatwaves and sea level rise: at [1610]. At a broad and general level of assessment, the deprivation of property would be arbitrary in the sense of not being proportionate to the legitimate aim: at [1613]. Property has a foundational role in Australian legal history: at [1618]. The Court endorsed statements that property is an ancient feature of common law and a fundamental common law right for the purpose of the application of the principle of legality: at [1618]. The importance of preserving the right has an additional dimension in this case, given the grief and loss of displaced First Nations peoples will be compounded by a cultural loss that cannot be compensated: at [1619].

The Court’s previous consideration of the balance between the limitation and the right set out under the right to life applies here as well, although there is a different aspect to balance here: at [1620]. Increasing the risk to property will have economic consequences: at [1621]. The displacement of people from their property, and the associated grief and health impacts, must also be considered: at [1622]. For First Nations people, there is the additional profound disruption of culture through disconnection from country: at [1622]. When the human cost of de facto expropriation of property is added to the equation, the scales weigh in favour of preserving the right: at [1622].

Right to privacy and home

The right is engaged because of the evidence about sea level rise and plans to relocate up to 2,000 people from the Torres Strait: at [1626]. Climate change presents a real and serious risk to the homes of residents of the Torres Strait: at [1628]. Extreme heat is expected to make parts of Queensland unliveable: at [1628]. The Torres Strait Islands, due to their location, can be inferred to be among the first areas to become unliveable, with future sea level rise threatening homes on islands: at [1628]. The limit on the right would be arbitrary: at [1630]. The home is a sanctuary in the Australian way of thinking, reflected in common expectations and practices founded on an ingrained conception of the relationship between the citizen and the state that is rooted in the tradition of the common law: at [1631]. The relevant evidence under the cultural right establishes a profound interference with this right as well: at [1632].

Previous considerations regarding the balance between the limitation and the right also apply here, although the factors will weigh differently as the difference between interfering with a right to life and a right to home is material: at [1633]. Nevertheless, interference here is a serious matter: [1633]. In this case, there is the additional dimension that the loss of home for some First Nations peoples risks the loss of culture and the associated health burden that displacement would bring: at [1633]. The balance favours preserving the right: at [1633].

Right to enjoy human rights without discrimination

The right requires considering whether a burden is imposed, or a benefit is denied that has the effect of reinforcing, perpetuating, or exacerbating disadvantage, which casts focus on the impact rather than intention: at [1642]. That is consistent with indirect discrimination, incorporated by the definition in the Human Rights Act 2019 (Qld): at [1642].

The impacts of climate change disproportionately affect present and future children, older people, people living in poverty, other disadvantaged people, and First Nations people: at [1643]. First Nations people and communities are at heightened risk of illness and death related to extreme heat due to higher likelihood of underlying chronic conditions such as high blood pressure, diabetes, and kidney disease, and at younger ages than others: at [1646]. First Nations people are also more likely to live in lower quality housing and to not have access to air-conditioning: at [1646]. Some communities due to location may be subjected to even more extreme combinations of heat and humidity relative to other parts of Queensland, including Far North Queensland and the Torres Strait: at [1646]. There is an additional intergenerational dimension to the disproportionate impact on First Nations children because changes to their environment and displacement due to climate change will impair their ability to learn, enjoy and maintain their culture: at [1648].

Previous considerations regarding the balance between the limitation and the right apply here as well: at [1649]. The burdens of increasing climate change will not be experienced equally: at [1649]. In this case, the disproportionate impact arises in multiple ways, falling more heavily on those who have vulnerabilities due to age, whether very young or old, or because of underlying health conditions: at [1650]. The intergenerational aspects are a key consideration, with future generations not having the same freedom due to restriction of their options for avoiding dangerous climate change: at [1651]. The impact on cultural rights of First Nations peoples is an additional dimension to the disproportionate impact: at [1652]. The intersection of multiple vulnerabilities of First Nations children, for example, increases the importance of protecting this right: at [1653]. Taking all those aspects together, the limit is not a reasonable limit that can be demonstrably justified in a free and democratic society based on human dignity, equality, and freedom: at [1654].

Conclusion

The balance weighs against approving the applications, taking into account the factors for each of the rights considered: at [1655]. Under the Court’s obligation to properly consider human rights in making its decision, approving the applications would not be appropriate because, taking the nature and extent of the limit into account, the importance of preserving the human right is more important than the project’s purpose: at [1655]. The project would impair the ability of the identified groups from retaining the benefit of the individual rights engaged by the project, and the evidence about the project’s benefits is not cogent and persuasive in justifying the limit: at [1657].

Glen Innes

Right to property

The previous discussion on the importance of the right is also relevant to this ground: at [1672]. The evidence about the subsidence, noise and dust impacts of mining establishes there will be a significant restriction on the property’s use or enjoyment, not just as a nature refuge but also for grazing purposes: at [1667]. The impact on property rights was argued not to be arbitrary through regulation by the environmental authority and the right to compensation: at [1668]. However, the evidence showing likely non-compliance with conditions and the uncertainty about the extent of residual serious harm on Bimblebox is relevant: at [1669]. In the unusual circumstances of this case, and on a broad and general assessment, approving the applications would amount to an arbitrary deprivation of property: at [1671]. There will also be significant impacts from the underground mining, including lowering the ground surface; significant cracking and dilation of the rock strata and surface cracking; a ridge and swale landscape that is stepped and tilted, and which will alter the surface water flows; and the direction of flows: at [1673]. Some of those impacts could not be remediated at all and, for those that could be, the remediation work would be undesirable because they would likely result in further ecological damage: at [1673].

The provisions of the Mineral Resources Act 1989 (Qld), which provide for compensation to landowners, for interference by mining of their use and enjoyment of property, values rural land by its productive capacity: at [1674]. It will not compensate the owners for the loss of the nature refuge, or the painstaking work they and others have invested in maintaining its ecological values: at [1674]. Moreover, the owners are not entitled to compensation under the Nature Conservation Act 1992 (Qld) if the Refuge is degazetted, and the loss of that effort and commitment cannot be offset by an environmental offset: at [1674].

Right to privacy and home

The previous discussion on the nature of the right applied: at [1682]. There was a dispute about whether the nature refuge could be a home for any person: at [1683]. Home should be considered in a common sense and pragmatic way that requires sufficient and continuous links, with it being a question of fact, not law, and not being based on notions of title, legal and equitable rights, and interest: at [1683]. The landowners in question had devoted substantial time and effort to both care for and understand the natural environment of Bimblebox. They would be devastated if its ecological condition was damaged and the value of their years of labour and the long-term research was lost, which is enough to found a link that it is a ‘home’: at [1688]-[1689]. The importance of the right to home had been previously considered, and the limitation is the same as the other ground: at [1691].

There are numerous international examples of violation of an equivalent right by severe environmental pollution or nuisance, including noise, waste treatment plants, air pollution, and odour, so physical exclusion from the home is not required: at [1692]. The interference must significantly impair a person’s ability to enjoy their home, private or family life, taking into account matters such as the intensity and duration of the impact and its physical and mental effects, and the evidence does not provide confidence that the landowners could continue to enjoy Bimblebox and fulfill their commitments under their agreements with the Commonwealth and State governments: at [1692]-[1693].

Balance

Previous reasoning about the purpose of the limit in addressing the question of balance is relevant: at [1694]. In most cases, mine impacts on a person’s property and their use and enjoyment of their home can be adequately dealt with by imposing operating conditions that minimise the impacts, and in some cases that facilitate co-existing uses of the property; and/or through a monetary award to compensate the owners for the disturbance to, or the loss of, their property and home: at [1695]-[1697].When this is possible, it should be expected to favour the broader public interest in the economic and social benefits of a mine over the interference with private rights: at [1698].

Here, the mine is unlikely to be able to meet the operating conditions proposed to minimise nuisance impacts: at [1699]. For the more serious residual impacts on ecology due to subsidence damage, at least some damage will be permanent and there is no credible offset plan in place: at [1699]. The landowners’ significant commitment to environmental preservation will not be compensated under the compensation regime: at [1699]. The loss is not solely a matter of interference with private rights, as the values of the Bimblebox are a matter of public benefit as well: at [1700]. Nature refuges comprise almost one-third of Queensland’s total protected area system: at [1700]. Careful stewardship of land in private hands depends on confidence, the investment of time, effort, and funds will not be lightly disregarded: at [1700]. There is a public interest in only interfering with a nature refuge when there is a compelling reason to do so: at [1700]. The combination of those factors made the case unique: at [1701].

Adopting the previously described approach, the project would impair the ability of those identified above from retaining the benefit of the individual rights engaged by the project: at [1702]. The project’s benefits were not cogent and persuasive in justifying the limit: at [1702].

Conclusion

The Court overall concluded on both grounds that the engaged rights would be limited by the Project and the evidence about its economic and other benefits is not cogent and persuasive in justifying the limit: at [1703].

Visit the judgment: Waratah Coal Pty Ltd v Youth Verdict Ltd & Ors (No 6) [2022] QLC 21