In brief

The case of Waratah Coal Pty Ltd v Youth Verdict Ltd & Ors (No 2) [2021] QLC 4 (Waratah Coal No 2) concerned an application brought by Waratah Coal Pty Ltd (Waratah) for further and better particulars of human rights objections brought by Youth Verdict Ltd and Bimblebox Alliance Inc (Objectors) to Waratah's application for a mining lease and an environmental authority to develop a thermal coal mine in the Galilee Basin in Queensland. 

Waratah Coal No 2 follows from the case of Waratah Coal Pty Ltd v Youth Verdict Ltd & Ors [2020] QLC 33 (Waratah Coal No 1) in respect of which the Land Court of Queensland (Land Court) dismissed an application brough by Waratah to strike-out objections made under the Human Rights Act 2019 (Qld) (HRA) to Waratah's proposed thermal coal mine. A summary of that case can be found in our November 2020 article.

The issues for the Land Court's determination were as follows:

  • Whether the human rights objections were adequately articulated. 
  • What principles apply to particulars of an objection in a mining objection hearing. 
  • Whether the Objectors should be required to respond to any of the requests that remain in dispute. 

The Land Court ultimately found that further particulars were not the best way to fully articulate the human rights objections, and directed the Objectors to provide an exhaustive list of classes of individuals whose human rights the Objectors contended would be limited by the grant of the mining lease. 

Land Court finds that it would consider submissions about the principles of engagement and limitation in considering Waratah's application 

The Objectors contended that the grant of a mining lease and environmental authority for the thermal coal mine would be incompatible with the HRA and would unreasonably limit the following rights protected under the HRA:

  • Recognition and equality before the law.
  • Right to life.
  • Property rights. 
  • Right not to have the person's privacy, family, home, or correspondence unlawfully or arbitrarily interfered with.
  • Right of every child, without discrimination, to the protection that is needed by the child, and is in the child's best interests, because of being a child. 
  • Cultural rights of Aboriginal peoples and Torres Strait Islander peoples. 

The Land Court confirmed its finding in Waratah Coal No 1 that the Land Court is subject to section 58 of the HRA in fulfilling its function under the Mineral Resources Act 1989 (Qld) and the Environmental Protection Act 1994 (Qld) in making recommendations in respect of the grant for mining leases and environmental authorities (at [7]). 

The Department of Environment and Science (DES), the statutory party to the proceeding, contended that it would be better placed to assist the Land Court in its role as a model litigant if the human rights objections were more fully articulated. DES identified the following five considerations under the HRA, which it contended the Objectors should be required to address (see [8]):

  1. Engagement – Whether the decision would be relevant to a human right protected under the HRA and which right.

  2. Limitation – If a right protected under the HRA is relevant, whether that right would be limited by the decision. 

  3. Justification – Whether the limits can be demonstrably justified, which is informed by the requirements of legality and proportionality. 

  4. Proper consideration – Even if the limits are lawful and proportionate, the decision made ought to give proper consideration to the rights that are engaged. 

  5. Inevitable infringement – Where the Court could not reasonably act differently. 

Waratah requested further and better particulars as to:

  • the persons whose rights were alleged to be limited;
  • which of the human rights protected under the HRA were alleged to be limited; and
  • the facts, matters, and circumstances relied upon to allege those rights were limited for those persons. 

The Objectors submitted that how the law should be applied is a matter better addressed in submissions or by way of a preliminary finding, and not by giving particulars. The Land Court accepted this submission, albeit held that it would consider submissions about engagement and limitation in considering Waratah's request (at [19]). 

Land Court finds that the provision of particulars is not the only process used in a mining objection to narrow the issues 

The Land Court found that in exercising its administrative function, rule 157 of the Uniform Civil Procedure Rules 1999 (Qld), which concerns requests for particulars, did not apply albeit that the rule provides a useful approach when tempered by the Land Court's consideration of firstly, the requirement under section 7 of the Land Court Act 2000 (Qld) about the way in which the Land Court exercises its jurisdiction, and secondly, the requirement that the Land Court observe procedural fairness in the exercise of its administrative jurisdiction (see [22] and [31]).

The Land Court held that it must consider all properly made objections even if they are unparticularised, and that it has the power to inform itself in the way it considers appropriate, but that this does not "…relieve a party from the Court's expectation that parties will clarify the real and substantial issues for a mining objection hearing." (see [34] and [37]). 

The Land Court observed that the proceeding was subject to the Land Court's managed expert evidence process, and that the experience of the Land Court was that parties can significantly narrow issues between themselves with the benefit of expert evidence. 

Finally, the Land Court held that it had and could make further directions to narrow the issues and that the steps in the proceeding were intended to ensure no party, including Waratah was taken by surprise by a new issue. 

Land Court directs Objectors to provide an exhaustive list of classes of individuals whose rights may be limited

Waratah requested particulars of the individuals whose human rights the Objectors contended would be limited under the HRA. The Objectors responded to that request by stating that "…the individuals whose human rights are alleged to be limited are those human beings in Queensland now and in the future, including…" inter alia "…children living now and in the future, older people, people living in poverty, other disadvantaged people, and First Nations Aboriginal and Torres Strait Islander peoples…" (see [59]). 

Waratah contended that it was entitled to an exhaustive list of individuals whose human rights the Objectors contended would be limited by the grant of the mining lease. The Objectors contended that the individual subjects of human rights limitations were adequately particularised in their human rights grounds (see [60] and [61]). 

The Land Court held that clarity was required as to the classes of persons whose rights the Objectors contented would be limited by the grant of the mining lease, before Waratah was to nominate its expert witnesses (at [65]). 

Land Court finds that the Objectors were not required to respond to Waratah's request in respect of the Bimblebox Nature Refuge

The Land Court held that on a fair reading of the Objectors' response to Waratah's request for particulars, the Objectors had identified what facts, matters, and circumstances they proposed to rely on to support the ground of objection about the ecosystem services that the Objectors contended the Bimblebox Nature Reserve provided.

Land Court finds that further particulars about the phasing out of thermal coal was not necessary

The Objectors contended that the term of the mining lease applied for by Waratah, being 35 years, was not appropriate as it "…would allow the mining and burning of coal well beyond the time by which thermal coal must be phased out to achieve the aims of the Paris Agreement." (see [83]). 

The Land Court held that the question as to "[w]hy thermal coal must be phased out to achieve the aim of the Paris Agreement is a matter that will require expert opinion and will likely involve questions of policy and weight as well as fact." (at [87]). 

Land Court finds that the Objectors had provided sufficient detail about ecologically sustainable development 

The Land Court considered that the Objectors' response to Waratah's request for particulars of the facts, matters, and circumstances relied upon to allege that the grant of the mining lease and the environmental authority would be inconsistent with the core objective of ecologically sustainable development and held that "[i]t is unrealistic to expect an objector raising that principle to provide the level of detail Waratah seeks without expert opinion." (at [96]).

Land Court finds that further particulars about the limitation of the rights alleged was not required 

Waratah requested particulars of the facts, matters, and circumstances relied upon by the Objectors to allege that their rights would be limited by the grant of the mining lease and the environmental authority (see [103]). Waratah stated that it "…did not know what case it must meet in relation to First Nations people and, until it did, it could not decide whether anthropological or sociological or lay evidence was required." (see [109]). 

The Land Court observed that the Objectors would provide a statement from First Nations witnesses to which Waratah would have the opportunity to provide lay evidence in reply and that it would have the statements of First Nations People before deciding whether to nominate anthropologists or sociologists to address those objections (see [111]). 

Conclusion 

The Land Court held that it was satisfied that the Objectors had provided enough detail for Waratah to nominate its expert witnesses and directed the Objectors to provide an exhaustive list of classes of individuals whose human rights they contend would be limited by the grant of the mining lease and the environmental authority.

This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2022.

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