Human rights and mining lease objections: Implications of the Waratah Coal Decision22 December 2020
Concerns about mining activities have long been raised by groups and individuals. Sometimes these concerns relate to specific impacts of a particular mining project on local features. Sometimes these concerns are raised more broadly such as the potential negative impacts on groundwater or even more broadly, potential impacts on the environment as a whole. In a first for Queensland, concerns about the impacts of mining on human rights have now been raised in an objection to a mining lease for coal in the Decision of the Land Court in Waratah Coal Pty Ltd v Youth Verdict Ltd & Ors  QLC 33 (Waratah Coal Decision).
The nature of the Waratah Coal Decision
Objections to mining leases under the Mineral Resources Act 1989 (Qld) (MRA) and environmental authorities under the Environmental Protection Act 1994 (Qld) (EP Act) are heard by the Land Court following which a recommendation is made to the Minister. The Minister makes the ultimate decision about the grant of the mining lease.
The Waratah Coal Decision was a preliminary decision of the Land Court about whether objections to a mining lease on human rights grounds could be heard by the Land Court or whether those grounds of objection should be struck out as being beyond the Land Court’s jurisdiction. It was not a hearing about the objections themselves and, as at the date of this article, the objections remain to be heard in the future.
The implications of the Waratah Coal Decision are discussed below.
Can objections to mining leases be made on human rights grounds?
Yes, is the simple answer.
The Land Court found that objections on human rights grounds can be made to mining lease applications.
Must the Land Court take into account objections to mining leases made on human rights grounds?
Yes, it must.
The Land Court found that it is a public entity for the purposes of s 58(1) of the Human Rights Act 2019 (Qld) (Human Rights Act). This means that it is unlawful for the Land Court when making a recommendation in relation to a mining lease application:
- to act or make a decision in a way that is not compatible with human rights, or
- in making a decision, to fail to give proper consideration to a human right relevant to the decision.
In effect, the Land Court found that because it is a public entity, whenever it makes a recommendation in relation to a mining lease application, it needs to consider human rights issues whether human rights issues are specifically raised as a ground of objection.
This means that all recommendations of the Land Court in respect of mining lease objections hearing in future must give proper consideration to human rights in accordance with the Human Rights Act.
It was also recognised that the Minister, when making their final decision about whether or not to grant the mining lease, will also need to give proper consideration to human rights in accordance with the Human Rights Act.
Does an objection on human rights grounds stand above other grounds of objection?
This particular issue was not decided by the Land Court in the Waratah Coal Decision. However, in my view, the answer is that an objection on human rights grounds probably does not stand above other grounds of objections or at least does not in all circumstances. All grounds of objection as well as the merits of the mining lease will need to be taken into account by the Land Court when it makes its recommendation.
As has always been the case, some grounds of objections may, due to their nature and because of the impacts of mining under the particular mining lease, warrant rejection of the mining lease application. But an objection on human rights grounds would not appear to have any special status as against any other grounds of objection.
Section 58(1) of the Human Rights Act requires public entities to make decisions in a way that is compatible with human rights and to give proper consideration to human rights when making those decisions. This does not mean that human rights override all other considerations in all circumstances. Nor does it mean that human rights are absolute and inviolate in every respect. Indeed, the Human Rights Act itself at s 13 recognises that human rights under that Act may be limited.
In Attorney-General for the State of Queensland v Sri & Ors  QSC 246, Applegarth J noted that:
“…it is always to be recalled that human rights under that Act may be limited and that a human right may be subject under law to reasonable limits that can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom.
Any of those rights, including the right to movement, are subject to reasonable regulation whether it be in the interests of controlling speed on roads, safety to other road users or other individuals’ rights. The right to movement, as is well known in present circumstances, is subject to regulation governing quarantine. Here, I simply wish to emphasise that as important as the human rights of the organisers, including the third and fourth respondents, are, those rights need to be accommodated against the rights of others and also against demonstrable public goods.”
Further s 58(2) of the Human Rights Act states that s 58(1) does not apply to a public entity if the entity could not reasonably have acted differently or made a different decision because of a statutory provision, a law of the Commonwealth or another state or otherwise under law.
In addition, if an objection to a mining lease is made on human rights grounds, the objection must still relate to the particular mining lease application itself and the ultimate recommendation must take this into account.
In New Acland Coal Pty Ltd v Smith & Ors  QSC 88, Bowskill J observed:
“The objections hearing is not an open-ended inquiry about matters concerning the environment or environmental values. It is an inquiry in relation to the merits of the application for a mining lease and objections to that application, and objections to the application for an environmental authority… for the purpose of the Land Court making a recommendation to the relevant decision-makers under the MRA and the EPA. The focus, under the EPA, as under the MRA, is upon the activities the putative holder of the mining lease will be entitled to carry out under the MRA or the mining lease, if it is granted.”
The same concepts will apply to objections on human rights grounds. The objections hearing by the Land Court will not be an open-ended inquiry about human rights. The Land Court must concern itself with the extent to which the particular mining lease application may impact on human rights.
The net effect of these points is that there may be difficulties for the objectors in the next stages of the Waratah Coal proceedings for three main reasons:
- there may be human rights considerations that favour the extraction and use of coal, whether for the project proponent or their employees, stakeholder, customers and end users, for example rights of employment, rights of equality before the law, property rights, reputation rights, economic rights, which would need to be taken into account as well as those argued by the objectors against the grant of the mining lease
- the MRA specifically permits mining leases to be granted for the mining of coal, and
- the human rights objection will need to relate to the specific mining lease application rather than broader argument about the impacts of coal mining on human rights generally.
How must the Land Court deal with the human rights-based objection?
This was not decided in the Waratah Coal Decision and will be an issue for the Land Court at the time of the objections hearing.
As the human rights ground of objection has no special status and does not give rise to a separate enquiry, the Land Court must make an objections decision in the usual course of events. In this particular case, the Land Court will need to hear the specific details of the proposed mining operation and the details of all of the objections that have been made (including the human rights objection). Evidence will be able to be put forward by the project proponent and the objectors about the mining lease and the objections, including evidence about the impact on human rights. After the hearing, the Land Court will then make recommendations about the mining lease and the environmental authority balancing the factors under s 269(4) MRA and the EP Act while also taking into consideration human rights under s 58 of the Human Rights Act.
Public policy implications
If, at the final hearing of this matter, it is found by the Land Court that human rights issues alone warrant the rejection of this particular mining lease application for coal, it would seem impossible for any other mining lease for coal mining to be granted because the same human rights considerations should apply to any other mining lease for coal.
This would be a curious outcome given that the MRA currently expressly permits mining leases to be granted for coal and it would have to be questioned whether an intent of Parliament in enacting the Human Rights Act was to prevent mining leases for coal from being granted.
The Land Court will need to be cognisant of this issue as it will need to consider its role under the MRA, the EP Act and the Human Rights Act, and the interrelationship of those Acts, which will involve interpreting each of those statutes when it makes its recommendations.
The Waratah Coal Decision was simply the first skirmish in a longer battle about human rights and mining leases for coal for this particular project. It has provided some answers but left many more issues for resolution when the objections hearing takes place.
The Waratah Coal Decision tells us unequivocally that human rights can be a ground on which objections can be made to mining leases and that the Land Court must take into account human rights in accordance with s 58 of the Human Rights Act when making a recommendation for a mining lease (whether human rights is specifically raised as a ground of objection or not).
The primary issue that remains is how the human rights-based objection will be taken into account amidst all of the required considerations by the Land Court in making its recommendations.
There also remain some significant hurdles for the objectors including balancing the human rights that are asserted will be impacted against other human rights, the balancing of all the factors that the Land Court will need to take into account and public policy considerations.
Beyond the scope of the Waratah Coal Decision and the ultimate recommendation at the final hearing of this matter is whether human rights objections will be raised again in the context of mining projects. This case could be the first of many objections made to future mining lease applications on the basis of human rights. Equally, the ultimate decision in this matter may so comprehensively deal with human rights issues and mining lease applications that it will operate as a precedent that becomes part of the landscape for all future recommendations.
Regardless of whether human rights are raised as specific grounds of objections in the future, the Waratah Coal Decision has put human rights squarely on the list of considerations for every future mining lease recommendation hearing in the Land Court.