07 February 2023
21 min read
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The recent judgement in Waratah Coal Pty Ltd v Youth Verdict Ltd & Ors (No 6) [2022] QLC 21 (Waratah Coal) sends a clear message that human rights, specifically when informed by climate change, are a salient factor to be considered by administrative decision-makers.
The judgment, handed down by the President of the Land Court (the Court), was a recommendation that neither a mining lease (ML) nor an environmental authority (EA) be approved with regard to Waratah Coal Pty Ltd’s (Waratah) applications to acquire the relevant approvals to mine thermal coal in the Galilee Basin (the Project).
While the Court was at pains to explain that its reasons for not recommending the approval were specific to Waratah’s mine in the Galilee Basin, rather than guidance on the approval of new mines in general, the judgment nonetheless sets a new tone regarding the consideration of human rights in an administrative decision-making context.
The case concerned applications for an ML and an EA by Waratah to allow it to mine thermal coal in the Galilee Basin, without which the Project could not proceed. The Court’s function in the approval process was to make recommendations, but not the final decision, on each of the applications (the Minister for Resources and the Chief Executive of the Department of Environment and Science would decide the ML and EA, respectively).
Relevantly, the Project was proposed to encompass open cut and underground thermal coal mining on several properties in central Queensland, including one property in a protected area under the Nature Conservation Act 1992 known as the Bimblebox Nature Refuge (Bimblebox Refuge). The Bimblebox Refuge comprises a significant protected area estate in Queensland and Waratah proposed to underground mine two-thirds of the refuge. The Court accepted that the evidence suggested the refuge would likely be lost and the ecological values of Bimblebox Refuge seriously and possibly irreversibly damaged.
Following the Court’s determination on each of the matters raised by the parties, the prescribed factors required under the Mineral Resources Act 1989 and the Environmental Protection Act 1994, and the Court’s obligations under the Human Rights Act 2019 (Qld) (HRA), the Court decided to recommend both applications be refused.
The impact on Bimblebox Refuge greatly informed the Court’s final recommendation considering the active parties to the case were key stakeholders in Bimblebox Refuge. However, in the end it was the human rights implications of the Project, both as they related to Bimblebox Refuge and to climate change more generally, which determined the Court’s final recommendation.
The Court’s judgment dealt with how the HRA relates to the Court’s function in a mining objection hearing.
The Court confirmed (as it previously had) that it was a public entity within the meaning of the HRA when making recommendations on applications for MLs or EAs. And further confirmed that it must therefore fulfil the obligations imposed on a public entity, making it unlawful for the Court under section 58 of the HRA to either:
The Court, being obliged to properly consider human rights, expounded on when this obligation may be fulfilled, stating at [84]:
“An act or decision is compatible with human rights if it does not limit a human right or, if it does, the limit is only to the extent that it is reasonable and justifiable in a free and democratic society based on human dignity, equality and freedom".[1]
The HRA outlines the 23 human rights that are protected and section 13 of the HRA (subsequently referenced as the proportionality test) gives guidance on when those human rights may be limited.
The Court determined the following rights would be limited on climate change grounds by the Project:[2]
While Waratah accepted that the above human rights would be ‘engaged’ by the Project, it disputed those rights would be ‘limited,’ arguing there was not a sufficient causal relationship between the granting of the ML and EA and the harm said to limit the human right.
In other words, Waratah argued it had no control over the emissions because approving the ML and EA applications did not actually approve the ‘combustion’ of the coal, rather that would be a decision made in the countries to which the coal would be exported (here being Southeast Asia). That argument was rejected by the Court who said that granting permission to mine the coal could not be logically separated from the coal being used to generate electricity because the justification for the mine was to export coal for that very purpose.
As a matter of law, the Court decided they could take the emissions into account in applying the principles of ecologically sustainable development (for the EA application) and in considering whether the applications are in the public interest (on both the ML and the EA applications).
The Court accepted and was not in dispute that human-induced climate change is caused by greenhouse gas (GHG) emissions, most importantly carbon dioxide, which is emitted when thermal coal is combusted. The Court also noted that there was clear evidence that the long-term global temperature goal set by the Paris Agreement was, globally, a real challenge to achieve.
As the Project’s economic viability and very existence depended on GHG, the Court did not have any trouble making a causal connection between the approval of the Project and the Project’s contribution to future climate change.
Under the HRA, an act or decision can limit a human right if the limit is no more than is justified in a free and democratic society, based on human dignity, equality and freedom.[3] That test requires the decision maker to balance the purpose and importance of both the limit and the right, taking into account the nature and extent of the limit and whether there are less restrictive alternatives.
The Court, having determined what human rights would be limited by the mining of coal that would be combusted to generate electricity, applied the proportionality test:[4]
The Court found that the nature of the purpose of the above limitation was to:
It was determined by the Court that the above purposes were legitimate and could be advanced by the Project, stating:
“The purpose of generating economic and other benefits and providing energy security is consistent with a free and democratic society based on human dignity, equality and freedom”.[8]
Acknowledging the economic benefits to be ‘considerable’,[9] President Kingham stated, “developing the mineral resources of the state is an important source of revenue for the Queensland Government and is applied for the benefit of the people of Queensland”.[10]
Ultimately however, the Court determined there were less restrictive and more reasonably available ways to achieve the aforementioned purposes, citing renewable sources, nuclear and less carbon-intensive fossil fuels such as gas as being able to provide energy security and economic benefit to Queenslanders.[11]
Therefore, in respect of each human right, considered individually, the Court decided the importance of preserving the right, given the nature and extent of the limitation, weighed more heavily in the balance than the potential economic benefits of the mine and the benefits of contributing to energy security for Southeast Asia.
In response to the ecological impacts of the Project, Waratah submitted offsets were the answer to any unavoidable impacts of the Project.[12] However, the Court, informed by offset experts, determined Waratah’s offset plan to be inadequate when assessed against current requirements.[13] Further, while the Court agreed an adequate offset plan was not impossible for addressing the biodiversity offset, it determined that no offset could address the “cultural and spiritual values associated with a place and its history.” [14] Specifically, there was no offset that could counterbalance the 22 years the owners of Bimblebox Refuge had invested in their custodianship of the refuge.
Another factor that weighed against recommending approval was that any attempts at offsetting the impact of the Project would affect the Project’s economic viability. President Kingham spoke to the relevance of viability regarding the Project, stating, “viability matters because the economic benefits are only fully realised if the mine is viable”.[15]
The Waratah decision provides insight into the Court’s interpretation and ultimate operation of the HRA as it applies to proposed projects with far-reaching ecological and social impacts, despite the promise of those same projects delivering substantial economic benefits to the State.
This case demonstrates how climate change must be at the forefront of administrative decision-making and that relevant stakeholders to a decision have expanded to include the global community as a whole. Specifically, the Court, in citing global and national goals of reducing emissions that contribute to climate change, made clear that impacts of any project must be assessed with an increased understanding of interconnectivity and foresight.
It should be noted that Waratah has, following judgment, since filed for an application for a statutory order of review to quash the Land Court’s decision under the Judicial Review Act 1991, with a directions hearing scheduled for February. Watch this space for updates on the outcomes of this judicial review application and further insights into administration decision-making as a result of the outcome of Waratah’s application.
Reach out to our government team if you require assistance navigating the human rights regime in relation to your administrative decision-making processes. Our local team has extensive experience applying the HRA to matters ranging from privacy disputes to complex statutory decision-making processes.
[1] HRA, sections 8 and 13.
[2] Waratah Coal at [1298].
[3] HRA, section 13(1).
[4] Waratah Coalat [1425]-[1451].
[5] HRA, section 13(2)(b).
[6] HRA, section 13(2)(d).
[7] HRA, section 13(2)(e).
[8] Waratah Coal at [1430].
[9] Ibid at [1446].
[10] Ibid at [1445].
[11] Waratah Coal at [1437].
[12] Ibid at [453].
[13] Ibid at [456].
[14] Ibid at [569].
[15] Ibid [34].
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Waratah Coal Pty Ltd v Youth Verdict Ltd & Ors (No 6) [2022] QLC 21
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Animal Care and Protection Amendment Act 2022 No. 35 - Assent 12 December 2022
Integrity and Other Legislation Amendment Act 2022 No. 33 - Assent 12 December 2022
Public Sector Act 2022 No. 34 - Assent 12 December 2022
Proclamations commencing Acts made
Proclamation No. 1—Inspector of Detention Services Act 2022 (commencing certain provisions)
Subordinate legislation notified
Public Trustee (Interest Rate) Amendment Regulation 2023
Work Health and Safety (Codes of Practice) (Stevedoring and Other Matters) Amendment Notice 2022
Planning Amendment Regulation 2022
Fisheries Legislation Amendment Declaration 2022
Forestry (State Forests) and Other Legislation Amendment Regulation (No. 4) 2022
Major Sports Facilities (Major Concerts at Brisbane Stadium (Lang Park)) Amendment Regulation 2022
Petroleum and Gas (Safety) and Other Legislation Amendment Regulation 2022
Proclamation No. 1—Inspector of Detention Services Act 2022 (commencing certain provisions)
Public Trustee (Interest Rate) Amendment Regulation (No. 4) 2022
Right to Information and Other Legislation Amendment Regulation 2022
Superannuation (State Public Sector) Regulation 2022
Supreme Court (Admission) Amendment Rule 2022
Water Plan (Barron) (Postponement of Expiry) Notice 2022
Subordinate legislation expired
Water Plan (Pioneer Valley) 2002
Disclaimer
The information in this bulletin is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this bulletin is accurate at the date it is received or that it will continue to be accurate in the future.
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