Bimblebox Alliance recently released its objection (the “Bimblebox Objection”) to the Waratah Coal[1] “Galilee Coal Project (Northern Export Facility)” online[2] . Interestingly, other than the usual spread of objections, ground one is primarily concerned with human rights. This is the first of its kind in Queensland and will, no doubt, be followed with interest by the industry.
The Project
Waratah Coal “Galilee Coal Project (Northern Export Facility)” is looking to develop an export thermal coal mine in the southern Galilee Basin near the town of Alpha in Central Queensland.[3] It is proposed that the project will consist of two open cut operations and four underground longwall operations, coal handling preparation plants and a rail corridor to the Abbot Point terminal.[4]
The Objection
Broadly, ground 1 of the Bimblebox Objection argues that as the Land Court sits in an administrative capacity to hear objections under section 261 and 269 of the Mineral Resources Act 1989 (MRA), it is a “public entity” within the meaning of the Human Rights Act 2019 (HRA). Consequently, the Land Court will act unlawfully if it makes a recommendation under s 269 MRA that is not compatible with human rights or fails to properly consider human rights.
The Preliminary issue
This line of objection is not like the usual climate change objection arguments that have seen previously because the success or failure of Ground 1 of the Bimblebox Objection will rest on an analysis of the standing of the Land Court. And, if it is the case that the Land Court is classified as a public entity within the meaning of the HRA, then the next issue is a consideration of whether or not the Land Court is obliged to consider the human rights aspects given the limitations placed on the Land Court under s 269 of the MRA. This of course, is the preliminary point and entirely separate from the actual human right considerations but is arguably more important.
There is a great deal of judicial writing that considers the capacity of the Land Court when sitting in its administrative capacity, so I don’t propose to reinvent the wheel in that respect.
Land Court’s standing
The Land Court derives its jurisdiction in respect of objections from s 265 of the MRA such that upon an objection under s 260 of the MRA being lodged, it is to be referred to the Land Court by the Department at which point, the Land Courts jurisdiction is enlivened.
By s 268(2), at the hearing, the Land Court is to take such evidence, hear such persons and inform itself in such manner as it considered appropriate in order to determine the relative merits of the application, the objections and other matters. Pursuant to s 268(3) of the MRA, the Land Court must not entertain any ground of objection or any evidence relating to any ground, if the objection or ground was not contained in an objection that had been duly lodged. It should be noted that s.268(3) qualifies s.268(2) in that the Land Court is not at liberty to receive any evidence but rather is limited to hearing submissions or evidence from an objector to the grant of a mining lease only on matters already raised in its duly lodged objection.[5] That is, the hearing is not at large.
Having completed the hearing of all matters in respect of an application for the grant of a mining lease[6], the Land Court is then required to forward to the Minister any objections lodged and the Land Court’s recommendation.[7] The recommendation is to consist of, amongst other things, a recommendation to the Minister that the application be granted or rejected in whole or in part and any conditions considered appropriate. The matters to be considered by the Land Court, when making a recommendation are those prescribed in s 269(4) of the MRA. The recommendation is discretionary but confined in nature and extent. Accordingly, the discretion could be said to be limited. This will invariably impact on the arguments under the HRA.
The Land Court’s role in such objections hearings is administrative in nature and its decision will be of an advisory nature. Any decision to grant a mining lease is made by the Minister, who in accordance with s 271 of the MRA must consider the Land Court’s recommendation and the matters mentioned in s 269(4) which the Land Court must also consider. The Minister might decide to grant the applicant the mining lease for the whole or part of the land in the proposed lease area, reject the application or refer the matter back to the Land Court to conduct a further hearing on matters specified by the Minister.[8]
Accordingly, the decision of the Land Court can be characterised as an “an administrative step consequent upon a statutorily prescribed inquiry”. The decision of the Land Court gives rise to no right of appeal to the Land Appeal Court. The decision is however amenable to review under the Judicial Review Act 1991 (Qld) (JR Act).[9]
In light of this, the real question for the court in considering the Bimblebox Objection and a significant issue which will no doubt be subject of extensive submissions, is the status of the Land Court when sitting in its administrative capacity. In particular, the parties will no doubt need to turn their mind to whether or not such an administrative capacity satisfies “public entity” criteria in the HRA. Failure to succeed on this preliminary point will result in the failure of ground one.
Human Rights Act
The HRA is a relatively new instrument having commenced on 1 January 2020. The Bimblebox Objection and the subsequent hearing, will be the first time the courts position as a ‘public entity’ under the HRA will be considered and it will be most interesting to see the outcome.
The definition of “public entity” is contained in s 9 of the HRA and is extensive but of most importance is s 9(4)(b) which provides that a “public entity” does not include a court or tribunal, except when acting in an administrative capacity. On the face of this section, it is arguable that the Land Court is a ‘public entity’ but consideration must also be given to s 58 of the HRA and the limited discretionary nature of the Land Courts recommendation under s 269 of the MRA, among other things.
The extensive arguments that will no doubt be considered are beyond the scope of this article, but it is quite clear that this decision will be of significant importance to the profession.
This is an opinion piece and should not be taken as legal advice. If you have a matter that deals with a mining lease objection or environmental authority objection you should seek independent legal advice regarding the particular circumstances of your case.
Liability limited by a Scheme approved under professional standards legislation.
[1] Waratah Coal Pty Ltd is listed on the Qld Department State Development, Manufacturing, Infrastructure and Planning (SDMIP) as being a subsidiary of Mineralogy Pty Ltd [2] https://bimblebox.org/court-proceedings/objections/ ; two objections are lodged, one relating to the Mining Lease and the other relating to the Environmental Authority; each of which is lodged under the corresponding relevant legislation. This article only considers the objection under the MRA. [3] Alpha was also the subject of prior court proceedings for the “North Alpha Coal Project” which is also a Waratah Coal project [4] See. Waratah Coal project information at their company website [5] ACI Operations Pty Ltd v Quandamooka Lands Council Aboriginal Corporation [2002] 1Qd R 347; more recently affirmed in Symbolic Resources Pty Ltd v Kingham & Ors [2020] QSC 193 [6] Different provisions apply under the Environmental Protection Act which will require a consideration of the application of the precautionary principle [7] s.269(1) MRA [8] s.271A MRA [9] New Acland Coal Pty Ltd v Smith [2018] QSC 88 at [6]
