The growing relevance of human rights in the energy and resources sector

Current litigation unfolding around Waratah Coal’s Galilee Coal Project is an important reminder of the increased role Queensland’s Human Rights Act will have in the energy and resources sector and, in particular, the statutory landscape in which industry stakeholders operate.

As we approach the end of the Act’s first year in operation, the recent decision of President Kingham of the Queensland Land Court and key aspects of the HR Act are set to become increasingly relevant for the energy and resources sector.

Waratah Coal v Youth Verdict

Waratah Coal applied for a mining lease and environmental authority for the development of a thermal coal mine in the Galilee Basin. A number of parties raised objections, including advocacy groups Youth Verdict and Bimblebox Alliance. The advocacy groups lodged objections on the basis that the project would breach a number of human rights protected by the HR Act including:

• the right to recognition and equality before the law;
  
  
• the right to life;
  
  
• property rights;
  
  
• the right to privacy;
  
  
• the protection of children; and
  
  
• the cultural rights of Aboriginal peoples and Torres Strait Islander peoples.

The litigation marked the first challenge to a coal project on human rights grounds with recourse to the HR Act, which commenced on 1 January 2020.

In the latest development in the proceeding, Waratah Coal applied to the Queensland Land Court (the Land Court) to strike out those objections which relied on the HR Act. It argued that the Land Court does not have jurisdiction to consider human rights objections. In a decision on 28 August 2020, President Kingham refused Waratah Coal’s application (Waratah Coal Pty Ltd v Youth Verdict Ltd & Ors [2020] QLC 33).  

The key issue before her Honour was whether, in deciding on objections, the Land Court acts in an administrative capacity, therefore being a ‘public entity’ within the meaning of section 58 of the HR Act. If the Land Court is a ‘public entity’ then it would be unlawful for it to:

• act or make a decision in a way that is not compatible with human rights; or
  
  
• in making a decision, fail to give proper consideration to a human right relevant to the decision.

In its strike out application, Waratah Coal conceded that the Land Court, when functioning under the Mineral Resources Act 1989 (Qld) (MR Act) and the Environmental Protection Act 1994 (Qld) (EP Act), is a ‘public entity’. However, it contended that the conduct of a hearing and the making of a recommendation were distinct functions.

Whilst conducting a hearing was an ‘act’, Waratah Coal submitted that the Court’s ultimate recommendation will be neither an ‘act’ nor a ‘decision’ for the purposes of section 58 of the HR Act. On Waratah’s submission, the Court therefore did not have jurisdiction to hear the objections on the basis they were directed at the recommendation and not the conduct of the hearing.

President Kingham dismissed Waratah’s application. Her Honour found that a recommendation of the Land Court must amount, as a matter of statutory interpretation,  to both a decision and an act for the purposes of section 58. Her Honour also rejected a submission by Waratah that the absence of a specific human rights provision in the MR and EP Acts meant the Land Court could not consider human rights. President Kingham held that this submission overlooked section 108 of the HR Act which provides for the application of the HR Act to ‘all acts and statutory instruments, whether passed or made before or after commencement’.

Critically, even in the absence of an application by a group like Youth Verdict, the Land Court considered that it was nevertheless bound to consider human rights in making its recommendations.  

The judgment is an important decision in respect of the construction of key provisions in the Act and, in particular, the meaning of ‘public entity’. However, it remains to be seen how the Court will actually consider and determine human rights based objections given this particular judgment only concerned the Court’s jurisdiction to hear such objections.

Nevertheless, the decision is a timely reminder of the potential wider ramifications of the Act on the energy and resources sector. Indeed, there are three key ways in which the Act will be relevant for energy and resource activities in Queensland.

Legislative compatibility 

First, any statutory enactments and amendments will consider human rights as a matter of course. The HR Act requires a member of the Queensland Parliament to prepare a statement of human rights compatibility when proposing a new Bill. For example, the recent Royalty Legislation Amendment Bill 2020, was tabled with a section 38 statement of compatibility.

Critically, it is expressly stated in section 42 that a failure to comply with these requirements will not affect the validity of a resulting Act and parliament can nevertheless make an ‘override declaration’, though must only do so in exceptional circumstances.

The role of the Courts 

Second, whilst the Land Court had jurisdiction to hear Youth Verdict’s human rights objections on the basis it was acting in an administrative capacity and was therefore ‘a public entity’, all Queensland courts and tribunals must interpret a statutory provision in a way ‘that is most compatible with human rights’. This provision expressly empowers courts and tribunals to consider international law and the judgments of domestic, foreign and international courts in interpreting a provision.

The HR Act also provides scope for the Queensland Supreme Court to make a declaration of incompatibility where the Court is of the opinion that a statutory provision cannot be interpreted in a way compatible with human rights. However, a declaration of incompatibility will not affect the validity of the statue, nor confer a legal right on any person or give rise to any civil cause of action.

Therefore, whether a matter is before the Land Court or another Queensland court or tribunal, we can expect to see the interpretation of the MR Act, and other relevant statutes, interpreted in accordance with human rights.

Government decision-making 

Third, and most relevantly to the sector, the HR Act regulates the decision-making functions of government. As we know from the Waratah decision, it is unlawful for a public entity to act or make a decision in a way that is not compatible with human rights, or to fail to give proper consideration to human rights in making a decision. A decision will be compatible with human rights where it does not limit a right, or only limits it to a ‘reasonable and demonstrably justifiable’ extent.

An individual may make a complaint in respect of a public entity’s decision making to the Queensland Human Rights Commissioner. The complaint may be resolved by way of conciliation.

Critically, the HR Act does not provide for a specific cause of action or offence in circumstances where human rights have been violated. However, it does contain what has been called a ‘piggyback’ clause which allows a human rights claim to be ‘piggybacked’ onto another legal claim, such as a challenge to Waratah Coal’s project on environmental grounds. Damages will not be available as a remedy but any other relief or remedy which could be obtained in an independent cause of action are available.

Therefore, whenever the sector engages with a public entity, be that the Land Court or any Queensland government decision-maker, human rights considerations will be relevant. Indeed, the Department of Natural Resources, Mining and Energy’s ‘Permit Administration Guidelines’ now recognise that in administering the permit process for petroleum authorities and mining tenements, “the department has an obligation to act and make decisions in a way that is compatible with human rights and, when making a decision, to give proper consideration to human rights”.

As the objections raised in the Waratah Coal matter reveal, government decision making in respect of the energy and resources sector will now need to consider rights ranging from, for example, the right to life to the cultural heritage of Aboriginal peoples and Torres Strait Islander peoples.

Whilst Queensland legislation which pre-dates the HR Act, such as the Aboriginal Cultural Heritage Act 2003 (Qld), already addresses human rights in varying ways, the HR Act places these considerations at the forefront of the decision-making process.

Forecast  

As we approach the end of the Queensland’s HR Act first year in operation, we can expect 2021 (and beyond) to see both government bodies and the courts grapple with human rights issues and how those issues can be resolved in a way which strikes an appropriate balance with energy and resources projects and activities.