Human rights in the resources space

Key insights

• The Human Rights Act 2019 (Qld) is now becoming a key consideration for the Land Court in making determinations in relation to mining activities in Queensland.
• When considering objections to mining lease applications, the Land Court is obliged to consider whether an application affects human rights relevant to the decision. In doing so, the Land Court's recent approach indicates that the cultural rights of First Nations people will be considered as "potentially affected" by the grant of a mining tenement. This was seen in the recent decisions of Cobbold Gorge Tours Pty Ltd v Terry [2023] QLC 7 and Pickering v Pedersen [2023] QLC 12.
• Further, on 24 October 2023, the Land Court issued a Practice Direction requiring parties to proceedings in the Land Court and Land Appeal Court to give notice to the Attorney-General and Queensland Human Rights Commission where certain human rights aspects are concerned. This new Practice Direction was introduced following the enactment of the Justice and Other Legislation Amendment Act 2023.

Human rights in Queensland

The Human Rights Act 2019 (Qld) fully commenced on 1 January 2020 with the objective to build a culture in Queensland where human rights are understood, respected and protected. Broadly, the Act aims to protect and promote human rights, build a human rights culture and promote dialogue about human rights in Queensland.

Public service entities, such as ministers, courts, tribunals and local governments must make decisions and act in ways that are compatible with human rights. Under section 58(1), it is unlawful for a public service entity to act or make a decision that is not compatible with human rights or make a decision without giving proper consideration to a human right relevant to the decision.

Relevance of the Human Rights Act for mining lease applications

In late 2022, the Land Court handed down a landmark decision recommending the refusal of mining and environmental approvals for a coal mine in part due to impacts on First Nations human rights. Waratah Coal Pty Ltd v Youth Verdict Ltd & Ors (No 6) [2022] QLC 21 established that when exercising its administrative function, the Land Court must have regard to the Human Rights Act. For more information on this decision, see our Native Title Year in Review 2022–2023 article, "Refusing mining approvals on human rights grounds – the Queensland Land Court and the Human Rights Act 2019".

A recent example: Cobbold Gorge Tours Pty Ltd v Terry [2023] QLC 7

In Cobbold Gorge Tours Pty Ltd v Terry [2023] QLC 7, Cobbold Gorge Tours Pty Ltd lodged a mining lease application for the mining of gold, tin and mineral sands in North Queensland. In response, a neighbouring landholder lodged an objection against the grant of the mining lease. The matter was subsequently referred to the Land Court.

The objector raised the following grounds: insufficient notice, no compensation agreement, applicant's lack of mining experience and impact on a nature refuge, roads and flora and fauna.

In light of Waratah Coal, Member McNamara concluded that the impact of the mining lease grant on human rights must be considered. Member McNamara identified cultural rights as potentially affected human rights in the matter, even though the objections were unrelated to native title, cultural heritage or cultural rights. Section 28 of the Human Rights Act provides for the protection of cultural rights including the right to enjoy, maintain, control, protect and develop identity and cultural heritage.

In this case, the Ewamian people had non-exclusive native title rights over the area of the proposed mining lease. During evidence, the applicant was asked whether it had commenced, or intended to commence, the right to negotiate process under the Native Title Act 1993 (Cth) with the Ewamian people. Member McNamara was satisfied that cultural rights were adequately protected on the basis that the applicant's evidence demonstrated it was aware of its role and responsibility in the right to negotiate process and the cultural heritage duty of care under the Aboriginal Cultural Heritage Act 2003 (Qld).

Human rights considerations extend to mining claim applications: Pickering v Pedersen [2023] QLC 12

Pickering v Pedersen [2023] QLC 12 concerned objections to applications for two mining claims in the Mitchell River in Far North Queensland. The objections were made by landowners and related to potential impacts on their small-scale tourism operation due to dredging activities associated with the mining claims.

Like Cobbold Gorge Tours Pty Ltd v Terry, Member McNamara noted that the Land Court must have regard to human rights impacts when deciding whether to grant the two mining claims.
Notwithstanding the absence of any human rights related objections, Member McNamara identified cultural rights as potentially affected by the decision. Member McNamara had regard to the native title history of the land, and was ultimately satisfied that the cultural rights of First Nations peoples to maintain their identity and cultural heritage would be adequately protected through use of the future acts regime in the Native Title Act 1993 (Cth) and the Aboriginal Cultural Heritage Act 2003 (Qld).

The Land Court recommended that the mining claims be granted, subject to conditions and protective measures to uphold the rights and operations of affected landholders.

What does this mean for mining tenement applications going forward?

The decisions in both Cobbold Gorge Tours Pty Ltd v Terry and Pickering v Pedersen indicate that the Land Court is likely to identify First Nations cultural rights as potentially affected by its decision in any future mining tenure objection matters, even if this issue is not raised by an objector. In order to consider the impact on cultural rights, the Court will look at the native title and cultural heritage context of the application.

This raises issues about the evidentiary basis upon which the Land Court can be satisfied about the protection of cultural rights, particularly in circumstances (such as in Cobbold Gorge Tours Pty Ltd v Terry) where the evidence before the Land Court is provided by the resource authority applicant and the relevant native title party is not otherwise involved.

Proponents cannot ignore the impact of the Human Rights Act on decision-making for key approvals for new projects.

New Land Court Practice Direction further increases human rights considerations

Further emphasising the centrality of human rights considerations to mining projects, on 24 October 2023 the Land Court issued Practice Direction 4 of 2023 requiring parties to proceedings in the Land Court and Land Appeal Court to give notice to the Attorney-General and Queensland Human Rights Commission where:

• a question of law arises that relates to the application of the Human Rights Act 2019; and/or
•  a question arises in relation to the interpretation of a statutory provision in accordance with the Human Rights Act 2019.

This reform was part of the Justice and Other Legislation Amendment Act 2023, which amended section 52 of the Human Rights Act 2019.

To fulfil its notification requirement, a party to a proceeding must complete a Form 28 – Human Rights Act Notice. This notice must be filed in the Land Court Registry, and be served on the other parties to the proceedings as well as the Attorney-General and Queensland Human Rights Commission.

What happens next?

Under sections 50 and 51 of the Human Rights Act, the Attorney-General and the Human Rights Commission have an existing power to become a party to a proceeding before a Court or Tribunal where there is a question of law in relation to the application of the Act or the interpretation of a statutory provision in accordance with the Act.

It is not yet known whether the extension of section 52 notice requirements to the Attorney-General or Human Rights Commission under this reform will result in increased intervention by these bodies in Land Court matters, or whether intervention will be restricted to matters where substantive questions of law in relation to the Act arise.

Authors: Libby McKillop, Counsel; Dillon Mahly, Graduate; and Lydia O'Neill, Paralegal.