Land Court of Queensland provides guidance on its approach to its jurisdiction and on-country evidence

Two recent Land Court of Queensland decisions regarding the proposed Waratah Coal Project in the Galilee Basin provide helpful guidance as to when a mine-plan revised after completion of the statutory environmental assessment process may impact on the Court's jurisdiction in a mining lease objections hearing and also the Court's approach and willingness to hear "on-country" evidence from First Nations' witnesses.

The jurisdictional question: can a change in mine plan impact on the Court's jurisdiction?

In Waratah Coal Pty Ltd v Youth Verdict Ltd & Ors (No 4) [2022] QLC 3 (Waratah No. 4), the Land Court had to consider whether revisions to a mine-plan made during the Land Court proceedings and therefore well after the normal statutory assessment process had occurred meant that the Court did not have jurisdiction to consider the mining lease and environmental authority applications and related objections that had been referred to it based on the original plan and make recommendations to decision makers on those applications. The revisions made to the mine plan were to reflect a reduced disturbance area in order to avoid impacts to the Bimblebox Nature Refuge, being an environmental feature that was the subject of objections in the hearing.

Q: When will the court consider whether it has jurisdiction?

A: Before hearing any evidence or argument, unless the circumstances warrant deferral to a later, more appropriate time. In this case, deferral was not warranted.

President Kingham examined a number of authorities that established that a Court's "first duty" is to consider whether it has jurisdiction to hear the matter before it but that this did not necessarily mean that this consideration had to occur first chronologically. It should occur at the point in the hearing where it is appropriate to do so. President Kingham noted that there was an unusual feature to the challenge of jurisdiction in this case which led to the jurisdiction issue being deferred for many months. This was because the jurisdiction of the Court had been properly invoked by the referral of the applications and objections to the Court and the question of jurisdiction only arose later because of the revisions to the mine-plan during the proceedings properly commenced by those referrals.

The President firstly considered five arguments raised by the objectors for deferring the question of jurisdiction to after the hearing of the evidence.

• The intertwining of the factual basis for the issues relating to jurisdiction and the ultimate recommendation by the Court being the impacts of the revised mine-plan. The President found that although there was a common factual basis, the findings required to determine each issue are distinct and involve different enquiries for different purposes.
• The objectors argued that there would be limited inconvenience to the parties and the Court if the hearing proceeded on the basis of both mine-plans. However, the President accepted that, if the Court were to hear evidence on both mine-plans (rather than addressing the jurisdictional issue first), the parties and the Court would be put to the trouble and expense of leading evidence on both proposals – particularly where one mine-plan will not be pursued by Waratah.
• The objectors' submission that the original mine-plan has continuing relevance was accepted, but only to the extent that it would be relevant to explain the history of the matter – it did not sway the Court into adopting a deferral of the consideration of the jurisdictional issue.
• The objectors argued that there was a risk of complex evidential contests in "drawing the jurisdictional line". The President indicated that this would most likely arise in hearing the evidence of the expert witnesses but the parties had reduced this risk because the parties had briefed their witnesses to address their evidence to alternative scenarios on the two mine-plans.
• The objectors argued that the hearing may be delayed because of a judicial review of any decision on the jurisdictional question if it was determined first. The President found it would be contrary to the orderly administration of justice to defer deciding a critical issue because it may be challenged.

Ultimately the President decided that a challenge to jurisdiction is a threshold question and the circumstances did not justify deferring it until after the hearing was concluded.

Q: When may a change in the mine-plan take away the Court's jurisdiction

A: The Court will consider whether the revised mine plan proposes a fundamentally different position to the one assessed. It will look at any fundamental changes in the activities proposed and the impacts thereof.

The first mine-plan proposed by Waratah included two open cut mine pits. In response to the objections made, Waratah revised its mine-plan to abandon those two pits with respect to the Bimblebox Nature Refuge (but would persist with some subterranean mining). It was subsequently argued by the objectors that this revised mine-plan constituted a fundamentally different project and therefore the Court did not have jurisdiction to consider it until it was assessed by the decision makers as though it was a new application.

The Statutory Party submitted that the proposed changes fell within the scope of the original applications and therefore it was not a question of jurisdiction but was one of power and that the Court had to ensure that it observed the requirements of procedural fairness in exercising its administrative function. The Statutory Party submitted if that could not be done, the Court might decline to proceed with the hearing.

President Kingham indicated that the Land Court's power to recommend the grant or refusal of a mining lease and environmental authority is an administrative function which is only enlivened after a detailed statutory environmental assessment process including public notification and consultation, identification of impacts, the preparation of relevant management plans/conditions and the assessment of the overall assessment of the impacts and objections being made to the applications. The issue was therefore whether Waratah's subsequently revised mine-plan was so fundamentally different that it could not have been said to have gone through those statutory pre-conditions for a referral to be made to the Court.

Issue 1: Was this a fundamentally different application?

No. In answering this question, the Court considered whether a fundamental change in the activities or impacts had occurred.

• Mining Lease – The Court noted that under the Mineral Resources Act 1989 (Qld), the applicant for a mining lease must identify the mineral(s) or purpose for which the grant of the mining lease is sought. In this case, the President considered that the revised mine-plan made no change to that purpose being the mining of coal.
• Environmental Authority – Waratah's "statement of activities to be undertaken" referred to both "open cut" and "underground mining". The revised mine-plan abandoned "open cut" mining in the relevant area. The Court considered the abandonment of the two pits did not involve an expansion of the activities to be undertaken and was still within the scope of the original application. No fundamental change occurred.

The objectors relied on a statement made by the Coordinator-General that, for the purposes of the State Development and Public Works Organisation Act 1971 (Qld), the revised mine-plan represented a project change (although the CG did not propose initiating a further assessment) and also argued that the impacts did not have to be worse for the project to be fundamentally different. The Statutory Party had undertaken an assessment of the revised mine-plan as part of the proceedings. In its assessment report, the Statutory Party noted that the revised plan would result in "significantly different impacts" on environmental values, however, those are described as being "reduced", "lesser" or "localised".

The Court rejected the objectors' submissions and found that the Court is not confined by the application documents and that the revised mine-plan did not amount to a fundamentally different application whether by reference to the changes in activities or the impacts.

Issue 2: Should the hearing be postponed as a matter of procedural fairness?

No. The Court considered a submission by the Statutory Party that if the below four circumstances arose, the Court might decline to proceed with a hearing even if it had jurisdiction as it could not observe procedural fairness. None of these were found to exist:

• Following receipt of further information requested, it becomes clear to the Statutory Party that reassessment by the Statutory Party would not be possible or practicable. This had not occurred and the Statutory Party had undertaken an assessment and prepared an assessment report.
• If the Court were satisfied the changes sought were outside of Waratah's application referred to it. The Court found this was not the case.
• If the objections originally made were not wide enough to fairly raise the effects that flow from Waratah's changed activities (which could not reasonably be identified from the application given what was then stated in the draft Environmental Impact Statement and Management Plan). The parties accepted that this was not the case.
• If the Court's process and procedures or considerations of fairness would not reasonably permit the necessary adjustments and amendments to be made in the course of the objections hearing. The Court indicated that it would ensure that this would not occur and the expert witnesses had been briefed to squarely address the implications of the revised mine-plan and the parties were assisted in preparing for the hearing by having received the Statutory Party's view on possible adjustments to the environmental authority.

In what circumstances can First Nations witnesses give "on-country" evidence?

In Waratah Coal Pty Ltd v Youth Verdict Ltd & Ors (No 5) [2022] QLC 4 (Waratah No. 5) the Land Court held that the Human Rights Act 2019 (Qld) (HRA) was an important consideration in this case.

One of the objections made was the impact that the mine would have on the human rights of the Aboriginal and Torres Strait Islander peoples in Queensland. The Court had previously indicated that human rights could be the subject of an objection to be considered by the Court. The First Nations objectors' objections included objections related to climate change and the associated impacts of seas rising and a warmer climate on their traditional way of life.

The objectors proposed that "on-country" evidence be taken from the four "First Nations witnesses" and that the Court conduct site inspections on various indigenous lands. It was also proposed that the First Nations witnesses give evidence as a group – as this was the way that Aboriginal Lore permitted traditional knowledge to be transmitted. The objectors submitted that the Court must not act incompatibly with the witnesses' protected human rights in conducting the hearing and deciding the mining lease and environmental authority applications.

Waratah opposed the on country evidence as unnecessary and involving disproportionate costs as Waratah did not wish to cross-examine the witnesses on their statements that had already been filed and that further oral "evidence in chief" should not be allowed.

The Court had to consider whether arrangements for taking evidence from First Nations' witnesses engaged a protected right under the HRA and if so had to consider the steps that needed to be taken under the HRA with respect to the hearing so as to ensure that the Court was not acting unlawfully in conducting the hearing in a way that was incompatible with the protected human right.

Q: What is "on-country" evidence?

A: Evidence which is taken at the place which is being discussed (i.e. the aboriginal land or traditional site), generally in the company of the elders or Lore keepers for particular topics.

Q: Do the arrangements for taking evidence from First Nations' witnesses engage a protected right under the HRA?

A: Yes.

The Court first turned to section 28(2)(a) of the HRA. It considered that the decision about arrangements for taking of evidence from First Nations witnesses engages the protected right to:

"enjoy, maintain, control, protect and develop their identity and cultural heritage, including their traditional knowledge, distinctive spiritual practices, observances, beliefs and teachings."

Evidence was provided as to the cultural practices about imparting knowledge and culturally important matters including the following:

• Traditional Knowledge is best spoken about on Country at the place that is being discussed.
• Under the relevant "Lore", the Elders conduct a ceremony when evidence is given where the senior Lore man explains to the Court's Law people how the Knowledge has and will be transmitted.
• To comply with cultural protocols, evidence is best given in the presence of elders and other "Lore keepers" and a proper explanation of particular topics cannot be done without showing or demonstrating a particular place, impact or landscape on Country.
• Under the relevant Lore, [one of the relevant First Nations witnesses] cannot give evidence about particular matters. Certain Elders are Knowledge Keepers for their land before Traditional Knowledge is transmitted and some of them had recently passed and the relevant witness would need to give evidence with her father, a Senior Elder and other elders to ensure an accurate account is given to the Court in accordance with Customary Lore.

Q: How did the Court approach the human rights issue?

A: The Court considered whether the above cultural practices (protected under section 28(2)(a) of the HRA) could be limited under section 13 of the HRA. It concluded that the hearing of the evidence of First Nations witnesses "in court" based on written statements only would be a limitation on that right, and could only be justified in certain circumstances.

Section 13 of the HRA outlines the circumstances where a protected human right may be lawfully limited. Such a limitation must be reasonable and justifiable. The Land Court adopted the interpretation of Justice Martin in Owen D'Arcy v Chief Executive, Queensland Corrective Services [2021] QSC 273, which considers section 13 as embodying a proportionality test.

The Court considered that the issue it must consider goes to the balancing of competing interests of society (including the public interest). In making that determination, the Court considered the following factors were relevant:

• Time, expense and inconvenience to the parties and the Court.
• Whether the evidence taken as proposed would assist the Court (even where that evidence may only assist the Court's evaluative process, rather than its fact-finding process) given Waratah had accepted the First Nations objectors' evidence that they have a very strong connection with the sea and the land, and the flora and fauna, there will be sea level rise, that the climate will warm, that the fish may not be as plentiful, or that different aspects of the witnesses’ traditional way of life will change. The Court found that there may still be a contest about their evidence in terms of the overall evaluative assessment that the Court would need to undertake and that if the objectors establish the mine would limit the ability of First Nations peoples of Queensland to exercise their cultural rights, the Court will need to weigh that in the balance with other relevant factors in deciding whether the limit is reasonable and demonstrably justified. The Court would be assisted in its evaluative function by seeing and hearing the evidence about the impacts of climate change on the community by hearing and seeing evidence being given in the community.
• That written evidence from a First Nations witness is a poor substitute for oral evidence given on country and in the company of those with cultural authority. The Court indicated that s 28 of the HRA frames the cultural rights in collective terms and it protected the rights of Aboriginal and Torres Strait Islander peoples to do specified things with other members of the community. It also noted the communal nature of the rights held by the First Nations' objectors.
• A site inspection can aid understanding – particularly informing the context and proportionality during an evaluative hearing.

The Court ultimately ordered that evidence be given by the First Nations witnesses as a group and on country. In doing so the Court indicated:

• it had balanced the collective right to enjoy and maintain culture against the public and private interests in minimising the inconvenience and cost of litigation;
• confining the First Nations witnesses to the written statements is a limit to their right, and that of their community, to maintain their culture about how they transmit traditional knowledge; and
• that limit is not reasonable and demonstrably justifiable in the circumstances of this case.