First Nations witnesses expected to testify in a court challenge to Clive Palmer’s Queensland Galilee Basin coal project on human rights grounds have been granted the right to testify ‘on country’.
Land Court of Queensland President Fleur Kingham on Friday 18 March granted an application to take evidence from First Nations witnesses in traditional cultural sites in a challenge to the proposed Waratah Coal Mine on human rights grounds.
A group of young environmentalists called Youth Verdict (YV) is challenging a proposed mega-coal mine covering 10,000sq.km near the Central Queensland town of Alpha, more than 1000km north-west of Brisbane.
YV, as well as The Brimblebox Alliance (TBA) and six individuals, have lodged an objection to the mine in the Queensland Land Court, arguing it infringes on a number of their rights under the state Human Rights Act 2019 (HRA), including the right to life, the protection of children and the right to culture.
On 10 March 2022, YV and TBA applied to the Land Court in Brisbane for an order adopting a ‘First Nations Protocol’ to address cultural issues pertinent to witnesses expected to be called that would allow them to give there evidence ‘on country’.
In an 11-page ruling on Friday, Judge Kingham said: “One of the objections made to the thermal coal mine proposed by Waratah Coal Pty Ltd is the impact it would have on the human rights of Aboriginal and Torres Strait Islander peoples in Queensland.
“(YV and TBA) have filed statements of evidence from five First Nations witnesses in support of that objection… (and) propose the Court take on country evidence from four of the First Nations witnesses and conduct site inspections on Yidinji Nation (Cairns), Erub and Poruma (Torres Strait).
“Site inspections are a routine feature of mining objection hearings. Taking on country evidence is not; but it is a familiar process for a court hearing native title and cultural heritage claims.”
Lawyers for Waratah Coal opposed the application, saying none of the witnesses would be required for cross-examination.
“Waratah opposes on country evidence as unnecessary and involving disproportionate costs,” Judge Kingham said.
“It does not wish to cross-examine the witnesses on their statements … (and) it opposes leave being granted for further evidence in chief, but, if that were to occur, say it could be given in Brisbane or by video conference. YV and TBA say those arrangements would be entirely inadequate.”
In considering the application, Judge Kingham said any decision about arrangements for taking evidence from First Nations witnesses engages the right – protected under s28(2)(a) of the HRA – to enjoy, maintain, control, protect and develop their identity and cultural heritage, including their traditional knowledge, distinctive spiritual practices, observances, beliefs and teachings.
“Evidence is led from these (First Nations) witnesses to establish how physical climate change impacts will affect their cultural rights,” Judge Kingham said.
“If YV and TBA establish the mine would limit the ability of First Nations peoples of Queensland to exercise their cultural rights, I will need to weigh that in the balance with other relevant factors in deciding whether the limit is reasonable and demonstrably justified. That is an evaluative, not a fact-finding process.
“YV and TBA propose the witnesses give evidence in the presence of the people who have the collective authority to speak about matters of place and culture. Section 28 of the HRA frames these cultural rights in collective terms.
“It protects the rights of Aboriginal and Torres Strait Islander peoples to do specified things with other members of their community.”
In response to Waratah Coal’s submission regarding the added financial burden of allowing evidence on-country, Judge Kingham said no evidence was led about the company’s capacity to cover the costs.
“Waratah estimates their costs would be in the order of $80,000, which it says is prohibitive,” she said. “It is possible, as Waratah suggested, for the witnesses to give evidence on country using videoconferencing technology, but that would limit the witnesses’ ability to fully observe the ceremonial aspect of imparting traditional knowledge.
“Waratah did not lead evidence of financial incapacity and it might employ a leaner legal team than routinely appears before me in Brisbane.
“The cost estimate made by YV and TBA is more modest and draws on their recent experience of travelling to these places to take statements from the witnesses. They have offered to assist Waratah to raise funds, a matter I leave with the parties.”
Judge Kingham, in granting the on-country evidence application, said the court had balanced the collective right to enjoy and maintain culture against the public and private interests in minimising the inconvenience and cost of litigation.
The matter continues.
See Friday’s decision.