A proposal for Queensland’s largest coal mine has suffered a serious setback with a landmark court ruling that it could limit the human rights of First Nations and Queensland children.
Land Court of Queensland President Fleur Kingham on Friday recommended that the Minister responsible for the Mineral Resources Act 1989 refuse the mining lease application of Waratah Coal Pty Ltd.
Mining magnate Clive Palmer’s proposed $3.5 billion mine in the Galilee Basin has become the first Australian mining operation to be challenged in the courts under human rights laws.
In what has been described in legal circles as a ‘David and Goliath’ battle, Mr Palmer’s proposed mine approval has stalled as a result of legal action taken by First Nations-led activist group Youth Verdict and advocates of the Bimblebox Nature Refuge Alliance.
Judge Kingham, in 372-page decision, recommended Waratah’s mining application – MLA 70454 – be refused.
In the executive summary of the decision, Judge Kingham said: “This case is not about whether any new coal mines should be approved. It is about whether this coal mine should be approved on its merits.
“Waratah Coal Pty Ltd has applied for a mining lease (ML) and an environmental authority (EA) to allow it to mine thermal coal in the Galilee Basin. Without those approvals, the mine cannot proceed.
“The applications were referred to the (Land) Court so the evidence and arguments about the Project could be tested through an open and transparent process.
“It is my function to make recommendations, but not the final decision, on the applications.
“The Minister for Resources will decide the ML application. The Chief Executive of the Department of Environment and Science will decide the EA application.
“Ultimately, I have decided to recommend both applications are refused.”
Judge Kingham said the proposed Waratah Coal project encompassed both open cut and underground thermal coalmining on several properties north of the Central Queensland town of Alpha – more than 1000km north-west of Brisbane.
One of those properties – formerly known as Glenn Innes – is a protected area under the Nature Conservation Act 1992 known at the Bimblebox Nature Refuge.
Bimblebox was established as a refuge by a group of private citizens and committed to conservation and to exploring whether sustainable cattle grazing could co-exist with biodiversity conservation.
Judge Kingham said: “Both the Commonwealth and Queensland governments assessed the property as worthy of protection because of its ecological values.
“Waratah proposes to underground mine two-thirds of the refuge. That would cause subsidence across the surface of the land above the mine, resulting in a ridge and swale landscape and extensive surface cracking.
“The evidence suggests it is likely the Refuge will be lost and the ecological values of Bimblebox seriously and possibly irreversibly damaged. There is no credible plan before the Court to offset such a loss and the evidence causes me to question whether one could be developed and implemented.”
The court also heard evidence that “climate change was a key issue” in opposition of Waratah Coal’s application.
Youth Verdict, along with co-objectors the Bimblebox Alliance and John and Susan Brinnand, argued that approval of the lease would significantly impact on their human rights.
Youth Verdict, according to its website, is a coalition of young people from across Queensland using their legal rights to fight for justice and human rights under the guidance of First Nations people committed to doing the current generation’s part in fulfilling the legacy of caring for Country.
“Waratah’s assessment of the economic benefits at $2.5 billion suggests the potential benefits are considerable,” Judge Kingham said.
“Waratah says the Project would not limit any human rights because the relationship between approving the mine and climate change is too remote, indirect and not specific to this mine.”
Under the Human Rights Act 2019, an act or decision can limit a human right if the limit is “no more than is justified in a free and democratic society, based on human dignity, equality and freedom”.
“I have found that several human rights would be limited by the (Waratah Coal) Project,” Judge Kingham said. “For the owners of Bimblebox, that is their right to property and to privacy and home.
“In relation to climate change, I have found that the following rights of certain groups of people in Queensland would be limited: the right to life, the cultural rights of First Nations peoples, the rights of children, the right to property and to privacy and home, and the right to enjoy human rights equally.
“Doing the best I can to assess the nature and extent of the limit due to the Project, I have decided the limit is not demonstrably justified.
“For each right, considered individually, I have decided the importance of preserving the right, given the nature and extent of the limitation, weighs more heavily in the balance than the economic benefits of the mine and the benefit of contributing to energy security for Southeast Asia.”
Read the decision.