Waratah Coal Pty Ltd v Youth Verdict Ltd (No 5) - [2022] QLC 4

LAND COURT OF QUEENSLAND

CITATION: Waratah Coal Pty Ltd v Youth Verdict Ltd & Ors (No 5) [2022] QLC 4

PARTIES: Waratah Coal Pty Ltd
ACN 006 670 300
(applicant)

v

Youth Verdict Ltd, The Bimblebox Alliance Inc, Scott and Julie Ann Brown, Dmitri Sharov and Svetlana Sosnina, John and Susan Brinnand
(active objectors)

and

Chief Executive, Department of Environment and Science
(statutory party)

FILE NOs: MRA050-20 (ML 70454)
EPA051-20 (EPML 00571313)

PROCEEDING: Application to take on country evidence from First Nations witnesses

DELIVERED ON: 18 March 2022

DELIVERED AT: Brisbane

HEARD ON: 10 March 2022

HEARD AT: Brisbane

PRESIDENT: FY Kingham

ORDERS:
1. I will take evidence from the First Nations witnesses on country and in the manner proposed and will finalise orders in consultation with the parties.

2. Costs are reserved, unless a party applies for a different order within 7 days, in which case I will make directions on that application.

CATCHWORDS:
HUMAN RIGHTS – JURISDICTION AND PROCEDURE – QUEENSLAND – where the Land Court is a public entity and is doing an act within the meaning of s 58(1)(a) Human Rights Act 2019 when conducting a mining objection hearing – whether confining the evidence in chief of First Nations witnesses to written statements would limit their cultural rights, and if so, in a way that is reasonable and demonstrably justifiable – where the Court found it would limit a protected right – where the Court found the limit was not reasonable and demonstrably justifiable.

ENERGY AND RESOURCES – MINERALS – COURTS OR TRIBUNALS EXERCISING JURISDICTION IN MINING MATTERS – PROCEDURE – where First Nations witnesses provided written statements of evidence in chief – where the applicant for the mining lease does not wish to cross-examine the witnesses on those statements – where the witnesses requested the opportunity to give oral evidence on country, in the company of Elders, with site inspections and, for some witnesses, to give evidence as a group – where the applicant for the mining lease opposed those orders as unnecessary and disproportionate – where the Court made the orders.

Environmental Protection Act 1994 (Qld)
Human Rights Act 2019 (Qld)
Land Court Act 2000 (Qld)
Mineral Resources Act 1989 (Qld)

Northern Territory v Griffiths and Lorraine Jones on behalf of the Ngaliwurru and Nungali Peoples [2019] HCA 7, cited
Owen D’Arcy v Chief Executive, Queensland Corrective Services [2021] QSC 273, followed
R v Oakes [1986] 1 SCR 103, cited
Re Application under the Major Crimes (Investigative Powers) Act 2004 (2009) 24 VR 415, cited
Waratah Coal Pty Ltd v Youth Verdict Ltd & Ors [2020] QLC 33, cited

APPEARANCES: P Ambrose QC with J O’Connor, T Jackson (instructed by Hall & Wilcox) for the applicant
S Holt SC (instructed by the Environmental Defenders Office) for Youth Verdict Ltd and The Bimblebox Alliance Inc
D Harris (solicitor), Donnie Harris Law, for Scott and Julie Ann Brown
John and Susan Brinnand, active objectors (self-represented)
J Horton QC with A Hellewell…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Waratah Coal Pty Ltd v Youth Verdict Ltd (No 5)

Details

AGLC: Waratah Coal Pty Ltd v Youth Verdict Ltd (No 5) [2022] QLC 4
Case: [2022] QLC 4
Decision Date: 18 March 2022

CaseChat Overview and Summary

The Land Court of Queensland heard a case between Waratah Coal Pty Ltd and Youth Verdict Ltd, focusing on the procedural aspects of a mining objection hearing. The dispute centred on the evidence provided by First Nations witnesses in the hearing, specifically whether their evidence in chief should be confined to written statements. The witnesses sought to give oral evidence on country, accompanied by Elders, with site inspections, and for some, to give evidence as a group. Waratah Coal, the applicant for the mining lease, opposed these requests, considering them unnecessary and disproportionate.

The legal issues before the court involved determining whether the limitation of evidence in chief to written statements for First Nations witnesses would infringe on their cultural rights and, if so, whether such a limitation would be reasonable and demonstrably justifiable under the Human Rights Act 2019. The court had to balance the applicant's procedural preferences against the potential impact on the cultural rights of the witnesses.

The court found that the confinement of evidence in chief to written statements would indeed limit the cultural rights of the First Nations witnesses. It further determined that this limitation was not reasonable and demonstrably justifiable. Consequently, the court ruled that it would take evidence from the witnesses in the manner they proposed. The court's decision was grounded in the necessity to protect the cultural rights of the witnesses and ensure their evidence was presented in a manner that respected their traditions and community practices.

The final orders of the court mandated that evidence be taken from the First Nations witnesses on country, in the manner proposed by them, with final orders to be made in consultation with the parties. Costs were reserved unless a party applied for a different order within seven days, in which case the court would make directions on that application.

Orders

Orders of the court

1. I will take evidence from the First Nations witnesses on country and in the manner proposed and will finalise orders in consultation with the parties.

2. Costs are reserved, unless a party applies for a different order within 7 days, in which case I will make directions on that application.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Waratah Coal Pty Ltd v Youth Verdict Ltd & Ors (No 5) [2022] QLC 4
PARTIES:	Waratah Coal Pty Ltd ACN 006 670 300 (applicant)
v
Youth Verdict Ltd, The Bimblebox Alliance Inc, Scott and Julie Ann Brown, Dmitri Sharov and Svetlana Sosnina, John and Susan Brinnand (active objectors)
and
Chief Executive, Department of Environment and Science (statutory party)
FILE NOs:	MRA050-20 (ML 70454) EPA051-20 (EPML 00571313)
PROCEEDING:	Application to take on country evidence from First Nations witnesses
DELIVERED ON:	18 March 2022
DELIVERED AT:	Brisbane
HEARD ON:	10 March 2022
HEARD AT:	Brisbane
PRESIDENT:	FY Kingham
ORDERS:	1. I will take evidence from the First Nations witnesses on country and in the manner proposed and will finalise orders in consultation with the parties. 2. Costs are reserved, unless a party applies for a different order within 7 days, in which case I will make directions on that application.
CATCHWORDS:	HUMAN RIGHTS – JURISDICTION AND PROCEDURE – QUEENSLAND – where the Land Court is a public entity and is doing an act within the meaning of s 58(1)(a) Human Rights Act 2019 when conducting a mining objection hearing – whether confining the evidence in chief of First Nations witnesses to written statements would limit their cultural rights, and if so, in a way that is reasonable and demonstrably justifiable – where the Court found it would limit a protected right – where the Court found the limit was not reasonable and demonstrably justifiable. ENERGY AND RESOURCES – MINERALS – COURTS OR TRIBUNALS EXERCISING JURISDICTION IN MINING MATTERS – PROCEDURE – where First Nations witnesses provided written statements of evidence in chief – where the applicant for the mining lease does not wish to cross-examine the witnesses on those statements – where the witnesses requested the opportunity to give oral evidence on country, in the company of Elders, with site inspections and, for some witnesses, to give evidence as a group – where the applicant for the mining lease opposed those orders as unnecessary and disproportionate – where the Court made the orders. Environmental Protection Act 1994 (Qld) Human Rights Act 2019 (Qld) Land Court Act 2000 (Qld) Mineral Resources Act 1989 (Qld) Northern Territory v Griffiths and Lorraine Jones on behalf of the Ngaliwurru and Nungali Peoples [2019] HCA 7, cited Owen D’Arcy v Chief Executive, Queensland Corrective Services [2021] QSC 273, followed R v Oakes [1986] 1 SCR 103, cited Re Application under the Major Crimes (Investigative Powers) Act 2004 (2009) 24 VR 415, cited Waratah Coal Pty Ltd v Youth Verdict Ltd & Ors [2020] QLC 33, cited
APPEARANCES:	P Ambrose QC with J O’Connor, T Jackson (instructed by Hall & Wilcox) for the applicant S Holt SC (instructed by the Environmental Defenders Office) for Youth Verdict Ltd and The Bimblebox Alliance Inc D Harris (solicitor), Donnie Harris Law, for Scott and Julie Ann Brown John and Susan Brinnand, active objectors (self-represented) J Horton QC with A Hellewell…