Queensland case to focus on the human rights implications of climate change

Snapshot

A group of young Queenslanders is challenging the mining lease and environmental approval for the Waratah coal mine, part of the Galilee Coal Project. Although detailed grounds are not yet available, statements on behalf of the group indicate that the grounds will explicitly link climate change with human rights in a way that is novel in Australia. It will also further explore the principle of intergenerational equity that underpinned the landmark 2019 Gloucester Resources decision in New South Wales.¹ The Galilee Coal case is likely to have ramifications for future decisions regarding exploitation of the Galilee Basin coal resource.

• The Human Rights Act 2019 (Qld) protects human rights including the right to life, reflecting international laws.
• In recent years, environmental issues including climate change have increasingly been framed by reference to human rights, in particular the right to life.
• Under the Queensland Act, it is unlawful for a public entity to make a decision in a way that is not compatible with human rights, or to fail to give proper consideration to human rights in making a decision.²
• Where a challenge to the lawfulness of a decision can be made under other laws (for example on broader environmental grounds), this enables a claim of unlawfulness on human rights grounds to also be made.³
• There is no entitlement to damages but, for example, a decision found to be unlawful on human rights grounds may be set aside.⁴
• The Queensland Act explicitly provides that decisions from other jurisdictions and internationally may be considered in interpretation of its provisions.⁵

What is the challenge about?

Queensland’s Galilee Basin contains a significant coal resource. Waratah Coal holds a range of coal tenements in the region, and its proposed Galilee Coal Project would include two open cut mines with associated underground mining, infrastructure and railway. A group of young Queenslanders said to be aged between 13 and 30 under the name Youth Verdict have engaged the Environmental Defenders Office (EDO) to challenge approval of a mining lease and environmental authority for the project.

Statements for Youth Verdict link approval of the project to breach of their human rights on the basis that:

• emissions from coal contribute to climate change;
• climate change impacts such as bushfire, disease, floods, heatwaves and cyclones breach human rights including the right to life⁶;
• the human rights of young people are particularly impacted because of the disproportionate impact of decisions today on the future environment, which is contrary to the principle of intergenerational equity; and
• climate change impacts deprive Indigenous young people of their right to culture⁷ due to impacts to biodiversity and sea-level rise.

The implication is that a decision to approve the project for exploitation of the coal resource would be inconsistent with the international consensus on action to limit the global heating which would have the above consequences for these individuals, and would therefore infringe their human rights protected under the Queensland Act.

How is the Queensland Human Rights Act 2019 relevant to coal mine approvals?

The human rights protected under the Queensland Act reflect international laws including the Universal Declaration of Human Rights,  the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social and Cultural Rights. These include the right to life and cultural rights for Aboriginal peoples and Torres Strait Islander peoples, both of which have been raised in statements by Youth Verdict and their representatives the EDO.

The Queensland Act does not provide for a human rights claim to be made on its own, but instead allows a human rights claim to be attached to any other type of challenge. Relevantly, if a ‘gateway’ avenue exists under other legislation to challenge the mine approval decisions (for example on environmental grounds), then the Queensland Act enables the challenger to also challenge the mine approval decisions on human rights grounds. It’s not yet clear what primary avenue Youth Verdict is relying on as the foundation to attach its human rights challenge. It is not necessary for the ‘gateway’ challenge to be successful, in order for the human rights claim to be successful.⁸

In Queensland, the ‘gateway’ avenue of claim is likely to reflect recent challenges to coal mining approvals, some of which have attracted sustained campaigns of challenge despite Queensland not yet having an explicit requirement that direct or indirect emissions of a project, or climate change implications more broadly, be taken into account in project decisions.

Extending challenges to encompass human rights grounds will require establishment of a link between a protected human right and climate change, and demonstration that a decision of a public entity which impacts climate change is incompatible with that protected human right.

An approval decision is not invalid simply because it breaches human rights under the Queensland Act,⁹ however the likely remedy would be to seek that the decision be set aside and be re-made in a manner that is compatible with human rights and gives proper consideration to relevant human rights. Youth Verdict appears likely to argue that a decision to approve the proposal would inherently be incompatible with their human rights.

It is also possible that, even if a decision is found to not be incompatible with human rights, it may be found to have been made without the required proper consideration to human rights. The Queensland Act does not provide for monetary damages if a human rights challenge is successful.

There may be a further pressure on the Queensland government to implement policy or regulatory guidance in respect of climate change impacts of projects within the jurisdiction. 

How does this relate to global cases on climate change and human rights?

Importantly, the Queensland Act expressly permits courts to consider ‘international law and the judgments of domestic, foreign and international courts and tribunals’ when interpreting the Act.¹⁰ For this reason, it is useful to consider global experience in relation to claims linking human rights with environmental impacts and with climate change in particular.

Threshold issues likely to require argument in the Galilee Coal case include:

• Whether the right to life and right to Indigenous culture protected under the Queensland Act is sufficiently broad to encompass climate change impacts;
• The extent to which a right to Indigenous culture requires a specific link between an impacted area and individuals with connection to that area;
• Whether the Queensland Land Court will be prepared to make findings in respect of causative links between project approvals, contribution to climate change and the infringement of human rights. This is also likely to depend on the Court’s approach to Scope 3 emissions, and whether it follows the landmark Gloucester Resources decision¹¹ in rejecting the ‘market substitution’ argument (ie that failure to extract coal in Queensland will simply result in greater coal extraction in another country);
• Whether the Court will reflect the approach in some other jurisdictions and consider that the Court’s role in applying human rights legislation remains supervisory and the complicated questions of policy involved in responding to climate change are better addressed by the legislature.

What does intergenerational equity have to do with it?

The principle of intergenerational equity states that the present generation should ensure that the health, diversity and productivity of the environment are maintained or enhanced for the benefit of future generations.

The principle of intergenerational equity is implicit in the concept of ecologically sustainable development ‘both now and in the future’ which is the object of the Environmental Protection Act 1994 (Qld).¹² It is a key principle of environmental protection, including in respect of climate change.¹³

The principle of intergenerational equity may further support human rights claims in relation to climate change.¹⁴This also reflects the position in Ashgar Leghari v Pakistan where the court found that the breach of the rights to life and human dignity were supported by the principle of intergenerational equity.¹⁵ Similarly, the United Nations Human Rights Committee has explained that the right to life under the ICCPR refers to the rights of ‘present and future generations’.¹⁶

Is there a right to a healthy environment?

The UN Special Rapporteur on Human Rights and the Environment has recently stated in a report to the Human Rights Council that the right to live in a safe, clean, healthy and sustainable environment is a “fundamental human right”, now recognised by more than 80% of UN Member States (156 out of 193).¹⁷ However,  Australia is identified as one of the few countries where there is no explicit legal recognition of the right to a healthy environment.

Even without relying upon a standalone right to a healthy environment, and as the Galilee Coal case demonstrates, claims may be founded upon other human rights adversely affected by climate change. For instance, the Special Rapporteur has noted that “[i]n order to uphold the right to life, States have an obligation to take effective measures to mitigate climate change, enhance the adaptive capacity of vulnerable populations and prevent foreseeable loss of life”.¹⁸

How are human rights claims playing out elsewhere?

Internationally, climate change litigation is increasingly based on human rights grounds. For example:

• In Friends of the Irish Environment v Ireland, an advocacy group is arguing that the Irish government’s approval of its national mitigation plan is inconsistent with Ireland’s obligations under Articles 2 and 8 of the European Convention on Human Rights because the plan is not designed to achieve substantial short-term emissions reductions. Article 2 protects the right to life and Article 8 protects citizens’ right to respect for private and family life.
• In Plan B Earth and Others v Secretary of State for Transport, the claimants argued that the UK government’s expansion plans for Heathrow Airport violated (i) the Planning Act 2008 (UK) for failure to consider the Government’s commitment to meeting Paris Agreement goals and (ii) the UK Human Rights Act 1998 by disproportionately interfering with the right to life, the right to property, the right to a private and family life the rights of those with certain protected characteristics to be free from discrimination. In February 2020, the English Court of Appeal held that the planned expansion was unlawful by reason of a failure to take into account the Government’s commitment to the provisions of the Paris Agreement. The first instance court was not persuaded by arguments that the Planning Act’s climate action goals could be interpreted to make obligations under the Human Rights Act 1998 inclusive of the Paris Agreement goals, and the claimants did not press these arguments in the appeal. See our blog post for further details.
• In La Rose v Her Majesty the Queen 15 young people have filed an action alleging that Canada’s greenhouse gas emissions violate the rights of present and future Canadian children. They rely upon Section 7 of the Canadian Charter of Rights and Freedoms, which protects the rights to life, liberty and security, and Section 15 of the Charter, which provides that every individual is equal under the law. Similar claims have been made in ENVironnement JEUnesse v Canada, a climate change-related class action against the Canadian government on behalf of Québec citizens aged 35 and under. Further, in Lho’imggin et al. v Her Majesty the Queen two Indigenous groups filed an action alleging that the Canadian government’s approach to climate change has violated their constitutional and human rights.