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

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.

Snapshot

• 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 life;^[6]
• 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 culture^[7] 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 decision^[11] 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.^[14] This 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.
• In Juliana v US the US Federal Court of Appeal considered whether the courts are the proper forum for remedying alleged human rights breaches. The action was brought by 21 young citizens, an environmental focussed organisation and a ‘representative of future generations’, arguing breach of a constitutional right to a “climate system capable of sustaining human life”. The court accepted the plaintiffs’ arguments that they had suffered various climate change related injuries, and that the federal policies promoting the use of fossil fuels over the last 50 years had likely contributed to these injuries. However, the plaintiffs failed to demonstrate that their injuries were redressable by the relief sought, and therefore the court held that they did not have standing. The court found that it was beyond its power to order, design and supervise the requested remedial plan and that the relief sought required the court to determine complex policy decisions, which implicated the separation of powers. See our briefing for further details.
• A group of sixteen children (including Greta Thunberg) have filed a petition with the United Nations Committee on the Rights of the Child alleging that Argentina, Brazil, France, Germany and Turkey violated their rights under the UN Convention on the Rights of the Child by taking insufficient steps to prevent climate change. The petitioners assert violations of several rights, including the rights to life, health, and the prioritisation of the child’s best interest, as well as the cultural rights of petitioners from Indigenous communities.
• At the EU level, the matter of Armando Ferrão Carvalho and Others v The European Parliament and the Council is currently on appeal to the European Court of Justice. In this case, ten families, including children, from Portugal, Germany, France, Italy, Romania, Kenya, Fiji, and the Swedish Sami Youth Association Sáminuorra, are seeking to compel the EU to make more stringent greenhouse gas emissions reductions. The plaintiffs allege that the EU’s existing targets are insufficient to avoid dangerous climate change and threatens their fundamental rights of life, health, occupation, and property.

Is there potential for human rights claims against corporations?

Whilst most litigation based on human rights still tends to be directed at compelling mitigation action by governments (as the cases above demonstrate), there have also been efforts to pursue complaints directly against corporations for human rights harms relating to climate change.

The Philippines Commission on Human Rights recently reported its conclusions in relation to a three-year national inquiry which asked whether 47 major fossil fuel firms could be held accountable for alleged human rights harms caused to Filipino citizens as a result of climate change. On 9 December 2019, the Commission concluded that whilst international human rights law does not directly impose liability on corporations, there is a clear moral responsibility on fossil fuel companies to respect human rights, as articulated in the UN Guiding Principles on Business and Human Rights (UNGPs). The Commission went on to say that the onus falls to individual countries to pass legislation and establish legal liability for corporate human rights violations.

Although the UNGPs are not of themselves binding, many businesses expressly commit to applying the principles and they have had widespread influence on the development of corporate policies and risk management processes, as well as the development of other international standards and domestic legislation. For example, the EU has recently announced an intention to introduce mandatory human rights due diligence legislation based on the UNGPs in 2021.

The EU announcement follows the lead set by France in 2017 when it became the first country to pass a law which requires larger companies to “establish mechanisms to prevent human rights violations and environmental impacts throughout their chain of production.”

France’s law provides for civil claims against corporations for failure to undertake adequate due diligence and there has already been a claim against French oil major Total, alleging that it failed to adequately assess the environmental and human rights impacts of energy projects in Africa.

Litigation has also been pursued elsewhere based on domestic tort law and seeking to establish a duty of care encompassing an obligation to take reasonable steps to assess and avoid adverse human rights impacts, including climate-related impacts.  In these cases, as well as relying on international standards such as the UNGPs and OECD Guidelines for Multinational Enterprises, claimants are increasingly seeking to rely on policies (including human rights, corporate social responsibility or sustainability policies) adopted by corporate defendants as evidence of the relevant duty of care.

Does this affect all projects in Australia?

The Galilee Coal challenge reflects the trend of climate change discourse and litigation in Australia, which is seeking to pressure governments and corporations to take more radical action to reduce climate change impacts. The case will be heard against a backdrop of international developments which also call for an increasing focus on the human rights impacts of climate change.

This Galillee Coal challenge, of course, is most relevant to Queensland as it is brought under the Human Rights Act 2019 (Qld) which applies only in that jurisdiction. Victoria and the Australian Capital Territory have enacted similar human rights legislation, however actions linking climate change and human rights in the ACT and Victoria are likely to take a slightly different form to Queensland, given the different nature of emissions intensive activities in those jurisdictions.

Even without the threat of litigation, corporations will face increasing pressure to assess and mitigate adverse human rights impacts which their operations may cause or contribute to, including impacts arising indirectly and as a result of climate change.

* Update September 2020

In a further development to this case, Waratah Coal Pty Ltd filed an application on 3 July 2020 to strike out the human rights grounds from Youth Verdict Ltd’s objection. On 4 September 2020, President Kingham of the Queensland Land Court (QLC) published her reasons in respect of her decision to dismiss the application (Waratah Coal Pty Ltd v Youth Verdict Ltd & Ors [2020] QLC 33).

The decision clears the way for the QLC to consider Youth Verdict’s human rights grounds in full at the objections hearing. The decision clarifies how the Human Rights Act 2019 (Qld) applies in the objections process for a mining lease and environmental authority:

• The QLC acts as an administrative body when making a recommendation as to whether a mining lease and environmental authority should be granted for a proposed mine, and the QLC’s recommendation constitutes an ‘act’ or ‘decision’ for the purposes of s 58(1) of the HR Act.
• The QLC’s jurisdiction is not limited to the list of considerations set out in s 269(4) of the Mineral Resources Act 1989 (Qld).
• The QLC must comply with s 58 of the HR Act and act compatibly with human rights when making its recommendation.

Other significant questions relating to standing, operation of the HR Act, scope of rights and reasonable limitations on rights remain to be determined in the substantive hearing.

[1] Gloucester Resources Limited v Minister for Planning [2019] NSWLEC 7

[2] Human Rights Act 2019 (Qld) s 58.

[3] Human Rights Act 2019 (Qld) s 59.

[4] Human Rights Act 2019 (Qld) s 59.

[5] Human Rights Act 2019 (Qld) s 48.

[6] Human Rights Act 2019 (Qld) s 16.

[7] Human Rights Act 2019 (Qld) s 28.

[8] Human Rights Act 2019 (Qld) s 59(2).

[9] Human Rights Act 2019 (Qld) s 58(6) and s 59.

[10] Human Rights Act 2019 (Qld) s 48.

[11] Gloucester Resources Limited v Minister for Planning [2019] NSWLEC 7.

[12] Environmental Protection Act 1994 (Qld) s 3.

[13] Gray v Minister for Planning [2006] NSWLEC 720; Taralga Landscapes Guardians Inc v Minister for Planning [2007] NSWLEC 59; Gloucester Resources Limited v Minister for Planning [2019] NSWLEC 7

[14] Gloucester Resources Limited v Minister for Planning [2019] NSWLEC 7, [415]–[416], [498] (Preston CJ).

[15] Lahore High Court Green Bench (Pakistan), WP No 25501/2015, Orders of 4 September 2015 and 14 September 2015 <https://elaw.org/PK_Ashgar Leghari_v_Pakistan_2015>.

[16] United Nations Humans Rights Committee, General Comment No. 36 (2018) on Article 6 of the International Covenant on Civil and Political Rights, on the Right to Life, [62] <https://tbinternet.ohchr.org/Treaties/CCPR/Shared%20Documents/1_Global/CCPR_C_GC_36_8785_E.pdf>.

[17] UN Human Rights Council, 43^rd session (24 February – 20 March 2020), Report of the Special Rapporteur on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment, https://undocs.org/A/HRC/43/53, page 1.

[18] UN Special Rapporteur on Human Rights and the Environment, Safe Climate (1 October 2019), https://www.ohchr.org/Documents/Issues/Environment/SREnvironment/Report.pdf, [28].