Human rights and climate change in the courts: An Australian first – Tess Van Geelen

For the very first time in Australia, a coal mine is being challenged in court on human rights grounds. The action is part of a growing global trend that we’ll look at in this two-part series. This first part will give an overview of the legal action, and the developments in domestic law that opened the door for this milestone case. The second part will look at the international context, providing an overview of key foreign cases, and recent developments in linking human rights and climate change at the international level.

Last month the Environmental Defenders Office (EDO) launched a legal challenge against the Galilee Coal Project proposed by Waratah Coal, which is owned by Clive Palmer. According to Waratah Coal, the project is expected to produce 40 million tons of thermal coal per annum — fully four times the production of the nearby Adani Carmichael Mine, which has attracted considerable opposition in Australia. The Galilee Coal Project would be one of Australia’s largest coal mines.

The EDO’s legal challenge

The EDO is representing Youth Verdict, a diverse group of young people from across Queensland, whose human rights are threatened by the emerging and future impacts of climate change, and the Bimblebox Alliance, a group including farmers and landholders defending the Bimblebox Nature Refuge. The Refuge, consisting of almost 8000 hectares of remnant woodland, provides habitat for vulnerable and endangered native wildlife and plants.

The Bimblebox Refuge is the subject of a conservation and protection agreement signed by the Alliance and the Queensland state government, but this agreement does not protect the site from mineral exploration and mining. The Bimblebox Alliance claims that the Refuge would be significantly affected by the proposed mining project, which would cover almost the entire area of the Refuge.

The Environmental Impact Statement (EIS) for the Galilee Coal Project has been accepted (with conditions) by the Queensland Government, but Waratah Coal must still obtain a Mining Lease and Environmental Authority before proceeding. At the Federal level, the EIS was approved under the Environment Protection and Biodiversity Conservation Act (which is currently under review). The EIS was undertaken between 2009 and 2013, and approved in 2013, raising concerns that the almost ten-year-old report no longer provides an accurate depiction of the site and the likely impacts of the mine today.

The EDO has referred the objections of Youth Verdict and the Bimblebox Alliance to the Land Court of Queensland, to make the groups active objectors to the granting of these approvals by the state government. The court challenge will enable the Queensland Land Court to consider the application and objections, and recommend whether the government should grant the final approvals (and if so, whether any amendments should be made to the conditions). The relevant decision makers (in this case the Mining Minister and the Director-General of the Department of Environment and Science) must then take this recommendation into account when deciding whether to approve the mine.

In addition to the impacts on endangered wildlife, the EDO will argue that the mine will contribute to catastrophic climate change, increasing the risk of extreme weather events like bushfires, drought, floods, heatwaves, and cyclones here in Queensland. As a result of this contribution to climate change, the EDO will argue that the mine will infringe upon the human rights of their clients, Youth Verdict. These include the rights of the child; the right to life; freedom from discrimination; cultural rights of Aboriginal and Torres Strait Islander peoples; and the right to property.

The action has been welcomed by various groups, including the Wangan and Jagalingou Traditional Owners Family Council, who said that ‘Massive coal projects in the Galilee Basin destroy our way of life and our cultural rights. When our moieties, our totems, our reference points in Country are destroyed, we can no longer be who we are as the people from that land.’

Queensland’s new Human Rights Act

In 2019 Queensland became the third Australian state to introduce comprehensive human rights legislation, following Victoria and the Australian Capital Territory. Queensland’s Human Rights Act came into full effect on 1 January 2020. The Act protects a number of internationally-recognised rights, including equality before the law; the right to life; property rights; protection of families and children; and cultural rights (generally, and specifically for Aboriginal and Torres Strait Islander peoples). 

Like the ACT and Victorian statutes, the Queensland Act stops short of protecting the right to a healthy environment (the status of which, under international law, will be explored in part two of this series). However, the Queensland Act does go further than its predecessors in making reference to environmental impacts on the enjoyment of cultural rights by Aboriginal and Torres Strait Islander peoples (s 28).

Section 58(1) of the Act creates an obligation for public entities to give proper consideration to human rights in making decisions, and makes it unlawful to make a decision in a way that is not compatible with human rights. A decision will be incompatible if it limits a human right to an extent that is not ‘reasonably and demonstrably justifiable’. The Act also expressly permits courts and tribunals to consider relevant international law, and the decisions of domestic, foreign, and international courts, in interpreting a provision under the Act (s 48(3)).

While the Act does not create a new legal cause of action with respect to these rights, it does provide for claimants to ‘piggyback’ human rights claims onto existing causes of action. This is the mechanism being used by the EDO, which has ‘piggybacked’ the human rights claims of their clients onto their legal objection to the relevant ministers’ decisions of whether to grant a Mining Lease and Environmental Authority for the Galilee Coal Project. 

Importantly, under the Queensland Act, the claimants don’t need to succeed in the primary cause of action to succeed in the human rights claim (s 59(2)).

Implications of this milestone legal action

Dr Justine Bell-James and Briana Collins have argued that Queensland’s new Human Rights Act has opened the door to various opportunities for new climate change litigation. Outside the US, Australia has seen the world’s highest number of climate change cases before its courts, but this is the first to spotlight the human rights impacts of climate change. The task facing the EDO should not be underestimated: they will need to prove that their clients’ human rights will be adversely impacted by the climate change consequences of the Galilee Coal Project, to an extent that is not demonstrably justifiable under the Queensland Human Rights Act.

One of the persistent hurdles facing climate-based challenges to new mining projects in Australia is the Market Substitution argument, which claims that ‘if we don’t mine coal, someone else will’. The argument has been thoroughly debunked by academics like Bell-James and Collins, but has been influential in some Australian courts. It remains to be seen how human rights claims may interact with this argument in the context of mining approvals.

Even if the challenge is successful, progressive court decisions in this field have sometimes led to legislative backlash, and the EDO’s case has already attracted criticism from some corners. In the landmark Rocky Hill decision in the NSW Land and Environment Court last year, for example, Chief Justice Preston rejected a Market Substitution argument, stating that ‘the environmental impact does not become acceptable because a hypothetical and uncertain alternative development might also cause the same unacceptable environmental impact’ (at [545]). In response, the NSW Government introduced legislation seeking to undo this significant legal development.

While the outcome of the Galilee Coal case is impossible to predict, in any event it will be an important test case for climate change and human rights litigation in Australia, and for the Queensland Human Rights Act more generally. It will build on the existing body of climate change case law in Australia, and potentially herald a new era in climate change action in this country, spurring similar actions in Victoria and the ACT.

The case will also join an accelerating international trend of human rights and climate change actions, both in domestic courts and international forums like the Human Rights Council, which we’ll look at in part two.

Tess Van Geelen (BA, LLB (Hons IIA), GDLP) is a Legal Officer at the Australian Law Reform Commission. Previously, the author was a Visiting Researcher at the University of the South Pacific under the New Colombo Plan Scholarship, the Climate Change and Energy Policy Fellow with Young Australians in International Affairs, and a Research Assistant in the Queensland University of Technology School of Law. The author volunteers for the EDO, but has had no involvement in the Youth Verdict/Bimblebox Alliance case. This contribution is made in a personal capacity, and exclusively reflects the views of the author.