By Scott Walker
On 10 December 2022 the world marks Human Rights Day commemorating the adoption of the Universal Declaration of Human Rights(UDHR) in 1948. This year’s theme is dignity, freedom, and justice for all, in anticipation of the 75thanniversary of the UDHR in 2023. It gives us cause to reflect on the mobilising force that the UDHR has become in the struggle for human rights across the world. Yet, there is always more work to be done to truly achieve a world in which dignity, freedom, and justice is a lived reality for all. To do so we must utilise human rights both as a guidepost for advocacy and a tool for concrete, on the ground change to address some of the most pressing and ongoing challenges facing our world; including the immediate and catastrophic impacts of climate change.
Here in Australia, the path to domestic enshrinement of human rights has been a meandering one: only two States (Victoria and Queensland) and one Territory (the Australian Capital Territory) have Human Rights Acts. Yet, the capacity of these Human Rights Acts to achieve real and meaningful change in people’s lives is profound. Increasingly, people on the frontline of the climate crisis are also turning towards human rights to achieve justice. The potential impact of human rights-based climate litigation was recently demonstrated in the decision of the Land Court of Queensland in Warratah Coal Pty Ltd v Youth Verdict Ltd. In this case, the Court recommend against the grant of a mining lease and environmental authority to allow Warratah Coal to mine thermal coal in Queensland’s Gallilee Basin. This case deserves closer examination to illustrate the way in which human rights enshrined in law can be mobilised in claims for climate justice.
Warratah Coal Pty Ltd, a mining company owned by Clive Palmer, applied to the Queensland Government for a mining lease and an environmental authority to allow it to mine thermal coal in the Galilee Basin. The mining project in question consisted of both open cut and underground thermal coal mines on several properties in Central Queensland, all but one of which had been cleared extensively and are used for graining purposes. One of the properties in question was a protected area known as the Bimblebox Nature Refuge. It was agreed that emissions from combusting coal from the project would result in 1.58 gigatonnes of CO2 being emitted between 2029 and 2051. In April 2020, these applications were referred to the Land Court for consideration and so that recommendations could be made to the Queensland Government as to whether the applications should be approved.
Climate change was a central issue in this case and it was uncontested that the world is struggling to meet the Paris Agreement’s long-term temperature goal of below 2 °C above pre-industrial levels at 2100 with the ambition being to keep long-term temperature to 1.5°C above pre-industrial levels. It was also uncontested that the higher global temperatures rise, the greater the risk of exacerbating the impacts of climate change and limiting responses to mitigate the impacts of climate change.
It was, however, in dispute whether the Court could consider emissions generated from combustion of the coal mined in Queensland, notwithstanding that combustion of the goal would occur outside of Queensland within Southeast Asia. The Court dismissed Waratah’s argument that the court could not take generation emission into account, holding instead that ‘granting permission to mine the coal cannot be logically separated from the coal being used to generate electricity’. As the Court further acknowledged, ‘[w]herever the coal is burnt the emissions will contribute to environmental harm, including in Queensland’.
Waratah also attempted to argue that approving the mine would make no different to total emissions because it will displace combustion of lower-quality coal which would generate higher greenhouse gas emissions. This submission was also rejected by the Court. Instead, the Court found that the mine’s contribution to global greenhouse gas emissions would be a meaningful contribution to the remaining carbon budget available to meet the long-term temperature goal of the Paris Agreement.
As part of the Court’s function in considering the mining licence application and the environmental approval, the Court—as a public authority—was required under the Human Rights Act 2019 (Qld) (HRA) to both act compatibly with human rights and give proper consideration to relevant human rights in making its decision. The Court identified a number of human rights as being engaged by the application, but I here consider only two: the right to life of people in Queensland and the rights of First Nations people.
The right to life
Section 16 of the HRA provides that ‘Every person has the right to life and has the right not to be arbitrarily deprived of life’. The Court held that climate change (and its consequences) can constitute a pressing and serious threat to enjoyment of the right to life. As to whether the climate change impacts flowing from the mining project could be considered an arbitrary deprivation of the right to life, the Court note that mining thermal coal for thermal combustion was not the only way in which Queensland could generate economic benefit and secure the energy needs of electricity customers (wherever they are). While approval of the project would be necessary for Waratah to secure the financial benefit flowing from the project, this must be weighed against the threat to life posed by climate change to the people of Queensland. Ultimately, the project’s ‘material contribution to the life-threatening conditions of climate change (and associated economic and social costs) is not proportionate to the economic benefit and the supply of thermal coal to Southeast Asia … the limit is unreasonable in the sense of being disproportionate because it extends beyond what is reasonably necessary to achieve the purposes’ of the mining project. As the project would contribute to the risk of above 3°C pre-industrial warming being materialised, preserving the right to life outweighed the economic and energy security benefits of the mine.
The rights of First Nations people
Section 28 of the HRA deals with the cultural rights of Aboriginal and Torres Strait Islander peoples. It recognises that First Nations people ‘hold distinct cultural rights’ and, among other things, that have the right ‘to maintain and strengthen their distinctive spiritual, material and economic relationship with the land, territories, waters, coastal seas and other resources with which they have a connection’.
The Court noted that ‘against the background of systemic dispossession and destruction of culture, [the rights recognised in s 28] are of fundamental importance to First Nations peoples’. The Court also acknowledged that ‘First Nations peoples will be disproportionately affected by climate change impacts’, including through heatwaves and extreme temperatures and sea level rise resulting in frequent severe and damaging coastal flooding and storm surges. Indeed, due to ‘sea level rise alone … the potential changes in the climate system in the next few centuries could well pose an existential threat to Torres Strait Islander peoples’. Evidence obtained from First Nations people on the frontline of climate change also the Court to conclude that ‘climate change impacts will have a profound impact on cultural rights and, for some peoples who will be displaced from their country, it risks the survival of their culture, the very thing s 28 is intended to protect’. In the Court’s view, the scale of the potential destruction posed by the effects of climate change meant that the limitation of s 28 rights for First Nations people counted against approval of the project, especially ‘set against the history of dispossession of First Nations peoples in this country’.
The impact of this decision
This is the first time that the Land Court of Queensland has utilised the HRA to recommend against approval of a coal mine. In that sense alone the case is ground breaking. But the impact of this decision is much wider than this alone: it demonstrates the potential of human rights to achieve climate justice. Elsewhere, I have written about the potential of a human rights-based approach to climate change to drive a rethinking of policy making which places people on the frontline of the climate crisis at the centre of our climate response and treat those people on the frontline as rights-holders rather than victims of a hostile climate. Although it remains to be seen what the Queensland Government will ultimately decide on the project’s fate, this decision demonstrates the potential of human rights enshrined in domestic law to protect against the catastrophic impacts of climate change and deliver climate justice in a meaningful and substantive way.
Recognising that climate change poses a tremendous risk to the enjoyment of fundamental human rights is not new. In the Urgenda case, it was recognised that the obligations of the Netherlands to protect the right to life and the right to family life under the European Convention of Human Rights required the Netherlands to more greatly reduce its greenhouse gas emissions. In Teitiota, the UN Human Rights Committee also observed the risk pose the rights of asylum seekers and refugees by climate change. In a recent case brought by eight Torres Strait Islanders and six of their children, the same committee found that Australia had failed to adequately adapt to climate change and therefore violated the human rights of Torres Strait Islanders. In particular, the Committee found that Australia violated the Torres Strait Islanders’ right to private life, home and family, and their enjoyment of culture.
Yet Australia lags behind in our acknowledgement of the human rights impacts of climate change, mostly because our human rights protection at a Federal level and in the remaining five State and Territory jurisdictions without stand-alone human rights legislation is extremely limited. This is despite the power of human rights law to achieve real and meaningful change in people’s lives being well-documented. The Human Rights Law Centre has compiled 101 cases highlighting the benefits of the human rights legislation that exist in Australia. Meanwhile, the ACT is about to recognise a right to a health environment in its Human Rights Act. Imagine how differently the Sharma case might have turned out if the young people that brought that case were able to ground their case in human rights protected in a Federal Human Rights Act. At a time in which the effects of climate change are already being sharply experienced the world over, let us imagine how a Federal Human Rights Act could deliver climate justice in a meaningful and substantive way to deliver dignity, freedom, and justice for those confronting the immediate impacts of climate change.
Scott Walker is a Researcher at the Castan Centre for Human Rights Law, a Fellow at Eleos Justice and a Research Assistant within the Faculty of Law, Monash University.