Australia: The Convergence Of Human Rights Law And Environmental And Climate Change Litigation In Australia

In the past 18 months the Australian legal landscape has seen novel challenges to planning decisions in the area of greenhouse gas impacts of projects and the resulting impact on climate change under State and Federal planning and environmental laws. Now, as of May 2020, we are for the first time in Australia seeing a legal challenge in respect of the approval of a coal mine due in part to provisions in human rights law.

Background

On 7 March 2019 the Human Rights Act 2019 (Qld) (HRA) was assented to, and it commenced as of 1 January 2020. It was the third State or territory in Australia to do so: Charter of Human Rights and Responsibilities Act 2006 (Vic) and Human Rights Act 2004 (ACT). The HRA amended many existing statutes as well as introduce specific provisions largely taken from the Universal Declaration of Human Rights, the International Convention on Civil and Political Rights (ICCPR), and the International Convention for Economic, Social and Cultural Rights (ICESCR).

Under s 3 of the HRA, the main objects of the HRA are to:

• protect and promote human rights;
• help build a culture in the Queensland public sector that respects and promotes human rights; and
• help promote a dialogue about the nature, meaning and scope of human rights.

The method in which the objects of the HRA are achieved are diverse, and include requiring public entities to act and make decisions in a way compatible with human rights and, citing section 4(g) "conferring jurisdiction on the Supreme Court [of Queensland] to declare that a statutory provision can not be interpreted in a way compatible with human rights".  Interestingly, an action cannot be brought using the HRA alone – rather, applicants must piggyback or attach a human rights challenge under the HRA to an additional court action brought under a separate statute.

Compatibility itself means that a decision or provision either does not limit a human right, or to the extent that it does limit a human right, it is only to the extent that is reasonable and demonstratively justifiable in accordance with s 13 of the HRA.

Youth Verdict v Waratah Coal – a test case

The Galilee Coal Project is owned by Waratah Coal and is located in central Queensland. Waratah Coal holds a number of mining tenements in the region. The proposal involves the construction of two open coal pits, underground coal mines, as well as the necessary infrastructure and railways for the transport of the coal.

Youth Action as well as The Bimblebox Alliance have filed objections to the Mining Lease and Environment Authority for the Galilee Coal Project with the Land Court of Queensland. Both groups are being represented by the Environmental Defender's Office (EDO). Youth Verdict is a coalition of young people (under the age of 30) in Queensland with a mission to use the law to fight for youth justice.   

For the first time since the HRA commenced, Youth Action and The Bimblebox Alliance have alleged a breach of human rights under the HRA, challenging the proposed Galilee Coal Project due to climate change concerns.  It is the first time in Australian history that a coal mine faces a legal challenge on human rights grounds.

While the documents have not yet been made publically available, six human rights grounds have been reported to be relied on, including:

• Right to life (Section 16)
• Right to be free from discrimination (informed by s 75)
• Right to property (Section 24)
• Right to privacy (Section 25)
• Rights of the child (Section 26)
• Cultural rights of Aboriginal and Torres Strait Islanders (Section 28)

Under international human rights law, the right to life is non-derogable, meaning that states cannot suspend or legislate out of the protection this right affords individuals, even in times of emergency. The right to life is therefore considered 'absolute'.

Globally, strategic litigation has increasingly utilised this particular right in order to challenge activities that would increase the risks associated with climate change, including using the 'carbon budget' approach that emissions from coal contributes to climate change and therefore threaten the life of the individual due to the impacts of climate change, such as flooding, bushfires, hurricanes etc.

It is expected that the EDO will dovetail off the recent decision of Preston CJ in Gloucester Resources Limited v Minister for Planning [2019] NSWLEC 7 (Rocky Hill) in further expanding the principles of Ecologically Sustainable Development, including intergenerational equity and the carbon budget approach. Click here for an explanation of Rocky Hill as published in February 2019.

While there is no right or entitlement to damages under the HRA, if successful, the EDO will likely seek to have the Queensland Land Court recommend that the Mining Lease and Environmental Approval for the Galilee Coal Project be refused. Even if the Court does that, it will ultimately be up to the Minister to act on the recommendation. Interestingly around the same time that the Youth Verdict proceedings were commenced in Queensland, the EDO on behalf of Bushfire Survivors for Climate Action brought a civil enforcement proceeding in NSW to compel the NSW EPA to regulate greenhouse gas emissions on the basis of the authority's statutory role, which includes a requirement for the authority to prepare policies to protect the environment. Whilst this is not a case brought under human rights legislation, it demonstrates the growing number of litigation options being utilised by environmental groups in respect of greenhouse gas impacts and climate change in Australia.

Human rights strategic litigation internationally  

While the use of judicial intervention in the area of human rights seems novel in Australia, it is a tried and tested mechanism for those in other countries such as the Council of Europe, the Netherlands, the United States, Colombia, Canada, the European Union (EU) and the United Kingdom. 

Council of Europe: In September 2008 the European Court of Human Rights held in Budeayeva and Others v Russia¹ that Russia had violated the right to life (Article 2 of the European Convention of Human Rights) by failing to implement land planning and emergency relief policies in response to a mud-slide which killed eight people, because the state had failed to comply with their positive obligations to take appropriate measures to mitigate the risks to their lives against the natural hazards.

The Netherlands: On 20 December 2019 the Dutch Supreme Court upheld a 2015 District Court ruling in Urgenda Foundation v Kingdom of the Netherlands,² setting a new standard for government accountability in the Netherlands, In this case, the Dutch courts considered the duty of care exercisable to protect citizens from climate-related harm. The Supreme Court upheld the finding that the Dutch Government had a positive obligation to adequately reduce greenhouse gas emissions by at least 25% by the end of 2020 (compared to 1990 levels). We note that Urgenda was used by Preston CJ in Rocky Hill in finding the causal link between greenhouse gases and climate change, which led to the endorsement of the 'carbon budget' approach: see [521] – [524] of Rocky Hill.  Since the Urgenda decision was upheld, national energy laws have been passed in the Netherlands in December 2019 and climate and energy policies introduced, forcing energy companies to close different coal plants as part of the Dutch strategy to cut greenhouse gas emissions 49% from 1990 levels by 2030.

United States: In November 2016 the District Court of Oregon handed down Juliana et al. v. United States of America³, a case largely cited as introducing climate change class actions in North America. In this case, Our Children's Trust, consisting of 21 child plaintiffs, represented by climatologist James Hansen, argued that US Government's actions have caused climate change and violated their constitutional rights to life, liberty, property and public trust resources. The plaintiffs argued that the United States Government's previous actions have caused climate change and violated their constitutional rights to life, liberty, property and public trust resources, because "a stable climate system is a prerequisite for enjoying many rights, including the right to life."⁴ In January 2020, the United States Court of Appeals for the Ninth Circuit handed down a 2:1 decision, with the majority holding that "it is beyond the power of an Article III court to order, design, supervise, or implement the plaintiffs' requested remedial plan".⁵ While the appellate court accepted the expert evidence adduced in this case, the majority denied standing to the plaintiffs. In a dissenting opinion, her Honour Judge Staton found instead that a suit of this kind "cannot alone halt climate change [but that] does not mean that it presents no claim suitable for judicial resolution."⁶ The plaintiffs may yet appeal this decision.

Colombia: In early 2018, a group of 25 plaintiffs (all under the age of 30)  launched a raft of challenges against the Colombian government, municipalities and corporations, citing a denial of their right to life, health, food, water and a healthy environment under the Colombian Constitution (the likes of which had been rewritten in 1993). In a decision dated 5 April 2018, Demanda Generaciones Futuras v. Minambiente⁷, the Supreme Court of Colombia acknowledged the adverse effects of climate change on human rights, which are dependent on the existence of a healthy environment and ecosystem (in particular, the Amazon), and ruled that states must prevent significant environmental harm. In this case, the Supreme Court of Colombia ordered that the Presidency of the Republic, the Ministry for the Environment and Sustainable Development, and the Ministry of Agriculture and Rural Development introduce short, medium and long term government responses within four months of the date of judgment, including the introduction of laws to offset the rate of deforestation in the Amazon. These responses must be in consultation with all relevant parties (including affected communities and persons seeking to participate in this process). The plan specifically has to consider the effects of climate change and early warnings of the Colombian Institute of Hydrology, Meteorology and Environmental Studies (IDEAM). Further orders included that an 'Intergenerational Pact' be drafted for the life of the Colombian rainforest.

Canada: In November 2018, ENvironnement JEUnesse (ENJEU) commenced a class action lawsuit against the government on behalf of all Québec residents ages 35 or younger. ENJEU is a Montreal-based non-profit organization committed to environmental advocacy. The challenge drew inspiration from Urgenda Foundation in being a creature of action against the government and using public law to launch human rights, constitutional and administrative law arguments. In addition to arguing that the Canadian Government had failed to set appropriate emission targets, challenges were also brought under section 7 (life, liberty and security of person) and section 15 (the right to equality) of the Canadian Charter of Rights and Freedoms, and Québec's Charter of Human Rights and Freedoms. In this case, the Québec Superior Court found that while the issues under sections 7 and 15 were justiciable, a class action was 'not the appropriate vehicle' for an action of this kind because the declaration of a class (e.g. limiting it to individuals under 35) may be arbitrary. ENJEU may yet appeal this decision.

EU: On 8 May 2019 the European Court of Justice handed down the decision of Carvalho and Others v European Parliament and Council of the European Union.⁸ The group, consisting of Carvalho and others, sought the declaration that the legislative package regarding greenhouse gas emissions (including Directive (EU) 2018/410 and Decision (EU) 2015/1814) was unlawful, insofar as it permits the emission (between 2021 and 2030) of a quantity of greenhouse gases corresponding to 80% of 1990 levels in 2021, decreasing to 60% of 1990 levels in 2030.⁹  The General Court found that the applicants had not established that the contested provisions of the legislative package infringe their fundamental rights, nor did the action distinguished them individually from all other natural or legal persons concerned by those provisions. The General Court ultimately dismissed the challenge on the grounds of admissibility.  An interlocutory application appealing the decision of the General Court is currently in progress.¹⁰

United Kingdom: On 27 February 2020 the Court of Appeal hand down its decision in R v Secretary of State for Transport & Ors [2020] EWCA Civ 214. Lord Justice Lindblom, Lord Justice Singh and Lord Justice Haddon-Cave (per Curiam) found that the Secretary of State for Transport, when it published the Airports National Policy Standard (ANPS), had not taken into account its own firm policy commitments on climate change under the Paris Agreement, an error that fatally rendered the ANPS unlawful. The British Government's planned expansion of Heathrow Airport was therefore unlawful in its proposed form.

In addition to the strategic litigation above, in 2015 an additional mandate for a new Special Rapporteur was issued by the Office of the High Commission of Human Rights, based in Geneva. The purpose of this new 'Special Rapporteur on human rights and the environment' (SR), was issued a mandate to:

• examine the human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment;
• promote best practices of the use of human rights in environmental policymaking;
• identify challenges and obstacles to the full realisation of human rights relating to the enjoyment of a healthy environment; and
• conduct country visits and respond to human rights violations.

The SR is responsible for issuing thematic reports, which are subsequently utilised by the judiciary and lawmakers the world over, including:

• The Right to a healthy and sustainable environment (A/73/188) which outlines obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment.
• Safe climate (A/74/161) which illustrates the effects of the current global climate, and the role for human rights in catalysing action to address climate change.

Way forward

Following the commencement of the HRA, it is likely that there will be an increase in strategic litigation in Queensland, both against the government and against corporations, focussed on actions to reduce the risks and impacts of climate change including on human rights grounds. More broadly, it may spur further litigation in Victoria and the ACT in the implementation and utilisation of human rights provisions to seek to set aside projects or actions that are said to be incompatible with human rights obligations.

After a big year for climate change litigation in Australia in 2019 (especially following the Rocky Hill decision), energy and resources companies should keep a close eye on the challenge launched by Youth Action against Waratah Coal as the case has the potential to further test the legal landscape in the area of climate change and expand legal obligations in keeping with international human rights law jurisprudence.