This article was written by Tessa Boardman and Dayne Kingsford.
A first of its kind challenge has been made against the granting of a mining lease on the grounds that the development of the mine will infringe human rights.
The statutory foundation for a challenge of this kind in Queensland emerged on 1 January 2020, following the quiet commencement of the Human Rights Act 2019 (Qld) (the HR Act).
Advocacy group, Youth Verdict, has lodged an objection to Waratah Coal's Galilee Coal Project (the Project) an estimated 30km north of Alpha, Queensland. The Project received a total of 62 objections, with only one objection being withdrawn.
Introduction
The youth advocacy group has objected to the granting of the Project's mining lease and environmental authority, arguing that it will interfere with their human rights. In particular, if approvals for the Project are granted, Youth Verdict alleges it will breach a number of human rights that are now protected by the HR Act, as the Project will contribute to climate change.
While a challenge of this kind – climate change litigation brought on the basis of human rights – is a first for Australia, litigation on similar grounds has been gaining traction across the globe and may offer a preview to future climate change litigation within Australia. This is especially so given the HR Act specifies that international law and the judgments of domestic, foreign and international courts and tribunals relevant to a human right may be considered in interpreting a statutory provision.
In a recent General Comment, the United Nations Human Rights Committee emphasised that protection of the right to life depends on, among other things, the preservation of the environment and its protection from harm, pollution and climate change.[1] On 19 May 2020, the Queensland Government indicated its willingness to interpret human rights in this way in a statement of compatibility with human rights, made in accordance with section 38 of the HR Act. Statements of compatibility must now be prepared by any member proposing to introduce a Bill in the Legislative Assembly.[2] The statement must include whether and how the Bill, in the member's opinion, is compatible with human rights and if it is not, the nature and extent of the incompatibility.[3]
In this particular compatibility statement, the Deputy Premier and Minister for Health and Ambulance Services, the Honourable Dr. Steven Miles, stated:
"One of the positive obligations imposed on the State under the right to life is to take appropriate steps and adopt positive measures to protect life. The UNHRC has said that this extends to taking appropriate measures to address the general conditions in society that may give rise to direct threats to life or prevent individuals from enjoying their right to life with dignity, including measures relating to the environment. The UNHRC has said, in particular, that 'environmental degradation, climate change and unsustainable development constitute some of the most pressing and serious threats to the ability of present and future generations to enjoy the right to life'."[4]
Youth Verdict's challenge
Members of the public can challenge the development of a mine by objecting to one of the two prerequisites for a resource authority, being:
- the mining lease (ML) application pursuant to the Mineral Resources Act 1989 (Qld) (MRA);[5] or
- the environmental authority (EA) in accordance with the Environmental Protection Act 1994 (Qld) (EPA).[6]
The objection procedures contained within the MRA and the EPA do not require specific grounds for making an objection. However, in order for the objection to be referred to the Land Court, it must be considered a "properly made" submission. To be considered "properly made", the submission must meet a number of procedural requirements, such as being made within the required period and stating the grounds for objection.[7]
Properly made submissions to an application for an ML or EA are referred to the Land Court for hearing and consideration.[8] Following hearing, the Land Court will provide its recommendations to the relevant Minister or administrating authority about the particular application.
While the exact details of Youth Verdict's objections are not yet publicly known, it appears the group are alleging that if the Project is approved, it will contribute to increased and more severe droughts, bushfires, heatwaves, cyclones, and floods. The increased severity of these events will breach human rights protected under the HR Act. Specifically, Youth Verdict's representatives, the Environmental Defenders Office (EDO), have indicated that they will argue that the following rights will be impacted:[9]
The right to life:
The HR Act provides that "every person has the right to life".[10] The argument provided by Youth Verdict on this ground is that the Project's emissions will be contributing to worsened climate conditions and more severe weather events, impacting on future generations' right to life.
The rights of the child:
Similar to the argument that the Project impedes the right to life, Youth Verdict argue that the development of the Project, and its contribution to changing climate conditions, will impact the rights and interests of children, who are afforded specific protections under the HR Act.[11]
Aboriginal and Torres Strait Islander cultural heritage rights and protections:
The HR Act also recognises and protects the cultural rights of Aboriginal and Torres Strait Islander peoples. In particular, the HR Act explains that Aboriginal and Torres Strait Islanders must not be denied the right to "enjoy, maintain, control, protect and develop their identity and cultural heritage".[12] Youth Verdict will argue that the Project's contribution to climate change will impact the ability of Indigenous Australians to enjoy their cultural practices.
The right to live without discrimination:
Finally, Youth Verdict will argue that the Project's contribution to climate change will infringe on the rights of vulnerable people, including children, to be free from discrimination. The HR Act provides that every person has the right to enjoy their human rights free from discrimination.[13] However, vulnerable members of our community are argued to be those most susceptible to the impacts of climate change.
How does the HR Act support the argument?
On 1 January 2020, the HR Act, which protects 23 human rights, came into force with one of its main objects being to "protect and promote human rights".[14]
The HR Act places obligations on Parliament, courts and tribunals, and "public entities". The HR Act's broad definition of "public entities" encompasses Queensland government departments, Ministers, and public service employees.[15]
Of most relevance to an objection, such as that brought by Youth Verdict, is the HR Act's requirement that public entities:
- act or make decisions that are compatible with human rights; and
- in making decisions, give prior consideration to human rights relevant to the decision.[16]
However, the HR Act emphasises that a public entity's failure to comply with these provisions in its decision-making will not render a decision invalid, nor does the public entity commit an offence under the HR Act.[17]
While the HR Act does not provide a stand-alone cause of action against a public entity for a decision that is made in contravention of the HR Act, a person challenging a public entity's decision on some other ground of unlawfulness may 'piggyback' a human rights claim onto that claim. As such, any entity seeking to establish that a public entity breached the HR Act in making a decision must have a primary cause of action (for example, judicial review) for the argument to succeed.[18]
International considerations
At the international level, proceedings based on arguments similar to that raised by Youth Verdict are not a new phenomenon.
For example, the 2018 Colombian case Future Generations v Minister of the Environment and Others[19] saw a youth advocacy group successfully argue that their fundamental rights to life, health, freedom, and human dignity were substantially dependent upon the environment and ecosystem, which was being impacted by the deforestation of the Amazon. The court ordered relevant government departments, with participation from the youth advocacy group, to formulate an action plan to counteract the Amazon's deforestation, which in turn will lessen the impacts of climate change. The court also ordered the development of an "intergenerational pact for the life of the Colombian Amazon", with the aim of reducing greenhouse gas emissions and eventually ceasing deforestation.
Another notable international decision is the 2015 case of Urgenda Foundation v State of the Netherlands,[20] brought on behalf of 886 Dutch citizens, in which the Hague District Court found the government was required to reduce its greenhouse gas emissions by at least 25% by the end of 2020 in line with its human rights obligations. This landmark decision was upheld by the Court of Appeal and the Dutch Supreme Court, the highest court in the Netherlands. Following this decision, the United Nations High Commissioner for Human Rights published a news release in which she noted that "the Government of the Netherlands, and by implication, other governments have binding legal obligations, based on international human rights law, to undertake strong reductions in emissions of greenhouse gases".[21]
Matters such as these will, pursuant to the HR Act, have a bearing on the interpretation of human rights in Australia.
What does this mean for Australian mining projects?
While the merits of Youth Verdict's legal arguments remain unknown, and are yet to be considered by the Land Court, this may be the first of many climate change arguments grounded in human rights. If the connection is drawn between climate change, human rights and the resources sector by the Land Court, as it has been internationally, the decision could have a significant bearing on the granting of ML and EA applications and require companies to have due regard to such matters in the course of developing and implementing their approvals strategy.
[1] Human Rights Committee, 'General Comment No. 36' United Nations (General Comment, 3 September 2019) < https://tbinternet.ohchr.org/Treaties/CCPR/Shared%20Documents/1_Global/CCPR_C_GC_36_8785_E.pdf >.
[2] Human Rights Act 2019 (Qld) s 38.
[3] Ibid.
[4] Statement of Computability to the Justice and Other Legislation (COVID-19 Emergency Response) Amendment Bill 2020 (Qld) 30.
[5] Mineral Resources Act 1989 (Qld) s 260.
[6] Environmental Protection Act 1994 (Qld) s 182.
[7] Mineral Resources Act 1989 (Qld) ss 260 and 265; Environmental Protection Act 1994 (Qld) s 161.
[8] Mineral Resources Act 1989 (Qld) s 265; Environmental Protection Act 1994 (Qld) s 185.
[9] Environmental Defenders Office, 'Young Australians take on Clive Palmer coal mine over human rights' (Web Page) < https://www.edo.org.au/young-australians-take-on-clive-palmer-coal-mine-over-hr/ >.
[10] Human Rights Act 2019 (Qld) s 16.
[11] Ibid s 26.
[12] Ibid s 28.
[13] Ibid s 15.
[14] Ibid s 3.
[15] Ibid s 9.
[16] Ibid s 58.
[17] Ibid.
[18] Ibid s 59.
[19] STC 4360- 2018 [2018] 11001 22 03 000 2018 00319 00 (Supreme Court of Columbia).
[20] (The Hague Court of Appeal) 200.178.245/01 (9 October 2018).
[21]Office of the High Commissioner, 'Bachelet welcomes top court's landmark decision to protect human rights from climate change', United Nations Human Rights (News Release, 20 December 2019) < https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=25450&LangID=E >.
