In an Australian first, a group of young Queenslanders are relying on Queensland’s new Human Rights Act to challenge the Galilee Coal Project, on the basis that their human rights will be impacted by the climate change impacts of the mine. While previous challenges have been made to coal mining projects on climate change grounds, this is the first one in Australia using human rights arguments. This court challenge is relevant to anyone with a project that will increase greenhouse gas emissions, as human rights arguments may become a consideration for whether projects are approved or not.
Waratah Coal, a company owned by Clive Palmer, has applied for a mining lease for the Galilee Coal Project (formerly known as China First), an open cut and underground coal mine, located in the Galilee Basin about 450km west of Rockhampton. The mine intends to produce 40 million tonnes of product coal each year, increasing to 56 million tonnes several years later.
Youth Verdict have lodged objections to the grant of the mining lease and the environmental authority (EA) for the project. These objections will be heard by the Land Court of Queensland.
In a mining lease objection hearing, the Land Court acts in an administrative capacity, to make a recommendation to the Minister that the mining lease application be granted or rejected in whole or in part. In doing so, the Land Court must take into account the matters in section 269(4) of the Mineral Resources Act (MR Act). Where objections have been lodged to a draft EA, the Land Court must consider the matters in section 191 of the Environmental Protection Act (EP Act) and make a recommendation approving the draft EA, rejecting the application for the EA, or recommending that the application be approved but on different conditions.
As yet, no coal project in Queensland has been stopped on climate change grounds. Climate change objections to the grant of mining leases for coal have previously been raised in the Land Court, but have not been successful. The Land Court is empowered to consider scope 3 greenhouse gas emissions (those indirect emissions that result as a consequence of mining the coal, but occurring from sources not owned or controlled by the mining company) when considering the public interest criteria under section 269(4)(k) of the MR Act. In previous matters, the Land Court has decided that the public right and interest would not be prejudiced by scope 3 emissions associated with a coal mine, when weighed against other considerations. Much of this was based on factual findings from the expert evidence before the court that if a proposed mine did not supply the coal, another mine with potentially lower quality coal and higher greenhouse gas emissions would meet the demand.
What’s different about this challenge?
The Human Rights Act was passed by the Queensland Parliament last year. The Act protects 23 fundamental human rights, derived from international law.
Youth Verdict relies on the following human rights under the Human Rights Act in objecting to the Galilee Coal Project:
- the right to life;
- the rights of the child;
- cultural rights of Aboriginal and Torres Strait Islander Peoples; and
- freedom from discrimination (as vulnerable people will suffer the most from climate change).
Since 1 January 2020, the Human Rights Act requires that when making decisions, public entities act in a way that is compatible with human rights and give proper consideration to a human right relevant to the decision.
“Public entities” are organisations or bodies performing a public function in and for Queensland. The definition of public entity includes a Minister (who makes the decision to grant or refuse a mining lease or EA) and a court or tribunal, when acting in an administrative capacity. As the Land Court acts in an administrative capacity when hearing objections to mining leases, it will very likely be treated as a public entity for these purposes under the Human Rights Act.
The Human Rights Act does not act as an absolute ban on matters that may impact human rights. Instead, the Act requires decision makers to:
- act in a way compatible with human rights, which can include limiting a human right to the extent that is reasonable and demonstrably justifiable; and
- give consideration to human rights, which includes identifying the human rights that may be affected by the decision and considering whether the decision is compatible with human rights.
There is no new cause of action to bring a claim to court, based solely on the Human Rights Act. Instead, the legislation allows a claim that a public entity acted unlawfully, by acting in a way that is not compatible with human rights or failing to consider human rights, to be “piggybacked” to a claim for another ground that the decision was unlawful. In this case, the human rights arguments have been included with the objections under the MR Act and the EP Act that are to be heard in the Land Court.
It remains to be seen how the Land Court will deal with this matter, including its status as a public entity when acting in an administrative capacity. However, it seems likely the court will need to consider the link between the climate change impacts of the Galilee Coal Project and the impact this has on human rights. We’ll continue to monitor this case.
Update
On 4 September 2020 the Land Court dismissed an application by Waratah Coal to strike out the objections and confirmed the Land Court has jurisdiction to hear the Human Rights Act arguments. More information on the Court decision here.
For more information or discussion, please contact our Resources and Energy team.