01 July 2020
In recent years, there has been an increase in climate change litigation around the world.
Internationally, cases have been brought challenging government inaction on climate change and alleging there has been a violation of human rights due to climate change impacts. However, the majority of these claims have not been successful in being granted the remedial action sought.
There are a number of possible reasons for this overall lack of success, including the court’s reluctance to categorise climate change impacts as a human rights issue and its unwillingness to make decisions that interfere with the legislative and executive arms of government.
The recently enacted Human Rights Act 2019 (Qld) (Act) lists the human rights that are to be promoted and protected during government decision making. This Act may provide a new avenue for climate change litigation as it explicitly provides that government decision-making can be challenged on human rights grounds.
Previous examples of climate change litigation
Internationally, climate change litigation has taken a turn towards being rights-based and many of these claims (that climate change will cause unacceptable impacts on human rights) are being brought by or on behalf of young people. We highlight a few prominent examples below.
In the case of Juliana v United States, an action was brought by 21 young people alleging that the US government was violating the constitutional rights to life, liberty and property by contributing to climate change. Although ultimately unsuccessful, the Federal Court of Appeal held that there had been climate change impacts experienced by the plaintiffs and that the US government’s promotion of the use of fossil fuels likely contributed to these injuries.
In Canada, a class action on behalf of citizens of Quebec aged 35 and under was brought against the Canadian government on climate grounds. Although unsuccessful due to the finding that the class type was inappropriate, the court held that the claims of human rights infringements were constitutionally appropriate for the court to decide. This paved the way for another Canadian case brought by 15 young people who filed an action against the Queen and Attorney General of Canada alleging that Canada’s contribution to greenhouse gas emissions violates the rights of Canadian children present and future.
Another prominent climate change based action was the petition filed with the United Nations Committee on the Rights of the Child by Greta Thunberg and 15 others. This landmark complaint involved allegations that Argentina, Brazil, France, Germany and Turkey violated young people’s rights under the UN Convention on the Rights of the Child through their lack of action to mitigate climate change.
In the Netherlands, the Supreme Court made a landmark decision in Urgenda Foundation v Kingdom of the Netherlands that required the State to take action to reduce greenhouse gas emissions and mitigate climate change in order to protect human rights. The court’s decision that the state has a duty to protect against climate change as it poses a serious risk to the “liveability of the planet” and to the current generation of citizens’ human rights was upheld in this case. In deciding this, the nation’s highest court held that “in order to ensure adequate protection from the threat of those rights resulting from climate change, it should be possible to invoke those rights against individual states”.
Closer to home, in May last year, a group of Torres Strait Islander people filed a complaint with the UN Human Rights Committee against the Australian government. The complainants alleged that the Australian government had breached its human rights obligations under the International Covenant on Civil and Political Rights by failing to take action on climate change. Specifically, the rights to culture, family and life under the international covenant were claimed to have been violated.
Previous shortcomings of climate change litigation
Although there has been an increase in climate change litigation and rights-based claims internationally, there remain a number of barriers to overcome.
Firstly, it has been acknowledged in some cases that the court does not have the power to make decisions on these matters. In the mentioned case Juliana v United States, although the court found that there were climate change impacts linked to government action, it ultimately held that it did not have the power to order the remedy of forcing the government to create a plan to phase out fossil fuels. In deciding this, the court noted “any effective plan would necessarily require a host of complex policy decisions entrusted, for better or worse, to the wisdom and discretion of the executive and legislative branches”.
This case indicates that success in climate litigation on human rights grounds will depend on whether the court finds it has the power to bind the government to take action and will ultimately be determined on a case by case basis.
It is expected however, that the success of Urgenda Foundation v Kingdom of the Netherlands will begin to pave the way for future rights-based climate change actions as the court found it did have the power to bind the legislature to climate action.
Another issue with previous climate litigation is that courts have been reluctant to categorise the effects of climate change as a human rights issue. This was seen in 2019 in Germany in the case of Family Farmers and Greanpeace Germany v Germany where the court dismissed an action alleging violation of human rights due to the failure of the German government to adhere to a cabinet decision to reduce greenhouse gas emissions by 40 per cent below 1990 levels by 2020. In this case, the court found the government had not failed to safeguard the fundamental rights included in the German Constitution as it has a broad discretion to determine how to fulfil its constitutional obligations.
Future litigation under the Human Rights Act 2019 (Qld)
The Act that came into effect on 1 January 2020 provides a possible new avenue for future climate litigation in Queensland by setting out human rights that are to be protected and promoted.
This Act offers an opportunity to challenge decisions that violate the specified human rights. However, a claim that there has been a violation of human rights cannot be made on its own under the Act, it can only be attached to another type of challenge.
Importantly, this Act makes it unlawful for a public entity to make a decision or act in a way that is incompatible with human rights, or fails to give proper consideration to relevant human rights.
In order to make a successful claim that this has occurred, it is necessary to establish a link between a specified human right and climate change, and a decision by a government entity that impacts on climate change and violates this human right.
In a mining context, it could be argued that coal mines cause a large amount of carbon-dioxide to be released into the atmosphere which drives climate change. The claim would then be that this violates the right to life of people in Queensland due to the significant, adverse impacts on human life and health caused by climate change.
Prospects of use in climate litigation in Queensland
A wealth of scientific evidence has clearly shown the adverse impacts climate change will have on the quality of life for future generations due to rising temperatures and the increased severity and frequency of natural disasters posing a risk to human life and health. This has been acknowledged around the world and notably by the UN High Commission for Human Rights who states “governments have binding legal obligations, based on international human rights law, to undertake strong reductions in emissions of greenhouse gases”.
A connection between climate change and an adverse impact on a human right specified in the Act will need to be established. This may pose a hurdle to the Act’s use for climate change litigation as there is no explicit right in the Act in relation to the maintenance of climate or protection of the environment, meaning courts will need to interpret other rights to include these considerations. This could be done using the right to life under the Act, for example, provided the court interprets this broadly to include the right to avoid adverse health impacts caused by climate change.
Further, the narrow wording of the Act suggests that it will be necessary to establish an impediment to the rights of people living in Queensland specifically in undertaking these cases. Although this could provide a limitation on the scope of arguments raised in climate change litigation on human rights grounds, it is unlikely to be a barrier to litigation as it has been clearly established by scientific studies that Queensland will be severely affected by continuing climate change.
Importantly, the Act expressly allows the court to consider “international law and the judgments of domestic, foreign and international courts and tribunals”. This may be a factor that leans toward the acceptance of a rights-based climate change argument due to the increasing jurisprudence on these matters overseas and the increasing political push internationally for climate action.
First test case
In Queensland, the first climate change litigation on human rights grounds under the Act has just been commenced. This case involves 25 young people from Youth Verdict, a youth activist group, challenging the approval of a Mining Lease for Clive Palmer’s proposed Waratah Galilee Coal Project on the basis that, if it is allowed to proceed, it will violate their human rights under the Act.
Youth Verdict argue the Galilee Coal Project will infringe on young people’s right to life, the rights of children, the right to be free from discrimination, the cultural rights of Aboriginal and Torres Strait Islander Peoples. The Bimblebox Alliance – a group concerned with the protection of the Bimblebox Nature Refuge where the mine will be situated – is also arguing the mine violates human rights under the Act, specifically the right to property and the right to privacy.
As mentioned, there is likely to be a number of hurdles for a case of this kind to be successful in Queensland. However, we have seen an increased climate change jurisprudence in Australia and internationally, which may reflect the increased public push and political discourse on the issue. As a consequence, this could mean there is an increased willingness from the court to entertain climate change based arguments such as Youth Verdict’s in this case.
Notwithstanding the outcome, this case will be significant as the first to be made under the newly enacted Act and will serve as the first examination of the scope of the rights contained within. Further, this case will be noteworthy due to it being the first rights-based climate change litigation in an Australian court, which may pave the way for future human rights cases.
Author: Gerard Timbs & Lucy Kaiser
The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this newsletter is accurate at the date it is received or that it will continue to be accurate in the future.