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Article Australia: Land Court Finds against Proposed Coal Mine due to Impact on Climate Change and Human Rights

On November 25, 2022, the Land Court of Queensland issued a decision in a case in which a First Nations-led group of young people from across the state, who had formed an entity called Youth Verdict, along with other interested parties, challenged a proposed coal mining project on the grounds that it would adversely affect the environment and the human rights of First Nations peoples due to its contribution to climate change. (Waratah Coal Pty Ltd v Youth Verdict Ltd & Ors (No 6) [2022] QLC 21.) The court recommended that the applications related to the project not be approved by the relevant state authorities. The court did not have the function of making a final determination on the applications.

The Project, Relevant Laws, and Objections

The coal mining project was first proposed by Warratah Coal Pty Ltd in 2008. Following processes related to the development of environmental impact statements, the federal government gave approval to the project under the Environmental Protection and Biodiversity Conservation Act 1999 (Cth) in 2013. The company then submitted an environmental management plan to the Queensland agency responsible for environment and heritage protection in 2015, and in 2019 lodged an application with the relevant regional council for approval to operate a coal-fired power station to utilize coal from the project. It subsequently revised the mine plan to reduce its environmental impact, following concerns raised by Bimblebox, an alliance that operated a nature reserve that would be affected by the mine and that later became a party to the case before the Land Court. (Decision paras. 129–133.)

The proposed revised mining project would “extract 761,828 million tonnes (Mt) of saleable coal” from the Galilee Basin in central Queensland, which would “result in combustion emissions of 1.58 gigatonnes (i.e. billion tonnes) of carbon dioxide equivalents (Gt CO2-e).” In addition to the federal government approval, the project required a mining lease (ML) under the Mineral Resources Act 1989 (Qld) and an environmental authority (EA) under the Environmental Protection Act 1994 (Qld). Youth Verdict and Bimblebox objected to both applications on grounds that included “the contribution the direct and indirect greenhouse gas emissions from the mine will make to climate change and the impacts on human rights.” Their arguments were “based on the criteria for the assessment of applications” under the two Queensland statutes, “supplemented by the rights recognized in the Human Rights Act 2019 (Qld).”

The case was “the first time human rights arguments were used in a climate change case in Australia.” Section 58(1) of the Human Rights Act 2019 (Qld) provides that it is unlawful for a public entity to act or make a decision in a way that is not compatible with human rights, or, in making a decision, to fail to give proper consideration to a human right relevant to that decision. Section 8 provides that an act, decision, or statutory provision is considered “compatible with human rights” if it does not limit the human right, or limits it “only to the extent that is reasonable and demonstrably justifiable in accordance with section 13.” Section 13 provides that human rights may be “subject under law only to reasonable limits that can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom.”

Court Procedures for First Nations People

The court heard the objections between April and July 2022. As explained on the Environmental Law Australia website, “[i]n a legal first for mining objections, the hearing began with First Nations people in Gimuy/Cairns and the Torres Strait Islands of Erub and Poruma giving evidence to the Land Court on Country and in accordance with First Nations protocols.” (The term “Country” is “often used by Aboriginal peoples to describe the lands, waterways and seas to which they are connected. The term contains complex ideas about law, place, custom, language, spiritual belief, cultural practice, material sustenance, family and identity.”)

Key Findings

In terms of the impact on climate change from the project, the president of the court stated that

granting permission to mine the coal cannot be logically separated from the coal being used to generate electricity. The justification for the mine is to export coal for that purpose. As a matter of law, I have decided I can take the emissions into account in applying the principles of ecologically sustainable development (for the EA application) and in considering whether the applications are in the public interest (on both the ML and the EA applications). (Decision para. 25.)

The court considered that the project would make, in absolute terms, “a material contribution to the remaining carbon budgets that meet the Paris Agreement goals.” (Decision para. 31.) Furthermore, it rejected the argument that approving the mine would “make no difference to total emissions, because it will displace other lower quality coal with higher GHG emissions,” finding that “[a]lthough the Project coal might displace other supply in its market, that is most likely to be other high rank coal, with similar GHG emissions.” (Decision para. 32.) In the end, the court found that “the climate scenario consistent with a viable mine risks unacceptable climate change impacts to Queensland people and property, even taking into account the economic and social benefits of the Project.” (Decision para. 36.)

A University of Queensland law professor explained that

[a] major barrier to climate change litigation in Queensland has been the “market substitution assumption”, also known as the “perfect substitution argument”. This is the assertion that a particular mine’s contribution to climate change is net zero, because if that mine doesn’t supply coal, then another will.

Kingham rejected this argument. She noted that the economic benefits of the proposed project are uncertain with long-term global demand for thermal coal set to decline. She observed that there’s a real prospect the mine might not be viable for its projected life, rebutting the market substitution assumption.

This is an enormous victory for environmental litigants as this was a previously entrenched argument in Australia’s legal system and policy debate.

The court also found that the impacts of the proposed project on the Bimblebox nature refuge were unacceptable: “The evidence suggests it is likely the Refuge will be lost and the ecological values of Bimblebox seriously and possibly irreversibly damaged. There is no credible plan before the Court to offset such a loss and the evidence causes me to question whether one could be developed and implemented.” (Decision para. 19.)

With respect to human rights, the president of the court stated as follows:

I have found that several human rights would be limited by the Project. For the owners of Bimblebox, that is their right to property and to privacy and home. In relation to climate change, I have found that the following rights of certain groups of people in Queensland would be limited: the right to life, the cultural rights of First Nations peoples, the rights of children, the right to property and to privacy and home, and the right to enjoy human rights equally. Doing the best I can to assess the nature and extent of the limit due to the Project, I have decided the limit is not demonstrably justified.

For each right, considered individually, I have decided the importance of preserving the right, given the nature and extent of the limitation, weighs more heavily in the balance than the economic benefits of the mine and the benefit of contributing to energy security for Southeast Asia. (Decision paras. 44–45.)

According to the Baker McKenzie law firm, “[t]he Land Court decision is substantial and given the new ground it has covered, it is foreseeable that the grounds of the Court’s findings and recommendations [will have] far reaching impacts.” The law professor quoted above also stated: “This case has made legal history. It is the first time a Queensland court has recommended refusal of a coal mine on climate change grounds, and the first case linking human rights and climate change in Australia.”

The decision as to whether to grant the mining lease and environmental authority “now rests with Queensland Resources Minister Scott Stewart and the state’s environment department.” A government spokesperson said in a statement that “the Queensland government will carefully consider the recommendations from the Land Court.”

Kelly Buchanan, Law Library of Congress
December 30, 2022

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