Coal, Climate and Clive Palmer: Youth Verdict v Waratah Coal and the Evolving State of Climate Change Lititgation
By Daniel Morey
A youth-led activist organisation has brought action to stall the development of the Galilee Coal Project in Queensland (McCutcheon). Youth Verdict, assisted by the Queensland branch of the Environmental Defenders Office and joined in action by The Bimblebox Alliance, allege that Clive Palmer’s project violates the State’s human rights legislation. This article will not discuss the likely success of any of the grounds but will provide a summary of the background issues and discuss the significance of the case to Western Australia and the nation as a whole.
I. Background
The Galilee Project is a proposed major collection of open-cut and underground coal mines and railway line in the Galilee Basin in central Queensland (Galilee). Its proponent is Waratah Coal Pty Ltd, (Galilee) which is owned by notorious businessman and politician Clive Palmer. The project was initially rejected by the Commonwealth Minister for the Environment due to its unacceptable environmental impact (Galilee). The same Minister approved the amended application subject to conditions on 19 December 2013 (Galilee).
Youth Verdict is an activist group made up of young Queenslanders, many of whom experienced the effects of this summer’s bushfires first-hand (EDO). They are a new organisation formed for the purpose of using legal action to advocate on issues of youth justice (Youth Verdict). Their members are particularly interested in minimising the impact of anthropological climate change to protect the interests of young and future Australians. This is the first case the group is involved in (EDO).
The Bimblebox Alliance Inc. is an alliance of farmers, landholders and interested citizens. They seek to protect the Bimblebox Nature Refuge, an 8000ha nature reserve that is home to some 173 bird species and other native flora and fauna species. The Galilee Basin adjoins the Bimblebox Refuge and some mining has been proposed within the Refuge (EDO).
The Queensland government passed the Human Rights Act 2019 (‘the Act’) to fulfill an election promise of the Labor Party. The Act includes six protections that are notable for these purposes: the rights of the child; the right to life (s 16), the right to be free from discrimination (s 15(2)); the cultural rights of Aboriginal and Torres Strait Islander Peoples (s 28); the right to property (s 24); and the right to privacy (s 25).
II. The Issues
The plaintiffs have appealed the issuance of the Mining Lease and Environmental Authority for the Galilee Coal Project in the Land Court of Queensland (McCutcheon). The plaintiffs allege that the proposed mine will contribute to the expedition of the negative impacts of climate change (McCutcheon). These impacts, including environmental pollution, increased natural disasters, rising temperatures, and the clearing of native land, will unduly impact their wellbeing as young Australians and the wellbeing of future generations (EDO). The plaintiffs argue that these impacts are in violation of the aforementioned six rights protected by the Act (EDO).
III. Significance
So, what does this mean?
Perhaps of most note is that the first time that a mining project has been challenged on human rights grounds in Australia. If successful, the Mining Lease and Environmental Authority will be recommended for rejection, which the Minister will then need to decide upon. Similar challenges have had mixed degrees of success. In 2015, the Lahore High Court in Pakistan found that the Pakistanti government’s failure to address climate change impacted the rights of the petitioners (Leghari). A similar verdict has been reached in the Netherlands (Urgenda). Currently, there are similar youth-led, human rights-related climate change cases pending in Germany (Neubauer et al) and Canada (La Rose) amongst others. Regardless of the result, the case is likely to become a landmark decision in the Australian environmental law landscape.
There have been a number of recent decisions in common law jurisdictions in which climate change has been a determinative factor against proposed developments, both internationally and domestically. Earlier this year in the decision of R (Friends of the Earth) v Secretary of State for Transport and Others [2020] EWCA Civ 214, the English Court of Appeal found that the United Kingdom Government had not taken into account the Government’s commitments under the Paris Agreement in approving the expansion of Heathrow Airport, as it was statutorily required to do. Likewise, the Land and Environmental Court of New South Wales in Gloucester Resources Limited v Minister for Planning [2019] NSWLEC 7 upheld a refusal to grant development approval for the proposed Rocky Hill Coal Project, in part due to its unacceptable contributions to climate change.
Western Australia does not have a statutory or constitutional bill of rights. Further, no judicial body has jurisdiction over merits review appeals arising from the governing Western Australian environmental legislation (the Environmental Protection Act 1986). However, if this challenge is successful, it will add to a growing body of climate change case law that could influence judicial review proceedings.
Bibliography
A Cases
Gloucester Resources Limited v Minister for Planning [2019] NSWLEC 7
Leghari v Federation of Pakistan (2015) W.P. No. 25501/201 (‘Leghari’)
R (Friends of the Earth) v Secretary of State for Transport and Others [2020] EWCA Civ 214
Urgenda v The State of the Netherlands [2015] HAZA C/09/00456689 (‘Urgenda’)
B Legislation
Environmental Protection Act 1986 (WA)
Human Rights Act 2019 (Qld)
C Other
Department of State Development, Tourism and Innovation (Qld) ‘Galilee Coal Project (Northern Export Facility)’ (Web Page, 14 November 2019) <http://www.statedevelopment.qld.gov.au/coordinator-general/assessments-and-approvals/coordinated-projects/completed-projects/galilee-coal-project.html> (‘Galilee’).
‘La Rose v Her Majesty the Queen’, Climate Change Litigation (Web Page) <http://climatecasechart.com/non-us-case/la-rose-v-her-majesty-the-queen/> (‘La Rose’)
Peter McCutcheon, ‘Youth Activists Challenge Clive Palmer's Waratah Coal Mine Saying it Impacts Their Human Rights’, ABC News (online, 13 May 2020) <https://www.abc.net.au/news/2020-05-13/youth-activists-challenge-clive-palmers-waratah-coal-mine/12239570> (‘McCutcheon’).
‘Neubauer, et al. v. Germany’, Climate Change Litigation (Web Page) <http://climatecasechart.com/non-us-case/neubauer-et-al-v-germany/> (‘Neubauer et al’)
‘Who We Are’, Youth Verdict (Web Page) <https://www.youthverdict.org.au/who-we-are> (‘Youth Verdict’)
‘Young Australians Take on Clive Palmer Coal Mine Over Human Rights’, Environmental Defenders Office (Blog Article) <https://www.edo.org.au/young-australians-take-on-clive-palmer-coal-mine-over-hr/> (‘EDO’)