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New mine would violate rights of future generations, court rules

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Queensland Land Court has recommended that the application for a coal mining project is rejected, on the grounds that it would infringe upon the human rights of future generations. 

  • The court’s verdict outlines several human rights that could be violated by the project, concluding that its potential economic value does not outweigh its contribution to climate change. 
  • Human rights law is increasingly being incorporated into climate litigation cases, with legal scholars calling for the inclusion of ‘ecocide’ as a form of international crime. 
  • Global corporations will have to rethink their business proposals, taking human rights into account when considering the regulatory risk exposure of their operations. 

Queensland Land Court has issued its verdict on a legal case brought against Waratah Coal’s proposal to develop a new coal mine on the state’s Bimblebox Nature Refuge. Its ruling was found in favour of the plaintiffs, a First Nations-led youth activist group and the Bimblebox Alliance for the protection of the Refuge. They had argued that the project would cause severe environmental damage while violating the human rights of indigenous communities. 

The Galilee Coal project 

The Galilee Coal project proposes the development of a new coal mine which, once full capacity was reached, would extract an annual 56 megatonnes of coal from beneath the Bimblebox Nature Refuge. It would also involve the construction of supporting infrastructure, including a 468-kilometre railway line to transport the coal to Abbot Point. From there, the coal would be shipped across the Great Barrier Reef on its journey to China, where it would eventually be burned to generate non-renewable energy. 

This project was approved by both the Queensland and Federal Australian Governments in 2013, despite the legally protected status of the Bimblebox Refuge. It is yet to make any progress, however, as it awaits the approval of the Queensland resources minister and the State’s environmental department. The verdict of the Queensland Land Court can only serve as a recommendation, but it could have a significant influence in preventing the development from progressing. 

What does the verdict say? 

The court heard evidence from a number of participants. First Nations activists argued that the Galilee project would contribute to global climate change to the extent that it would violate the human rights of future generations, while the Bimblebox Alliance highlighted the harm it could cause to the area’s biodiverse ecosystem. 

Waratah responded by claiming that the quality of its coal would mean that it actually produced fewer emissions than lower-quality sources. It acknowledged the reality of climate change, but said that its project would simply displace emissions that would otherwise be generated elsewhere. 

Having been raised in April 2022, the case has taken several months to reach its verdict. As part of its proceedings, the court visited Australia’s Torres Strait to gain insight into the first-hand impacts of climate change on indigenous communities. 

Now that it has been reached, the court’s verdict is abundantly clear. 

“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”, wrote court president Fleur Kingham.  

“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”, she continued. 

Regarding the 1.58 gigatonnes of carbon emissions that Waratah’s project would generate, the court heard: “This project alone is not the difference between acceptable and unacceptable climate change. But 1.58 Gt of CO2 is a meaningful contribution to the remaining carbon budget to meet the long-term temperature goal of the Paris Agreement. Making the coal available for combustion could limit the options for achieving that goal.”   

Although Kingham acknowledged Waratah’s assessment of the AU$2.5 billion that the project could generate as being “considerable”, she noted that the demand for thermal coal is declining. 

“There is a real prospect the mine will not be viable throughout its projected life and that not all the economic benefits will be realised. Further, the costs of climate change to people in Queensland, to which combustion of coal from the Project will contribute, have not been fully accounted for. Nor have the environmental costs of the act of mining on Bimblebox”, she concluded. 

Human rights as a basis for climate litigation 

One particularly notable aspect of the case against Waratah Coal is its acknowledgement of the Queensland Human Rights Act. The Act was adopted in 2019, but this case marks its first consideration in relation to the impacts of resource extraction. 

This sets an important precedent, as it means that human rights – including the cultural rights of indigenous communities – will now have to be considered in the approval process of any future coal mine proposals in Queensland. 

Although this particular case referred to specific state legislation, the use of human rights law in climate litigation cases is emerging as a global trend. Legal scholars have even drafted a definition of ‘ecocide’ referring to harm against nature and have called for its recognition by the International Criminal Court. If adopted, ecocide would become the fifth category of international crime, joining war crimes, crimes against humanity, genocide and the crime of aggression. 

These developments have been driven in part by the UN’s recognition of a healthy environment as a human right in itself, which provides stakeholders with the basis to challenge governments and corporations on their contributions to climate change. Although the UN’s decision is not binding, the expectation is that it will have a trickle-down effect, prompting countries to enshrine the right to a healthy environment in national constitutions and regional treaties. 

Global corporations face increasing pressure to consider human rights 

If the recent discussions during COP27 are anything to go by, it appears that international governments are on board with the need to align climate solutions with the human rights perspective. Inclusivity and the need for a rights-based transition were consistent themes of the conference, with increasing recognition of the importance of fair and equitable action. 

A similar shift in focus can be seen within the financial community. As human rights concerns begin to add regulatory risks to existing climate-related exposure, banks and investors must make sure that their attempts to deliver on climate goals are both fair and inclusive. Such efforts can already be seen within the emergence of nature-positive financial incentives, with calls for the upcoming Global Biodiversity Framework to follow a strict human rights-based approach. 

As policy-makers and investors alike begin to factor human rights into their decisions, businesses will face increasing pressure to consider the implications their projects may have. The Queensland case serves as a prime example of how emerging rights-based climate considerations are beginning to trump the potential economic value of industrial activity, highlighting the need for a complete rethinking of the factors that business proposals must take into account. 

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