Yang Sun
Climate change has been and will continue to be a serious global issue which impairs people’s full enjoyment of their various human rights. The rejection of a mining lease in the recent case of Waratah Coal Pty Ltd v Youth Verdict Ltd & Ors (“Waratah”) is an example that reflects the significance of this concern. Waratah is an important case within the Australian jurisdiction because it demonstrates where international human rights law has been used in assessing limitations upon human rights at the domestic level. Although this case did not address impacts upon the human right to health services, including access to mental health facilities, this is an important consideration that may feature in future legal processes.
How did the court in Waratah apply international materials in discussing state laws on human rights?
The Queensland Human Rights Act (‘the Act’) is the principal legislation in Queensland to protect and promote human rights. In interpreting the individual human rights provisions contained in the Act to s 48 recommends reference to relevant “international law and the judgements of domestic, foreign and international courts and tribunals”. Accordingly, the Land Court of Queensland should apply a relevance test as set out in s 48(3) of the Act before considering international human rights law in its analysis.
The court in Waratah noted that international materials with “a logical or analogical relevance” will meet the threshold for relevance and can assist the court in interpreting the relevant domestic provisions on human rights. The court stated that it would construe the rights in “the broadest possible way”, taking into account their “text, context and purpose”.
In deciding if approval of the mining lease in Waratah would be consistent with the relevant human rights concerned, the Court assessed what potential limitations the lease could have on different human rights contained in the Act with reference to relevant international materials. It also examined whether such limitations were reasonable and justifiable, although it did not assess any potential limitations on s 37 right to health services itself. In summary, the types of international instruments the Court considered include international treaties such as ICCPR, IPCC reports, general comment from the Human Rights Committee, and various judgements of foreign jurisdictions such as the German Constitutional Court and the Supreme Court of Justice of Colombia.
Overall, the relevance test under s 48(3) of the Act does not set a particularly high threshold and the Court in Waratah was able to refer to numerous international instruments on human rights in interpreting the concerned rights in the Act, and such interpretations ultimately led to the rejection of the mining lease because the lease would impose limitations that were not reasonable or justifiable upon the relevant human rights contained in the Act. However, it was somewhat surprising that the Court did not consider any impacts upon the human right to health as set out in s 37 of the Act.
The relevance of the human right to health in the context of climate change
The court in Waratah did not assess the human right to health as described in s 37 of the Act. However, considering the severe consequences brought by climate change on people’s health and life, such as in the case of Hurricane Katrina, s 37 is of particular importance to the issue of climate change, in its formulation as the “right to access health services”.
There are numerous international materials which address the protection and enjoyment of the human right to health. For example, under article 12.1 of ICESCR, State parties recognise the human right to “the enjoyment of the highest attainable standard of physical and mental health”. Similarly, a right to health has been recognised in many other international instruments, such as article 25.1 of the UDHR, the Paris Agreement Preamble, the Vienna Declaration and Programme of Action of 1993, statements and reports prepared by the High Commissioner for Human Rights and others.
Mental health impacts
One thing to note about human rights in the context of climate change is the significance of mental health impacts or access to mental health services. The IPCC reported that emotional distress, anxiety, depression and suicide are all likely mental health consequences of climate change. A WHO policy brief in 2022 also concluded that climate change brings significant impacts upon people’s mental health and proposed recommendations for governments to consider in addressing mental health issues. Surprisingly, while mental health is such a significant problem, a 2021 WHO survey report engaged 95 countries and found that only five of them had implemented measures to include mental health support as part of their response to ensuring national health under the impact of climate change.
Conclusion
While the Court in Waratah did not assess any potential impacts on a right to health services, including a right to mental health services, such a right will typically be an important consideration in the context of climate change, which is closely related to people’s living and health conditions. Nevertheless, Waratah is a significant case for Australia because it concerns an Australian state court applying international human rights laws in a domestic case. The Court’s discussions around the practical application of s 48 of the Act set an example of when and what types of international materials may be considered when interpreting a human rights provision contained in Queensland state law, and it is expected that following Waratah, Australian domestic courts may be more willing to draw on international guidance in interpreting state laws on human rights, not only in the context of climate change.
Approaching coal mines and climate change through a human rights lens
Brandon Delos Reyes
Climate change is no longer just an environmental issue, it is also a human rights issue. A foreseeable impairment of human rights from approval of a new coal mine can outweigh its projected economic benefits.
Youth Verdict took this line of argument against Waratah Coal in their recent case in the Queensland Land Court. The activist group sought to prevent the approval of the proposed mining project on the basis that the mined coal would contribute to climate change, which exacerbates the frequency and severity of extreme weather events – and, consequently, infringes on the human rights of Queenslanders.
The group first had to convince Land Court President, Fleur Kingham, that there was an inseparable causal connection between approving the mining applications and the greenhouse gas (GHG) emissions caused by the intended purpose of burning the mined coal for electricity. Therefore, the ultimate decision-makers would have effective control over the emissions based on their approval of the mining applications. Kingham agreed, rejecting Waratah Coal’s argument that the responsibility of the emissions belonged to the decision-makers in the countries to whom the coal was sold.
Importantly, Kingham then went on to examine whether the approval of the project would unreasonably limit the human rights of Queenslanders under s 13 of the Queensland Human Rights Act. She used an ordinary proportionality test to weigh the benefits against the costs to their human rights. This was Kingham’s first key departure from the usual approach, as indirect overseas GHG emissions, also known as scope 3 emissions, were not previously taken into account in considering the costs and benefits of a project.
Kingham held that it did not matter that the coal would be combusted for electricity overseas, observing that emissions anywhere in the world exacerbate climate change effects everywhere, including in Queensland. Furthermore, she reasoned that because there was no other purpose for the mined coal than for combustion, it would be relevant to consider the impacts of the emissions when assessing if the project was in the public interest. While Queensland does not have a mining-specific guide to cost-benefit analysis, Kingham utilised NSW guidelines for mining proposals, which supports a quantitative approach to cost-benefit analysis. Furthermore, the relevant NSW Technical Notes views estimates of scope 3 emission impacts as useful to reduce residual uncertainty around a project’s total projected emission impacts.
One of the main benefits argued by Waratah Coal was the economic benefits of generating electricity for homes, businesses, industries, hospitals and infrastructure in the Southeast Asian market. This would bring energy security to the region and provide profits to the state, the private miner, and bring employment and activity to the region. However, Kingham found that the burned coal would contribute 1.58Gt of CO2 emissions over the lifetime of the mine. She found this a significant proportion of the remaining global carbon budget and would contribute to heatwaves, flooding, diseases, and rising sea levels. These impacts would limit the human rights of Queenslanders disproportionately, including Indigenous people and children, who are more susceptible to displacement and illness. Other rights listed in the Act that would be significantly impacted by the mining approval and subsequent climate impacts are the rights to life, freedom of movement, property, education and access to healthcare.
Through her proportionality testing, Kingham concluded that the economic arguments were not sufficient in this case. This was Kingham’s second significant departure from the norm, as there have been no Australian cases in which the economic benefits did not outweigh the human rights limits. She placed significant weight on the human rights arguments in her analysis and on the inclusion of scope 3 emissions in her calculations. On top of this, Kingham did not find the impacts of climate change were adequately assessed in the submitted cost-benefit analysis. She had little confidence in the calculations presented to the court because of how uncertain and price-sensitive the mining project was, given that the future market for coal is uncertain. She argued that a realistic decline in coal prices would potentially put the mine at risk of closing before realising its full economic benefits.
The Youth Verdict v Waratah Coal case is significant because it is the first case that demonstrates that the economic benefits alone are not sufficient to justify approving projects that contribute to climate change and limit human rights. The decision highlights the interconnectedness of climate change and human rights, encouraging decision-makers to consider the broader implications of their decisions. Kingham argued that because the mine’s sole purpose is to sell coal for burning, the greenhouse gas emissions occurring overseas are relevant to calculating the costs, which include any resulting limits on human rights.
The Youth Verdict case provides valuable direction on how decision-makers can take a human rights approach to climate change. Kingham provides an effective example of how courts can give fairness to mining stakeholders while addressing climate change responsibly. Ultimately, it shows that climate change is more than just an environmental issue and that taking action now will help protect the human rights of our generation and those of generations to come.
Yang Sun and Brandon Delos Reyes were student interns with the Australian Human Rights Institute's Australian Climate Accountability Project in Term 1 2023.