EDO blog following the Land Court’s President Kingham’s rejection of Waratah Coal’s application to have our Human Rights objections struck out. August 28th, 2020

Young Australians in Human Rights Win Over Clive Palmer Mine

Extract from EDO’s blog following the Land Court Hearing on August 7th, 2020.

Last week Waratah Coal applied to the Land Court to strike out a number of objections to the mine, including arguments under Queensland’s new Human Rights Act brought by EDO clients The Bimblebox Alliance – a group of local landholders and conservationists – and Youth Verdict – a collection of young Queenslanders fighting the mine over climate impacts.

In a move that could have broader consequences for the fledgling Human Rights Act, lawyers acting on behalf of Waratah Coal argued that the law should not apply to mining objection hearings, and that only individuals, not incorporated entities, have standing to seek ‘relief or remedy’ under the Act.

If Waratah Coal are successful, it could serve to restrict the application of the Human Rights Act by limiting the ability of organisations to bring human rights arguments to Court on behalf of vulnerable Queenslanders, and by removing the ability to object to mines in the Land Court on human rights grounds.

Barristers Emrys Nekvapil and Kasey McAuliffe-Lake appeared in court to argue against the strike out application on behalf of our clients, supported by EDO solicitor Alison Rose and managing lawyer Sean Ryan.

“Our clients’ arguments include that the Galilee Coal Project breaches their human rights by fuelling climate change that puts the futures, lives, and cultures of Queenslanders at risk,” said Mr Ryan.

“They are relying on section 58 of the Human Rights Act, which requires a public entity to consider human rights when acting or making a decision.”

Waratah Coal’s arguments include that the Human Rights Act does not apply to these mining objection proceedings, because the Queensland Land Court will ultimately issue a recommendation to the state government, an outcome they argue does not constitute a ‘decision’ or an ‘act’.

“Our clients arguments include that the Land Court recommendation and final government decisions are within the meaning of ‘decision’ intended by the Human Rights Act,” Mr Ryan said.

The strike out application also argues that Youth Verdict and The Bimblebox Alliance cannot rely on the Human Rights Act in their objections because our clients are incorporated entities, not individuals.

“Our clients’ arguments also include that a person under the Human Rights Act includes individuals and corporations by operation of the Queensland’s Acts Interpretation Act,” said Mr Ryan.

“If this legal action by Waratah Coal is successful it would serve to limit the application of Queensland’s new Human Rights Act and constrain the ability of charities to take action to protect human rights.”

The Land Court adjourned to consider arguments related to the Human Rights Act and is expected to make a decision in the coming weeks.

The link between climate change and human rights

 Climate change is already a threat to people’s lives in Queensland, and around Australia, and our coal is making it worse.  Climate change is caused by greenhouse gas emissions and over 40% of the world’s carbon dioxide emissions are from coal.[1]

Increasing average temperatures have fuelled extreme weather such as bushfires, heat waves, flooding and drought. The greater the increase in average global temperatures, the more dangerous climate change becomes and the more people will die or have their lives threatened and disrupted as a consequence. 

The United Nations Children’s Fund (UNICEF) states that, if global heating “exceeds 4°C by the year 2100 in line with current projections, this would lead to devastating health consequences for children, due to rising ocean levels, heatwaves, proliferation of diseases like malaria and dengue, and malnutrition.” 

With the Paris Climate Agreement, the world agreed to keep global heating to well below an average of 2°C and pursue efforts to keep warming below 1.5°C. However, Australia’s climate has already warmed just over 1°C since 1910, leading to an increase in the frequency of extreme heat events.  Existing fossil fuel approvals, including coal mines, are already enough to take the world to 1.5°C warming.

The Queensland Human Rights Act states that “every person has the right to life and has the right not to be arbitrarily deprived of life.”

UN Human Rights Committee has said that climate change is one of the most pressing and serious threats to the ability of present and future generations to enjoy the right to life.[2]

The UN High Commissioner for Human Rights confirms that “governments have binding legal obligations, based on international human rights law, to undertake strong reductions in emissions of greenhouse gases.”[3]

The Right To Life

EDO lawyers will draw on the international acceptance that climate change impacts on the right to life to argue that allowing this new coal mine, and the resulting emissions making climate change worse, will violate young people’s right to life. 

Young people today are looking towards a future of increased heat waves, prolonged drought and more intense bushfires, all of which will threaten their lives. With a finite global carbon budget, every new coal mine makes the impacts of climate change worse. 

The Rights of the Child

Children are recognised in law as a vulnerable group in need of special protection. They don’t have the power to influence decisions on climate change, and yet will feel the impacts disproportionately. This case argues that the mine impacts the rights of the child by driving climate change. 

EDO will argue that the devastating impacts of climate change are both imminent and foreseeable, and therefore the Queensland Government must act to protect the rights of children by taking action to mitigate climate change.

Aboriginal and Torres Strait Islander Peoples

Youth Verdict includes young Aboriginal and Torres Strait Islander peoples, who are also objecting to the Galilee Coal Project on human rights grounds.

On their behalf, EDO will argue that approval of this coal mine limits the cultural rights of Aboriginal and Torres Strait Islander peoples because of the impacts that climate change will have on their cultural practice, connection and development. The biodiversity loss, extinction of native species and changes in annual weather patterns in Queensland brought on by climate change affects not just the environment, but the cultures that rely on it. 

Freedom From Discrimination

The Queensland Human Rights Act recognises that everyone has the right to enjoy their human rights without discrimination.

EDO lawyers will argue the mine also has an unacceptable impact on the right to be free from discrimination, because vulnerable people, including children, people in rural and remote communities  and people living in poverty, will suffer the most from climate change.

 Defending the Bimblebox Nature Refuge

The Galilee Coal project would destroy the Bimblebox Nature Refuge should it be allowed to proceed. This almost 8,000 hectare woodland property was bought in 2000  for the specific purpose of saving it from land clearing and the local community has worked hard to maintain the integrity of the ecosystem.

In 2002, a Bimblebox Nature Refuge Agreement was signed with the Queensland state government to permanently protect the conservation values of the property. The landholders and their supporters have worked hard to maintain the integrity of Bimblebox’s ecosystems ever since.

The plants and animals of Bimblebox have attracted a number of ecologists and other scientists, birdwatchers, nature lovers and artists during that time. Many of the Refuge’s species have been carefully recorded in detailed surveys.

Bimblebox is a genuine and rare example of how agriculture and biodiversity conservation can successfully co-exist. A small herd of beef cattle assist in the control of exotic pasture grasses, and a number of long-term research projects monitor practices such as fire management to help improve biodiversity outcomes across the region.

Ninety-five per cent of Bimblebox is uncleared semi-arid woodland in the Desert Uplands bioregion, roughly 500km west of Rockhampton and 30km northwest of Alpha. It is one of the largest tracts of intact native woodland in Queensland. More than 170 species of bird have been spotted; at least 45 species of vertebrates call the Nature Refuge home; and 287 plant species have been identified. Many species are rare or endangered, such as the Vulnerable Squatter Pigeon and the Near-Threatened Black-chinned Honeyeater and Black-necked Stork.

There is no way to offset such a pristine native wildlife haven.  Allowing the Galilee Coal Project to go ahead would destroy this valuable remnant habitat and undermine the idea of safely protecting nature on private land. The annihilation of Bimblebox would set a dangerous precedent for the preservation of Queensland’s biodiversity into the future.

The Bimblebox Alliance is challenging Waratah Coal’s Mining Lease and Environmental Approval on 11 grounds – including that approval would cause environmental harm and would not be consistent with the core objectives of ecologically sustainable development.

The Bimblebox Alliance is also objecting on two human rights grounds  – the right to property and the right to Privacy.

Read the objections on the Bimblebox website

[1] Global Carbon Project
[2] General comment No. 36 (2018) on article 6 of the
International Covenant on Civil and Political Rights, on the
right to life
[3] Bachelet welcomes top court’s landmark decision to protect human rights from climate change