lexisnexisip.com

Climate change litigation in Australia – an update

Friday 28 April 2023

Mike Hales; Nicole Phillips
MinterEllison, Perth

Climate change litigation continues to develop in Australia. There has been a particular emphasis on human rights arguments despite the fact that Australia's Constitution does not expressly create any human rights. 

Recent Australian decisions

Torres Strait Islanders' petition

Last year, the first climate change legal action in Australia to allege that a failure to address climate change was a violation of human rights was decided. In 2019, a group of Torres Strait Islanders submitted a petition to the United Nations Human Rights Committee (UNHRC) against the Australian government, claiming that their rights under the International Covenant on Civil and Political Rights (the right to culture, the right to life, and the right to be free from arbitrary interference with privacy, family and home) had been violated due to the government's failure to address climate change.

The Islanders argued that changes in weather patterns were directly affecting their livelihood, culture and traditional way of life. They claimed that the changes in climate had degraded their land and trees, reducing the amount of food available from traditional fishing and farming. There had also been an increase in flooding which had destroyed family graves and scattered human remains across the islands.

In September 2022, the UNHRC found that Australia's failure to adequately protect indigenous Torres Strait Islanders against the impacts of climate change had violated their rights under the Covenant. The UNHRC took into account the dependence of indigenous minority cultures on a healthy environment and the strong cultural and spiritual link between the Islanders and their traditional lands.

The UNHRC found that Australia has an obligation to make full reparation to the Islanders whose rights were violated by way of compensation, engaging in meaningful consultations with the Islander communities, and implementing measures to secure the communities' safe existence on their respective islands. The UNHRC held that Australia is also under an obligation to take steps to prevent similar violations in the future. 

Decisions of the UNHRC are not legally binding, meaning Australia is not obliged to follow its recommendations. However, the federal government has said that it is considering the ruling.

Waratah Coal 

At the state level, the Queensland Land Court handed down a decision in November 2022, making recommendations against granting a mining lease and environmental authority for a thermal coal mine on the basis of unacceptable climate change impacts and incompatibility with human rights: Waratah Coal Pty Ltd v Youth Verdict & Ors [2022] QLC 21. 

The applicants adduced expert evidence regarding the impacts of climate change and the urgency of reducing emissions. Waratah Coal sought to argue that the proposed mine would produce coal that was of a better quality than other, higher emissions coal, and displace the need for lower quality coal mines to be opened. In Queensland, the courts had a history of accepting this 'substitute' argument with the view that if one mine did not supply the coal, another mine would, meaning approval of the mine would have no impact on climate change. However, in this case the Court rejected this approach, finding that there was insufficient evidence to show that the coal would actually be of better quality than other options. The failure of the 'substitute' argument marks the beginning of new territory for climate change litigation in the Australian coal sector.

It is also important to note that Queensland has enacted the Human Rights Act 2019 (Qld), making it one of three Australian states to have human rights legislation. This legislation was an important factor in the Court reaching its decision, with an emphasis on protecting the right to life, the rights of First Nations People, the rights of children, the right to property of people in Queensland and the right to enjoy human rights without discrimination. The Court found that the material contribution of the mine to climate change and consequential infringement of these rights would outweigh any economic benefit of the production of coal.

Pending decisions 

Pabai

In Pabai & Anor v Commonwealth of Australia (VID 622 of 2021), Torres Strait Islanders have brought a class action against the federal government in the Federal Court. The applicants are seeking a declaration that the Commonwealth has breached a duty of care it owes the Islanders to take reasonable steps to protect them, their way of life and the marine environment from the current and projected impacts of climate change. The applicants are seeking an injunction requiring the Commonwealth to take action against climate change and greenhouse gas emissions, as well as damages. A trial is set to take place in June 2023.

Given the UNHRC has already held the Australian government accountable for not taking action to prevent the damaging effects of climate change, it will be significant if a formal duty of care is not recognised by the Court.

Woodside Energy

In Australian Conservation Foundation Incorporated v Woodside Energy Ltd & Anor (VID 345 of 2022), the Australian Conservation Foundation (ACF) is opposing an offshore gas processing facility off the coast of Western Australia proposed by Woodside Energy.

The claim is brought pursuant to the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) which prohibits action being taken that will have a significant impact on a National Heritage place.

In 2014, the minister responsible for administering the EPBC Act made a decision to streamline the approvals process for petroleum and greenhouse gas storage activities, delegating authority to the National Offshore Petroleum Safety and Environmental Management Authority to regulate approvals pursuant to the Offshore Petroleum and Greenhouse Gas Storage Act 2006 (Cth). This program means that approval of these activities is not subject to the EPBC Act. However, actions which will have, or are likely to have, a significant impact on national or world heritage property are excluded from the program and must be assessed in accordance with the EPBC Act.

The applicant is alleging that the pollution caused by the project will fuel an increase in the global average surface temperature, damaging the Great Barrier Reef in the process. By alleging that the proposal will damage a world heritage site, ACF are seeking to bring the approval process back within the stricter jurisdiction of the EPBC Act. Significantly, the Great Barrier Reef is found on the east coast of Australia, over 3000 kilometres away from the proposed gas facility. ACF claims that the project will create at least 878 million tonnes of greenhouse gas emissions and are seeking an injunction to restrain Woodside from carrying out their proposal.

If ACF is successful, it will set a precedent for all future offshore petroleum and greenhouse gas emitting projects in Australia's energy and resources sector to be considered under the national environment law. 

Future implications

Climate change litigation is developing in relation to human rights, project approval and corporate accountability. 

Potential future difficulties may arise as the tension grows between the impacts of climate change and the economic value of the energy and resources industry. If the Federal Court accept ACF's submissions that a gas facility can have a global effect on the environment, it may be possible to object to almost any large offshore petroleum or greenhouse gas emitting project that is estimated to produce emissions over a certain threshold. Of particular interest will be whether a new form of global 'substitution' argument emerges that submits that if a certain project is not undertaken by Australia, it will be undertaken by another country, nullifying any purported protection of the environment.

There is also the possibility that other states will look to adopt human rights legislation, and the decision in Pabai might introduce them at a federal level. If this were to happen, the Waratah case has shown that obtaining approvals for mining projects will be assessed through the lens of human rights, increasing the likelihood of pushback from environmental activist groups.

Further, if the Court makes a finding in favour of the Torres Strait Islanders in Pabai, any reparation orders will be significant in light of the UNHRC's recent decision against the Australian government. Deciding appropriate remedies is difficult, as the assessment of damages for the harmful effects of climate change is a new concept which has yet to be considered in detail by the courts.