There has been a marked rise in human rights-based proceedings being brought around the world. Given the impact of such litigation thus far, it is worth exploring why this is the case and what may still be on the horizon.
Lawyers Weekly spoke with Lucy Maxwell, co-director of the Climate Litigation Network in the United Kingdom and co-founder of the Rights Advocacy Project in Australia, to get insight into current trends in climate litigation and what the future may hold.
Cases against states
The use of human rights cases has increased, Ms Maxwell observed; there are about 100 rights-based climate cases across the globe, with more than a quarter of them having been filed since 2020.
“Human rights arguments against states are effective,” Ms Maxwell mused. “This is because there’s a well-established body of jurisprudence that cases can build upon — which exists in many countries at a national level, as well as at regional and international levels.
“Climate cases simply present a new scenario to apply well-established principles about states’ obligations to protect human rights.”
“Science plays a crucial role in climate cases,” Ms Maxwell continued. “Courts draw upon relevant scientific and legal materials, which includes the international climate law framework that states have agreed to, and the climate international climate science that they have signed up to, endorsed, and reviewed year after year in the form of IPCC reports.”
Governments are required to approve the summary of IPCC reports for policymakers, line by line, Ms Maxwell noted, so communities are using the knowledge that governments are aware of the science, risks, and needed mitigations efforts, and drawing from the well-established legal obligations governments have to protect populations within their jurisdiction.
In citing such evidence, populations can hold governments to account for what they have already committed to — which is “at the heart of climate cases against governments”, said Ms Maxwell.
Just transition litigation
The transition to net zero requires energy capture and supply to be newly created, which has led to communities being negatively affected by infrastructure that states are adopting to reduce emissions, explained Ms Maxwell.
Wind farms, and other kinds of technology, can pose issues for communities by impacting the land they inhabit, and litigation arises based on improper consultation. In these cases, procedural human rights are usually drawn upon.
While these applicants are mostly not opposed to climate action, they bring cases against states to protect their land and ensure the energy transition is done in a way that respects and protects the rights of all within the state, Ms Maxwell illuminated.
Where in the world?
Mitigation cases often seek to push mitigation efforts by states to prevent climate harms, meaning a lot of litigation focuses on the highest emitting countries, which are located in the Global North, Ms Maxwell outlined.
There is a large focus on the governments that are historically responsible and continue to emit huge amounts per capita, she explained.
There is also an increasing amount of litigation in the Global South, Ms Maxwell noted; the first case to establish that a government had a duty to protect its people from the harms of climate change through adaptation was made in the local High Court in Pakistan.
“National courts around the world have indicated that human rights provide a clear legal basis for states’ obligations to act on climate change,” Ms Maxwell observed, meaning there’s likely to be a continuation of “scrutiny in how states are achieving their mitigation targets, and whether they’re relying on risky amounts of carbon dioxide removal.
“We’re going to see many more communities around the world using human rights arguments to ensure that their governments protect them through adaptation measures,” she added.
Coalwire: Court recommends against Australian coal mine: Queensland Land Court President, Fleur Kingham, has recommended against approval of a mining licence for Waratah Coal’s proposed Galilee Coal Project. Mining and property billionaire Clive Palmer owns the company. In her ruling, Kingham said the 1.58 gigatonnes of greenhouse gas emissions from the proposed 40 million tonnes a year thermal coal mine would pose an “unacceptable” risk to Queensland people and property. The challenge against the mine was filed by First Nations-led Youth Verdict and The Bimblebox Alliance. Kingham said approving the mine would “narrow the options” for achieving the goals of the Paris Agreement, with the potential displacement and destruction of First Nations culture counted against approving the project. She also found the ecological value of the privately owned Bimblebox nature reserve would be “seriously and possibly irreversibly damaged” by the mine. The Queensland Minister for Resources, Scott Stewart, and Minister for Environment, Meaghan Scanlon, can reject or approve Waratah Coal’s lease.
Indigenous-led group wins landmark case against Clive Palmer coal plan
Photo from YouthVerdict.org.au
First Nations-led activist group Youth Verdict have won a landmark case in their challenge against Waratah Coal’s proposal for the largest coal mine in Queensland.
Waratah Coal, owned by Clive Palmer, had proposed the mine to be in the Galilee Basin in Central Queensland and they were challenged by Youth Verdict on human, climate and environmental rights.
Youth Verdict, alongside The Bimblebox Alliance, challenged the proposal in Queensland Land Court where President Fleur Kingham recommended the application should be rejected by the resources and environment ministers.
“I have found that several human rights would be limited by the project, the right to life, cultural rights, the rights of children, the rights to enjoy human rights equally…I have decided the limit is not demonstrably justified” Ms Kingham said.
“Wherever the coal is burnt it will contribute to environmental harm, including in Queensland.”
“I would like to acknowledge the First Nations witnesses, your hospitality and generosity in sharing knowledge with me.”
Justice Kingham recognised that the mine’s impact on climate change would infringe on “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,”
She found the economic benefits did not outweigh the costs of climate change to the people of Queensland.
Murruwah Johnson from Youth Verdict commented on the victory.
“We are overjoyed.”
He continued “The voices of First Nations Queenslanders have been heard. A court has recognised the human and cultural rights of First Nations peoples are impacted by climate change and has recommended that this mine not be approved.”
Paola Cassoni of The Bimblebox Alliance echoed this sentiment as she described the victory as a “landmark win for nature”.
“Today is a huge sigh of relief for us after the 15 years’ nightmare of fighting this project. Hopefully we can now go back, with the help of our volunteers, to fully concentrate on looking after Bimblebox.”
EDO (Environmental Defenders Offices) Lawyers managing lawyer Sean Ryan, who represented Youth Verdict and The Bimblebox Alliance, said the issue now falls to the Queensland Government to decide on Waratah’s mining lease.
“We urge the relevant ministers to act swiftly and in accordance with the court’s findings.”
Ministers for Resources and Environment, Scott Stewart and Meaghan Scanlon respectively, are those who hold power in determining the future of Waratah’s lease application.
Youth Verdict’s comments on the verdict called for further support in their fight.
“After today’s historic win, we’re committed to growing, strengthening and continuing this fight with First Nations justice at its core. Support us to take the fight to the next level”
Calling for further fundraising they said “On 25 November, 2022, we beat a billionaire, we need your support to take this fight to the next level. With your support, we will work to ensure government upholds the decision of the court and keeps Clive’s coal out of Queensland”.
The Queensland Government have not yet commented on the result.