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See https://www.urgenda.nl/en/themas/climate-case/

Relevance of the Urgenda case to Queensland

Photo: Urgenda

Outline

1. Why is a decision from The Netherlands relevant to you?

2. Context: climate change threat to human rights in Queensland

3. Overview of the Urgenda Case

4. Relevance to Queensland: the new Human Rights Act 2019 (Qld)

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Reference & handout:

Why is a decision from The Netherlands relevant to you?

(as a Queensland lawyer)

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Because it has important implications for interpreting

key rights in the Human Rights Act 2019 (Qld).

Context: climate change threat to human rights in Queensland

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Article 2 of Paris Agreement sets (hard) 2°C and (aspirational) 1.5C targets

Paradox: the Paris Agreement was both an amazing success and a tragic failure.

Credit: Paris COP / Flickr

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Effect on extreme temperatures from increase in mean temperature

Source: Garnaut 2008 based on IPCC (2001b: Figure 4.1)

Source: Australian Bureau of Meteorology and CSIRO, State of the Climate 2014, p 5. http://www.bom.gov.au/state-of-the-climate/

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The frequency of extreme heatwaves and fire conditions in Australia increased from 1910-2017

Source: Australian Bureau of Meteorology and CSIRO, State of the Climate 2018, p 8.

5 December 2017

Picture: New York Times

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What are the expected impacts on the GBR of raising mean global

temperatures by 1.5°C or 2°C?

(Nb. We have warmed mean global temperatures by around 1°C at present.)

Photographer: unknown

A before and after image of the bleaching in American Samoa. The first image was taken in December 2014. The second image was taken in February 2015 when the XL Catlin Seaview Survey responded to a NOAA coral bleaching alert. Source: XL Catlin: http://www.globalcoralbleaching.org/#graphics

Coral bleaching

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Coral bleaching at Pelorus Island, GBR

1998 2002 2004

Photos: GBRMPA Reef Manager’s Guide to Coral Bleaching

Source: ARC (Corals) via https://www.theguardian.com/environment/2018/dec/10/great-barrier-reef-surviving-corals-greater-heatwave-resistance

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Hughes et al (2017) “Global warming and recurrent mass bleaching of corals” Nature 543: 373–377 found:

• “no support for the hypothesis that good water quality confers resistance to bleaching”

• “no effect of the level of protection (in fished or protected zones) on bleaching”

• “no evidence for a protective effect of past bleaching (for example, from acclimation or adaptation)”

• “local management of coral reef fisheries and water quality affords little, if any, resistance to recurrent severe bleaching events: even the most highly protected reefs and near-pristine areas are highly susceptible to severe heat stress”

• “Securing a future for coral reefs, including intensively managed ones such as the Great Barrier Reef, ultimately requires urgent and rapid action to reduce global warming.”

Released 8 October 2018

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“Coral reefs … are projected to decline by a further 70–90% at 1.5°C (high confidence) with larger losses (>99%) at 2ºC (very high confidence). …

Tropical coral reefs will reach a very high risk of impact at 2ºC with most available evidence suggesting that coral dominated ecosystems will be non-existent at this temperature or higher (e.g., coral abundance near zero in most locations, intensifying storms ‘flattening’ reefs’ 3-dimensional structure) (high agreement, robust evidence). Impacts at this point (coupled with ocean acidification) are likely to undermine the ability of tropical coral reefs to provide habitat for the current high levels of biodiversity as well as a range of ecosystem services important for millions of people (e.g., food, livelihoods, coastal protection, cultural services). …”

Intergovernmental Panel on Climate Change (IPCC), Global Warming of 1.5C: an IPCC special report (IPCC, Geneva, 8 October 2018)

http://ourislandsourhome.com.au/

Climate litigation in Australia

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See https://www.urgenda.nl/en/themas/climate-case/

Overview: Urgenda Foundation v State of Netherlands The Hague Court of Appeal, 9 October 2018 (currently subject to appeal), based on Art 2 & 8 of the European Convention for the

Protection of Human Rights 1950 (ECHR).

Photo: Urgenda

District Court of the Hague

Timeline of Urgenda trial & appeal(in reverse chronological order)

• Trial decision on 24 June 2015 based on Dutch Civil Code (not ECHR / human rights)

• Case commenced 2013

Court of Appeal of the Hague

Supreme Court of the Netherlands

• Court of Appeal decision on 9 October 2018 based on ECHR / human rights

• Appeal commenced September 2015

• Decision reserved

• Oral argument heard 24 May 2019

• Cassation proceedings* commenced 2019. At issue is how the government’s policy choices are reviewed by the courts.

* “Cassation proceedings” are limited to questions of law based on the facts established in a lower court.

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Urgenda Foundation supporters gather for the hearing at the Netherlands' Supreme Court in May 2019. Photo credit: Koen Van Weel/Getty Image / Climate Liability News https://www.climateliabilitynews.org/2019/05/28/urgenda-netherlands-emissions-human-rights/

Art 2 of the ECHR

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Art 8 of the ECHR

See https://www.urgenda.nl/en/themas/climate-case/

Urgenda Foundation v State of Netherlands at [40] & [43] The Hague Court of Appeal, 9 October 2018.

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The right to life and a right to protection from unlawful interference with a person’s family or home are protected under the International Covenant on Civil and Political Rights 1966 (ICCPR), of which Australia is a party and has incorporated into domestic law.

Rights under the ICCPR are the core of the definition of “human rights” in the Australian Human Rights Commission Act 1986 (Cth) and it is annexed as Sch 2 to that Act.

The ICCPR is also incorporated at a state and territory level under the Charter of Human Rights and Responsibilities Act 2006 (Vic), Human Rights Act 2004 (ACT), and the Human Rights Act 2019 (Qld)

Urgenda has already influenced important Australian judicial and

administrative decisions on considering climate change impacts of coal mines:

Gloucester Resources Limited v Minister for Planning[2019] NSWLEC 7; (2019) 234 LGERA 257 (Preston CJ) (Rocky Hill Mine) & NSW Independent Planning

Commission rejection of the Bylong Coal Project (September 2019).

See http://envlaw.com.au/gloucester-resources-case/

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Human Rights Act 2019 (Qld)

Intended to enshrine ICCPR, UDHR, UNDRIP, ICESCR

Commences: 1 January 2019

Main objects: a) to protect and promote human rights; and b) to help build a culture in the Queensland public

sector that respects and promotes human rights; and

c) to help promote a dialogue about the nature, meaning and scope of human rights.

NB: No right to a healthy environment

23 rights protected by HR Act, including:

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Section 16 (Right to life)

See https://www.urgenda.nl/en/themas/climate-case/

Urgenda Foundation v State of Netherlands at [40] & [43] The Hague Court of Appeal, 9 October 2018.

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International judgments such as Urgenda are relevant to interpreting human rights under Qld law (s 48(3) of Human Rights Act 2019 (Qld))

Section 48(3) of the HR Act reflects common law principles:

“As the case law points out, an important consideration in examining legislation intended to implement international agreements is to give weight to the construction which the international community would attribute to the relevant instrument or concept: see Queensland v Commonwealth (1989) 167 CLR 232 at 240 [the Wet Tropics Case per Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ]. In the present case the decisions of the European Court of Justice and the views of the GATT Panel should be accorded substantial weight in the light of this principle. Moreover, as a broad principle, it is obviously desirable that expressions used in international agreements should be construed, so far as possible, in a uniform and consistent manner by both municipal Courts and international Courts and Panels to avoid a multitude of divergent approaches in the territories of the contracting parties on the same subject matter. ”

:Rocklea Spinning Mills PL v Anti-Dumping Authority (1995) 56 FCR 406 (Full Fed Ct per Spender, Einfield and Tamberlin JJ) at 421 [54].

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Another relevant statutory interpretation principle is that it is well-accepted that human rights legislation should be given a fair, large and liberal interpretation, rather than a literal or technical one.

See: Coburn v Human Rights Commission [1994] 3 NZLR 323 at 333-334 (Thorp J) (cited with approval in the context of interpreting beneficial and remedial legislation to IW v Perth (1997) 191 CLR 1 at 12 (Brennan CJ and McHugh J), 39 (Gummow J) and 58 (Kirby J); and State of Queensland v Maryrorough Solar Pty Ltd [2019] QCA 129 at [16] (Fraser JA with whom McMurdo JA and Boddice J agreed)); DAS v Victorian Equal Opportunity and Human Rights Commission (2009) 24 VR 415, 434 [80] (Warren CJ); De Bruyn v Victorian Institute of Forensic Mental Health (2016) 48 VR 647, 691 [126] (Riordan J); Certain Children by their Litigation Guardian Sister Marie Brigid Arthur v Minister for Families and Children (2016) 51 VR 473, 496 [143] (Garde J)

The ultimate effect is that, while the Human Rights Act 2019 (Qld) does not expressly recognise a free-standing “right to a healthy environment”, combined with Urgenda the right to life in s 16 becomes a de-facto:

Right to an environment that does not endanger life.

Climate change poses a clear threat to this right.

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“Piggyback" a human rights claim on to another claim

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“Piggyback" a human rights claim on to another claim

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The Human Rights Act 2019 (Qld) will, no doubt, raise many complex questions in practice.

See, eg, Momcilovic v R (2011) 245 CLR 1; [2011] HCA 34 (concerning affect of Charter of Human Rights and Responsibilities Act 2006 (Vic) on proof of drug trafficking charges.

Outline

1. Why is a decision from The Netherlands relevant to you?

2. Context: climate change threat to human rights in Queensland

3. Overview of the Urgenda Case

4. Relevance to Queensland: the new Human Rights Act 2019 (Qld)

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