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Claims based on human rights are increasing

Evolving jurisprudence on climate change questions has also brought other sources of government liability into sharper focus. Human rights instruments and climate change-specific legislation, in particular, are emerging as tools accessible by citizens to compel government action.

A recent illustration is the decision of the Supreme Court of Netherlands in Urgenda (previously mentioned) in which it was held that individual nations have direct obligations under articles 2 and 8 of the European Convention on Human Rights, covering the right to life and the right to private and family life. The case, commenced in 2013 by the Dutch environmental foundation Urgenda on behalf of approximately 900 citizens, alleged that the Government had failed to take responsibility for the Netherlands' contribution to the global climate crisis.

According to the Supreme Court, the Dutch Government had the legal duty to prevent dangerous climate change on the basis of fundamental rights. Accordingly, it was appropriate for the court to rule that the State was required to achieve a reduction in its greenhouse gas emissions of at least 25% by 2020.

David Boyd, the UN Special Rapporteur on Human Rights and the Environment, has described the case as 'the most important climate change court decision in the world so far, confirming that human rights are jeopardised by the climate emergency and that wealthy nations are legally obligated to achieve rapid and substantial emission reductions',[23] and commentators have predicted that decisions such as these could 'pave the way for a flood of new climate-related legal claims against governments'.[24]

'...the most important climate change court decision in the world so far, confirming that human rights are jeopardised by the climate emergency and that wealthy nations are legally obligated to achieve rapid and substantial emission reductions.'

David Boyd, UN Special Rapporteur on Human Rights and the Environment, on Urgenda Foundation v State of the Netherlands

Rights-based legal action has also been brought in the Netherlands against corporates. In April last year, Friends of the Earth Netherlands, Greenpeace Netherlands, five other organisations and over 17,000 Dutch citizens filed a complaint against Royal Dutch Shell in the Hague, in order to 'legally compel the company to cease its destruction of the climate'.[25] According to the claimants, Shell had failed to align its business model with the goals of the Paris Climate Agreement, thereby putting itself in breach of a Dutch law prohibiting 'unlawful endangerment' of its human rights obligations by taking insufficient action against climate change. The plaintiffs are not seeking financial compensation, but are asking Shell to adjust its business model in order to keep global temperature rise below 1.5 degrees Celsius. The influence of international climate agreements and human rights treaties – which, unlike the Dutch State, Shell is not a party to – remains to be seen.[26]

In addition to these state-based claims, an international complaint, brought by six young Portuguese plaintiffs against 33 countries,[27] was filed in the European Court of Human Rights on 2 September 2020.[28] Relying on the European Convention on Human Rights, the plaintiffs are claiming that their right to life is threatened by the effects of climate change (such as forest fires in Portugal), that their right to privacy includes their physical and mental wellbeing and is being threatened by heatwaves that force them to spend more time indoors.[29]

Notable actions in Australia and South East Asia

As well as rights-based claims in the courtroom, the turn to human rights in climate legal action is being seen in a complaint being handled by the United Nations Human Rights Committee lodged in May 2019 by a group of Torres Strait Islanders. The complaint alleges that the Australian Government has failed to take adequate action to reduce emissions or pursue proper adaptation measures and, as a consequence, has violated a number of articles of the Universal Declaration of Human Rights, including the right to culture (article 27), the right to be free from arbitrary interference with privacy, family and home (article 12), and the right to life (article 3). Similarly, a complaint lodged in 2016 by Greenpeace South-East Asia and other local environmental groups with the Philippines Human Rights Commissioner, is requesting that the Commissioner determine whether 47 companies were violating the rights of Filipino citizens.

In Queensland, the recently enacted Human Rights Act 2019 (Qld) (Queensland HR Act) is being used to challenge the proposed Galilee Coal Project, one of nine proposed mines in the Galilee Basin, in central Queensland. Youth Verdict, a group of young people under 30 represented by the Environmental Defenders Office, has lodged an objection against the mine in the Queensland Land Court, arguing that it infringes on a number of their rights under the Qld HR Act, including the right to life, the protection of children and the right to culture. The objectors are petitioning the Land Court of Queensland to recommend that the Mining Lease and Environmental Approval for the Galilee Coal Project be refused.

If successful, the Youth Verdict case will have national, and potentially international, ramifications. There is of course the possibility of follow-on rights-based litigation, but perhaps even more importantly, it would sound a warning to Government more generally that their decision-making on carbon intensive projects will be open to scrutiny (and in some jurisdictions) legal challenge on human rights grounds, and this could further influence environmental and land use regulators' behaviours.

High degree of transferability between rights-based regimes around the world

One of the powerful aspects of rights-based litigation is that there is a high degree of homogeneity between rights-based regimes around Australia and the world. Commonly litigated rights, such as the right to life, the right to property, children's rights and the right to culture, are essentially universal. Accordingly, notwithstanding jurisdictional differences, there will be a high degree of transferability in jurisprudence on this topic around the country and the world.

No doubt Victorian and ACT government decision makers, who are required to uphold the same rights as those being tested in the Youth Verdict case (under the Charter of Human Rights and Responsibilities Act 2006 (Vic) and the Human Rights Act 2004 (ACT) respectively), will watch that case closely.

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