On Tuesday 16 October the Climate Justice Network, sponsored by the law faculty of the University of Tasmania, organised a public forum about Giving Future Generations a Voice.

You can find the recording of this night below. We apologise for the bad resolution, but hope you can nevertheless enjoy the recording as a podcast.

The night was moderated by former Tasmanian Anti-Discrimination Commissioner Robin Banks, and the panel included:

Prof Jonathan Boston (Victoria University of Wellington, NZ)
Associate Prof Bridget Lewis (School of Law, QUT)
Dr Peter Lawrence, (Senior Lecturer, UTAS Faculty of Law )
Jan Linehan (Adjunct Researcher, UTAS Faculty of Law)
Dr Phillipa McCormack (post-doctoral researcher Adelaide Law School, Adjunct Lecturer UTAS Faculty of Law)
Nicky van Dijk (PhD-candidate, UTAS Faculty of Law)
Cleo Hansen-Lohrey (PhD-candidate, UTAS Faculty of Law)

Fossil fuel subsidies should be prohibited and phased out globally. They encourage, rather than deter, the extraction and consumption of fossil fuels, and in doing so set the world back in efforts to address the climate crisis, including through the achievement of the Paris Agreement’s goal to limit global warming to 2°C, and as close to 1.5°C as possible.

Yet the Australian Government, amongst others, continues propping up the coal, oil and gas sectors with public money. The Prime Minister has spoken of a ‘gas-fired recovery’ from the economic hit of the COVID-19 pandemic, a frightening concept following the 2019-2020 Australian bushfire season. To deal with one crisis by exacerbating another is of course not a sensible way to ‘recover’. 

And gas is just one fossil fuel the Government seems determined to support financially. Set to be Australia’s largest mine, the Carmichael Coalmine is being developed in Central Queensland by Bravus Mining and Resources (Bravus), formerly Adani. The Queensland Government has granted the mine a seven-year ‘royalty holiday’, which means postponing the payment of royalty fees for coal sold from the Carmichael Coalmine.

Internationally, subsidies are regulated by the World Trade Organisation’s (WTO) Agreement on Subsidies and Countervailing Measures (ASCM). The ASCM specifically prohibits certain subsidies and classifies other subsidies as ‘actionable’ if they cause adverse effects to other WTO Members.

Is the royalty holiday a subsidy?

For the purposes of the ASCM, a subsidy is deemed to exist if there is a financial contribution by a government or public body and a benefit is thereby conferred. The agreement between Bravus and the Queensland government is that the royalties will be deferred and eventually repayable with interest, which constitutes a loan. While the royalty holiday is not an explicit ‘transfer’ of funds, similar measures including tax concessions and the modification of a loan through debt forgiveness have been held to constitute a direct transfer of funds by the WTO in the past, fitting within its definition of a ‘financial contribution’. Moreover,the annual interest rate of 2-3% is more favourable than any commercial loan available to other Queensland industries or to Queenslanders themselves, meaning the loan confers a benefit to Bravus.

It the royalty holiday prohibited by the WTO?

The ASCM prohibits certain subsidies, including those contingent in law or fact on export performance.

The negotiations of the royalty holiday at issue were shrouded in secrecy, and there has been no disclosure of the loan’s value, size, the length of repayment, or the type of security. We cannot know whether its granting was contingent in law on export performance.

But a subsidy is de facto export contingent when its granting is ‘geared’ to promote the recipient’s ‘future export performance’. Factors that can indicate export contingency include the country’s awareness that their domestic economy is unable to absorb the subsidized product’s production, the recipient’s export orientation, and the scale of exports, amongst other things.

The ASCM is clear that a WTO Member, which Australia is, shall neither grant nor maintain subsidies contingent, in law or in fact, upon export performance.

We know that coal production for domestic consumption, especially on the scale proposed by Bravus, is unnecessary. Demand is met by current production levels, and renewables continue to decrease domestic demand for coal. The Australian economy is unable to absorb the Carmichael Coalmine’s coal. Bravus is clearly export orientated, making well known its intention to export coal primarily to India. And the scale is vast: the Carmichael Coalmine will produce over 2.3 billion tonnes of coal over its 60-year lifespan.

Based on these factors, it seems the royalty holiday is indeed de facto export contingent, and hence prohibited by the WTO’s ASCM.

What next?

Despite the vast scale of fossil fuel subsidies globally, no disputes have been brought before the WTO challenging them under the ASCM. They seem to be tolerated despite being at odds with the WTO’s core values of open markets and trade liberalization, as well as its commitment to sustainable development.

In theory, any WTO member that has reason to believe that a prohibited subsidy is being granted or maintained by another member may refer the matter to the Dispute Settlement Body. This Body will establish a panel to determine whether the measure in question is a prohibited subsidy, and will recommend the subsidy be removed if it is found to be prohibited.

However, the lack of transparency in subsidy reporting in accordance with ACSM requirements may prevent members from taking action on, or negotiating an end to subsidies. The strongest hope for action lies in non-government organisations, notifying Bravus royalty holiday to the WTO Secretariat’s Trade Policy Review Body. This body regularly reports on the trade policies of WTO members, which can shame members into compliance with WTO law, and encourage others to take action through the WTO’s dispute settlement system.

Andonny Papastamatis is a final year Bachelor of Arts and Bachelor of Laws student at the University of Tasmania

Camilla More is a researcher and Australian-qualified lawyer, specialising in international climate law and policy. She holds a Bachelor of Science and Bachelor of Laws with Honours from the University of Tasmania. 

Last week, a group of young Queenslanders – via an organisation called “Youth Verdict” – announced that they are challenging Clive Palmer’s Galilee Coal Project development by lodging objections in Queensland’s Land Court.

The challenge relies on Queensland’s nascent Human Rights Act 2019 and thus represents the first time in an Australian court that a human rights claim has been raised in the context of climate change and fossil fuel development. A summary of the legal and factual basis of the challenge prepared by the Environmental Defenders Office (the lawyers representing Youth Verdict) is available here, and an academic discussion of the potential applicability of Queensland’s Human Rights Act to challenges to coal developments in Queensland can be found here.

This is an exciting test case of the applicability of the Human Rights Act’s protection of the right to life (among other rights) to new fossil fuel developments that will contribute to climate change. The challenge also reflects a continuation of the so-called “rights turn” in global climate change litigation. The stories of the young people represented by Youth Verdict have been front-and-center in the challenge’s early media coverage, suggesting a strategic convergence between climate litigants and the broader, youth-dominated Australian climate movement. And the use of the #youthvcoal hashtag to promote the challenge on social media further indicates a desire to connect the challenge to other youth-focused climate lawsuits globally (e.g. #youthvgov and #youthvcan).

It will be very interesting to see to what extent Youth Verdict appeals to, and to what extent the Land Court adopts, foreign and international jurisprudence on human rights and climate change. Thanks to a series of recent statements from various UN bodies, it is increasingly beyond question that – from the standpoint of international law – greenhouse gas emissions contributing to climate change violate human rights, and governments therefore must reduce emissions to protect human rights. The Urgenda judgment in early-January, which was based in-part on Article 2 of the European Convention on Human Rights’ protection of the right to life, provides a further precedent on which the Land Court potentially could base its reasoning. It is difficult to imagine the Land Court diverging greatly from this body of jurisprudence, let alone rejecting it wholesale.

However, it is not beyond the realm of possibility that the Land Court may find other ways to reject or avoid considering Youth Verdict’s challenge. One reason – foreshadowed by Bell-James and Collins – would be if the market substitution argument (i.e., that if coal is not sourced from this mine it necessarily will be sourced from elsewhere) were accepted, and thereby undermined Youth Verdict’s claim of a causal link between approving new coal developments and human rights impacts from climate change. Given that the proceedings before the Land Court are a merits review, and given recent judgments like Gloucester Resources, such an outcome would run against trends in other Australian jurisdictions.

A further reason for rejecting the challenge could be on justiciability grounds. This too would be somewhat puzzling. Refusing consideration of the human rights impacts from the greenhouse gas emission of new coal developments, in circumstances where Queensland’s parliament has explicitly empowered the Land Court to consider human rights, and where other courts have affirmed that human rights are inextricably linked with climate change, would be emblematic of what Kysar and Ewing have called a “duck and weave” approach to adjudicating climate change. While those authors were referring to tort claims, their cautioning against “a jurisdictional self-limitation that unnecessarily impedes the ability” of the judiciary “to continue to evolve with changed circumstances and to remain open for the airing of future grievances” arguably applies with even greater force where a statutory claim is concerned. On the other hand, a full and thorough consideration by the Land Court of Youth Verdict’s claims – whatever the ultimate result – would mark the first time an Australian court had considered the merits of human rights arguments in a climate change context, and would contribute greatly to the ongoing maturation of climate change litigation in Australia.

Danny Noonan is a climate change advocate, scholar, and Australian-qualified lawyer. He is a co-founder and board member of Breach, a newly-established organisation that partners with frontline communities to advance climate justice through legal advocacy, grassroots organizing, and strategic communications.

 One of the most striking features of the coronavirus pandemic currently sweeping the world is that the disease appears to have far graver consequences for older people than for youth. According to a new study that analyses the effects of coronavirus in China during January and February, the severity of the disease increases markedly as the age of those afflicted rises. In China, victims under 40 faced a fatality rate of less than 0.1 percent, and were far less likely to need hospitalization at all than other patients; victims in their 60s, on the other hand, experienced a fatality rate of about 2 percent, and those over 80 a rate of almost 8 percent. (It’s worth noting, though, that hospitalization and mortality rates for younger people appear to be higher in the U.S. and perhaps other countries.)

Public health officials have as a result faced a challenge in conveying to young people who believe they are unlikely to suffer severe consequences if they contract the virus that they nonetheless need to make sacrifices to protect their elders. Specifically, they have been asked to maintain social distancing and, in many cases, to make significant financial sacrifices as multiple streams of the economy dry up. It’s no wonder that this has not always been an easy sell for public health agencies, and that many news accounts have showcased young people rebelliously gathering at such hotspots as college spring break destinations in Florida, Bondi Beach in Sydney, and even so-called “coronavirus parties.” 

Overall, though, it has been striking to witness how calls to maintain social distancing in order to “flatten the curve” and reduce chances of catastrophic collapses in health-care systems have largely been heeded in a sort of demographic solidarity. As teenage climate activist Greta Thunberg tweeted, “We young people are the least affected by this virus but it’s essential that we act in solidarity with the most vulnerable and that we act in the best interest of our common society.”

The coronavirus crisis, then, represents a remarkable mirror image of how intergenerational justice considerations play out around our changing climate. The breakdown of the Earth’s relatively stable climate is a monumental crisis whose costs will be greatest for those who have the most years left to live. It’s impossible to ascribe climate change to any single generation, since both causes and effects have been building for many decades—yet because the causes and likely consequences of climate change have been well known for at least three decades, it is possible to assign especial blame to those who have been in positions of power and privilege during those years. Which means: people who are older now who have consistently favoured short-term goals such as profit and comfort over long-term concerns.

One of the principal arguments of the youth climate movement is that the climate crisis calls for a shift from generational self-interest to intergenerational justice. As Thunberg told assembled world leaders at the United Nations Climate Action Summit last fall: “You are failing us. But the young people are starting to understand your betrayal. The eyes of all future generations are upon you. And if you choose to fail us, I say: We will never forgive you. We will not let you get away with this.”

The coronavirus crisis, then, raises important questions about the workings of intergenerational equity and sacrifice. If coronavirus is to be controlled, young people need to give up some freedom and economic opportunity so that the primary beneficiaries—older people—can live. But if the climate crisis can be controlled at all so that today’s young people have a shot at a liveable future, it is those who are in positions of political, economic, and social power today—primarily older people—who need to sacrifice some comfort and profits for the sake of the future. Assuming the coronavirus crisis abates, will world leaders such as President Donald Trump in the U.S. and Prime Minister Scott Morrison in Australia, both of whom have been very friendly toward fossil fuel interests, finally concede that generational turnabout is fair play, and that they’re willing to foreground the interests of the young?

Peter Friederici is director of the Sustainable Communities Program and a professor in the School of Communication at Northern Arizona University. Peter writes on science and climate communication-among other things. Peter and his family recently visited Tasmania. Corvid 19 meant his visit was shortened, but we are hoping he will write for us again and come back soon.