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.