Australia: Lessons from Rocky Hill: why proponents of major projects need to consider the link between climate change and human rights

Last Updated: 24 May 2019
Article by Christine Covington and Phoebe Wynn-Pope

Probably the most controversial and much-discussed aspect of the recent refusal by the NSW Land and Environment Court of planning approval for the Rocky Hill coal mine is how the Court supported its decision by drawing on international jurisprudence linking fossil fuels and climate change.

But by refusing development consent on the basis of the mine's likely contribution to climate change and adverse social impacts, the Court has also drawn our attention to the increasing importance of human rights considerations in assessing the impact of major projects.

Proponents of major projects should be mindful of the link between climate change and human rights, particularly when assessing the public interest criterion of project impacts.

In an evocative closing paragraph, the Court summarised the basis for its decision:

'...an open cut coal mine in this part of the Gloucester valley would be in the wrong place at the wrong time. Wrong place because an open cut coal mine in this scenic and cultural landscape, proximate to many people's homes and farms, will cause significant planning, amenity, visual and social impacts. Wrong time because the GHG emissions of the coal mine and its coal product will increase global total concentrations of GHGs at a time when what is now urgently needed, in order to meet generally agreed climate targets, is a rapid and deep decrease in GHG emissions. These dire consequences should be avoided. The Project should be refused.'

Climate change aspects of the decision

It is clear that this decision will have a considerable influence on the evidence required to be provided of the potential effects on climate change of new coal mines and other greenhouse gas (GHG) generating and fossil fuel-dependent industries in New South Wales.

The link between climate change and the burning of fossil fuels is well established. The Court cited evidence given by ANU Professor Will Steffen that the continuing effects of anthropogenic climate change initiated by excessive emissions of GHG's include increases in sea levels, ocean warming and acidification, and increases in the intensity and frequency of extreme weather events – including flood, drought, heat waves and a harsher fire-weather climate.

Groundswell, a community organisation that was granted leave to join the proceedings, argued that the impact of climate change on the community is so great as to require the rejection of the project. On behalf of Groundswell, Professor Steffen's evidence was that to keep the world's temperature at global targets below 2C above pre-industrial temperatures, most of the world's existing fossil fuel reserves must be left in the ground. It follows, he said, that no new fossil fuel development is consistent with that goal.

While the Court did not agree that no future fossil fuel development could ever again be approved, it suggested that there should be greater focus on prioritising comparatively less-damaging proposals. This would involve fully assessing both the absolute and relative merits of a proposal, including the amount of GHG emissions it would produce and the likely broader contribution to climate change.

Human rights link

Although the Rocky Hill decision did not expressly connect the climate change-related consequences of the project's approval with human rights impacts, the decision has significance for human rights.

In its concern for the social impact of the proposed development, the Court implicitly recognised the adverse human rights implications of climate change.

As outlined by Professor Steffen, climate change has clear and direct consequences for people across the world. It affects considerations enshrined in the Declaration of Human Rights, such as the right to life, adequate food, water, health, housing, to livelihoods, and an adequate standard of living.

Chief among these is the right to life. As Kyung-wha Kang, former UN Deputy High Commissioner for Human Rights, noted:

'Global warming and extreme weather conditions may have calamitous consequences for the human rights of millions of people ... ultimately climate change may affect the very right to life of various individuals ... [countries] have an obligation to prevent and address some of the direst consequences that climate change may reap on human rights'

Rising sea levels threaten to displace millions around the world, destroying livelihoods, communities and heightening human insecurity. Substantial increases in the number of extreme weather events (a consequence of climate change) also pose a direct threat to the right to life.

The risk has a particular impact on indigenous peoples, due to their deep engagement with the land. The Australian Human Rights Commission recently predicted that northern Aboriginal communities will bear the brunt of climate change and will face serious risk of disease and heat stress, as well as loss of food sources from floods, droughts and more intense bushfires.

The Court did not accept arguments that the impacts of one mine are too remote to warrant refusal on the basis of a scientifically complex force linked to global trends in resource and energy exploitation and use.

Rather, the Court acknowledged that these macroscopic impacts, which will affect humanity as a whole, are capable of justifying a decision to refuse consent to a single proposed project on its merits.

Although the GHG emissions and the consequent impact on climate change played a part in the decision to refuse development consent, the Court explicitly acknowledged that the primary and 'better' reason for its decision was the project's effect on social and other amenities. This is another aspect of the decision's relevance from a human rights perspective.

Social impacts of the Rocky Hill project

Chief Justice Preston had significant regard for the fact that the project would 'adversely affect the social composition of the community and the current rural town atmosphere' and 'significantly affect people's sense of place and hence community'. His Honour strongly endorsed expert evidence of Dr Askland where he stated:

'The risks associated with the project in relation to sense of place relate to:

  1. the physical destruction of a loved environment; and,
  2. the rupture of a positive emotional bond between self and environment, which is central to people's sense of self and place'

(Askland Report, [135])

His Honour was concerned that these changes would undo strong community ties and the attachment the residents have to Gloucester as a place, in light of their lived experiences and strong emotional bonds to the land.

The Court also recognised that the distributive injustice of the project would also have social impacts. The benefits of the mine would be experienced by a select few for a limited period of time, but the detriment would be ongoing and not necessarily experienced by those who would benefit.

In all, it was thought that the resultant social risk was so extreme that overall, the project's effects would be more negative than positive — even taking into account the lost economic opportunity.

Ultimately the decision shows that the Court implicitly took into account a number of human rights consequences that may result from a large scale development. It did this by placing particular emphasis on the Rocky Hill project's social and community impacts and citing these as a specific and defined basis for refusing to grant consent.

The importance of community, well-being and public interest

The weight afforded by the Court to the project's perceived social detriment echoes an emerging sentiment among global policymakers that broader social 'well-being' is a key consideration that ought to be given greater weight.

The impetus behind this is the acknowledgement that decreased social well-being can indirectly bear upon fundamental human rights. One example is the right to the enjoyment of the highest attainable standard of physical and mental health and the right to an adequate standard of living under the International Covenant on Economic, Social and Cultural Rights (see Article 12). More generally, resultant human insecurity is seen as an undesirable end in itself.

It is also worth considering the relevance of rights to identity and self-determination. It is a generally-accepted principle that these rights are intertwined with the need to belong to a community or other social group. This is because humans exist naturally as a 'eusocial' species that is heavily dependent on communal relationships. In order for these rights to be fulfilled, community groups must be afforded stability and support to endure, flourish and grow.

There is academic recognition that local government and planning law can curtail and restrict or promote and assist the fulfilment of these rights, by regulating land use through zoning. Much of this discourse has centred around the emerging concept of a 'right to remain' amidst the phenomenon of gentrification and the marginalisation of particularly vulnerable or ostracised social groups. Those affected may include immigrants, particular ethnic groups, Indigenous peoples, and the socio-economically disadvantaged.

However, there is room to apply these concepts in a more mainstream manner, where there are contentious and large-scale projects that may cause enduring shifts in the composition and dynamic of local communities.

Move away from economic metrics

The Gloucester decision recognises a notion of 'communal well-being' that is not necessarily intertwined with the pursuit of economic gain. This shift away from abstractions like economic growth, and towards metrics better reflecting the tangible enrichment of human life, has long been stressed in development studies.

Amartya Sen, in his renowned book 'Development as Freedom' ((2004) Oxford University Press), argues that greater emphasis ought to be place on substantive freedoms, 'expanding the freedoms that people enjoy; the enrichment of human life'.

In a similar vein, the recent Marsh Global Risks Report 2019 recognises societal stress as a key risk for the first time ever. Like Chief Justice Preston's judgment, the report suggests that communal 'well-being' is an important public interest consideration. It highlights how individual harms and stressors can contribute towards (and exacerbate) systemic risks, with grave implications. For instance, broader social discontent could generate greater political volatility, and increase the risk of social unrest.

A different way of looking at impacts of development

As can be seen, policy makers, academics and now the courts, are taking a wider perspective on the environmental impacts of developments under assessment.

Proponents of highly-impactful developments should be mindful of the effects of climate change from this different perspective. GHG emissions affect the environment and must be fully assessed on that basis. The Rocky Hill decision makes clear that this 'pure' environmental assessment must include direct, indirect and downstream impacts of GHG emissions.

Proponents should also consider the social and, ultimately, the human rights impacts of the rapid and severe changes to the environment caused by climate change.

As non-economic metrics evolve and gain greater weight in environmental impact assessment, predictions of a project's employment generation capacity alone will not satisfy the social and human rights expectations of planning authorities and communities into the future.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Chambers Asia Pacific Awards 2016 Winner – Australia
Client Service Award
Employer of Choice for Gender Equality (WGEA)

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions