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Environmental impact, human rights and community well-being: ‘Rocky Hill’ coal mine decision

  • Courts are taking a wider perspective on the environmental impacts of developments under assessment.
  • Macroscopic impacts, which will affect humanity as a whole, are capable of justifying a decision to refuse consent to a single proposed project on the basis of its merits.
  • The decision recognises a notion of ‘communal well-being’ that is not necessarily intertwined with the pursuit of economic gain.

Probably the most controversial and much discussed aspect of the recent court refusal 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 also draws our attention to the increasing importance of human rights considerations in assessing the impact of major projects.

Proponents need to be cognisant 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 the 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 weight in relation to the evidence required to be provided for potential climate change impacts 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 which noted that anthropogenic climate change initiated by excessive emissions of GHG’s is currently causing and will continue to cause, 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 asserted that in order 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, and, he said, it follows that no new fossil fuel development is consistent with that goal.

While the court did not agree that no future fossil fuel development can ever again be approved, it suggested that there needs to be greater focus on prioritising particular proposals with comparatively lower detrimental impacts. The court noted that the better approach is to undertake a full assessment of the merits of the proposal on both absolute and relative terms, including the amount of GHG emissions that will be produced and the likely broader contribution to climate change.

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

Human rights link

While there was no express connection in the Rocky Hill decision between the climate change related consequences of approval of the project and human rights impacts, the decision is significant in respect of 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.

The human rights impacts of climate change outlined in the evidence of Professor Steffen, have clear and direct consequences for people across the world. These impacts include the right to life, adequate food, water, health, housing, to livelihoods, and an adequate standard of living.1 Chief among those is the right to life. As Kyung-wha Kang, the 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’2

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.3

The court did not accept causation arguments that suggest 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 has acknowledged 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 the basis of its merits.

While 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 social and other amenity impacts of the project. 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:
i. the physical destruction of a loved environment; and,
ii. 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 a further social impact would be caused by the distributive injustice of the project, in that the benefits of the mine would be experienced by a select few for a limited period of time, while 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 the overall impact of the Project would be more negative than positive if approved—even withstanding the lost economic opportunity.

Ultimately the decision indicates that the court has implicitly taken into account various human rights impacts that may be caused by a large scale proposed development by placing particular emphasis on the social and community impacts of the project, and reflecting this as a specific and defined basis for refusing to grant consent.

The importance of community, well-being and public interest

The weight afforded to the perceived social detriment as a factor in the court’s decision to reject development consent for Rocky Hill 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 decreases in social well-being can indirectly bare upon fundamental human rights. For instance, 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 in this context amidst the generally accepted principle that, as humans exist naturally as a ‘eusocial’ species that is heavily dependent on communal relationships, these rights are naturally intertwined with the need to belong to a community or other social group. 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 regarding the way 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. In particular, 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, including immigrants, particular ethnic groups, Indigenous peoples, and socio-economically disadvantaged groups.4 However, there is room for the application of these concepts in a more mainstream manner, in the context of contentious and large-scale projects that have the ability to cause enduring shifts in the composition and dynamic of local communities such as major transport infrastructure projects.

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 have long been stressed in development studies discourse. Amartya Sen, in his renowned book ‘Development as Freedom’, argues that greater emphasis ought to be place on substantive freedoms, ‘expanding the freedoms that people enjoy; the enrichment of human life’.5

In a similar vein, the recent Marsh Global Risk Report 2019 recognised societal stress as a key risk for the first time ever.6 Like Chief Justice Preston’s judgement, the report suggests that communal ‘well-being’ is an important public interest consideration. It highlighted how individual harms and stressors can contribute towards (and exacerbate) systemic risks with grave implications. Broader social discontent could, for instance, 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 cognisant of the impacts 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.

However, in impacting the environment, 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.

  1. Universal Declaration of Human Rights, GA Res 217A (III), UN GAOR, 3rd sess, 183rd plen mtg, UN Doc A/810 (10 December 1948).
  2. MacInnis L, ‘Climate change threatens human rights of millions: UN’, Reuters, 19 February 2008.
  3. Australian Human Rights Commission (AHRC) (2017) Climate Change and Human Rights, available at:
  4. Hubbard P. and Lees L, 2018, ‘The right to community: legal geographies of resistance on London’s final gentrification frontier’, CITY, 22:1, 8-25.
  5. Sen A, 2004, Development as Freedom, Oxford, Oxford University Press.
  6. World Economic Forum, 2019, The Global Risks Report 2019, 14th ed.

Christine Covington can be contacted on (02) 9210 6428 or by email at
Dr Phoebe Wynn-Pope can be contacted on (03) 9672 3407 or by email at

Material published in Governance Directions is copyright and may not be reproduced without permission. The views expressed therein are those of the author and not of Governance Institute of Australia. All views and opinions are provided as general commentary only and should not be relied upon in place of specific accounting, legal or other professional advice.

Acting for You, June 2019

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