Island Nations: Climate Change and Mining

Australia

The proposed Rocky Hill Mine is located three miles from the center of Gloucester, a rural residential township surrounded by farmland that is valued for its scenic beauty and is a popular tourist destination. Open pits would be mined for twenty years to export coal to Asian markets. The company is interested in additional coal resources located closer to the town. Residents fear that if the mine is approved, it will be the beginning of the end for Gloucester due to the extreme effects of 24-hour dust, noise, and blasting.

EDLC works closely with the Center for Climate Integrity in the U.S., and facilitated financial support from the Center to enable the Environmental Defenders Office NSW (EDO) in Australia to challenge the mine on behalf of community group Groundswell Gloucester. This was a once in a generation case: the first hearing of its kind since the historic Paris Agreement in which an Australian court would hear expert testimony about climate change and the impacts of burning fossil fuels. EDO presented expert witnesses on numerous issues, including the “global carbon budget” that must not be exceeded if temperature rise is to be kept at less than 2º C above pre-Industrial levels. As stated by expert witness Professor Will Steffen, “if you’re really serious about the Paris targets, it’s no new fossil fuel developments . . . You cannot reduce emissions by increasing them.”

On February 8, 2019, the court rejected the proposed mine, the first time an Australian court has refused consent for a coal mine on the basis of its climate change impacts. The court found that the carbon emissions from the mine would contribute to global warming, such that approving the mine would not assist in achieving the emissions reductions needed to meet Australia’s Paris targets. Significantly, the court held that it was not important that emissions from the mine would be but a fraction of global total emissions, noting that the global problem of climate change needs to be addressed by multiple local actions to mitigate emissions. The court also found that the mine’s economic benefits had been substantially overstated, and that the project would cause a variety of serious negative social impacts to the Gloucester community. The decision is not being appealed. This landmark case puts Australia squarely on the map of international climate change litigation.

The Philippines

EDLC has worked for many years with NGOs and communities in the Philippines fighting unwanted mining projects. Opposition to these projects has frequently led to retaliatory lawsuits known as SLAPPs (Strategic Litigation Against Public Participation), as well as unfounded criminal charges against activists filed by mining companies. SLAPPs are so strongly disfavored in the U.S. that dozens of states have enacted legislation discouraging their use.

EDLC was asked by both elected representatives and NGOs in the Philippines to obtain U.S. legal assistance in the effort to enact national anti-SLAPP legislation. At EDLC’s request, a team of lawyers at Winston & Strawn agreed to help. The lawyers reviewed and offered comments on draft legislation, proposed additional provisions, prepared a report on the SLAPP experience in the U.S. and in other countries, and analyzed the SLAPP problem under international human rights law. The report was presented to the Philippine House of Representatives. The Philippine Supreme Court adopted new rules of procedure for environmental cases, providing substantial protections for SLAPP victims.

EDLC has also assisted local groups in half a dozen specific mining conflicts involving lack of consent of local communities, a tailings dam spill, and killings of anti-mining activists, as well as presenting at a conference and a legislative hearing on these issues.

The Solomon Islands

EDLC is providing support in four cases spearheaded by the Australian Environmental Defenders Office (EDO), in conjunction with pro bono barristers and local counsel, challenging mining and logging projects that affect indigenous communities in the Solomon Islands.

In one of the cases, Wagina Island residents brought a legal challenge to Solomon Bauxite Limited’s proposed mine that would cover 60% of the small island, require the development of an airport and roads, and result in the transport of 150 truckloads of ore per day for twenty years. The mine would have major impacts on water quality, air quality, and the marine environment, as well as likely irreversible impacts on the 2,000 residents who rely on the sea and land for their livelihoods.

At a December 2018 hearing, residents were represented by the Landowners Advocacy and Legal Support Unit (LALSU) within the Public Solicitor’s Office in the Solomons, along with an Australian lawyer, at a hearing convened by Environmental Advisory Committee (EAC). This was the first such hearing held since the 1998 enactment of the Environment Act that created the EAC. The lawyers argued that the decision to approve the mine was flawed because the public consultation process and the environmental impact statement (EIS) did not comply with the requirements of the Environment Act. The EAC heard evidence from four experts regarding the grave deficiencies of the EIS. One of the experts described the Wagina EIS as the “worst [he had] ever seen.”

The hearing was a huge success on many levels, including the effective partnership between EDO and LALSU, the empowerment of an extremely vulnerable community, and the strengthening of the administration of environmental laws in the Solomon Islands. The EAC ruled in favor of the Wagina residents in a March 2019 decision. The company has appealed.