Here’s how lawyers can save us from the climate crisis

A group of First Nations traditional owners have lodged a human rights complaint against the ANZ bank and 11 others for doling out a $1.5 billion loan for fossil fuel titan Santos’ offshore gas projects, in one of more than 120 cases worldwide and as Australia becomes the second most litigious place on earth for climate action.

ANZ pitched in for the equal-largest share of Santos’ loan — some $97 million — and pulled in banking counterparts Commonwealth Bank of Australia (CBA) and Japan’s largest bank, MUFG, which scored a $3.7 million bank fee payday each from the hefty transaction. Westpac, NAB, ING and Citigroup also received human rights complaints over the loan.

The traditional owners, six of whom are from the Tiwi Islands and one of whom is Larrakia, were fighting the Northern Territory’s Barossa project in the Federal Court when the loan was quietly finalised, arguing Santos did not consult Tiwi communities properly before launching the climate-averse project that could destroy their way of life.

That means there was no free, prior and informed consent given by First Nations communities for Barossa, a key human right for traditional owners. But ANZ boasts a human rights policy founded on the United Nations’ guiding principles for business and human rights that compels banks not to lend money to corporations if it will impact human rights.

In other words, the traditional owners are asking the bank to put its money where its mouth is.

In a statement, an ANZ spokesperson said it would “consider the matter in line with the processes under our human rights grievance mechanism”.

Malawu clan leader Therese Wokai Bourke said the human rights complaints were to persuade banks to “rethink what they’re doing and stop investing in companies that are destroying our world and environment”.

But does climate litigation work when grassroots efforts go head to head with the country’s most resourced fossil fuel titans, or the government ministers who greenlight their behaviour? Yes, but perhaps not in the way you expect.

Courts must be brave about precedent

Vidhya Karnamadakala, of Equity Generation Lawyers, is representing the traditional owners who she said have a right to say no to fossil fuel projects: “ANZ must show its shareholders, customers and the community that its human rights commitments are not just window dressing.”

The firm also represented eight teenagers and an octogenarian nun in 2021 when they took then-environment minister Sussan Ley to court over her failure to enact a common law duty of care in protecting younger people against future harm from climate change.

Initially the group won the High Court case, but Ley successfully appealed and the full bench of the Federal Court overturned the judgment, with one judge ruling the protection of the public from personal injury caused by the effects of climate change was not a responsibility of the minister under Australia’s environment laws.

Climate activist Anjali Sharma, now 18, was one of those students and was wholly undeterred by the result of her gutsy case. She told Crikey she firmly believed “legal action is incredibly powerful and is becoming increasingly relevant in the climate fight”, adding: “We’re seeing monumental victories and novel cases globally.”

Among them, a 2021 victory in a Netherlands court where oil giant Shell was forced to reduce its emissions by a mammoth 45% compared with 2019 levels — a landmark decision that was the first time a company was legally compelled to fit its policies into the Paris climate accords.

But it’s these sorts of precedents that the courts can be reticent to set, Sharma said: “Big polluters and governments are often incredibly well resourced, and not to mention the courts are often quite hesitant to ‘open the floodgates to litigation’ or make what they see to be drastic changes to the law, which is a disadvantage in environmental law.”

‘All publicity is good publicity’

University of Canberra academic Cristy Clark, whose expertise is how human rights and the environment mesh, said “the rise in climate litigation is both a bad sign and a good thing”, and argued the sheer fact citizens were turning to the courts thanks to paltry environmental policy showed how far behind we really are.

But there’s reason to be hopeful, she said. “We have seen some recent high level ‘wins’ through this kind of litigation — such as the Waratah Coal case, which has effectively halted Clive Palmer’s mine in the Galilee Basin.

“Even where the case doesn’t win — as occurred with Sharma — litigation can provide a powerful platform to change the conversation around climate change and particularly around the government’s obligations to protect human rights from its effects through adequate mitigation and adaptation.”

Plus all publicity is good publicity when it comes to the climate fight. These big moments create public conversation that manifests at the ballot box, Clark said. Just look at the Climate 200-backed teal uprising in the 2022 federal election, where a slew of blue ribbon seats fell to climate-ambitious independents.

Australian court cases surge

La Trobe Law School academic Julia Dehm, whose scholarship is on climate change and environmental law and human rights, said an “upswell in human rights-based climate litigation, with over 120 pending or decided human rights-based climate cases worldwide” showed the power of the people.

“Australia is, after the United States, the country that has had the most climate litigation [and] this reflects the failure of successive governments to put in place ambitious climate policies and to tackle Australia’s largest contribution to global emissions, namely our coal and gas exports,” Dehm told Crikey.

“Climate litigation has achieved important regulatory and human rights outcomes” and could cause “reputation damage” to fossil fuel companies and banks.

“Even if such cases are not successful, they still provide an important opportunity for individuals and communities to have their voices heard and to tell their stories about how climate change and the continual expansion of the fossil fuel industry is adversely impacting their lives and livelihoods.”

This cut to the core of the case against the 12 big banks funding Santos’ Top End projects, Munupi clan Elder Carol Puruntatameri said. “They’re going ahead in ships 24/7. Turtles will die, fish, barramundi [too]. Something might happen like an oil spill and that might come to our shore.”

“All animals in the sea have songlines and spirituality connected to us. Ampiji [the Dreaming] is connected to us.”

Santos was approached for comment.