On 27 May 2021, a landmark decision was handed down by the Federal Court of Australia with significant implications for the liability landscape in the context of climate change.
What was the decision?
In the landmark decision of Sharma by her litigation representative Sister Marie Brigid Arthur v Minister for the Environment (judgment available at fedcourt.gov.au), Justice Bromberg found that the Federal Minister for the Environment (Minister) owed a novel duty of care to Australians under the age of 18 years who may suffer “catastrophic harm” from the climate change implications of approving the Vickery Extension Project, which seeks to construct an open-cut coal mine in New South Wales.
The claim was brought on behalf of eight Australian children, as representative of “all children who ordinarily reside in Australia”. The children sought a declaration that the Minister owed a duty of care to not cause Australian children harm resulting from the extraction of coal and carbon dioxide emissions into the Earth’s atmosphere from the Vickery Extension Project. They also sought injunctive relief to prevent the Minister from breaching the alleged duty of care.
His Honour ruled that:
- potential harm to children was a mandatory consideration that the Minister must take into account as a matter of administrative law when determining the approval of the Vickery Extension Project under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (Act);
- applying the well-established ‘salient features’ test of tort law, it was reasonably foreseeable, for a person in the Minister’s position, that a risk of harm would arise from the Vickery Extension Project, that the Minister had control over the risk and that Australia children were vulnerable to a real risk of harm from “climatic hazards”; and
- the Minister owed novel private law duty to Australians under the age of 18 years to take reasonable care to prevent them from personal injury or death as arising from emissions of carbon dioxide and the effects of climate change when deciding, under sections 130 and 133 of the Act, whether to approve the Vickery Extension Project. The duty does not extend to loss and damage to property or economic loss.
Notably, the Court accepted expert evidence regarding the catastrophic impact of climate change in Australia. His Honour held that, although the contribution of the Vickery Extension Project could be ‘described as tiny’ when considered in the context of increased global emissions and further increases in surface temperature, this was not ‘so insignificant’ as to counter the real and foreseeable risk of harm.
His Honour did not grant an injunction to restrain the Minister from an ‘apprehended breach’ of the duty of care. The injunction was declined as an ‘overreach’ of the Court on the basis that the request for the injunction assumed that the Minister would approve the Vickery Extension Project, and further, that she would breach her duty in approving it. Justice Bromberg noted that there existed the opportunity for a ‘more nuanced response from the Minister, something short of unconditional approval’ to reasonably respond to the foreseeable harm and which might avoid a breach of the duty (Sharma at ).
Impact of the decision
The impact of the decision is significant, substantively altering the liability landscape of Australian climate change litigation.
If supported by other courts, the recognition of the duty to take reasonable care could constrain the ability of both government and private entities to undertake projects that may lead to an appreciable risk of harm arising from the contribution of such projects to net carbon emissions. Practically, it is expected that there will be a stronger focus by governmental decision-makers on climate change (and carbon dioxide emissions) when undertaking environmental impact assessments.
Subject to the Minister’s appeal, the decision has widely been recognised as a foundational decision for liability in the climate justice space and a clear warning for both government and private entities seeking to pursue activities that may hold climate change impact. It is likely to set the trajectory for climate change litigation in the years to come as it joins a growing body of case law, in Australia and internationally, that recognises the impact of climate change on government decision making.
The Minister’s appeal
The Minister has filed an appeal of this decision in which she argues that she does not owe a duty of care to protect Australian children from climate harm caused by the potential expansion of a coal mine. She also contends that the findings relating to temperature rise by Justice Bromberg were incorrect.
The impact of the Minister’s appeal will rest on whether both grounds of appeal succeed. If the Minister is successful on both the grounds then the outcome has the potential to set a low standard of care owed to future generations when government (and private entities) make decisions that will impact Australia’s contribution to carbon dioxide emissions, as well as shift the trajectory of Australian climate change litigation more generally.
If the appeal is dismissed, the Minister may seek to refer the matter to the High Court for a final appeal. In the meantime, the duty will continue to apply to the Minister and her decision in relation to Vickery Extension Project.
How we can help
For more information, please contact Emma Dunlevie, Malvina Hagedorn, or Erin Meeking, from our Pro Bono team.
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