“The parties do not dispute that human emissions of CO2 into the atmosphere are largely responsible for the warming of the Earth’s surface temperature since the Industrial Revolution. The Minister accepts that the Earth’s surface temperature is increasing and that humans are primarily responsible. She also accepts that average surface temperatures will likely continue to increase and Australia will experience more drought, sea level rises and extremes of heat, rainfall and fire-related weather. The Minister accepts that increases in temperature affect the environment, the economy and society and that the climate exacerbates inherent risks and introduces new risks in the context of heatwaves, droughts, bushfires, floods and tropical cyclones all being part of the Australian climate experience.
The Minister accepts that the projected effects of climate change depend upon the extent of greenhouse gases emitted globally in coming years. The applicants presented unchallenged scientific evidence on the future trajectory of global average surface temperatures. The evidence was largely based on the climate change modelling of the Intergovernmental Panel on Climate Change and more recent assessments made by Professor William Steffen, an eminent specialist in climate science.” [BROMBERG J, 27 MAY 2021, MELBOURNE, excerpt from SUMMARY supplied for Sharma by her litigation representative Sister Marie Brigid Arthur v Minister for the Environment [2021] FCA 560 (27 May 2021)]
“It is difficult to characterise in a single phrase the devastation that the plausible evidence presented in this proceeding forecasts for the Children. As Australian adults know their country, Australia will be lost and the World as we know it gone as well. The physical environment will be harsher, far more extreme and devastatingly brutal when angry. As for the human experience – quality of life, opportunities to partake in nature’s treasures, the capacity to grow and prosper – all will be greatly diminished. Lives will be cut short. Trauma will be far more common and good health harder to hold and maintain. None of this will be the fault of nature itself. It will largely be inflicted by the inaction of this generation of adults, in what might fairly be described as the greatest inter-generational injustice ever inflicted by one generation of humans upon the next.
To say that the Children are vulnerable is to understate their predicament. However, it is not vulnerability in the abstract which is relevant for determining whether a duty of care is owed to them by the Minister. Their vulnerability must be connected to their relation with the Minister or their reliance upon the Minister: Stuart at [134] (Crennan and Kiefel JJ). And it is.” [Sharma by her litigation representative Sister Marie Brigid Arthur v Minister for the Environment (No 2) [2021] FCA 774 (8 July 2021, Judgment, excerpt])
In its 8 July 2021 judgment in Sharma by her litigation representative Sister Marie Brigid Arthur v Minister for the Environment (No 2) [2021] FCA 774 (8 July 2021) the Federal Court did not accept the the Minister’s contention that the Court should order that the proceeding not continue as a representative proceeding at all - instead ordering that The proceeding not continue as a representative proceeding in respect of persons who were under 18 years of age and not ordinarily resident in Australia at the time of the commencement of this proceeding. The Court also did not accept the Minister’s argument with regard to costs and ordered The Minister pay the applicants’ costs of the proceeding.
This second judgment although it now excludes unnamed Other Represented Children from the representative proceeding specifically allows those eight Australian teenagers named as applicants to remain as applicants in the proceeding: I have determined that the proceeding should continue as a representative proceeding in relation to the Represented Children.
BACKGROUND
Allens, Australia, retrieved 9 July 2021:
In August 2020, the NSW Independent Planning Commission granted development consent for the extension of the Vickery Coal Project (the project) in northern NSW under the Environmental Planning and Assessment Act 1979 (NSW). As the project is likely to have impacts on federally listed threatened species and water resources, it also requires approval from the Federal Minister for the Environment (the Minister) under the EPBC Act.
The project, if approved, will involve the extraction of an additional 33 million tonnes of coal over the life of the mine. The combustion of this additional coal will result in the emission of approximately 100 million tonnes of CO2.
In Sharma by her litigation representative Sister Marie Brigid Arthur v Minister for the Environment [2021] FCA 560, eight Australian children brought an action in negligence against the Minister, seeking a declaration that she owed them — and children around Australia — a duty to exercise her powers under the EPBC Act with reasonable care so as not to cause the children harm. They contended that the project would contribute to climate change, and consequently increase the risk of climate change-related harm to the applicants, including mental and physical injury, damage to property, and economic loss.
The claimants also sought an injunction restraining the Minister from committing an apprehended breach of that duty — that apprehended breach being the approval of the project.
The decision
The court found that the Minister owes the applicants a duty to take reasonable care when considering whether to approve the project under the EPBC Act.
In determining that the Minister owes a duty of care, the court held:
The environmental impacts of increasing global surface temperatures, including greater incidence and severity of heatwaves and bushfires, would expose the applicants and the representative class to a real risk of death and personal injury.
While the project would cause a 'tiny' increase to global average surface temperatures, that increase was measurable and therefore the risk of harm 'real', and not far-fetched or fanciful.
A reasonable person in the Minister's position would foresee that the applicants would face an increased risk of injury brought about by climate change that would flow from the contribution to increased atmospheric CO2 brought about by the project.
The Minister's knowledge of the risk of harm and her control over the source of harm strongly supported finding a duty of care.
While some factors weighed against a duty being recognised, in totality the salient features of the relationship between the Minister and the applicants favoured the recognition of a duty of care.
Despite recognising the duty of care, the court declined to grant an injunction preventing the Minister from approving the project. Ultimately, the court was not satisfied that the applicants had demonstrated the Minister would breach her duty of care, and said that, instead, it would be more appropriate to grant any relief once a decision had been made. The court did not accept the applicants' contention that an approval of the project would inevitably constitute a breach of duty, noting that the Minister's competing or conflicting responsibilities could influence a reasonable response to the foreseeable harm. Such a reasonable response could include conditions on any approval under the EPBC Act.
Implications
While the applicants were not successful in injuncting the Minister from granting the approval, the decision to recognise this novel duty of care could have significant consequences. This is the first time in Australia that a court has recognised a duty of care owed to children by a Minister exercising powers under any statutory environment or planning regime.
The recognition of a duty of care in connection with climate change-related harm under the EPBC Act framework is noteworthy, given the matters protected by the EPBC Act do not extend to greenhouse gas emissions or climate change. While protection is afforded to various environmental matters, including listed species and habitats, the health and wellbeing of human beings is not a protected aspect of the environment that would trigger the need for approval under the EPBC Act. However, by reference to the broader statutory scheme (including reference to the principle of inter-generational equity) the court noted the Act's object is to protect the interests of people and, in particular, future generations of people, in the environment — rather than the environment itself. Because this duty of care was not found by reference to the particular protected matters in the EPBC Act and instead within the broader statutory scheme, the interpretive approach may translate more readily to other pieces of environmental legislation at a state level.
This decision may also impact the grant of approvals under the EPBC Act. The court noted that in deciding whether to approve the project, 'a well-advised and responsible Minister would take notice of those matters', referring to the now-established duty of care owed to the applicants. Those in charge of approving carbon intensive projects may now be more alive to climate change-related issues and place greater weight on those risks when making decisions.
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