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Children fail in their bid to use litigation to force the Australian Government to address climate change

The reality of climate change should be obvious to anyone living in Australia over the last few years. Deadly floods followed deadly fires, which had followed a devastating drought. Other parts of the world have fared worse. There is a real risk of catastrophic world climate change and global warming by the end of this century. The situation has justifiably made many people passionate, including many young people.

In 2020, 8 brave children initiated proceedings on behalf of all Australians under the age of 18 (the Children) against the Commonwealth Minister for the Environment (Minister). They argued that the Federal Court of Australia should declare that the Minister owed the Children a duty of care to protect them from injury caused by climate change and global warming.

Despite some initial success, in March 2022, the Children lost an appeal before the Full Court of the Federal Court of Australia: Minister for the Environment v Sharma
(2022) FCAFC 35. This article provides an overview of that decision.

What is a duty of care?

As famously articulated by Lord Aitkin in the ‘snail in the bottle’ case, the core principle which gives rise the concept of duty of care is that:1

“You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour.“

For a duty of care to apply, an injury caused must be reasonably foreseeable and the injured person must be legally considered a ‘neighbour’ of the defendant.

If duty of care is found to exist and is breached, causing a person damage, the person in breach can then be liable to compensate the injured party for that breach.

Procedural history: Sharma v Minister for the Environment2

The Children commenced the litigation in the Federal Court of Australia. Given their age, the proceedings were brought on their behalf by a litigation representative, Sister Marie Brigid Arthur, a Sister of the Brigidine Order of Victoria.

The Children sought a declaration that the Minister owed the Children a duty of care when exercising her powers under particular sections of the Environmental Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act), in respect of an application to approve an extension of a coal mine in New South Wales (Extension Project).

The Extension Project in dispute would increase the total coal extracted from the mine site from 135 to 168 million tonnes (Mt) and when combusted, the additional coal extract from the Extension Project would produce about 100Mt of CO2.

The Children argued that, if the Extension Project was approved, carbon, which was presently safely stored underground at the site of the Extension Project, would be extracted, combusted and emitted as CO2 into the Earth’s atmosphere, which would materially contribute to CO2 concentration.

The Children put a substantial body of evidence before the Court concerning climate change, identifying the dangers it posed to Australia, the world and mankind. Notably, this evidence was not disputed by the Minister.

The Children claimed that they could suffer mental or physical injury (including ill-health or death, as well as economic and property loss) resulting from the actions or omissions of the Minister. However, because the Minister could both cause and control that injury, the Children argued that a duty should be imposed on the Minister to protect them from the serious threat of irreversible future harm.

The Minister denied the existence of any duty and further argued that any injury that the Children might suffer was not reasonably foreseeable.

At first instance, Justice Bromberg found that the Children had successfully established that the Minister did owe such a duty of care (at [513]), and a declaration was made that:

“The [Minister] has a duty to take reasonable care, in the exercise of her powers under s 130 and s 133 of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) in respect of [the Extension Project], to avoid causing personal injury or death to persons who were under 18 years of age and ordinarily resident in Australia at the time of the commencement of this proceeding arising from emissions of carbon dioxide into the Earth’s atmosphere.”

Justice Bromberg’s primary finding and declaration were considered a landmark response to the understood and recognised dangers posed by climate change to the world and mankind.

The appeal

The Minister appealed Justice Bromberg’s decision and sought to challenge the imposition of the duty and further sought to challenge some of the factual findings made by Justice Bromberg.

Whilst accepting the very real threat posed by climate change and global warming, the Full Court unanimously determined that the appeal should be allowed and decided that the duty should not be imposed on the Minster.

However, the Full Court dismissed the Minister’s challenge to the factual findings of Justice Bromberg, holding that each finding made by Justice Bromberg was open to be made on the evidence put before him.

Each member of the Full Court, being Chief Justice Allsop and Justices Beach and Wheelahan, wrote distinct judgments with their own individual focus, but ultimately came to the same conclusion.

Chief Justice Allsop

Allsop CJ expressed concern that Bromberg J had not borne in mind the relevant context when conducting his analysis of the ‘unorthodox’ and ‘novel’ duty of care.

Allsop CJ was of the view that, when considering the relation between the Minister and the Children, it was paramount to consider the context, being the constitutional system of government in a federation, the broader legal system, the statutory regime, and the contours of the law of negligence. The failure to consider this context, focussing instead on salient features as individual considerations, was a ‘defect in the method deployed by the primary judge’ (at [213]).

Allsop CJ also opined that it could not be doubted that the Executive and Parliament were best placed to deal with the complex task of addressing climate change, not the judiciary (at [292]). The Chief Justice stated at [230] that:

“…the role of the Judicial branch of government is to quell controversies between citizens or the state and citizens on the basis of evidence tendered by the parties, not on the basis of policy formulation by the court.”

Allsop CJ observed that the EPBC Act is not directed towards the purpose of providing a proper response, by the Commonwealth, to the risks of climate change and global warming (at [272]). To impose the posited duty would be inconsistent and incoherent with the EPBC Act and the legal and government framework of responsibility for the protection of the environment reflected in the Act (at [267]). The Chief Justice was emphatic to point out that:3

“any posited duty must be coherent, compatible and harmonious with the duties, powers and functions of the repository and with the structure and purpose of the statute.”

However, Allsop CJ also rejected a number of the Minister’s challenges to Justice Bromberg’s factual findings, stating some of the contentions advanced by the Minister were ‘quibbles’. As the Minister had failed to challenge the expert opinions that gave rise to the findings at first instance, she had no basis to subsequently challenge the primary judge’s findings of fact.

Although not the question being dealt with in the appeal, Allsop CJ raised that the Full Court as an intermediate appellant court was bound by precedent on how it approached its analysis of breach, causation and onus of proof (at [326]).

Ultimately, Allsop CJ’s determinations towards, amongst other factors, the relationship between the Minister and the Children lacking the requisite nearness and proximity, alternatively, the posited duty’s lack of cohesion with the EPBC Act led to his Honour’s conclusion that the duty of care should not be imposed on the Minister.

Justice Beach

Beach J began by examining three scenarios of how the Minister could exercise her statutory power under the EPBC Act. He expressed the view that the claim brought by the Children dealt with the scenario where there has been an exercise of statutory power that has created or exacerbated risk of harm (at [352]–[360]). This contrasted with the ruling of Bromberg J, who in effect characterised the duty in terms of scenarios where either the Minister had failed to exercise statutory power, or had exercised statutory power but had not gone far enough.

In considering whether there was sufficient closeness and directness between the Minister’s exercise of statutory power and any reasonably foreseeable harm on the Children, Beach J also examined control of risk and indeterminacy of risk (at [362]). In effect, the Minister’s decisions needed to have a link to the harm caused, the negative effects of climate change, and there had to be some demonstration that the exercise of her power, one way or another, controlled the risk of harm to the Children.

While noting that no High Court authority definitively ruled out the posited duty of care, Beach J stated that the trend of case law was not in favour of supporting it. Ultimately, his view was that there was a lack of sufficient closeness and directness, and too much indeterminacy of liability, such as to deny there being a duty of care.

However, Beach J provided some hope for the Children in explicitly stating at [754] that:

“it is for the High Court not us to engineer new seed varieties for sustainable duties of care, modifying concepts such as “sufficient closeness and directness” and indeterminacy to address the accelerating complexity, multiple links and cross-links of causal relations.”

It is of note that, as with the others on the bench, Beach J conducted an extensive review of the expert evidence that was given at first instance, which related to how the Extension Project would produce an additional 100Mt of CO2 emissions. The Minister argued that the primary judge had erred in agreeing that the emissions would be produced, and that any emissions would contribute to a rise in global average surface temperatures, as a result of the approval of the Extension Project. However, Beach J was scathing, criticising the fact that the Minister had, incomprehensively, chosen to lead no evidence at trial and provide no sufficient basis for her own counterfactual propositions (at [405]).

Justice Wheelahan

Before addressing the posited duty, Wheelahan J made a point of outlining how inappropriate it was for Bromberg J to make a declaration as to the existence of a duty of care, absent any allegation of a completed cause of action (at [758]–[782]). That is, in circumstances where the injury to the Children had not yet occurred.

Wheelahan J stated that entertaining an application where no cause of action has accrued deprives the Court of the insight that may be gained from a global examination of the claimed cause of action. His Honour also rejected the claimed errors of fact, as put forward by the Minister, in accordance with the reasons of Allsop CJ (at [834]).

Wheelahan J found that the threads drawn from the objects and definitional provisions of the EPBC Act by Bromberg J, to recognise the duty of care, should not have taken the place of a holistic examination of the legislation as a whole(at [844]). Upon examination of the EPBC Act, Wheelahan J did not find any reflection, in its text or structure, that control of CO2 emissions and protection of the public from personal injury, caused by the effects of climate change, were roles conferred on the Minister (at [839]).

This conclusion may seem odd at first glance, considering the relevant Minister is the Minister for the Environment. However, Wheelahan J stated further that the Minister’s decision making obligation under s 130 of the EPBC Act was only engaged in relation to the impacts that the coal mine may have had on listed threatened species and ecological communities, and on a water resource, but not for the cause of CO2 emissions. Further, it was held that the mandatory consideration of human safety, which Justice Bromberg found, was not supported by the EPBC Act (at [844]–[847]).

With no completed cause of action involving an alleged breach of duty, Wheelahan J found that there was no sufficient basis to establish the duty, or at least one that would sit coherently with the political and policy issues arising in relation to climate change and preventing CO2 emissions (at [868]).

Finally, Wheelahan J was not persuaded that a decision by the Minister to approve the Extension Project would give rise to a foreseeable risk of injury to the Children, because of the difficulties with the requirements for establishing causation. His Honour outlined that the emissions contributed, due to approval of the Extension Project, would at most contribute to an increased risk of harm. They would not contribute to the risk of the harm itself. That is because the claimed foreseeable injuries would be caused by consequential events from emissions, such as the bushfires, heat, droughts, cyclones, floods, and other weather events, which have become all too common in Australian in the past years (at [882]).

Accordingly, Wheelahan J ruled that this contribution to risk of injury would not give rise to liability in negligence because the current legal framework of causation would not recognise the Minister’s decision to approve the Extension Project as the ultimate cause of any injury to the Children.

Implications

The Children have ruled out seeking special leave to appeal the decision to the High Court of Australia. This is likely as a consequence of the scope, purpose and limitation of the EPBC Act. The effect of this decision is that companies seeking federal environmental approvals will not need to take into consideration the formerly imposed duty of care.

On the eve of the decision being handed down, the Federal Environment and Resources Ministers announced $62.3 million allocated in the March 2022 budget towards utilising the regional plan provisions of the EPBC Act and removing the need for a project-by-project approval under national environmental law.

The future

The Sharma appeal judgment demonstrates the difficulty of using the courts to compel a government to act on climate change. The judges of the Full Court fully accepted the reality of climate change, but were bound to follow the law. The law of torts is not a very suitable vehicle to drive policy action in this area.

This is not to say that change is not on the horizon. The issues of environmental protection and climate change are firmly in focus within the current public consciousness. As noted by Allsop CJ and Wheelahan J, climate change remains very much a political issue.

The Chief Justice identified there has been no attempt to date by the Commonwealth Parliament to translate international agreements concerning climate change, such as the Kyoto Protocol to the United Nations Framework Convention on Climate Change or the United Nations Framework Convention on Climate Change Paris Agreement 2015 into Commonwealth law. If Australia is to take action to address climate change through frameworks like these, it will be through action of the legislature and the executive, who are ultimately accountable to the Australian people.

In Australia, government action on climate change is more likely to be caused by the actions of electors, not litigators.

Footnotes

  1. Donoghue v Stevenson [1932] AC 562, 580. The importance of this principle has been noted in more recent conclusions of the High Court. See, for example, in Sydney Water Corporation v Turano (2009) 239 CLR 51, [53] (French CJ, Gummow, Hayne, Crennan and Bell JJ); see also King v Philcox (2015) 255 CLR 304, [79] (Nettle J).
  2. Sharma by her litigation representative Sister Marie Brigid Arthur v Minister for the Environment [2021] FCA 560; Sharma by her representative Sister Marie Brigid Arthur v Minister for the Environment (No 2) [2021] FCA 774.
  3. See Minister for the Environment v Sharma [2022] FCAFC 35, [121], [239]–[245], [267]–[272].

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