In our article published in June, we reported that the decision in Sharma v Minister for the Environment found the Australian Government owed a duty of care to avoid harm resulting from climate change.

On 8 July 2021, the Federal Court made a formal declaration as to the extent of that duty. It held the Minister for the Environment has a duty when exercising her powers to avoid causing personal injury and death to Australian children resulting from CO2 emissions. The Government has since said it will appeal the ruling.

What is the case about?

The decision results from an application by eight Australian teenagers and an 86 year old nun (as their litigation guardian) for an injunction preventing the Minister from approving a proposal to extend the Vickery coalmine in New South Wales. The claim was brought as a representative proceeding on behalf of all Australian children.

The teenagers claimed the Minister owed them a duty to exercise her power of approval with reasonable care so as not to cause them harm. They asserted that as a result of her approval of the extension, they would likely suffer injury (including death) and economic and property loss resulting from the climactic hazards arising from increased CO2 emissions.

In its May decision, the Federal Court accepted that a “novel” duty of care existed. It rejected the Government’s arguments that it should decline to do so for policy reasons, including that the alleged duty was inconsistent with the Environment Protection and Biodiversity Conservation Act 1999 (Cth). However, the Court refused to grant the injunction sought, finding it would be premature as it was not yet known what the Minister proposed to do in relation to the approval of the extension.

The 8 July decision has now established the extent of the novel duty. The Court has declared that the Minister must take reasonable care in the exercise of her powers to approve the Vickery extension project in order to avoid causing personal injury or death to Australians under 18 arising from emissions of carbon dioxide into the Earth’s atmosphere.

Why does it matter?

The ruling has implications beyond the Vickery mine itself given it establishes, for the first time, a duty that is wider than the Minister’s statutory obligations.

Subject to the outcome of the appeal, it is probable that the Australian Courts will now see a significant increase in claims based on such duties against government bodies making planning and consenting decisions. It is also possible that plaintiffs in actions against corporate emitters and their directors will rely on the decision to claim that analogous novel duties apply to such “private” defendants.

From a New Zealand perspective, it seems likely that possible plaintiffs in this country (including, potentially, representative groups of children and young people) will closely watch the developments in Australia. 

Those developments, together with the upcoming decision of our own Court of Appeal in Smith v Fonterra (which will consider whether corporate emitters owe their own novel duty of care regarding  climate harm) are likely to have a significant impact on the nature of climate change litigation in years to come.

UPDATE:

On 15 March 2022, the Full Federal Court of Australia overturned the decision of the lower Court to impose a duty of care on the Minister.  The plaintiffs did not appeal the decision, which is a set-back for Australian claimants seeking to use tort law as a tool to address climate change through the courts.