Minister for the Environment, Sussan Ley, has successfully appealed the Sharma decision, which had imposed a new duty of care to protect Australia’s youth from the harmful impacts of climate change. Still, the Court’s decision was not based on whether the Minister ought to have a duty. She should. Instead, it was based on the startling truth that the duty could not be implied under the Environment Protection and Biodiversity Conservation (EPBC) Act. Attwood Marshall Lawyers Property and Commercial Law Graduate Mieke Elzer explains the case and how it reflects on the current state of environmental politics in Australia.
For decades climate scientists have been warning politicians and the public about the need to reduce carbon emissions. Recent reports by the Intergovernmental Panel on Climate Change (IPCC) illustrate the link between human activities and climate change, predicting grim outcomes for the planet if immediate action is not taken to curtail global warming. Over recent years, Australia has experienced an increasing number of unprecedented weather events. Research shows that these events are being driven by global warming. As I write this article, residents of Northern New South Wales are again returning to devastation after being evacuated mere weeks after the previous flood event destroyed homes, livelihoods, and townships. A recent report by the Climate Council found that climate change is firmly embedded in the 2022 flooding emergency that is currently sweeping through this region.
In this context of environmental crises, Federal Environment Minister Sussan Ley recently appealed the decision in the Sharma case, wherein Federal Court Judge, Justice Mordecai Bromberg, held the Minister had a duty of care to protect Australia’s youth from the damaging impacts of climate change. While appealing the decision might seem like a callous and ludicrous move from the Minister for Environment, the trial, together with the appeal judgment, exposes a vital truth – our environment law framework is not designed to protect the environment. Instead, it serves to legitimise development, and in doing so, it ultimately fails to protect our environment and humanity. Let us first look at what happened in the original trial to understand this.
The Trial | Sharma & Others v Minister for the Environment | Federal Court of Australia | VID607/202 – The Minister is found to owe a Duty of Care to protect Australia’s youth against the damaging impacts of climate change
In September 2020, eight Australian teenagers filed a class action in the Australian Federal Court against Federal Environment Minister Sussan Ley, seeking an injunction to prevent the Minister from approving Whitehaven’s Vickery coal mine expansion. In their submissions, solicitors for the Applicants, Equity Generation Lawyers, successfully argued that approval of the mine expansion endangered the Applicants’ future by increasing their exposure to climatic hazards. The applicants successfully proved that hazards such as more prolonged and more intense bushfires, storm surges, coastal flooding, inland flooding, cyclones and other extreme weather events are ‘driven by further emission of CO2 into the earth’s atmosphere.
While the Court dismissed the children’s application to grant an injunction, His Honour held that in the course of deciding whether to approve the development, the Minister for the Environment owed a duty of care to Australia’s youth not to cause them physical harm in the form of personal injury from climate change. In a moving judgement that considered evidence from the IPCC, the CSIRO, the Bureau of Meteorology, and internationally renowned ANU climate scientist Will Steffen, Justice Bromberg found:
“It is difficult to characterise in a single phrase the devastation that the plausible evidence presented in this proceeding forecasts for the Children. But, as Australian adults know their country, Australia will be lost, and the world will be gone as well.”
“The physical environment will be harsher, far more extreme and devastatingly brutal when angry. As for the human experience – the 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. Instead, 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.”
The judgement, which focused on the Minister’s responsibilities when making decisions under sections 130 and 133 of the EPBC Act, articulated the duty at :
“The Minister [for the Environment] must take reasonable care to avoid causing personal injury to the Children when deciding, under s 130 and s 133 of the EPBC Act, to approve or not approve the Extension Project.”
Following the judgment, Attwood Marshall Lawyers Legal Practice Director Jeff Garrett noted the decision set a precedent that opened a doorway for future litigation by affected people or organisations.
Four months after the ruling, Ms Ley approved the coal mine, arguing that despite the duty of care existing, approving the mine “would not contribute to the world’s heating”. She then set about having her duty to the children overturned by filing an appeal against Justice Bromberg’s decision.
The Appeal | Minister for the Environment v Sharma & Others | Full Court of the Federal Court of Australia | VID389/2021 – Minister’s duty of care to Australia’s youth is overturned
The appeal was heard in the Federal Court of Australia between 18 and 20 October 2021. In her submissions, the Minister argued that the primary judge’s findings were incorrect and that they had been reached beyond the evidence. To this, the full bench unanimously disagreed.
If the threat of climate change is not in dispute, one might ask on what basis the Minister for the Environment can argue that she does not have a duty to protect our youth in making decisions that evidence shows contribute to climate change. This seems like an abhorrent argument for the Minister to pursue. The young litigants have every right to be disappointed that someone they thought would have a duty to protect them would so blatantly abrogate that responsibility. However, as the Court’s rationale exposes, the problem goes much deeper.
Understandable was the Court’s finding that such a duty would be plagued with indeterminacy if held to exist. From the vast class of potential claimants to the variety of potential risks. These indeterminate factors are magnified in the context that the Minister’s actions form part of the many detrimental actions taken by other global actors that contribute to the risk of harm from climate change. However, the issue of indeterminacy was not enough to compel the Court to overturn the duty held by the trial judge. Instead, the Court’s judgment focused on two factors:
- That a mandatory duty could not be implied from the EPBC Act; and
- Considering point 1 is an issue for public policy, it is not the judiciary’s place to impose a legal duty.
Concerning the first point, one might ask why the EPBC Act, which is arguably the cornerstone of Australia’s environmental law framework, does not consider human safety at its core? In His Honour’s judgement, Chief Justice Allsop noted:
“The [EPBC] Act is not concerned generally with the protection of the environment nor with any response to global warming and climate change.”
“There has been no attempt by the Commonwealth Parliament to translate international agreements concerning climate change, particularly the Kyoto Protocol … or the Paris Agreement into Commonwealth law.”
One would be forgiven for assuming that our environmental law framework is designed to protect the environment. The Environmental Defenders Office illustrates:
“While some areas of environmental law are designed to ensure the protection of the environment, others are designed to control human use of natural resources by setting up a system of environmental approvals. For example, water pollution is unlawful without a permit. However, a person can pollute waters with the NSW Environment Protection Authority (EPA).”
This latter category of environmental law might be more readily understood as development law. It is human-centred in as much as it preferences human development over the environment’s needs. However, as highlighted by the Sharma Appeal, this preferencing of humans over the environment reveals a paradox – preferencing economic development over the environment’s needs will ultimately have negative impacts on humans because humans are reliant on a healthy environment. The flaw in power structures that operate hierarchically is that they fail to acknowledge this interconnectedness and instead attempt to balance one side’s needs against the other. One commentator noted that the EPBC Act operates in a “piecemeal way, rather than concerning ecosystems as a whole, or our dependency on them.”
In light of this philosophical dilemma, the judiciary held that these are public policy issues, to be addressed by Parliament. As part of the separation of powers doctrine, it ought not to be the judiciary’s place to impose laws that do not align with public policy. One might argue however, that public opinion has shifted dramatically on the environment and climate change issues over recent years. It is time the Australian Government took decisive action to align public policy with these changing public opinions. Jacqueline Peel, a professor at Melbourne Law School and the director of the research group Melbourne Climate Futures, points out:
“Part of the reason people have taken these issues to the courts, why these kids were suing the government in the first place, was because of a lack of effective government policy.”
So, where to from here?
While the Minister’s novel duty of care may have been overturned, the Sharma case has created a legacy for other litigants to build upon, and Australia’s youth do not look to be giving up. The Environmental Defenders Office recently filed a case in Queensland’s Land Court on behalf of Youth Verdict, a group representing Indigenous and non-Indigenous youth. The case will challenge former MP Clive Palmer’s proposed Galilee Coal Project, this time on human rights grounds. Regardless of the ultimate result in the Sharma Appeal or the result in this upcoming trial, the Sharma case has shown that bringing these issues before the Court allows the judiciary to expose inadequacies and hypocrisies in the law and public policy.
The latest IPCC Special Report optimistically asserts that we have the tools to be able to halve annual global greenhouse gas emissions by 2030 but in an article published by The Conversation, Contributors to the report are quick to warn that in order to achieve this objective “broad policy action is needed”. Contributors note that while the latest report does not provide assessments for each country, Australia has access to all the emission reduction strategies outlined in the report. The contributors note that “emerging technologies such as green steel and hydrogen offer Australia new, clean export industries.” In turn, they predict that fossil fuel use “is destined to fall, with coal dropping off particularly quickly.” Social commentary such as that which has resulted from the Sharma Case places pressure on politicians and raises public awareness around the dire need to take urgent policy actions.
An alternative way of looking at environmental law – legal precedents supporting rights of nature
There are many examples of case law and legislation around the globe that refer to nature as having legally enforceable rights. The most potent example of this legal argument being developed in Australia is the Yarra River Protection (Wilip-gin Birrarung marron) Act passed by the Victorian Parliament in 2017. While not granting legal personhood to the Yarra, referring to the river as a ‘natural entity’, the Act paves the way for a right of nature discourse in Australia. This emerging area of law is known as ecological jurisprudence. Jurisprudence is the philosophy that underpins law. Ecology describes the relationships between all living organisms. Ecological jurisprudence envisages all human laws, not just environmental law, from an earth-connected perspective, rather than a human-centred perspective. Drawing on Indigenous philosophies that understand the interrelationship between humans and nature, ecological jurisprudence, or earth laws as it is commonly referred to, recognises the need for every aspect of human law to be informed by and respectful of the laws of nature itself. Aboriginal Peoples across the globe have long understood this, and here in Australia, we are fortunate that remnants of Aboriginal lore have survived colonisation. Sadly, this knowledge is often overlooked and denigrated, and the knowledge holders marginalised. If we hope to survive as a people, we may need to spend more time sitting, listening, and learning from Aboriginal elders and looking to legal frameworks offered by alternative ideologies such as ecological jurisprudence.
The Sharma Appeal exposes the failings of the EPBC Act in that it does not impose on the Minister a duty of care to protect the next generation from the harmful impacts of climate change when deciding on whether she is to approve an action, such as a coal mine, that contributes to global warming. The Court’s appeal decision not to impose this duty upholds the separation of powers doctrine. Furthermore, it puts the onus back onto Parliament to consider whether the EPBC Act in its current form aligns with a public that is exceedingly calling for Government to act on climate change. This is a sentiment sadly lacking with the current cabinet. During his time as Treasurer under the Turnbull Government in 2017, now Prime Minister Scott Morrison went so far as to mock those who speak out against the expansion of coal industries. Evidence of the current Government’s support for carbon producing industries is its allocation of more than $37 billion to coal, oil, and gas subsidies in the 22/23 Federal budget. The Australian Institute reports that fossil fuel subsidies represent ten times the balance of Australia’s Emergency Response Fund. Rod Campbell from the institute comments:
“It is perverse that Australian governments continue to subsidise fossil fuel production and consumption while communities across the country are bearing the costs of disasters exacerbated by fossil fuel use,”
“This is bad economics and even worse climate policy. Australia’s flood-stricken communities are trying to pick up the pieces while fossil fuel interests are cashing to the tune of over $22,000 a minute.”
With earth’s 6th mass extinction event currently accelerating, it is not surprising that Australia’s youth are standing up and demanding an end to the madness. Emerging areas of law such as ecological jurisprudence are providing alternative philosophical viewpoints that would help to reconcile the Minister’s moral duty of care with that expected of her under the current legal framework.
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