Climate Responsibility According to the Federal Court

Written By Antonia Mangos

With the recent floods, previous bushfires and a looming election, there has been a significant focus on climate change and the Australian Government’s role in addressing such matters. A recent Federal Court case has cemented the morbid reality that has signified interpretations of what the Federal Government’s duty of care (or lack thereof) is regarding climate change action. 

The Original Decision: Sharma by her litigation representative Sister Marie Brigid Arthur v Minister for the Environment [2021] FCA 560.

Back in 2021, a class action case was brought against the Federal Environment Minister Sussan Ley on behalf of Australian children and teenagers for climate change action. The suit was brought under the tort of negligence, the class action aiming to recognise that the Federal Government, specifically the Minister for Environment, had a duty of care for the future of children and teenagers in Australia concerning climate change-related damages. 

The action also specifically had the objective of seeking an injunction to stop the Federal Government from approving the extension of Whitehaven Coal’s Vickery coal mine. Whitehaven Coal is Australia’s largest independent coal mine company that already operates four mines in the Gunnedah Basin located in northeast New South Wales. The reason for such an injunction was that the appellants claimed the coal mine extension would endanger their futures. 

In their decision, the Court considered evidence from prominent organisations and corporations such as the Intergovernmental Panel on Climate Change, the Commonwealth Scientific and Industrial Research Organisation (CSIRO), and the Bureau of Meteorology. With these considerations in mind, the Court found that one million of today’s Australian children are expected to be hospitalised because of a heat-stress episode related to climate change. Further, it was found that substantial economic loss will follow as a matter of current policies and climate change. It was further proven in court proceedings that the Great Barrier Reef and Australia’s eucalyptus forests will not exist in the future for today’s children and future generations to enjoy. These measures were considered when assessing the reasonable foreseeability of damages related to climate change. 

Conclusively, the Court held that Minister Ley did have a duty to take reasonable care to avoid causing personal injury to the children when deciding, but the injunction was not granted. However, the decision that recognised this duty of care was previously recognised as a landmark judgement with lasting impact. 

The Recent Decision: Minister for the Environment v Sharma [2022] FCAFC 35.

On appeal, the Court overturned its original decision that Minister Ley had a duty of care to the children of Australia. Despite the findings found in the original decision, the Court was more concerned with the issue of the extension of Whitehaven Coal’s extension when coming to such a conclusion. 

The Justices of the Court were somewhat divided in their specific conclusions, with debate that climate change responsibility was up to Parliament and not the Judiciary. Essentially, the Court held that granting the extension of the coal mine and its link to the climate crisis was a minimal risk to the overall inevitable damage created. The decision inevitably backflipped on the duty of care assigned to Minister Ley. The decision left the children who brought the class action devastated. 

The Impact of the Decision 

Although the decision has diverted responsibility of climate change action from the Minister for Environment and inevitably skirted the Federal Government’s responsibility in this respect, the Court’s proceedings have still provided some hope for future climate litigants. 

Ultimately, the Court recognised climate science and rejected the claims brought forward by Minister Ley, who claimed the evidence initially presented was incorrect. Further, it was recognised that although the Minister bears no responsibility, the impact of climate change will be felt by future children. 

This conclusion may appear grim but is vital for future appeals and precedential understanding. Moreover, it calls to address that climate change action and policy is up to the Federal Government to make decisions. With climate science recognised and the impact of current circumstances on current and future generations of children in Australia recognised, there is hope. The respondents also can appeal this recent decision to the High Court of Australia, but only time will tell.