Duty of Care or Duty to Coal?

Despite the growing recognition of climate change globally, the Australian Government is still bolstering the viability of coal mining with little concern for rising carbon emissions. Earlier this year, the landmark Sharma Decision in the Federal Court, a class action of young people, argued that the Environment Minister owes future generations a duty of care to prevent harm or death for the continuing effects of climate change. This was accepted in the case, the first of its kind to acknowledge a duty of care owed to future generations with the undeniable impacts of climate change. Even so, the Environment Minister Sussan Ley has recently approved at least three new coal mine projects this year, citing that such projects will not cause significant harm nor contribute to climate change. This is a concerning position as climate science estimates that without reduced emissions on a national scale, detrimental environmental impacts, already seen in the recent Bushfires in 2019-20, will become worse and pose serious risks. 

With scant recognition of climate change on a national scale and a limited body of climate law, the common law has been one of the few areas to recognise the timeliness of climate action. In the Sharma Decision, the judgment acknowledged both the realities of climate change and the risk to future generations however did not grant an injunction to stop the Vickery coal mine. Since the decision, the Vickery coal mine that Sharma was brought against has subsequently been approved. In her reasoning Minister Ley noted that the amount of coal extracted by the project was unlikely to be higher than if she refused the project. This comes alongside her most recent approval in October, which she justified by stating, ‘The mine itself will contribute approximately 0.00073 percent to global emissions per annum’, a position that this would not contribute to climate change, she claimed.

This is a concerning position on both a federal and international scale, as the Paris Agreement has pushed for net zero emissions by at least 2030 and the incoming Conference of the Parties in Glasgow next month, will also require Australia to demonstrate how they are meeting these global targets. With more evidence from climate scientists to suggest that any emissions, no matter how small, prove detrimental to the impacts of climate change, these recent approvals question what the Australian Government is doing to protect the environment and how they can justify such projects when the common law has pushed for a duty of care to future generations.

Ultimately, the position of the government to continue to prioritise jobs and the economy through mining projects despite increasing pressure to meet international targets demonstrates how at risk future generations will be to the future harms of climate change. With Sharma, currently on appeal, it could be that Ley believes the duty of care she owes will be overturned and thus is not acting in the best interests of future generations, which remains to be seen until the decision is consolidated in the future.