Climate change has become an issue that has captured the interest of the young generation. It is not surprising as it is them who will inherit the Earth we live in, and it is in their interest that the Earth remains sustainable for their future. Recently, there has been a few climate change court actions occurring here in Australia.[1] For example, Youth Verdict, a group of people aged between 13 and 30 dedicated to using the law to fight for youth justice, have filed a legal action in Queensland against Waratah coal mine in the Galilee Basin proposed by Clive Palmer.[2] On behalf of Youth Verdict, Environment Defenders Office (EDO) lawyers are arguing that it is a breach of the plaintiffs’ human rights if the Waratah coal mine project is to proceed; contributing to the dangerous effects of climate change that will negatively impact on their future.[3] There is one recent class action that will be of legal significance to climate change litigation. This is the case of Sharma v Minister for Environment.[4]
The uniqueness of Sharma v Minister for Environment derives from the argument the plaintiffs are trying to make. The argument is that the Federal Minister for Environment owes the plaintiffs a duty of care to protect them from the harmful impacts of climate change. This is concerning the potentially harmful effects of the expansion of an open-cut coal mine, Whitehaven’s Vickery coal mine, just north of the town of Gunnedah in NSW.[5] If the Minister does approve the expansion, then that would be a breach of the Minister’s duty of care; thus, the Minister should not approve it.[6] This is a new approach for legal action on climate change and would have significant legal implications, no matter the result.[7]
This class action has only recently been filed at the Federal Court of Australia, so a judgment is yet to come. However, this article will examine some of the possibilities of how their argument of duty of care could be received in court and the impact it can have for future climate change cases in Australia. Laura Schuijers has already made preliminary observations and comments regarding the plaintiffs’ argument of duty of care. For example, Schuijers observed that the Court may perhaps ‘look closely at the particular relationship between the [M]inister and the vulnerable young people, who will be strongly impacted by climate change but have no voting rights’.[8] The question becomes, would this be considered a novel category in which the Minister for Environment owes a duty of care to a particular class of people?
For those familiar with torts law, to successfully argue that there is or has been a breach of duty, which in this case would be on the Minister for Environment’s part, a duty of care must be established between the plaintiff and the defendant. For novel cases where the duty in question does not fit into an established duty of care category, then a duty of care arises when:
1) the plaintiff’s harm is reasonably foreseeable,
2) salient factors (or features)[9] when considered by analogy with similar salient factors in accepted category cases suggest that a duty does exist, and
3) the compatibility test is applied (i.e is the novel duty in question compatible with existing law or does it impede upon an already existing duty?).[10]
When considering whether the plaintiff’s harm is reasonably foreseeable in this case the first place to begin is the neighbour principle from Donoghue v Stevenson.[11]The principle provides that if the defendant’s action or omission occurred, it is reasonably foreseeable that the plaintiff could be harmed. To clarify who would be considered a ‘neighbour’, Lord Atkin states that they would be:
…persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called into question.[12]In this case, it can be argued that it is foreseeable that the decision of the Federal Minister for Environment whether to grant or deny the extension of Whitehaven’s Vickery coal mine can have an impact on Sharma and the other plaintiffs who are a part of a class of people, the young generation who have no voting rights, who can suffer significantly from the activities of the coal mine that contributes to climate change. The coal mine is projected to increase production by 25%, expand the disturbance area to around 776 hectares[13] and emit around 100 million tonnes more greenhouse gasses.[14] The Courts may still be hesitant in finding a nexus between climate change effects and individual coal mine projects, whether small or large. However, last year, the New South Wales (NSW) Land and Environment Court recently found that there can be a connection found between coal mine projects and climate change taking into consideration the project’s social and environmental performance.[15] Therefore, there can still be a possibility in which Sharma v Minister for Environment would be able to successfully argue the connection between the activities of the Whitehaven’s Vickery coal mine and climate change.
Furthermore, another recent case may also aid in arguing that there is a duty of care owed by the Minister for Environment to Sharma and the other plaintiffs. In the case of Plaintiff S99/2016 v Minister for Immigration and Border Protection,[16] the Federal Court of Australia held that the Minister for Immigration owed a duty of care to the plaintiff who had a history of trauma and seizures and had a requested an abortion when she became pregnant after she had been raped.[17] The case of S99/2016 may help, but to determine if there is a duty of care established Sharma v Minister for Environment, the plaintiff will need to argue that when considering the salient features in the context of the case, those features suggest that a duty of care should exist.
Some of the salient features include the foreseeability of the harm as discussed previously and the nature of the harm alleged. Considering that the harmful effects of climate change such as frequent extreme weather events (i.e floods, fires etc) can have devastating impacts on communities and its citizens, it can be argued that the nature of the harm, in this case, is serious. Another salient feature to consider is the degree of control the defendant can exercise to avoid such harm. Here, it can be argued that the Minister for Environment has a sufficient degree of control to avoid, or at least reduce, the harmful effects of climate change when deciding to go ahead with the extension of the coal mine that is likely to contribute to climate change.
Furthermore, the salient feature regarding the degree of vulnerability of the plaintiffs to the harm from the defendant’s conduct and the degree of reliance by the plaintiffs on the defendant can also be argued in favour of Sharma and the other plaintiffs. First, the class of plaintiffs, in this case, have no voting rights and are still considered dependents. They are under 18 years old and are still considered children. It is evident that they would be considered a vulnerable class and do not have much capacity to protect themselves from the harm caused by the defendant. This leads to the degree of reliance the plaintiff has on the defendant which can be argued to be significant as it is the Minister for Environment with the decision-making power; meanwhile, the plaintiffs can only display their disagreement as they currently do not have the right to choose who they would like in Parliament. There are a total of 17 salient features to consider and these are just some of those that would need to be argued in court.
There are a few policy considerations that may be pertinent to this case. For example, if this case is successful, would this create a floodgate of climate change litigation which could lead to several coal mine projects to be shut down or denied? Perhaps, cases like this can help in ensuring that the government carefully considers the effects a coal mine project may have on climate change. This may then convince the government to refuse a coal mine project that could significantly contribute to climate change.[18] Whatever the results would be, this case will have a significant impact on climate change litigation and the evolution of the law in Australia.
[1] Joana Setzer and Lisa C. Vanhala, ‘Climate change litigation: A review of research on courts and litigants in climate governance’ (2019) 10(3) Wiley Interdisciplinary Reviews: Climate Change 580. [2] Justine Bell-James, ‘These young Queenslanders are taking on Clive Palmer’s coal company and making history for human rights’, The Conversation (nline, 19 May 2020) <https://theconversation.com/these-young-queenslanders-are-taking-on-clive-palmers-coal-company-and-making-history-for-human-rights-138732>. [3] ‘Young Australians take on Clive Palmer coal mine over human rights’, Environmental Defenders Office (Web Page) <https://www.edo.org.au/young-australians-take-on-clive-palmer-coal-mine-over-hr/>. [4] ‘Sharma v Minister for Environment’, Equity Generation Lawyers (Web Page) <https://equitygenerationlawyers.com/cases/sharma-v-minister-for-environment/>. [5] See Laura Schuijers ‘These Aussie teens have launched a landmark climate case against the government. Win or lose, it’ll make a difference’, The Conversation (online, 10 September 2020) <https://theconversation.com/these-aussie-teens-have-launched-a-landmark-climate-case-against-the-government-win-or-lose-itll-make-a-difference-145830>; Michael Slezak and Penny Timms, ‘Class action to stop planned coal mine extension filed by climate action-focused Australian teenagers’, ABC News (online, 9 September 2020) <https://www.abc.net.au/news/2020-09-09/class-action-against-environment-minister-coal-mine-approval/12640596>. [6] Laura Schuijers ‘These Aussie teens have launched a landmark climate case against the government. Win or lose, it’ll make a difference’, The Conversation (online, 10 September 2020) <https://theconversation.com/these-aussie-teens-have-launched-a-landmark-climate-case-against-the-government-win-or-lose-itll-make-a-difference-145830>. [7] Ibid. [8] Ibid. [9] See Caltex Refineries (Qld) Pty Limited v Stavar [2009] NSWCA 258, [103]. [10] See Sullivan v Moody (2001) 207 CLR 562. [11] [1932] 1 AC 562. [12] Ibid [13] Patrick Bell, ‘Whitehaven's Vickery coal mine extension approved by Independent Planning Commission, with conditions’, ABC News (online, 12 August 2020) <https://www.abc.net.au/news/2020-08-12/ipc-approves-whitehaven-vickery-coal-mine-expansion/12548826>. [14] Lisa Cox, ‘Whitehaven Vickery mine expansion to extract 250% more coal approved by NSW’, The Guardian (online, 12 August 2020) <https://www.theguardian.com/australia-news/2020/aug/12/whitehaven-vickery-mine-expansion-to-extract-250-more-coal-approved-by-nsw>. [15] Gloucester Resources Ltd v Minister for Planning [2019] NSWLEC 7, [422]-[556]. [16] [2016] FCA 483 [17] ‘Plaintiff S99/2016 v Minister for Immigration and Border Protection [2016] FCA 483’, Kaldor Centre for International Refugee Law (Web Page, 25 July 2016) <https://kaldorcentre.unsw.edu.au/publication/plaintiff-s992016-v-minister-immigration-and-border-protection-2016-fca-483>. [18] Laura Schuijers ‘These Aussie teens have launched a landmark climate case against the government. Win or lose, it’ll make a difference’, The Conversation (online, 10 September 2020) <https://theconversation.com/these-aussie-teens-have-launched-a-landmark-climate-case-against-the-government-win-or-lose-itll-make-a-difference-145830>.
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