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The Sharma Decision

The Sharma Decision

Published on March 31, 2022 by Martin Slattery and Amal Naser

A recent decision of the Federal court has found that the Minister of Environment does not owe a duty of care to protect children from the future harm that will be caused by climate change. The primary judgment was the first common law decision in the world which considered the duty of care of executive members of government, around an issue which will have dire consequences on the lives of members of public permanently. In fact, we have already seen the impact that Climate Change is having on the lives of Australians such as the 2019/2020 bushfires which resulted in loss of life and extensive damage, as well as the recent devastating floods across Queensland and NSW which also resulted in loss of life and major damage to homes and businesses. So, the question remains, if the relevant Minister does not owe a duty of care to children, then who does?

Background

Eight children brought an action against the Federal Minister for Environment arguing that the Minister had a duty of care to protect young people from the future harm that will be caused by climate change.[1] The case focused on the impacts of the proposed coal mine extension project in NSW known as the Vickery Extension project. The Plaintiffs also asked for the Court to grant an injunction to prevent the Minister from approving the project before a judgement in the matter could be handed down. This is the first case in Australia and the common law world which litigated federal climate polices under the tort of negligence.

The role of the Minister of Environment

The current duties of the Minister of Environment, the Hon. Susan Ley MP, is legislated by the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act). It was argued that she owed a duty of care, through statutory interpretation of the EPBC Act, with a particular focus of ss 130 and 133.

Prior Judgement

In 2021, the case was heard in the Federal court of Australia by Justice Mordy Bromberg. It was concluded that the Minister owed a duty to take reasonable care to avoid causing personal injury to children when making a decision under the EPBC Act.[2] The Court formed the view that this was within the exercise of power under ss 130 and 133 of the EPBC. The scope of the duty of care was related to coal mine expansion, where the Minister had to take reasonable care to avoid causing personal injury or death to persons who were under 18 years of age, and ordinarily a resident of Australia, arising from emissions of carbon dioxide into the Earth’s atmosphere.[3] The Plaintiff’s also sought an injunction to prevent the approval of the expansion of the mine, however, the judge rejected this request.

The Minister for Environment appealed the decision, contesting the finding that she owed a duty of care to children, within her role as Minister.

It is important to note that the implications of the legal decision were not the only element of importance, but the factual findings itself. Justice Bromberg considered the long-term impacts of Climate Change and made this judgement:

“The physical environment will be harsher, far more extreme and devastatingly brutal when angry. As for the human experience – 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. 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.”

These factual findings created a significant challenge for the Minister of Environment during the appeal. She did not just have to challenge whether she owed a duty of care, but also the noted factual findings which judicially affirmed the dire impacts of climate change which has been warned by climate scientists for decades.

The Appeal

The Appeal was heard by the Full Federal court and all three judges unanimously held that the Minister did not owe a duty of care within her capacity as an executive member of Government to children, in making decisions around fossil fuel projects. In short, this meant the Minister did not have to consider the impacts of Climate Change in her decision-making powers.

The appeal was multi-facetted and considered both the role of the judiciary in private litigation against members of the executive and also whether or not the scope of the duty can be ascertained within the act.

A Duty of Care within the EPBC Act

In summary, Chief Justice Alsop held that that the primary judge’s finding that human safety is an implied mandatory consideration in the EPBC Act is “inconsistent with the text, purpose and context of the statute.”[4] Additionally, Justice Wheelahan found that there was “no relationship of neighbourhood between the Minister and the respondents and the class whom they represented”.[5] Essentially, this means the EPBC Act, which confers decision-making powers on the Minister of Environment both does not create a consideration of human safety when making key decisions around projects which can have long-term harm on the environment and society. Additionally, the act creates no relationship between the Minster and children, meaning the Minister does not have the consider the harms her decisions will have on children during her decision-making process. This interpretation came from a narrow interpretation of the EPBC Act, noting that the primary judge found the opposite during their analysis of the EPBC.

Public Policy Considerations

The Chief Justice also considered whether the question of duty of care in high public policy is suitable to be considered by the judicial bench in private litigation. He concluded that these are purely policy choices to be made by the government as they must also consider a number of factors, including the “economic interests of the people”.[6] As a result, he concluded that these choices made by government are political and democratic choices, which are appropriate for democratic accountability.[7] This consideration represents a long-standing view of the court, particularly the HCA, where there is a hesitancy to interfere in decisions which they would deem as ‘political’. In short, the Court deemed that climate change is purely a matter for the public to hold the executive into account at an election.

Limitations of Litigation

The court considered the issues that would be posed by litigating a tort of negligence with respect to decisions made by the Minister of Environment. Arguments supporting the concept that a duty of care to children in relation to climate change is not a suitable matter for the courts included:

  • The supposed lack of control over the harm the Minister of Environment will pose, arguing the decisions about coal mines will be a ‘tiny contribution’ to the overall damage of climate change.[8] However, the primary judge found that the contribution was ‘material’.
  • The children lack a special vulnerability in the legal sense. This argument was attributed to litigants being in the same position as everyone in the world who is or will be alive when the impacts of climate change will be felt.[9]
  • An imposition of duty of care will create an issue of indeterminate liability, meaning it will be difficult for the court to ascertain the amount of potential litigants in this matter.[10]
  • Inability to establish a standard of care on a matter in a political and policy context.[11]
  • Difficulty in establishing causation between the approval of a coal mine and the physical injury caused to children as a result of climate change. This is because the foreseeable injuries would be caused by consequential events of the accumulation of CO2 in the atmosphere, such as extreme weather events.[12]

Criticism

A common theme throughout the judgment was the issue of climate change was purely a democratic consideration and not one for the courts. Notably in this case, the litigants, children, are not democratic participants and do not have the legal right to vote.

The separation of powers has theoretically created a system of accountability, ensuring the courts can ensure the executive are meeting their legislative and constitutional duties to the public. If the courts fail to scrutinise members of the executive for failing to maintain a duty of care on children and children do not have the right to vote, this leaves the process open to adults and the decisions they make at an election. However, this very democratic process has also been scrutinised for not adequately ensuring climate change policies protect children when the harms of climate change will be felt to the fullest extent. Studies show that as young votes replace the old over time, climate change will become an even more important political issue. However, we know that climate change action needs to happen immediately and cannot wait for changing governments and future elections. Otherwise, the harms and impacts will become irreversible. In fact, just recently, the UN secretary general shamed Australia for failing to take appropriate action on climate change and produce meaningful policy, which will meet internationally established goals by 2030. He accused the government of having “an addiction to fossil fuels” which will create “mutually assured destruction.” Additionally, on the specific issue of climate change, the political and democratic process has been significantly tainted, with both major parties accepting large political donations from fossil fuel companies, which inadvertently will influence their policy choices.

The court also noted that children are not a unique class and do not have ‘special vulnerability’. However, the evidence suggests that climate change will disproportionately impact children, and they will be more vulnerable to the injuries that will be caused by climate change. UNICEF has emphasised that climate change is a child rights issue.

It is unlikely the contents of the EPBC Act will be amended to create a more specific DOC to children with respect to Climate Change. Neither political party will want to face this level of scrutiny under the court and would enjoy the freedoms of balancing competing environmental and economic interests during decision-making processes around fossil fuels.

This case is certainly not the end

Significantly, this case still brought about one important development. The Minister for Environment challenged the factual findings which judicially affirmed the dire consequences of climate change. The Full Federal Court upheld these facts and noted “the nature of the risks and the dangers from global warming, including the possible catastrophe that may engulf the world and humanity were never in dispute.

First of all, this finding affirms climate science, the extent of the harms of climate change has been politically disputed for decades. Additionally, it will create an important standard in future climate change litigation, affirming the difficulty for defendants to challenge the harms of climate change.

This is not the only case litigating climate action in Australia. The limitations posed by merits review has led to environmental lawyers seeking new avenues to legally enforce climate action, in the absence of political drive to meet international climate targets by the current government and potential future governments.

Next month, a Land Court in Queensland will hear whether or not the approval a new coal mine in the Galilee Basin is a breach of human rights, due to the climate harm it will create. This case is also being brought by children.

Additionally, the Federal Court of Australia will be hearing another duty of care decision in due course. Pabai Pabai and Guy Paul Kabai v Commonwealth of Australia is a class action brought by Torres Strait Islanders against the Commonwealth Government. The argument is that the Commonwealth owes the small class of litigants a duty of care with respect to climate change, due to the loss and damage they will suffer as a result of the consequences of climate change. In this case, rising sea levels will make traditional lands uninhabitable. Notably, the impacts of Climate Change will disproportionality impact Indigenous populations the most, globally.

Despite the decision in Sharma being unfortunate for climate change activists, it will not slow down climate change litigation. The role of the judiciary in these matters will increasingly be challenged with further litigation, and legal criticism.

This is also not the end of the Sharma matter. Legal experts at Environmental Law Australia have commented that it is quite likely the children will appeal the decision to the High Court of Australia. They will have 28 days to file for special leave for appeal and given, the importance this decision will have to Australian law, the prospects of special leave being granted is quite high.

On top of this, the legal world does not just have a responsibility to litigate climate matters, but also ensure the right to civil protest is protected, as climate activism increases worldwide. The Full Federal Court concluded in the Sharma decision that this is a political matter and thus, it is important that children and citizens continue to have the right to demonstrate and put pressure on both political institutions and corporations worldwide.

 


[1] Sharma by her litigation representative Sister Marie Brigid Arthur v Minister for the Environment [2021] FCA 560, [4].

[2] Sharma by her litigation representative Sister Marie Brigid Arthur v Minister for the Environment [2021] FCA 560, [491].

[3] Ibid.

[4] Minister for the Environment v Sharma [2022] FCAFC 35, [215] (Allsop CJ).

[5] Ibid [852] (Wheelahan J).

[6] Ibid [238] (Allsop CJ).

[7] Ibid.

[8] Ibid [344] (Allsop CJ).

[9] Ibid [338] (Allsop CJ)

[10] Ibid [741] (Beach J)

[11] Ibid [782] (Wheelahan J).

[12] Ibid [882] (Wheelahan J). 

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