Environment Minister has a duty of care to protect Australian children from climate change harms, Federal Court rules

On 27 May 2021, Justice Bromberg delivered his judgment in Sharma by her litigation representative Sister Marie Brigid Arthur v Minister for the Environment [2021] FCA 560 (Sharma).

The applicants in Sharma were a group of eight Australian children, all under the age of 18 (the Children), represented by Sister Marie Brigid Arthur, their litigation guardian.

The Children claimed that the Commonwealth Minister for the Environment (the Minister), as the first respondent, owed them and other Australian children a duty of care when deciding to approve the extraction of coal from a coal mine under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act). They sought an injunction to restrain an apprehended breach of that duty.

The Children also sought the injunction against Vickery Coal Pty Ltd (Vickery), as second respondent and a wholly-owned subsidiary of Whitehaven Coal Pty Ltd (Whitehaven). Whitehaven holds a development consent under the Environmental Planning and Assessment Act 1979 (NSW) for a coal mine in Northern NSW, although coal production is yet to commence.

In 2016, Whitehaven applied to the Minister to expand and extend the mine under section 68 of the EPBC Act. Vickery took over the mine in July 2018. At the hearing, Justice Bromberg accepted evidence that, when combusted, the additional coal extracted from the mine’s expansion would produce about 100 million tonnes of carbon dioxide.

Duty of care

The case required the Court to consider a novel duty of care within the law of negligence.

The Children’s arguments

The Children argued that particular harms suffered would be mental or physical injury, including ill-health or death, as well as economic and property loss. They argued that this was a likely consequence of longer and more intense bushfires, storm surges, coastal flooding, inland flooding, cyclones and other extreme weather events associated with climate change.

They put forward scientific evidence to demonstrate that the effects of climate change will increase the Earth’s average surface temperature in the future (currently at about 1.1°C above pre-industrial temperature levels) to about 4°C above pre-industrial temperature levels, by about 2100.

The Minister’s arguments

While accepting the threats and challenges that climate change presents, the Minister denied she owed the Children a duty of care.

The Minister argued:

• the greenhouse gas emissions from the mine’s expansion would be negligible
• any injury to the Children from the mine’s expansion was not reasonably foreseeable
• relevant salient features did not support a finding of a novel duty of care
• even if a duty of care was found to exist, there was no reasonable apprehension that the duty would be breached, and it was not necessary to issue an injunction.

Salient features analysis

Whether a person owes a novel duty of care is to be determined by reference to a number of considerations, or salient features. These features are derived from President Allsop’s decision in the NSW Court of Appeal case of Caltex Refineries (Qld) v Stavar (2009) 75 NSWLR 649. The Children emphasised a number of these features, to support the posited duty:

• reasonable foreseeability and nature of the harm
• degree and nature of control able to be exercised by the Minister to avoid the harm
• vulnerability of the Children
• a recognised category of the relationship between the Minister and the Children.

The Minister emphasised the below features as militating against a finding of a duty of care:

• reasonable foreseeability
• control
• proximity
• reliance and responsibility
• incoherence and inconsistency with the EPBC Act and public law principles
• indeterminacy.

The finding of a duty of care

Justice Bromberg held that the Minister was required to consider recognised principles of environmental law, such as Ecologically Sustainable Development and the Precautionary Principle when making decisions under the EPBC Act.

In deciding that the Minister did owe a duty of care, His Honour considered various features:

• this was a case where the foreseeability of the probability of harm from the defendant’s harm may be small, but should the risk of harm crystallise, the harm would be catastrophic
• the Minister has direct control over the foreseeable risk, because it was her exercise of power upon which the creation of that risk depends
• the Minister has all of the knowledge about the risk of harm to the Children which the substantial evidence in the case provided
• the Minister has responsibility for the environment and the interests of Australians, and must ensure a healthy environment for the benefit of future generations
• the Children’s innocence, as well as their vulnerability, was relevant since they bore no responsibility for the harm
• though there is no physical or temporal nearness between the Minister and the Children, the strength of the affirmative salient features demonstrates a relational nearness.

The Minister relied on the ‘flood-gates argument’, in claiming that recognition of a duty of care would impose tortious liability on all or a multitude of persons involved in generating emissions of greenhouse gases globally. Justice Bromberg was not persuaded by such public policy arguments. His Honour concluded that by reference to contemporary social conditions and community standards, a reasonable Minister for the Environment ought to have the Children in contemplation when facilitating the emission of 100 million tonnes of carbon dioxide into the Earth’s atmosphere. 

Injunction

The Children sought a quia timet injunction to restrain the Minister from an apprehended breach of the duty of care they assert she owed them. To warrant an injunction, Justice Bromberg said that two matters must be satisfied:

1. a reasonable apprehension of a breach of the duty of care must be established
2. the principles for the grant of a quia timet injunction must be satisfied.

A quia timet injunction can be granted to prevent or restrain an apprehended or threatened wrong which would result in substantial damage if committed. Such an injunction is available on a final basis in cases involving the apprehended or threatened breach of a duty of care.

Justice Bromberg was not satisfied that a breach of duty of care would occur for a number of reasons:

• for breach, the relevant inquiry to be made includes not only an assessment of reasonable foreseeability, but also taking into account the Minister’s competing or conflicting responsibilities, and an assessment as to whether the only reasonably available response to the reasonable foreseeability of personal injury to the Children is that the Minister not approve the mine’s extension
• no submissions were made by the Children about the Minister’s capacity to make a reasonable response, including by imposing conditions on an approval under sections 134(1) and (2) of the EPBC Act
• no submissions were made by the Children about the extent to which the Minister’s competing or conflicting responsibilities will influence the reasonable response to the foreseeable harm.

Therefore, the Children failed to establish that the injunction was warranted. It was highly undesirable to pre-empt the Minister’s decision.

Ramifications of Sharma

The decision in Sharma is the first time in the world that a government executive in their decision making has been held to owe a duty of care to young people to prevent them from harms associated with climate change.

The Minister will now need to make a decision about the project, having been told clearly by the Court that she owes a duty of care to Australian children to protect them from foreseeable harm associated with climate change and that she must take into account the avoidance of personal injury to people.

Disclaimer
The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this article is accurate at the date it is received or that it will continue to be accurate in the future.

Published by:

Jenny Humphris

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