The Australian Federal Court has ruled that Environment Minister Sussan Ley has a legal duty not to cause harm to young people of Australia by exacerbating climate change when approving coal mining projects.
The decision, in the Federal Court in Melbourne on Thursday, came following a case brought by a group of eight young people on behalf of “all young Australians” filed in September 2020.
The group of eight young Australians argued duty of care existed and also applied for an injunction to be granted to stop the minister from approving Whitehaven’s extension to its Vickery coal mine in NSW, on the basis that it would exacerbate climate change and cause serious harm to them in the future.
Despite Justice Mordecai Bromberg agreeing the Minister had the duty of care to protect young people from climate change, that climate change would cause catastrophic and “startling” harm to young people, and that the mine would increase the chance of that harm, he dismissed the application for an injunction on technical grounds.
But experts say the ruling could set an important legal precedent.
“The decision is going to reverberate for a long time,” Dr Chris McGrath, an expert in climate litigation, said.
The judge ordered the two parties to make further submissions outlining how the newly determined duty of care impacted the Minister’s assessment of the mine.
The lawyers involved say the ruling is a global first.
Lawyer David Barnden from Equity Generation Lawyers, who represented the schoolchildren in the class action on behalf of all Australian young people, said it was still possible the court would stop the mine from going ahead.
In his judgment, Justice Bromberg said approving the mine would have a small but foreseeable impact on climate change, and that would increase the risk of “catastrophic” harm experienced by young people in the future.
He described as “startling” that more than one million of today’s children would require acute care from heat stress at some point in their lives, because of global warming.
Dr McGrath said the decision could have widespread ramifications not just for the Environment Minister, but for companies and other ministers.
“There’s now a big crack in the wall,” Dr McGrath said. “The implications for litigations against companies in negligence law are there, too.”
He said while the court did not grant an injunction as a remedy in this case, the door was open to claim damages for the impacts of climate change, now that the duty of care had been established.
“I think this has blown open a duty of care for climate change in Australia. It’s blown it open,” he said.
The case was likely to be appealed all the way to the High Court, he said.
“It’s a great decision to defend in an appeal,” he said. “He’s gone through the facts of climate change, made some serious findings of facts.
“Findings on facts are not normally open to appeal, and in this case most of the facts were not contested by the Minister.”
Comment was being sought from the Minister.
-more to come