Duty of care: Cultivating a court for our climate

The proper response to the watershed Sharma v Minister for the Environment case, and imagining climate litigation in Australia as a tool for justice.

In early March of this year, the full bench of the Federal Court unanimously ruled that Australia’s Minister for the Environment, Sussan Ley, did not have a duty of care to protect young people from the harms of climate change. The decision quashed the landmark victory of eight highschool students that established this duty in May last year, specifically with regards to Ley’s approval of the Vickery coal mine extension in NSW. 

The novel duty of care was a mammoth achievement for the climate movement, despite the extension going ahead. It was the first time climate science was accepted uncontested in the Federal Court in a case concerning a particular class of individuals (young people under 18). In Ley’s appeal of the duty, Chief Justice Allsop accepted that “by and large, the nature of the risks and the dangers from global warming, including the possible catastrophe that may engulf the world and humanity, was not in dispute.”

With this in mind, the sweeping success of Ley’s appeal should have sounded alarm bells throughout our nation. 

Instead, over a month on, and with a federal election looming, it has slipped off the agendas of news outlets and policy makers. It has deftly undercut Australia’s rich history of climate litigation, which stretches back two decades, and contains the second largest number of cases globally. 

But Anjali Sharma, the seventeen-year-old lead plaintiff of the Sharma v Minister for the Environment case, is still fired up.

“I just find it so abhorrent that the Australian government could use taxpayer money to take eight children to court. And then, the fact that the ruling was in favour of them just makes me so angry,” she tells me on a balmy day in mid-April.

Sharma says that witnessing India, the country where she was born and her family is from, be “constantly battered by natural disaster” is what pushed her to join the climate movement through School Strike 4 Climate. She and the seven other plaintiffs were connected to the case online through the organisation, when Varsha Yajman, a University of Sydney climate activist and paralegal for the law firm involved, posted a callout for participants back in 2020.

As a non-law student, the grounds on which Ley’s appeal could have succeeded completely mystified me. It stands to reason that the proper role, indeed the only role, of the individual paid to be responsible for our land, skies, seas, and the elaborate ecosystems they support, should be one entrenched in the protection and restoration of the environment itself. Further, it should be a role that centralises Australia’s Indigenous people and their practices of land management in policy-making. The Minister for the Environment ought to vouch for all of us, but particularly those most vulnerable to climate change, in the halls of parliament. 

Yet despite the UN recognising that the right to a clean, healthy and sustainable environment is a human right last year, Sussan Ley and our judiciary clearly do not.

“More than a tool to protect the environment, the law is the tool that facilitates the destruction of the environment, and the disempowerment of communities everywhere,” says Sue Higginson, a public interest environmental lawyer with over three decades of experience fighting environmental destruction. 

Higginson was a frontline forest activist in the ‘90s, and has been involved in some of the highest-profile climate litigation in the country, such as the watershed 2018 Rocky Hill decision that refused consent to a proposed coal mine in Gloucester, NSW.

“I can tell you hand on heart: I am a marginalised lawyer… I know that I am presenting what is considered, and shouldn’t be, the marginalised views of how the law should work, does work, or should be effective. 

“On one hand, as a lawyer, absolutely she [Sussan Ley] has the right and the technical avenue to appeal. But what is it, when we talk about the technicalities, the legal system, and our rights, compared to our obligations, our duties, and our moral compulsions? 

“I have to say that she shouldn’t have done it. She was wrong,” says Higginson. 

Despite being the first case of its character, the treatment of scientific evidence by the courts in Sharma is consistent with that of the Rocky Hill decision, which relied heavily on scientific expert testimony in the final judgement to refuse the mine. So too did the Bushfire Survivors for Climate Activism’s case in 2020, successfully compelling the EPA to develop objectives and guidelines that would ensure the environment’s protection from extreme weather events worsened by climate change.

“They [the court] have certainly closed the door to the very important notion that a Commonwealth Minister of the Crown has a duty of care above and beyond her statutory powers and obligations,” says Higginson. “I think that’s a tragedy, really.”

In April, the Sharma litigants and their representative, 88-year old Sister Marie Brigid Arthur, announced that they would not challenge Ley’s appeal. Yajman and Sharma both believe the case has run its course, and holds greater ‘symbolic value’ than they ever could have hoped for. 

But I can only wonder: where to now? 

The horrifying future we face if we stick to a ‘business-as-usual’ trajectory was highlighted in the scientific evidence presented to the court in the first instance. One million Australian children alive today are expected to suffer at least one heat-stress episode serious enough to require acute care in a hospital. Many thousands more will suffer premature death from either heat-stress or bushfire smoke. In our middle age, the Great Barrier Reef and eucalypt forests will likely cease to exist.

This evidence was not contested in Ley’s successful appeal. 

And so I ask — as someone who, like many Australians, does not study law, but believes in climate justice as a moral imperative — how could last year’s duty of care ruling be so brutally struck down by the courts, in the face of ever-mounting pleas from climate scientists and intensifying extreme weather events? What of – as Higginson says – our duties, our obligations, our moral compulsions? 

Surely these must be the centrepiece of our climate laws and legal judgments, if the law’s ultimate goal is guiding us to do what is right.

Reasoning behind the Sharma case 

To answer these questions, we must start by looking at the reasoning behind the Sharma case. There are slight variations between the three judges for rescinding the Minister’s duty of care, but a few main points arise.

First of all, the litigant class (young people under 18) was deemed too vast and indefinite to determine the minister’s liability in the context of climate change-related harm. The court ruled that the students were not specifically vulnerable to the wide-reaching effects of climate change. “The Children are in the same position as everyone in the world who is or will be alive at the future times at which the harm is posited,” stated Allsop CJ in the judgement. This is despite the fact that most young people will live longer than adults in power right now, and thus be worse affected by any contribution to climate change harm made by them.

Additionally, the CO2 contribution of the Vickery mine extension project to global temperature rise was found to be too “tiny” to be responsible for the “reasonably- foreseeable” harm of climate change. Allsop CJ noted: “the relevant concept of control [for the minister] is control over the harm [of climate change], not control over the tiny increase in the risk.” 

Further, the court did not find that Ley acted outside her statutory decision-making obligations as Minister for the Environment in approving the mine extension, inferred by the Environmental Protection and Biodiversity Conservation Act (1999). This is the primary act in Australia for providing “a legal framework to protect and manage nationally and internationally important flora, fauna, ecological communities and heritage places”. 

The statutory purpose of the EPBC Act was held to be confined to protecting certain endangered species and land features at risk from the mine extension, not the interests and safety of humans in the environment impacted by fossil fuels, nor the sacred sites the project would impinge upon. Thus, the wording of the Act did not infer a relationship between the Minister and the Children that would facilitate a novel duty of care (nor a breach of that care).

Finally, and perhaps most pressing, the court found that the existence of such a duty of care in the first instance calls into question the proper policy response to climate change, a matter it deemed inappropriate for determination by the judicial system. Allsop CJ stated: “we all rely on an elected government to develop and implement wise policy … That is not the foundation of the law of torts”. 

The proper response to the Sharma case  

The unanimous success of Ley’s appeal highlights that the common law is not adapting to modern environmental challenges fast enough, with climate change still viewed as a highly-politicised, fringe issue. 

Despite the powerful precedent established by last year’s novel duty of care ruling, Sharma laments “the fact that a legal technicality can outweigh the moral argument and imperative to act on climate change.”

Climate litigation targeted at more specific scenarios could see greater success. In his Sharma judgement, Justice Beach J noted that “conventional duties of care are usually concerned with a finite set of physical consequences flowing from an act or omission.” 

He cited the upcoming Pabai Pabai v Commonwealth case in the Federal Court, brought by two Torres Strait native title holders. It will seek to establish a much narrower and direct duty of care. Importantly, it argues that reasonably-foreseeable damage to the Torres Strait’s marine environment has already occurred, a key distinguishing factor from Sharma. 

But the very nature and difficulty of climate change is that it’s not caused by a singular, temporally-fixed, ‘tiny’ action. It is not one symptom of aggravation, or even a cluster, but a diagnosis of planetary malaise engendered by multiple generations of humans. We cannot file a negligence claim against Sussan Ley, or anyone for that matter, once the apocalypse has already happened. 

“When the entire world is reduced to rubble because of climate change, you’re not going to point at the Vickery extension project and say ‘that was the one’, but what are you going to point at then?” states Sharma. “You can’t just wait for that one mine to come along where you’re like, ‘oh yeah, maybe this is the one that will actually finally kill us.’”

In the judgement, Beach J emphasised the need for the High Court to “engineer new seed varieties for sustainable duties of care, modifying concepts such as ‘sufficient closeness and directness’ and indeterminacy to address the accelerating complexity, multiple links and cross-links of causal relations.” 

He notes that: “such concepts in their present form may have reached their shelf life, particularly where one is dealing with acts or omissions that have wide-scale consequences that transcend confined temporal boundaries and geographic ranges, and where more than direct mechanistic causal pathways are involved.” 

The Sharma ruling means we must argue harder now for legislative reform that includes specific duties and responsibilities for ministerial roles to the public.

“Parliaments make laws, and courts interpret and deliver the laws,” says Higginson. “There is now a compelling case to go back and draft the laws, particularly the EPBC, to amend that Act immediately and impose duties on the minister that when she’s exercising her power, she has to take into account the fact that young people are owed a duty of care.” 

The EPBC Act gives the Minister power to approve coal projects, even if they’ll have harmful effects. A 2020 independent review into the Act found that it “is ineffective and not fit for current or future environmental challenges, and reform is long overdue”; “does not facilitate maintenance or restoration of the environment”, and “has failed to fulfil its objectives as they relate to the role of Indigenous Australians.” 

Overall, the Act’s 1121 pages uphold the deeply colonial, Anthropocentric belief that buttresses our entire system; that the fate of humans and the environment are not utterly intertwined – indeed that humans are not themselves part of the natural world – but divided along lines of ‘civilised’ and ‘natural’; ‘human’ and ‘non-human’, where the latter is of secondary importance.

“We could do that really simply [reform the Act], and it would prove that our democracy is functioning, mature, and capable of responding to the greatest challenges of our time,” says Higginson. “But no, we’ve got a… ridiculous, recalcitrant government that doesn’t know how to function as the arm of the institution of democracy within the broader democratic framework, and that is our predicament.”

Additionally, the lack of representation for those most vulnerable to the harms of climate change in our courts and government is one of the largest systemic issues preventing structural change. Yajman says this particularly includes young people, people of colour, and Indigenous people.

Simultaneously, the onus should not be on any minority to raise massive amounts of money in order to walk into court and demand basic human rights. 

“Realistically, we have Members of Parliament who are getting paid by the public pools to do this work every day,” says Higginson. “They have staff who are onboarded to do this. We have an entire parliamentary liaison council that drafts legislation. It’s built to do this work.”

Ultimately, the biggest hindrance of cases like Sharma is the separation between government powers and tort law issues, particularly given the court’s acceptance of climate science, and Beach J’s comment that current legislative concepts “may have reached their shelf life.” 

Of course, climate litigation is just one arm of the fight for climate justice; activist organising, civil disobedience, community education, and a strong media backing will all also contribute to the movement’s success. 

But the individuals calling the shots are ultimately those in the seats of parliament. Going into this federal election, we must carefully consider which government will facilitate a constructive response to watershed cases like Sharma, in order to shake Australia’s climate policy out of its coal-laden stupor, and confront the greatest challenge of our time. And to me, first and foremost, this means that we must not forget our outrage. 

The Sharma case may indeed have run its course, but it cannot end here.