Minister for the Environment v. Sharma

Date of Application:	Tue, 08 Sep 2020
Date of Decision:	Thu, 14 Apr 2022
Decision Making Body:	Federal Court of Australia (Full Court)
Law Applied:	Environment Protection and Biodiversity Conservation Act, Australia Federal Climate Protection Act (Klimaschutzgesetz 2011), Austria Federal Court of Australia Act 1976, Australia
Keywords:	Representative proceedings, Executive accountability, Duty of care; negligence, Mining licence approval, Separation of powers

Minister for the Environment v. Sharma [2022] FCAFC 35

VID 389 of 2021; [2021] FCA 560; [2021] FCA 774; [2022] FCAFC 35; [2022] FCAFC 65

At Issue: Whether the Minister for Environment has a duty of care to avoid causing harm to Australian children when deciding whether or not to approve a coal mine expansion. If so, whether an injunction can be sought to stop the Minister from approving the coal mine expansion. 

Summary: On September 8, 2020, eight young people filed a putative class action in Australia's Federal Court to block a coal project. The lawsuit sought an injunction to stop the Australian Government from approving an extension of the Whitehaven Vickery coal mine. The plaintiffs claimed to represent all people under 18, and argued that Federal Minister Sussan Ley has a common law duty of care for young people. They further asserted that digging up and burning coal will exacerbate climate change and harm young people in the future. Plaintiffs sought an injunction to prevent the Minister from approving the project under the Environment Protection and Biodiversity Conservation Act (EPBC). 

On May 27, 2021, the Federal Court of Australia established a new duty of care to avoid causing personal harm to children but declined to issue an injunction to force the Minister to block the coal mine extension. The Court concluded that "the applicants have established that the Minister has a duty to take reasonable care to avoid causing personal injury to the Children when deciding, under s 130 and s 133 of the EPBC Act, to approve or not approve the Extension Project." In establishing the duty of care, the Court found that the foreseeable harm from the project, if the risks were to come true, would be "catastrophic", and therefore children should be considered persons who would be so directly affected that the Minister ought to consider their interests when making the approval decision. In declining to issue an injunction, the Court found that the plaintiffs had not established that it is probable that the Minister would breach the duty of care in making the approval decision, and had not established that they will have no further opportunity to apply for an injunction. In its May 27, 2021 judgment, the Court delayed issuing a declaration about the duty of care owed by the minister, and raised a number of questions to the parties about the scope of the duty. 

On July 8, 2021, the Court issued a declaration that "The [Minister] has a duty to take reasonable care . . . to avoid causing personal injury or death to persons who were under 18 years of age and ordinarily resident in Australia at the time of the commencement of this proceeding arising from emissions of carbon dioxide into the Earth’s atmosphere." In issuing the declaration, the Court rejected arguments by the Minister to limit the declaration to only the applicants. Instead, the Court declared the duty applied to all Australian young people because both the applicants and Australian young people had the "same interest." The Court ordered the Minister to pay costs. 

On September 13, 2021, the Ministry of Environment filled an appeal questioning the judge’s finding that the Minister owes a duty of care to avoid causing personal injury to children related to anthropogenic climate change. The appeal is based on the separation of powers and the argument that the Minister’s decision is a matter of policy and subject to discretion. The regulation of GHG emissions is better suited for the Executive, and no novel duty of care should be recognized. The appeal also questioned whether the approved project would cause a net increase in global GHG emissions and the reversed onus of proof in approaching this issue. 

Despite the Federal Court’s decision, on September 15, 2021, the Minister granted approval for the proposed mine expansion. A hearing was held on October 18-20, 2021. On March 15, 2022, the Full Federal Court of Australia unanimously overturned the primary judge’s decision to impose a duty of care on the Minister. The three judges had separate reasonings. Chief Justice Allsop found that the duty would require consideration of questions of policy “unsuitable for the judicial branch to resolve.” Justice Beach found insufficient “closeness” between the Minister and the children but left open the possibility of a future claim if any of the children suffered damage. Justice Wheelahan found that (i) the EPBC Act cannot establish a duty of care relationship between the Minister and children, (ii) establishing a duty would be incoherent with the Minister’s functions under the EPBC Act and (iii) it was not foreseeable that approval of the coal mine extension would cause personal injury to the children. Despite allowing the Minister’s appeal, the Court rejected the Minister’s argument that the primary judge made findings based on evidence of climate change that were unfounded. This means that the primary judge's findings of fact about the risk of harm of climate change to children remain. The Full Federal Court noted that “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. 

The plaintiffs announced that they would not appeal the decision. The plaintiffs asked the court to make orders that the proceeding not continue as a representative proceeding. 

The Full Court was of the view that before orders were made setting aside the orders of the Court made by the primary judge and dismissing the amended originating application dated 14 December 2020, the parties should be afforded an opportunity to consider whether any further orders were appropriate or necessary to address the representative nature of the proceeding.  

This is because the proceedings in their current form would bind the represented children (all Australians under the age of 18 at the time the case was filed), and give rise to an issue estoppel in relation to all questions of fact and law necessary to the Full Court’s conclusion that the Minister did not owe the posited duty of care. This would prevent the represented children from bringing proceedings of a similar nature in the future. 

Accordingly, the parties asked the court to make orders that the proceeding not continue as a representative proceeding. The relevant orders were made by the court on 14 April 2022 and reasons published on 22 April 2022. 

 

Sharma and others v. Minister for the Environment - Climate Change Litigation (climatecasechart.com) 

Summary provided courtesy of the Sabin Centre 

 

Court documents: 

Complaint  (8 September 2020)

Judgment establishing duty of care (27 May 2021) 

Final decision 

 

Related CRC articles

• 3. Right to have child’s/children’s best interests taken as primary consideration in all matters affecting them (CRC Article 3)
• 6. Right to life, survival and development (CRC Article 6)
• 24. Right to health, healthcare, and a healthy environment (CRC Article 24)

The applicants allege that climate change affects their health, and survival, and that  the Minister for Environment has a duty of care to avoid causing harm to Australian children when deciding whether or not to approve a coal mine expansion.

Involvement of children in hearings

• Written presentation
• Other

The children’s circumstances and concerns are set out in the papers through their legal representatives. The children act as representative of all children (persons below the age of 18 at the time that the matter was instituted).

The children were initially represented in the proceedings through their legal representatives, acting on behalf of all minors under the age of 18 at the time the case was filed. However, this representative position was withdrawn to prevent future cases involving similar facts or legal questions from being barred by issue estoppel. Consequently, the parties agreed to withdraw the issue of representativity, ensuring that represented children wishing to pursue legal action for personal harm in similar matters in the future are not precluded by the issue estoppel.

Children were also sometimes present at hearings. See Advancing Child Rights Strategic Litigation (ACRiSL), Event: Engaging with Children and Young People in Child Rights Strategic Litigation (6 April 2022) <https://mediaspace.nottingham.ac.uk/media/t/1_naiq6qsr > accessed 7 April 2022.

 

Outcome of decision for the applicants

• Relief sought by applicants NOT granted

On March 15, 2022, the Full Federal Court of Australia unanimously overturned the primary judge’s decision to impose a duty of care on the Minister. The three judges had separate reasonings. Chief Justice Allsop found that the duty would require consideration of questions of policy “unsuitable for the judicial branch to resolve.” Justice Beach found insufficient “closeness” between the Minister and the children but left open the possibility of a future claim if any of the children suffered damage. Justice Wheelahan found that (i) the EPBC Act cannot establish a duty of care relationship between the Minister and children, (ii) establishing a duty would be incoherent with the Minister’s functions under the EPBC Act and (iii) it was not foreseeable that approval of the coal mine extension would cause personal injury to the children.

Did outcome of decision develop the law

• Yes

The FC set a precedent of deferring to the Executive in such cases – designating claims concerning executive accountability for climate change as matters to be dealt with in the political domain rather than developing delictual remedies to recognise intergenerational equity and the rights of future generations at common and statutory law. 

Involvement of NGO/law firm in application

Equity Generation Lawyers is an Australian law firm that specializes in strategic climate change and biodiversity litigation. 

Available information on how children got involved in the litigation

Sharma profiled in an article 

Children profiled by Equity Generation 

Age range of litigants

• Other (Under 25)

Number of children or youth involved

6