In Sharma and Others v. Minister for the Environment, issued on 27 May 2021 by the Federal Court of Australia, a group of children and their litigation representative, Sister Marie Brigid Arthur, argued that the Australian Minister for the Environment owes them and other Australian children a duty of care in approving coal mining projects because of the risk of future climate change related harms, and sought an injunction against the project. Given the evidence of climate harms, the judge concluded that the Minister does have a duty of care towards children, but rejected the application for an injunction.
On 15 March 2022, the Government won its appeal against the judgment in this case. While the Full Federal Court upheld the primary judge’s factual findings, it unanimously (although based on several different strands of reasoning) overturned the ruling on the Ministry’s duty of care when exercising her statutory functions under the EPBC Act.
27 May 2021 (appeal judgment: 15 March 2022)
The case concerned a decision by the Minister to approve the extraction of coal from a coal mine. The judge considered the available evidence about the degree of risk and the magnitude of the risk of harm alleged by the applicants, as well as the foreseeability and likelihood of that harm arising and being caused or contributed to by coal-related CO2 emissions. The judge concluded that the Minister does have a duty of care towards children.
The judgment recognizes that “the risk of harm to the Children from climatic hazards brought about by increased global average surface temperatures, is on a continuum in which both the degree of risk and the magnitude of the potential harm will increase exponentially if the Earth moves beyond a global average surface temperature of 2°C, towards 3°C and then to 4°C above the pre-industrial level.”
At issue was the question of whether the emissions from the mine would be within the remaining carbon budget to be respected in order to keep warming below 2 degrees Celsius. On this, and putting the onus of compliance with this budget on the respondent Minister, the Judge held that he did not have sufficient evidence to conclude that this would not be the case. He noted that:
“The Minister called no evidence. The Minister essentially contended that the Court should infer that the 100 Mt of CO2 would likely be emitted in accordance with the Paris Agreement. There is no sufficient basis for that inference. The Minister relied upon little else than speculation, in circumstances where the evidence showed that at least one of the potential consumers of the coal is not a signatory to the Paris Agreement.”
The Judge rejected the applicant’s request for an injunction, considering that the duty of care had not yet been breached, and that it was appropriate to await the outcome of the Minister’s decision-making process.
In a follow-up judgment, issued on 8 July 2021, the Judge ordered the Minister to pay the claimants’ costs, and held that the Minister has a duty to take reasonable care, in the exercise of her powers, to avoid causing personal injury or death to Australian children arising from carbon dioxide emissions.
The appeal by the Ministry of Environment challenged the primary judge’s finding of a duty of care as well as specific factual findings regarding global warming and the approved project’s contribution to that.
The Full Court upheld in full the factual basis of the case as established by the primary judge. With regards to the legal grounds, it concluded however that no duty of care for human safety should be imposed upon the Minister when exercising her power under the EPBC Act.
While each of the three judges emphasized different legal aspects, their reasoning essentially centered around the following arguments: Determining the point of breach of such a duty of care would prompt core policy questions unsuited to being answered by the judiciary. A common law duty of care would be inconsistent with the Minister’s statutory powers under the EPBC Act. There is no sufficient link between the Minister’s exercise of power and the potential harm inflicted on the children. Finally, the lack of control over the risk of harm, the absence of foreseeability of a causal injury, and indeterminacy were cited to argue against the imposition of the duty.
Measures taken as a result of the judgment:
On 15 September 2021, the Minister granted approval for the proposed mine expansion.
Status of case:
Overturned on appeal (special leave application possible until 12 April 2022)
Suggested case citation:
Federal Court of Australia, Sharma by her litigation representative Sister Marie Brigid Arthur v. Minister for the Environment  FCA 560, 27 May 2021, Bromberg J.
Federal Court of Australia, Minister for the Environment v Sharma  FCAFC 35, 15 March 2022, Allsop CJ, Beach and Wheelahan JJ
For the full judgment of 27 May 2021, see here.
For the follow-up judgment of 8 July 2021, see here.
For the judgment on appeal (15 March 2022), see here.