Youth activist Anjali Sharma speaks about the duty of care climate bill, devised with David Pocock, at a time when legal cases linking human rights to global heating are proliferating and building on successes. By Mike Seccombe.

The fight to enforce a climate duty of care

Activist Anjali Sharma and Senator David Pocock at Parliament House, Canberra.
Activist Anjali Sharma and Senator David Pocock at Parliament House, Canberra.
Credit: AAP Image / Mick Tsikas

Some of the young people standing outside Sydney’s Federal Court building wept on March 15 last year. Their case had failed. The court had determined the Australian government owed no duty of care to protect them from climate change.

Anjali Sharma was dry-eyed.

In a clear, strong voice Sharma, then aged 17, read from a statement: “Today’s ruling leaves us devastated, but it will not deter us in our fight for climate justice.”

Before she could renew the fight to prevent governments and fossil fuel companies from making the planet unliveable for her generation and those to follow, though, she had to finish school.

“Then I started doing my research,” she tells The Saturday Paper, “meeting with environmental lawyers, policy experts, NGOs, to chat through how a duty of care could be implemented into statutory law.”

On July 31, the last day of the hottest month in Earth’s recorded history, at a press conference in Parliament House, she stood with ACT independent senator David Pocock and others – including a nine-year old girl holding a toy unicorn – to announce a new bill.

Pocock’s first private senator’s bill since his election, entitled the Climate Change Amendment (Duty of Care and Intergenerational Equity) Bill 2023, would require that government decision-makers – principally the Environment minister – make potential climate-related harm to current and future generations the “paramount” criterion when considering the approval or funding of new fossil-fuel developments.

If there was a “material risk” of harm to the health and wellbeing of children in Australia, then an approval or funding decision could not be made.

The bill would apply to six existing acts.

If the legislation were already in place, says Sharma, “it could have potentially impacted and negated approvals that we’ve seen granted [for new coalmines] in recent times”.

It might also, for example, have prevented the government from tipping in $1.5 billion for the Middle Arm industrial precinct in Darwin, which will substantially benefit the gas industry, she says.

Duty of care legislation would, in short, place a big new obstacle in the way of fossil fuel developments and make government decision-makers far more likely to refuse them. It would also provide a powerful new tool for fossil fuel opponents to challenge any approvals in court – although Sharma hopes it would not come to that.

“Taxpayer money should certainly not be spent fighting ordinary people in the courts over things such as coal approvals and gas pipelines when the international body of science and business organisations and civil society are very united in the consensus that fossil fuels are on the way out.”

This seems like a triumph of hope over her personal experience. Sharma and others v Minister for the Environment showed pretty clearly the government is not yet prepared to put a stop to new fossil fuel projects.

To recap that case, in September 2020, eight teenagers – led by Sharma and with an octogenarian nun, Sister Brigid Arthur, acting as their litigation guardian – brought an action on behalf of all Australian children, seeking to prevent the expansion of a New South Wales coalmine. They argued the Environment minister in the then Coalition government, Sussan Ley, should use her powers under the Environment Protection and Biodiversity Conservation (EPBC) Act to protect them from harm as a result of the planet-heating carbon dioxide that burning the coal would produce. In a landmark decision, Justice Mordecai Bromberg found it was reasonably foreseeable that extending the mine would cause harm, that “climatic hazards” posed a real risk to children and that they were owed a duty of care. Ley appealed and the case went to the full court.

“Essentially, they said it’s up to the government, it’s up to the parliament to legislate on these issues,” says David Barnden, principle of Equity Generation Lawyers, who acted for the kids in the case. That’s where the court left it.

“But the decision didn’t disturb the findings on the evidence around climate change, which is really important,” Barnden says. “One of the things that the Sharma case did is cut through the idea of the government not being responsible for emissions produced overseas from fossil fuels extracted in Australia.”

Zoe Bush, a senior climate lawyer who advised Sharma and Pocock in the formulation of the duty of care bill, also sees great significance in the court’s acceptance of the science.

“Bromberg accepted the expert evidence that as we reach two degrees of heating there’s an increasing risk that any amount of extra greenhouse gas emissions in our atmosphere could send us on an irreversible trajectory to four degrees of warming,” she says. “And it was accepted by two of the judges on court of appeal, and it wasn’t challenged by the minister.”

This suggests that whether or not parliament rejects Pocock’s bill – which seems most likely – there will be more litigation to come as the legal system moves ineluctably to a recognition that climate change is a universal threat, not only to the environment but to human rights.

A litigious wave is already building. The Global Climate Litigation Report: 2023 Status Review, released by the United Nations Environment Programme on July 27, counted almost 2200 cases filed in 65 jurisdictions as of December last year, an increase of about 40 per cent in two years. It identified a cumulative 127 cases in Australia, second only to the United States.

Most cases brought before the courts globally, the report said, “demonstrate concrete links between human rights and climate change”.

Litigants are following different pathways to hold governments or corporations accountable for the harm caused by climate change, depending on the differing legal systems. It is more straightforward in jurisdictions that have a bill of rights or some other document that imposes express obligations on the government.

One case in particular has inspired many of these actions – the so-called Urgenda case, named for the Dutch environmental foundation that brought it. It was a class action against the Dutch government for failing to meet its human rights obligations under European conventions. “It really changed the game globally,” says Isabelle Reinecke, executive director and founder of the Grata Fund.

“Urgenda won in 2015, and won again and again and again on appeal up to 2020. That spurred litigation globally, everywhere from South Korea to Nepal to France to Germany to the US, including the Torres Strait case in Australia.”

She is referring to an action her organisation is supporting, Pabai Pabai v Commonwealth of Australia, which also argues a duty of care. The advantage for the litigants in this case is the existence of the Torres Strait Treaty which, as well as defining the maritime boundaries between Papua New Guinea and Australia, protects the ways of life of traditional inhabitants in the Torres Strait Protected Zone.

The case was filed in 2021. In June this year the court heard from the community on location in the Torres Strait Islands. In Melbourne in November, it will take expert evidence relating to the adequacy or otherwise of the government’s actions towards reducing emissions.

Reinecke believes the community will win. And even if not, “the next one will win, or the one after that, because it is inevitable that the law is going to catch up with the facts, because they’re just so overwhelming”.

Of course, says Reinecke, it would be better if the government passed the Pocock bill and imposed a duty of care on itself. “But I think if the parliament doesn’t do it, the courts will eventually do it for them.”

We’re seeing the first examples of that already. Last November, the Queensland Land Court denied a huge mining proposal – 40 million tonnes a year – from Clive Palmer’s Waratah Coal, on the basis that the carbon emissions it produced would contribute to climate change and infringe the cultural and human rights of First Nations people and young Queenslanders.

Waratah’s lawyers began an appeal to the state’s Supreme Court but abandoned it in February.

The growing acceptance by the courts that climate change presents a universal threat strengthens the hand of fossil fuel opponents not only in relation to cases based on the duty of care to people, but also as it relates to the environment more broadly.

Hollie Kerwin, principal lawyer for Environmental Justice Australia, refers to two cases in the Federal Court in which her organisation is representing a small Queensland community group, the Environment Council of Central Queensland.

The cases are part of a bigger legal intervention targeting 19 new gas and coal proposals that are before the minister, she says.

Central to the cases is that under the EPBC Act, before granting approval for a project, the Environment minister – currently Tanya Plibersek – must first determine whether there would be any impact on “matters of national environmental significance”.

Previously, says Kerwin, such a decision would consider only the adjacent environment, “for example, that this mine could harm the Great Barrier Reef because the mine is right next door to the reef and toxic runoff is likely to flow into the reef”.

But whether a project is “right next door” is irrelevant when it comes to greenhouse gas emissions. Carbon dioxide released into the air anywhere affects the climate and ecosystems everywhere.

“You can have a huge mega mine in New South Wales – like the ones our clients are in court about now – that our client argues will impact on the fate and future of things all over the country. World Heritage places like the Great Barrier Reef and Kakadu, the Australian Alps but also like the koala, thousands of other protected species,” Kerwin says.

Even if the court goes against them, she says, the mine opponents have already had significant wins. Of the other 17 projects, five “aren’t happening anymore”.

The mere prospect of legal action, alongside increased community concern, can have an impact too, she says, citing recent examples where banks have pulled funding from fossil fuel projects. And even when cases are lost in courts of law, she says, they provide a forum “and you get this incremental push for change as a result”.

Of course, to politicians the most important court is court of public opinion. And the data tells us young people in particular want more climate action from government, operating under stronger laws. The last election returned a record number of Greens and climate-focused independents, including David Pocock.

Anjali Sharma, who stood beside Pocock this week for the announcement of his duty of care bill, turned 18 three days before that election. She won’t say how she voted.

This article was first published in the print edition of The Saturday Paper on August 5, 2023 as "Care of duty".

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