Climate change: Political Duty of Care?

This is the first time a court of law recognises the duty of care of public officials to protect young people from the harms of climate change be they physical, mental, or financial harm. In May 2021, the Federal Court of Australia found that the Australian Minister for the Environment (Minister) possessed a duty of care under the common law principles of negligence to ‘take reasonable care to avoid causing personal injury to the Children’ in relation to facilitating the emission of carbon to the atmosphere (Sharma by her litigation representative Sister Marie Brigid Arthur v Minister for the Environment [2021] FCA 560 (‘Sharma’) at [491]).

As jurisdictions around the globe tackle the issue of climate change with varying levels of urgency (or denial), the Federal Court of Australia considered the fact climate change is a contested political issue does not mean it ‘provide[d] a principled basis for a Court declining access to justice.’ (Sharma at [484]).

This test case concerned the decision of the Minister whether to approve a project increasing total coal extraction from an existing mine from 135 to 168 million tonnes (Sharma at [7]). Although the Minister possessed obligations under statutory law to consider environmental impacts before issuing an environmental approval, the mine had received environmental approval in the past and in this case, the plaintiffs of asserted that separate obligations existed for the Minister under the principles of negligence at common law.

Expert evidence led before the Court demonstrated the range of impacts between a 2⁰C, 3⁰C, and 4⁰C World (Sharma at [55]-[69]) with the Court accepting the risk of harm of ‘a tipping cascade will trigger a 4⁰C Future World’ (Sharma at [90]). The Court analysed whether at Australian common law, whether the Minister owed a duty of care to prevent harm on children residing in Australia (Children) and found that:

(1) There is a ‘willingness of the common law to respond to changing social conditions including those brought about by the increasing power of human beings to cause harm to others.’ (Sharma at [137]);

(2) ‘Of the people living in Australia who are currently alive, it is the Children who are most likely to remain alive long enough to fully experience the whole destruction by fire of much of Australia’s forests … [and] is exposed to a real risk of harm from bushfires’ in circumstances that the Minister ‘would foresee, by reason of the effect of increased CO2 in the Earth’s atmosphere … each of the Children is exposed to a real risk of either death or personal injury from bushfires’ (Sharma at [253]); and

(3) That even if ‘the foreseeability of the probability of harm … may be small … the consequent harm is so immense that it powerfully supports the conclusion that the Children should be regarded as persons who are “so closely and directly affected” that the Minister “ought reasonably to have them in contemplation as being so affected”’ (Sharma at [257]).

The Court found that there was a great vulnerability of the Children specifically where:

They bear no responsibility for the unparalleled predicament which they now face. That innocence is also deserving of recognition and weight in a consideration of the relationship between the Children and the government they look to for protection (Sharma at [312]).

The Minister argued that the indeterminate extent of liability was a factor against a duty of care being posited. The Court responded that ‘The Minister is informed or has the capacity to be sufficiently informed, at least in global terms, about the likely number of potential claimants and the likely nature of their claims.’ (Sharma at [470]). As to the Minister’s argument concerning the interference of the common law on statutory authority, the Court responded:

The imposition of a duty of care does not mandate the Minister’s decision … The imposition of liability for the breach of a duty of care arising from careless conduct causing personal injury is at the heart of the common law’s place in the legal system (Sharma at [481]-[482]).

Although, no injunction was ordered by the Court against the Minister in this case as it was not clear that the Minister would breach their duty of care as no decision was made yet (Sharma at [510]), this case demonstrates a growing acceptance of courts to recognise climate impacts as losses under the law.

With a majority of the world population living in conditions where water is scarce for at least one month a year, climate change poses a real risk and establishes an extra layer for people in poverty to overcome (if at all). An increase in intensity or frequency in natural disasters will not only deepen inequality but also deepen the climate apartheid, where wealthier nations who can afford to reduce their emissions without impacting human rights to life, food, housing, or water are able to do so at the expense of poorer nations who may lack similar resources or the infrastructure to address climate change effectively.

With innumerable downflow impacts across humanitarian, economic, or political fronts it is therefore clear that there are fewer excuses for actors in political fora for inaction on climate change. The harm climate change bears for future generations is not only foreseeable but now also litigable.

Michael Tangonan is a Financial Services Legal Counsel at AMP, Australia.