Recently, the Federal Court A duty of care was nullifiedThe environment minister owes Australian children protection from the effects of climate change.
The duty was attached Australia’s federal environment law, the Environment Protection and Biodiversity Conservation Act (EPBC). The decision was reversed This had established the dutyThe new judgment shined a spotlight upon the EPBC Acts limitations. Or, at least it should.
Many commentators focused on the judgment’s omission to address the fact that the court was unwilling to explore so-called political territory.
A key take-home message was not given enough attention: The EPBC Act gives the minister the power to approve coal projects even if they have adverse effects.
It doesn’t, in general, protect the environment against these effects. It doesn’t protect people from the consequences of harm, even if it is fatal. It doesn’t tackle climate change.
Alarmed? You should be.
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Why was the duty canceled?
Three judges heard the appeal, each with a different opinion about why there shouldn’t be a duty.
One of the problems was that the victims class will not just include the children in the case. The affected children include unborn children. Judges also raised concerns about the minister’s relationship to the children, given the intervening steps that will cause climate change, extreme weather events, future harm, and others.
Courts often look back at previous cases in order to resolve new disputes. Protecting the public from contaminated oysters was one of the most prominent cases. In This is the case, a council Wasn’tHepatitis infection caused by water pollution. In Another caseIt was discovered that anyone who increased the danger of mesothelioma by materially increasing the risk of harm was responsible even though there was no way to identify the source of asbestos fibres. couldIt is your responsibility.
These were the most important cases, which just goes to show how extraordinary the problem of global warming is. There was no case on point that could help explain the complex and cumulative cause-and effect.
AAP Image/Supplied at James Cook University
The problem with incoherence
Two of the three judges also found it difficult to understand that the duty was not coherent, meaning that it was not compatible or consistent with the EPBC Act. The EPBC Act does not directly address climate change or human safety. However, the duty applies to both of these issues.
For decades, its RecognizedHumans depend on the environment to survive, and a stable climate system is crucial for their survival. Essential for our daily lives.
The third judge argued that ministers’ obligations embedded in an environmental protection framework could therefore be considered alongside a duty of care. He said that the environment is more than just something to admire or objectify.
However, the EPBC Act did not protect the environment as a whole. It does not explicitly address climate change. It is fragmentary and does not address ecosystems or our dependence on them.
Is this really how the EPBC Act works in practice? Well, yes.
This was the message we heard recently during the ten-yearly, independent assessment of the legislation. It concluded that EPBC Act is It is no longer relevant for the protection of the environment..
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What is the EPBC Act?
The EPBC Act, for the most part is an impact assessment law. It is activated when specific environmental issues, like endangered species, are likely or likely to be affected by a project (such as a mine or coal mine). It triggers a procedural process which requires the minister to review the project’s impacts and approve it.
Nearly every single project is presented year after year. Approved. The appeal was not filed until the coal mine was approved. This explains the reason so many, Include the independent reviewAccording to some, the EPBC Act is not sufficient to protect against environmental loss.
The review recommended science-backed legislation. environmental standards. This would make it easier for courts judge ministerial decision with a legal reference for what is politically acceptable. It also Recommendation decision-making incorporate climate scenarios.
A call to action
In 2020, I wrote that no matter what the outcome of the case, it would make a difference.
It is not over yet, but they have two weeks to file an appeal to the High Court. It brought attention to the fact Australia doesn’t have a climate legislation to protect its children. It does not have a law to protect against floods or fires that have already occurred since the case began. The Federal Court was forced to recognize the undisputed dangers of climate change.
Let’s consider this case as an invitation to action. The Federal Court has basically said that it cannot act. The judgment is ambiguous. There are indications that the High Court may be able to. Laws will eventually have to evolve to handle complex causation.
However, the decision does not mean that the government cannot act. In fact, judges indicated that they must.
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