In March 2021, a 16 year-old student and a nun of the octogenarian faith walked into Melbourne’s federal court to hear a case that would change the course of Australian climate litigation.
Anj Sharma and seven other teens brought the lawsuit along with Sister Brigid Arthur. This lawsuit is part of a growing trend of climate activists and environmental organisations raising climate issues in courtrooms amid a lack action by the federal government.
It is also consistent worldwide with a trend with high-profile cases against the Dutch government or oil company Shell.
Australia is now second in a climate litigation league table behind the United States.
Guardian Australia presents a list of the most important climate cases that will make headlines in the coming months, as the legal year starts.
Climate duty of care?
Environment Minister v Sharma
This generation of adults will be responsible for the most severe consequences of the impending climate crises. It is a case of inter-generational injustice that could be called the greatest. Submitted Justice Mordecai Bromberg last May. The harsh truth was revealed by the federal court judge. She ruled that Sussan Leey, the environment minister, owed Australian children the duty of care to reduce the effects of climate changes. This was relevant since she was considering the approval of a major coal mine extension. Anj Sharma, seven teens, and Sister Brigid Arthur brought the case against Sharma. It is the most significant seismic climate decision made in Australia.
The appeal was made by the minister for environment. The first-instance case was about applying orthodox legal principles to a changing environment. However, the federal government raised the stakes in the full federal courts last October by arguing that the case’s political nature made it unsuitable for judicial resolution.
The decision is due shortly; regardless of its outcome, it is likely to reach the high court. Sharma It is significant because it is grounded in commonlaw negligence rather than administrative and cannot easily be overwritten by legislation. If the case is upheld, expect similar challenges to both government decision-making as well as private sector emitters.
Rising sea levels
Pabai v Commonwealth
Similar issues are being discussed in Pabai, but on a much larger scale, in a case brought to you by two Torres Strait Islanders. They claim that the federal government, as a whole, is negligent in failing to save Torres Strait Islands and other coastal areas from rising sea levels. To emphasize the duty of care they feel they owe, the plaintiffs point out the Torres Strait Treaty (with Papua New Guinea), native Title Law and other government initiatives in this region. The lawyers for the pairs argue that failure to act will have serious consequences on Torres Strait Islanders. This includes injury, disease and death, making some islands uninhabitable, and displacing Torres Strait Islanders. They also claim that climate refugees will be made if they do not act.
A case management conference is scheduled for March in the federal court case. There has been some discussion regarding taking evidence in Torres Strait. A quick resolution is unlikely. However, a judgment might be rendered by the end of this year.
Climate (in-)action and human right
Youth Verdict v Waratah Coal
Climate litigation has been successful in other countries where the focus is on human rights obligations. Yet in Australia, in the absence of constitutionally-entrenched rights or a federal charter of rights, such cases have failed to get off the ground. Until now.
Clive Palmer’s proposed Galilee basin coal mining project was challenged by a coalition made up of young Queenslanders Youth Verdict. They claim that the mine would produce 40 megatonnes of thermal coke each year and violates their rights to life, Indigenous cultural rights, and the right of children to be free from discrimination.
The groups will claim the rights in 2020. It passed its first testA preliminary application was made by Palmers company to stop Youth Verdict from relying upon human rights grounds to challenge the proposed mine. In the coming months, we will examine the relevance of human rights to this mine proposal in greater detail.
Corporate greenwashing
Santos v Australasian Centre for Corporation Responsibility
Are major emitters misleading investors by claiming to have a credible plan to achieve net zero in the next decade, even though they are allegedly unable to do so? Is it against the law to call natural gaz clean energy, as it is a fuel fossil fuel? These are some of the questions that will be argued between Santos, the energy giant, and the Australasian Centre for Corporate Responsibility (shareholder group), in a first-of-its kind test case filed last January in the federal court.
The ACCR will be a success. Australian companies will need to be more careful when communicating on climate issues. The parties are currently undertaking DiscoveryThe case is expected to be heard by mid-year.
Failure to disclose climate risk
ODonnell v Commonwealth
A Victorian law student is now suing the federal government in an unprecedented case. Katta ODonnell asserts that the government is misleading investors by failing adequately to disclose climate risks in issuing long-term securities. sovereign bonds. Last year, Justice Bernard Murphy rejected the government’s attempt to throw out the case. HoldingThe plaintiff had presented an arguable case. She should be allowed access to government documents to further her claim. The case will be heard by the end of the year. ODonnell could have a major global impact on the way governments disclose climate risks in financial settings if he wins the case.
The next wave in climate litigation
Greenpeace brought the first climate case against Australia in 1994. They challenged the construction of a coal-fired plant. Most climate litigation in the decades that followed has been grounded in administrative law, challenging government decisions that have not adequately mitigated or ignored climate impacts. Recent years have seen improved science and continued corporate and government inaction prompting more creative climate lawyering using tort law, corporate and human rights, and other legal methods.
This trend is expected continue. Significant climate litigation cases were filed almost every month last year; more are expected this year. We are beginning to realize how vulnerable we are to climate change. David Barnden, who has overseen several recent climate cases, told Guardian Australia. The law will address that.