Federal Environment Minister does not have a duty of care to protect children from climate harm: court

The Federal Environment Minister Sussan Ley does not have a duty of care to protect young people from climate change harm when considering fossil fuel projects such as mines, a court has ruled.

Despite the outcome, young climate activists have not ruled out further court action and said they would continue fighting for stronger climate policies.

Tuesday’s ruling of the full bench of the Federal Court overturned a decision in favour of eight teenagers who brought a class-action case that challenged a proposal by Whitehaven Coal to extend its Vickery coal mine, near Boggabri in NSW.

Young climate activists including Luca Saunders (left) and Natasha Abhayawickrama hug friends outside court after Tuesday’s decision.Credit: Brook Mitchell

The teenagers argued the mine expansion would endanger their future because climate hazards would cause them injury, ill-health and economic losses. While the court dismissed the teenagers’ application in May to prevent the minister from approving the coal mine extension, it found Ms Ley owed a duty of care to Australia’s young people.

In July, Ms Ley argued that she did not have a duty of care to protect Australian children from climate harm caused by the potential expansion of a coal mine. The minister’s appeal said the primary judge, Justice Mordecai Bromberg, erred in his findings about global temperature rise.

Tuesday’s judgment was the result of that appeal.

“The court is unanimous in the view that the duty should not be imposed upon the Minister. The three judgments of the court have different emphases as to why this conclusion should be reached,” Chief Justice James Allsop said in his judgment.

These reasons included that the control of emissions and the protection of the public from personal injury caused by the effects of climate change were not roles that the Parliament entrusted to the minister under current laws.

In a statement, Ms Ley’s office said the minister welcomed the Federal Court’s decision.

“The Morrison government remains committed to protecting our environment for current and future generations,” the statement said. “The Minister always takes her role as the Environment Minister seriously. The government will now closely review the judgment.”

Environment Minister Sussan Ley. Credit: Alex Ellinghausen.

Anjali Sharma, 17, one of the students in the matter, said the ruling had left her devastated but did not deter her fight for climate justice.

“This case demonstrates that young people are determined to be heard on this issue at the highest levels. We’re proud of representing young people in Australia and fighting to hold people in power responsible for their actions,” she said.

“Climate change is already wreaking havoc on the lives of Australians. Two years ago, Australia was on fire; today, it’s underwater. Burning coal makes bushfires and floods more catastrophic and more deadly. Something needs to change. Our leaders need to step up and act.”

Izzy Raj-Seppings, 15, said despite Tuesday’s outcome, “the ground is shifting”.

“Governments around the world are stopping new coal projects and rapidly shifting to renewables. We call on the Australian government to do the same,” she said.

Student Luca Saunders said the judgment caused her pain.

“I am in a lot of pain at the moment not only for my future am I scared, but I am scared for the future of 5 million Australian children we represented here. I am scared for my family,” she said.

“I’ve told so many people so many times everything I’d like to say to the Australian government and I don’t believe I have ever been heard. I am not at the point of giving up ... but I am tired. All Australians are tired.”

David Barnden, the principal lawyer at Equity Generation Lawyers, who acts on behalf of the teenagers, said they would review the judgment carefully and consider the next steps.

“Independent climate change experts established that Whitehaven’s Vickery coal mine will create a risk of personal injury and death to young Australians. The science has not changed. Irrespective of today’s decision, adults should do all they can to create a safe future for our children,” he said.

“We will continue to support young people in their fight for a safe future and will carefully review the decision.”

If the group decide to appeal against Tuesday’s judgment they would apply for a special leave application and if that is granted, the matter will be heard before the full bench of the High Court.

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