Federal Court: Government has a duty of care to protect children from climate change.
In a first for Australia, the Federal Court has held that the Australian Government, through the Federal Minister for the Environment, has a duty of care to all Australian children, and specifically a legal duty to take reasonable care to avoid causing harm or injury to children in respect of climate change.
The landmark case was brought by 8 teenagers and their representative, an 86-year-old nun, as applicants against the Federal Environment Minister seeking an injunction against the Minister's decision to allow an expansion to a coal mine operation in northern NSW.
Arguing that children have a special vulnerability, and that the Minister in her capacity as a member of the Executive, has a special responsibility to undertake actions for their benefit, the applicants' argument focused on the purpose of the Environmental Protection and Biodiversity Act (EPBC) which is in part to protect people and communities.
They further argued that children are exposed to a unique risk in that they (and not today's adults) will live on planet Earth in 80 years' time when there is a significant risk of living in environmental conditions that will expose them to catastrophic harm. The Court was presented with extensive scientific evidence about climate change and economic and social implications, and that evidence was not disputed.
Whilst ultimately holding that the application for injunction failed, Justice Bromberg made significant findings in favour of the applicants.
Risks identified as resulting from climate change effects included children suffering from "at least one heat-stress episode serious enough to require acute care in a hospital". The Court additionally heard that each child is, on average, expected to lose $170,000 of family wealth through the specific impacts of revaluation of hazard exposed property, heat related productivity losses, supply chain disruption and agricultural output impairment.
The Court was satisfied that "... the Minister has at least all of the knowledge about the risk of harm to the children" and could make decisions to avoid that risk. Importantly, the Court found that climate change will create an inhospitable climate for children of the future.
"The physical environment will be harsher, far more extreme and devastatingly brutal when angry. As for the human experience – quality of life, opportunities to partake in nature's treasures, the capacity to grow and prosper – all will be greatly diminished. Lives will be cut short. Trauma will be far more common and good health harder to hold and maintain," the judgment said.
"None of this will be the fault of nature itself. It will largely be inflicted by the inaction of this generation of adults, in what might fairly be described as the greatest inter-generational injustice ever inflicted by one generation of humans upon the next," the judgment said in assessing the vulnerability of the applicant children.
The implications of Justice Bromberg's decision mean that when making a decision under the EPBC the government must exercise its powers to avert a risk, no matter the size, and protect the interest of all Australians. Currently any action that could have a significant impact on any matter of National Environmental Significance (NES), including National Heritage values, must be referred to the Federal Environment Minister for approval, inclusive of any coal seam gas or coal mining development that will significantly impact water resources.
The decision will have wide ranging impacts for resource exploitation in the future.
Sharma by her litigation representative Sister Marie Brigid Arthur v Minister for the Environment  FCA 560
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