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A Minister’s duty to future adults about the environment

Sharma by her litigation representative Sister Marie Brigid Arthur v Minister for the Environment [2021] FCA 560 (27 May 2021)

Justice Bromberg found that the Federal Environment Minister has a duty to Australian children to take reasonable care when exercising her statutory power to decide the fate of a mining project, but limited that duty to avoiding personal injury, not other forms of harm.

Vickery Coal Pty Ltd (Vickery) is yet to commence a coal mine project in NSW. It applied under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (the Act) to extend the project to increase total coal extraction from 135 to 168 million tonnes over its 25 year life, thereby emitting 100 million tonnes of additional CO2into the atmosphere.

The responsible Minister, Susan Ley, has before her the decision to either approve or refuse to extend the project under s130(1) and s133 of the Act.

Eight Australian children, by their adult litigation representative, commenced a representative proceeding (class action) in the Federal Court on behalf of all Australian children, against the Minister, claiming that she owes them a duty of care when making her decision.

The children apprehended that the Minister would fail to discharge that duty by approving the project’s extension, and so sought declaratory and injunctive relief to prevent that course. Vickery was joined as a respondent. The Minister undertook not to make her decision until after the proceedings, so interim relief was unnecessary.

The Minister denied she owed a duty of care as posited, but accepted the seriousness of human induced climate change. His Honour accepted from the unchallenged expert evidence on which the children relied, that the additional 100 million tones of CO2 attributable to the project’s extension would materially contribute to a “tipping cascade” in which potential harms increase exponentially if global average surface temperature rise beyond 2°C towards a 4°C increase. The harms to future adults include personal injury due to heat-stress, bushfire smoke, economic loss and property damage.

His Honour found – as an essential precondition to establish a duty – that a reasonable person in the position of the Minister would foresee that extending the project would expose the children to a risk of injury or death. But whether a novel duty of care exists is to be ascertained by weighing the “salient features” of the relationship between the Minister and the children.

The salient features weighing in favour of the duty are the Minister’s knowledge and control over the potential harms, the vulnerability of the children and the extent to which they rely on the Minister to avoid the harm.

Another salient feature to consider was the coherence between the posited duty and other laws. His Honour accepted that such duty - if it were limited to taking care to avoid personal injury – would be coherent with the Minister’s broad statutory discretion under s130(1) and s133 of the Act, given that the statutory scheme was concerned with safety. However, the imposition of a duty to avoid pure economic or property loss – considerations which find no purpose in the statute – would distort or skew that discretion.

Despite finding the Minister to be duty-bound, his Honour declined to restrain her from making her decision, finding no basis to apprehend a breach of duty, nor to fetter her discretion.

The reasons in this case are important for commercial lawyers to draw upon when reasoning by analogy in commercial cases involving negligence claims in respect of pure economic loss.


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