Sharma v Minister for Environment

The Minister’s appeal was heard by the Full Court of the Federal Court of Australia from 18-20 October 2021.

In its judgment delivered 15 March 2022, the Full Court reversed the trial judge’s decision and found that the Minister does not have a duty of care to avoid causing climate harm to young Australians. The Full Court’s judgment is available here. A summary is here. The Full Court’s judgment as to costs is here.

A statement by our clients on their decision not to appeal to the High Court of Australia is available here.

A statement by EGL on the abuse of our client Anjali Sharma is available here.

The catastrophic climate impacts from mining and burning coal have not changed. The evidence accepted by the court concluded that every coal mine matters. The emissions from one coal mine can trigger tipping points causing extensive harm to people and the environment.

Minister Sussan Ley MP approved the Vickery Extension Project on 16 September 2021.

The Federal Court of Australia has found that the Minister for the Environment has a duty of care to avoid causing injury to young people while exercising her powers to approve a new coal project.

• The 27 May 2021 judgment, which contains the majority of the Court’s reasoning is Sharma & Others v Minister for the Environment [2021] FCA 560. The Court’s summary of that judgment is here.
• The 8 July 2021 judgment, which contains the declaration of the Minister’s duty is Sharma & Others v Minister for the Environment (No 2) [2021] FCA 774

The class action was brought by high school students Ambrose, Anj, Ava, Bella, Izzy, Laura, Luca, Tom and Veronica, and on behalf of young people in Australia and around the globe.

In the May judgment, Justice Bromberg found at [293]:

It is difficult to characterise in a single phrase the devastation that the plausible evidence presented in this proceeding forecasts for the Children. As Australian adults know their country, Australia will be lost and the World as we know it gone as well. 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. 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 July judgment contains a declaration that:

The [Minister for the Environment] has a duty to take reasonable care, in the exercise of her powers under s 130 and s 133 of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) in respect of referral EPBC No. 2016/7649, to avoid causing personal injury or death to persons who were under 18 years of age and ordinarily resident in Australia at the time of the commencement of this proceeding arising from emissions of carbon dioxide into the Earth’s atmosphere.

The case would not have been possible without the students’ litigation representative, Sister Marie Brigid Arthur, to whom we are dearly grateful.

Noel Hutley SC, Emrys Nekvapil, Katherine Brazenor, Stephanie C B Brenker and Nicholas Petrie adroitly represented the students at the bar table.

Expert witnesses for the students were Professor Will Steffen, Professor Tony Capon, Dr Ramona Meyricke and Dr Karl Mallon, whose report can be accessed here.

Former State and Territory fire chiefs and senior emergency services personnel, Ewan Waller, Steven Warrington (AFSM), Major General (Retd) Peter Dunn (AO) and Gregory Mullins (AO, AOFSM) kindly put on evidence for the students.

Jack McLean co-ordinated the matter at Equity Generation Lawyers with critical support from James Higgins and Varsha Yajman. Ling McGregor and Clare Schuster provided crucial contributions throughout the proceedings. Guidance was provided by David Barnden.

For interviews, contact James Lorenz on 0400 376 021 or james@pr-arc.com, or Dylan Quinnell on 0450 668 350 or dylan.quinnell@climatemediacentre.org.au.

The climate crisis is accelerating across the world, fuelling rising temperatures and extreme weather events such as catastrophic bushfires, floods, and droughts. Burning coal is the single largest contributor to this crisis and Australia is the world’s largest coal exporter. To make it worse, we know that young people and children are particularly vulnerable to the impacts of climate change.

In September 2020, eight young people from around Australia, represented by Equity Generation Lawyers, and with the assistance of 86 year-old litigation guardian Sister Brigid Arthur, brought a class action against the Federal Minister for the Environment alleging that the Minister has a duty to avoid causing future harm related to the carbon emissions that would result from the approval of a proposed coal mine extension project in the state of New South Wales known as the Vickery Extension Project. If approved, the coal burned from the Vickery Extension Project will result in 100 million tonnes of carbon emissions over the next 25 years, further fuelling the climate crisis. Our clients argued that approving the mine would breach the alleged duty.

• 8 September 2020: the case was filed against the Commonwealth Minister for the Environment. The main public documents are the applicants’ Amended Concise Statement and the Amended Originating Application.
• 29 October 2020: the Minister filed her Concise Statement in Response, effectively a defence.
• December 2020: the applicants finalised their evidence. The Minister did not file any evidence.
• 8 February 2021: the proponent of the Vickery Extension Project, Vickery Coal Pty Ltd, a wholly owned subsidiary of ASX listed Whitehaven Coal Limited, was joined as a respondent in the proceedings for the limited purpose of participating in relation to the applicants’ application for an interlocutory injunction.
• 2-5 March 2021: a four day trial was held in front of Justice Bromberg at the Federal Court in Melbourne.
• 27 May 2021: Justice Bromberg published his May judgment setting out his reasoning in finding a duty of care. His Honour asks the parties to make further submissions on a number of points of law in relation to the formulation of the duty, the representative nature of the proceedings, and legal costs.
• 8 July 2021: Justice Bromberg published his July judgment, which included the declaration of the Ministers duty and orders for the Minister to pay the applicants’ legal costs.

The school students who brought the case are passionate about climate justice. They come from all around Australia and were all involved in organising for School Strike 4 Climate. The students brought their claim with the assistance of their litigation guardian, Sister Brigid Arthur.

The students showed us that every young person has the power to make a difference.