Sharma v Minister for Environment
The Appeal | Minister for the Environment v Sharma & Others | Full Court of the Federal Court of Australia | VID389/2021
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 Trial | Sharma & Others v Minister for the Environment | Federal Court of Australia | VID607/202
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.
What is the case about?
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.
Key milestones in the case
- 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.
About the students
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.
“It was immediately obvious that this was groundbreaking. This is Mabo for the climate,” said Dr Chris McGrath.
Planetary Defence, Kieran Pender, The Monthly, July 2021
[I]n ordering the government to take “reasonable care to avoid personal injury to the children,” it recognized climate change as an “intergenerational crime,” said Michael Burger, executive director of the Sabin Center for Climate Change Law at Columbia University and a lawyer who represents several U.S. cities and states suing fossil fuel companies.
Big Setbacks Propel Oil Giants Toward a ‘Tipping Point’, Somini Sengupta, New York Times, 29 May 2021
This is the first time a court of law, anywhere in the world has recognised that a government minister has a duty of care to protect young people from the catastrophic harms of climate change.
Ava Princi in Politicians have duty of care to protect children from climate harm, court finds, Nick O’Malley, SMH, 27 May 2021
This is an amazing decision … an amazing recognition that people in power must not harm younger people by their decisions.
David Barnden in Greta Thunberg hails Australian court ruling as ‘a huge win for the whole climate movement’, SBS, 28 May 2021
[The] duty… entitles the children, or more properly people acting on their behalf, to sue the minister for negligence should they believe that those interests have not been adequately taken into account.
‘Duty of care’ coal ruling undermines democracy, Henry Ergas, The Australian, 4 June 2021
…the decision could have widespread ramifications not just for the Environment Minister, but for companies and other ministers.
Australian teenagers’ climate change class action case opens ‘big crack in the wall’, Michael Slezak Penny Timms, ABC, 27 May 2021
The case resulted in a landmark ruling last week that the country’s environment minister has [a] duty of care … to children to consider the harm caused by climate change.
“Australia’s Greta Thunberg” steps up climate change activism, Melanie Burton, Reuters, 1 June 2021
[T]he Court accepted climate change is real and it is “reasonably foreseeable” that climate change will cause future harms to Australia’s children. As a result of increased temperatures and more severe natural disasters, it was accepted that children would suffer from heatwaves, injuries or death from bushfires, and injuries from other natural disasters.
The Federal Court’s climate change ruling shows power of young people in holding our leaders to account, Annika Reynolds, Women’s Agenda, 27 May 2021
A class action launched on behalf of young people everywhere seeks … to stop the Australian Government approving an extension to Whitehaven’s Vickery coal mine, arguing it will harm young people by exacerbating climate change. …it could break new legal ground with widespread ramifications, causing problems for any new coal mine in Australia — and possibly any fossil fuel project — if it is successful.
Class action to stop planned coal mine extension filed by climate action-focused Australian teenagers, Michael Slezak & Penny Timms, ABC News, 9 September 2020
The class action, prepared by Victorian firm Equity Generation Lawyers, seeks to invoke the minister’s common law duty of care to protect younger people against climate change.
Kids, nun take Ley to court over coal mine, Gus McCubbing, 7News, 27 October 2022
Saying the environment minister owes the young plaintiffs a duty of care is a novel approach. In [the Applicants’] view, signing off on a new coal project will breach that duty. Such an approach to a climate change case has not been tested before in Australia and would chart new territory if successful.
These Aussie teens have launched a landmark climate case against the government. Win or lose, it’ll make a difference, Laura Schuijers, The Conversation, 10 September 2020
A class action has been launched on behalf of young people across the world in an attempt to stop the federal government approving an extension to a coal mine in northwest NSW. The injunction, an Australian-first and filed in the Federal Court on Tuesday, argues expanding Whitehaven’s Vickery mine near Gunnedah will harm young people across the world by making climate change worse.
Eight teenagers have launched legal action to stop the expansion of a NSW coal mine, Evan Young, SBS, 9 September 2020
The eight young Australians have all been involved in “School Strike For Climate”, which was initiated by student activist Greta Thunberg in 2018 demanding that world leaders adopt urgent measures to stop an environmental catastrophe.
Australia students launch class action to prevent coal mine approval, Swati Pandey, Reuters, 16 September 2020
Our government is still approving these mines knowing they are a direct cause of rising temperatures, increasing CO2 levels, extreme nature events, ecosystems disappearing and food and water shortages. It is time to put our futures before fossil fuels and profits.
Bella Burgemeister in These Teens (And A Nun) Are Taking The Government To Court Over Climate Change, Rachael Conaghan, Junkee, 9 September 2020
Every consecutive summer is labelled ‘the worst summer this country has ever faced’, and yet instead of addressing this crisis more mines are being given the green light … this has to stop and I am proud to be doing something to help stop it.
Anjali Sharma in Kids, nun take Ley to court over coal mine, Gus McCubbing, 7News, 27 October 2022
If we win … it could have huge ramifications for other new coal mines in Australia, and it might mean the end of any new coal mine in Australia.
David Barnden in Class action to stop planned coal mine extension filed by climate action-focused Australian teenagers, Michael Slezak & Penny Timms, ABC News, 9 September 2020
In a world first Justice Mordecai Bromberg ruled the minister had a duty of care to avoid future harm to young people.
Stepping up when adults don’t: ‘It’s just so real for us right now’, Meg Keneally, The Guardian, 26 September 2021
It is the first time in the world that such a duty of care has been recognised.
David Barnden in Australian court finds government has duty to protect young people from climate crisis, Adam Morton, The Guardian, 27 May 2021
The devastating impact of the impending climate crisis 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.
Justice Bromberg, First Instance Judgment
My future and the future of all young people depends on Australia stepping away from fossil fuel projects and joining the world in taking decisive climate action.
Ava Princi in Australian court finds government has duty to protect young people from climate crisis, Adam Morton, The Guardian, 27 May 2021
Climate activist teens have claimed a legal victory after the Federal Court found the “risk of death” a coal mine posed meant the Environment Minister owed them a duty of care when approving the project.
Federal Court rules on teens’ climate change class action against Minister, Blake Antrobus and Evin Priest, News.com, 27 May 2021
[The] judgement opens the door for future litigation if the minister is not careful about approving projects that could harm the next generations of Australians… But importantly, it puts the federal environment minister on notice — while political terms might be only short, decisions now have intergenerational consequences for the future.
In a landmark judgment, the Federal Court found the environment minister has a duty of care to young people, Laura Schuijers, The Conversation, 27 May 2021
This is a duty about life and death for Australian children. It seems inconceivable that an environment minister, a member of parliament representing the people of Australia, would seek to rid herself of this sensible responsibility.
David Barnden in Australian government to appeal ruling that it must protect children from climate harm, Graham Readfearn, The Guardian, 9 July 2021
We made the Federal Court of Australia accept climate science unequivocally and realise that climate change is becoming an ever-relevant and ever-growing problem that’s going to impact young people for many years to come… The fact that they were willing to take eight children back to court, that speaks volumes.
Anjali Sharma in These three young activists are changing the conversation on the climate crisis, Erin Stutchbury & Taryn Priadko, ABC News, 28 May 2022
Various watershed moments in 2021, [including] the Australian ‘Sharma’ case on the climate change duty-of-care, are transforming the way boards approach decision-making.
The Next Frontier – Clean Energy and Decarbonisation, Giorgia Fraser, Business News, 30 September 2021
