How young people are using the courts to drive climate action
Young Australians are turning to the courts to drive action on climate change, Claudia Hodge writes.
Australia’s commitments (or lack thereof) at COP26 put a dampener on much-needed ambitions to limit global heating to 1.5 degrees Celsius. But this should not be reason to give up hope for meaningful climate action in Australia. In the face of lacklustre progress from the Federal Government, Australians are pursuing other avenues to drive change.
The number of climate-related court cases filed in Australia soared to 123 as of November 2021, and Australian courts have shown an increased willingness to consider the impacts of climate change in their legal reasoning processes. More promising still is that many of the most high-profile climate cases in Australia have been led by youth activists. If the following cases are anything to go by, the expansion of climate litigation in Australia is here to stay.
A duty of care
In May 2021, the Federal Court of Australia recognised that the Commonwealth Environment Minister, in considering whether to grant approval for the expansion of an existing coal mine in northwestern NSW, owes a duty of care to Australian children. More specifically, the court held that the minister is under an obligation to take reasonable care to avoid causing harm to Australian children by sanctioning additional greenhouse gas emissions.
Led by eight young Australians on behalf of all children born before the proceedings started, Sharma v Minister for the Environment is a landmark decision recognising the real and foreseeable risk of harm posed by climate change, and holding the Federal Government to account for its failure to adequately guard against that risk.
The minister has since lodged an appeal, heard by the Full Federal Court in October, denying her duty of care owed to Australian children — an act the youth litigants labelled as “embarrassing”. While the Full Federal Court is yet to hand down its final decision, if the minister’s appeal is dismissed and the original decision upheld, the case would set a favourable precedent for constraining the Australian Government’s power to approve fossil fuel projects going forward.
Fighting for human rights
Youth Verdict— a coalition of young people fighting for climate justice in accordance with First Nations rights — raised an objection against Waratah Coal’s Galilee Coal Project in Queensland, on the basis the development infringes human rights protected under the Human Rights Act 2019 (Qld). Waratah Coal, owned by Clive Palmer, attempted to have the objection struck out by the Land Court of Queensland, but the court dismissed the company’s application in September 2020.
The substantive legal questions raised by Youth Verdict’s objection are still to be decided by the court, but if victorious, the case will become the first in Australia to successfully use human rights as a basis for curbing the coal industry’s contribution to climate change. It would also set a valuable precedent for others in Australia to take action on climate change by asserting their human rights to life and culture.
The bottom line
Australian woman Kathleen O’Donnell filed a class action in 2020 as a 23-year-old student against the Federal Government for failing to disclose climate change risks to bond investors, claiming it amounts to misleading or deceptive conduct under the Australian Securities and Investments Commission Act 2001 (Cth). The government attempted to strike out the claim, but was unsuccessful in the Federal Court, where it was held that the economic risks posed by climate change, measured against the Commonwealth’s apparent failure to disclose those risks to investors, is enough for the case to proceed.
The substantive matters are likely to be heard sometime in 2022. If successful, the case will have an extensive impact on the way the government discloses climate-related financial risks, and may prompt greater action to mitigate those risks.
These cases provide a snapshot of three distinct avenues — negligence, human rights and financial risk disclosure — that young Australians are pursuing in the climate litigation space. Regardless of the final outcomes, the mobilisation of young Australians in the fight against climate change is certainly something to celebrate.
Claudia Hodge is a student at the ANU College of Law and Youth Co-Chair of the Australian Lawyers for Human Rights Environment and Human Rights Sub-Committee.