The children have been busy. On matters of environmental justice, Australia has witnessed much legal activity from youthful citizens who, despite in some cases not being old enough to vote, have stirred politics. In 2021, five lodged complaints with the United Nations over the failure of the Australian government to cut, in a meaningful way, greenhouse gas emissions by 2030.
The complaint to the United Nations Special Rapporteur on Human Rights and the Environment, Special Rapporteur on the rights of Indigenous peoples, and Special Rapporteur on the rights of persons with disabilities, could only have been impressed. Three central questions were posed by the complainants: whether such inaction was ‘consistent with the human rights obligations’; whether such conduct was ‘compatible’ with the human rights of young Australians ‘and whether the State will establish a permanent forum to include young people from impacted communities.’
As impressive as this was, another development, this time reached through litigation, sent rumblings through government channels and the resource sector. With a focus on duty of care, the federal government found itself entrenched in a legal battle in the case that came to be called Sharma v Minister for Environment [2021] FAC 560. The case involved a challenge by eight teenagers and a remarkable octogenarian, Sister Brigid Arthur, to an application by Whitehaven to approve the $700 million expansion of its Vickery mine in New South Wales. The target of the action, and an increasingly popular one in climate change litigation, was how the Environment Minister’s decision-making powers on the issue of permitting a coal mine from going ahead should be exercised.
The applicants argued that a government decision-maker in that position owed a duty of care to Australian children to protect them from harms resulting from climate change. Federal Court Justice Mordecai Bromberg found that the burning of coal from the project would likely result in a ‘tiny but measurable increase to global average surface temperatures’. This would likely increase global average surface temperatures beyond two degrees centigrade above pre-industrial levels, causing catastrophic climate hazards.
The justice also found that the reasonable person in the Minister’s position would be able to foresee that the Project’s carbon dioxide emissions and its contribution to global surface temperatures would result in a risk of death or other personal injury. ‘By reference to contemporary social conditions and community standards, a reasonable Minister for the Environment ought to have the Children in contemplation when