Thursday, May 27, 2021

Climate Change: A duty of care

Hot on the heels of last night's decision in the Netherlands that the right to life requires Shell to reduce emissions, an Australian court has ruled that ministers owe young people a duty of care over climate change:

The federal court of Australia has found the environment minister, Sussan Ley, has a duty of care to protect young people from the climate crisis in a judgment hailed by lawyers and teenagers who brought the case as a world first.

Eight teenagers and an octogenarian nun had sought an injunction to prevent Ley approving a proposal by Whitehaven Coal to expand the Vickery coalmine in northern New South Wales, arguing the minister had a common law duty of care to protect younger people against future harm from climate change.

Justice Mordecai Bromberg found the minister had a duty of care to not act in a way that would cause future harm to younger people. But he did not grant the injunction as he was not satisfied the minister would breach her duty of care.

In other words, the decision hadn't been made yet. But the strong implication of the last bit is that if the Minister approves the project (especially without strong consideration of climate change impacts and how they may be mitigated), the decision will be overturned.

New Zealand has both an enforceable right to life in the BORA, and similar common law to Australia on the duty of care. So while not precedent here, both cases could be persuasive to New Zealand courts, and provide further weight to the Zero Carbon Act's "permissive considerations" clause. But we won't really know that until its argued.