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Friday, June 24, 2022

Sussan Ley has no duty of care to protect young people from climate crisis, appeals court rules

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Eight teenagers and a nun had previously won their case against the federal environment minister related to the expansion of a NSW coal mine.

Federal environment minister Sussan Ley has successfully appealed a high-profile court decision that found she had a duty to protect young people from the climate crisis by evaluating fossil fuel developments.

Eight teenagers and an octogenarian now last year applied for an injunction to prevent Ley from approving a proposal by Whitehaven Coal to expand the Vickery coal mine in northern New South Wales, arguing the minister had a duty of care to right customary law to protect young people from future harm. of climate change.

Related: Coalition to allow some projects, including mining, to bypass federal environmental approvals

Judge Mordecai Bromberg determined that the minister had a duty of care not to act in a way that could cause future harm to the young people, but did not grant the injunction because he was not satisfied that the minister breached her duty of care.

The full federal court Tuesday overturned that ruling, ruling that while Bromberg’s conclusions were “open to be made,” the duty of care should not be imposed on the minister.

Litigation guardian sister Brigid Arthur, with high school students Anjali Sharma, 17, Ava Princi, 18, Izzy Raj-Seppings, 15, and Luca Saunders, 16, outside the New South Wales Federal Court in Sydney. Photographer: Dean Lewins/AAP

The three judges who heard the appeal gave different reasons for their decision. They included that judicial processes were not adequate to determine matters of public policy and that the protection of the public from personal injury caused by the effects of climate change was not the responsibility of the minister under Australia’s environmental law.

The teens who filed the class action suit, supported by Sister Brigid Arthur, an 87-year-old nun and former teacher who volunteered to be their legal guardian, said they would consider appealing to the high court.

The leader of the action, 17-year-old Melbourne student Anj Sharma, said she was devastated by the trial and “very, very angry”.

“It will not deter us in our fight for a secure future,” he said outside court. “Today’s federal court may have accepted the minister’s legal arguments over ours, but that doesn’t change the minister’s moral obligation to take action on climate change.

“Science doesn’t change. It does not put out fires or drain flood waters. We will not stop in our fight for climate justice. The world is watching.”

At a press conference in Queensland, Ley said he had not yet had a chance to read the sentence but “common sense had prevailed”.

“I want to assure people that I assume my responsibilities under the [Environment Protection and Biodiversity Conservation] Be very serious in terms of those legal responsibilities in protecting the environment and the effect of each new development on the environment,” he told reporters.

In his remarks at a court hearing broadcast on Tuesday, Chief Justice James Allsop said no one involved in the case had questioned the evidence presented to the court about climate change and the “dangers to the world and humanity, including Australians, in her future.”

That evidence included that the mine expansion could generate an additional 100 million tonnes of carbon dioxide, about 20% of Australia’s annual climate footprint, which is released into the atmosphere as mined coal is shipped overseas and it is burned to make steel and generate electricity.

In his initial judgment, Bromberg concluded that it showed the potential harm children could face from global warming “can be described as catastrophic, particularly if global average surface temperatures rise to more than 3°C above pre-industrial levels.”

“Perhaps the most startling potential harm demonstrated by the evidence in court is that 1 million of today’s Australian children are expected to suffer at least one episode of heat stress severe enough to require acute care in a hospital,” he said. .

The full court rejected a presentation by Ley’s lawyers that some of Bromberg’s initial findings were incorrect and went beyond the evidence. But it was found unanimously that the minister should not face a legal duty to care for all Australian children when deciding whether the Whitehaven mine extension could go ahead.

Allsop found that judicial processes were not adequate to determine matters of high public policy, that imposing a duty of care would be incompatible with national environmental laws, and that the level of responsibility of the minister in approving a project was indeterminate.

Judge Jonathan Beach considered that a duty of care should not be imposed as there was “not enough closeness and directness” between the minister’s decision and the risk of harm to young Australians, and that their level of responsibility could not be determined.

Judge Michael Wheelahan found that national environmental laws did not establish a relationship between the minister and the teenagers who brought the case, and that “the control of carbon dioxide emissions and the protection of the public from personal injury caused by the effects of climate change” were not the responsibility of the minister under the legislation.

David Barnden, a lawyer representing the children who last year described the initial trial as historic, said the decision was disappointing.

“Regardless of today’s decision, adults must do everything they can to create a secure future for our children,” he said. “We will continue to support young people in their fight for a secure future and will carefully review this decision to determine next steps.”

Sister Brigid Arthur said that climate justice demands that we “pay attention to the damage we are causing both to the planet and to the future children who will inhabit this planet.”

“In the end, we will win,” he said.

Ley was asked for his response to the sentence.

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