At 22, Annika Reynolds is the founder of GreenLaw, a research institute empowering the next generation of lawyers to tackle the climate crisis. Below she outlines the significance of this week’s Federal Court ruling that the Environment Minister has a duty of care to young people on climate change.
Last week, the School Strike 4 Climate resumed in-person protests across Australia after pausing for Covid-19. Young people, students and children – the physical embodiments of our hopes and futures – stood together calling for change, chanting “the tide is rising and so are we”.
This week, those same young people have made a significant mark in the courtroom.
Sharma v Minister for the Environment is a challenge by eight children to stop the federal Environment Minister, Sussan Ley, from approving the Vickory Extension Project. This has always been a novel case, with the applicants arguing that the Minister would be negligent if she approved the extension. Most climate change litigation in Australia is based on judicial review, challenging whether the Minister has properly assessed a development. But judicial review is not very effective in the long-term prevention of climate-wrecking developments. Indeed, GreenLaw found in its comprehensive review of federal environmental cases that over 70% of developers are able to continue with their development even after an applicant is successful in court.
To date, negligence for climate change has not been successfully argued in any court across the globe. Negligence is a powerful legal remedy, but it relies on the defendant knowing their actions are likely to cause harm, often called an evidential threshold. Historically, this was a barrier to asbestos and lead negligence cases, but as scientific evidence mounted the case for negligence became stronger. We are at a similar tipping point with climate change. It is increasingly hard to argue governments and corporations do not know about the harms of climate change when Australia’s summers have become a tapestry of flames.
The judgment in Sharma v Minister for the Environment is a world first, with Justice Bromberg recognising the Minister for the Environment has a duty of care to young people (and future generations) in relation to climate change.
In Sharma v Minister for the Environment, the 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 Court held the Minister for the Environment has knowledge of these harms. Furthermore, Justice Bromberg held that the Minister for the Environment has “direct control” over these potential harms, because she has the power to approve the Vickory Extension Project.
Together, the Court established the Minister has a duty of care to exercise her powers (to approve or not approve emissions intensive projects) in a way that will not harm Australia’s children. That is, the Minister must exercise her powers to prevent serious climate change.
This outcome does not mean the Minister has been negligent, but it sets the stage for the Minister for the Environment – and other government officials – to be held accountable when they ignore the reality of climate change and continue business as usual.
The significance of this case is not restricted to the courtroom. For years, young people have been speaking up and leading the discussion on both climate action and climate accountability. In 2019, Greta Thunberg at the UN Climate Change Summit, spoke with the righteous anger of future generations robbed of everything:
“We will not let you get away with this…The world is waking up. And change is coming.”
In 2021, that change is here.
We, as young people, have grown up marching in the streets for climate justice, and now are emerging as young leaders and advocates for a vision of a sustainable and just Australia. Sharma v Minister for the Environment, is the product of the legal expertise of senior litigators, but it was driven and inspired by the vision of children.
For young people, it is not enough to advocate for emissions reduction — that time passed in the 1990s when climate change was emerging as a social issue. Now, thirty years later, we – the generation that has grown up in the fire – seek justice and that means holding our leaders to account.