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Court finds government has duty to protect young people from climate crisis

Eight teenagers, along with 86-year-old nun, launched case to prevent the approval of a massive coalmine.

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.

David Barnden, a lawyer representing the children, said it was a historic and “amazing decision” with potentially significant consequences.

“The court has found that the minister owes a duty of care to younger children, to vulnerable people, and that duty says that the minister must not act in a way that causes harm – future harm – from climate change to younger people,” he said outside court. “It is the first time in the world that such a duty of care has been recognised, especially in a common law country.”

He said Bromberg had indicated he would now take submissions before making further declarations about what the minister’s duty of care may mean for whether the mine extension could go ahead.

Whitehaven Coal had a different interpretation of the judgment. In a statement to the stock exchange, it did not mention the duty of care finding, and said it welcomed the court dismissing the teenagers’ attempt to block Ley from approving the mine extension.

“Our consistent position has been that this legal claim was without merit,” it said. “Whitehaven looks forward to receiving the … approval for the Vickery extension project and will keep the market updated as appropriate.”

Speaking for the children, 17-year-old Ava Princi said it was “thrilling and deeply relieving” that the justice had recognised the minister had a duty of care.

“I am thrilled because this is a landmark decision,” she said. “My future and the future of all young people depends on Australia stepping away from fossil fuel projects and joining the world in taking decisive climate action.”

She said though an injunction was not granted the case was “not over yet”. “There will be further submissions on what the duty of care means for the minister’s decision and the mine,” she said.

A spokesman for Ley said the government was considering the judgment and would have “more to say in due course”, but noted it rejected the application for an injunction against the minister to prevent her making a final decision on the mine extension.

The teenagers, led by the 16-year-old Melbourne student Anj Sharma and supported by Sister Brigid Arthur, an 86-year-old nun and former teacher who volunteered to be their litigation guardian, argued Ley would be breaching a common law duty of care if she used her powers under national environment laws to allow Whitehaven Coal to extend the Vickery mine.

The court heard the expansion of the mine could lead to an extra 100m tonnes of CO2 – about 20% of Australia’s annual climate footprint – being released into the atmosphere as the extracted coal is shipped overseas and burned to make steel and generate electricity.

In his judgment, Bromberg said the evidence presented to the court showed the potential harm the children could face due to global heating “may fairly be described as catastrophic, particularly should global average surface temperatures rise to and exceed 3C beyond the pre-industrial level”.

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

“Many thousands will suffer premature death from heat stress or bushfire smoke. Substantial economic loss and property damage will be experienced. The Great Barrier Reef and most of Australia’s eastern eucalypt forests will no longer exist due to repeated, severe bushfires.”

Bromberg found that the minister had a common law duty to take reasonable care not to cause the children personal injury when using her powers under the Environment Protection and Biodiversity Conservation (EPBC) Act.

He did not grant an injunction to prevent the mine extension because he had “not been satisfied that a reasonable apprehension of breach of the duty of care by the minister has been established”.

The case is one of a number of climate-related litigation cases expected before Australian courts and tribunals in the months ahead as lawyers and activists aim to use the law to force change they say is not coming quickly enough from Canberra or state governments.

There have been a growing number of international cases that aim to hold governments to account for not doing more to address global heating.

In the latest on Wednesday, a court in the Hague ordered Royal Dutch Shell to cut its global carbon emissions by 45% by the end of 2030 compared with 2019 levels after finding the oil giant’s sustainability policy was insufficiently “concrete”.

The Anglo-Dutch company was told it had a duty of care and that the level of emission reductions of Shell and its suppliers and buyers should be brought into line with the Paris climate agreement. The case had been brought by Friends of the Earth and over 17,000 co-plaintiffs.

The International Energy Agency last week suggested there should be no new coal, oil or gas investments if the world was to keep open the possibility of meet the goals of the Paris agreement and reaching net zero global greenhouse gas emissions by 2050.

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