The Sharma Decision: Establishing an Evidentiary Precedent for Future Climate Litigation

The applicants in Sharma by her litigation representative Arthur and Others v
Minister for the Environment and Another (‘Sharma’) attempted, unsuccessfully,
to establish a novel duty of care owed by the Minister for the Environment
(‘Minister’) to Australian children. The proceedings were brought by a group of
eight children (six on appeal) and their litigation representative, Sister Marie
Brigid Arthur, on behalf of all children under the age of 18, who were residents
of Australia at the commencement of the proceedings. The applicant children (‘the Children’) claimed that the common law duty of care attached to the Minister’s statutory powers under s 130 and s 133 of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (‘EPBC Act’). As such, the Minister owed a duty of care when making a decision whether to approve an extension to the Vickery Coal Project (‘Extension Project’), in northern New South Wales. Following the finding of a duty of care at first instance, the Minister approved the Extension Project in September 2021. ...
The primary judge’s finding of a duty of care was overturned on appeal by the Full Federal Court in March 2022. The Court’s decision shows that Sharma was not an appropriate factual vehicle for establishing a novel duty of care, but the Court’s reasonable foreseeability analysis may suggest that factual circumstances of present and near future climate change harm may be a more appropriate factual vehicle to establish a duty of care in the exercise of governmental authority to approve large increases in GHG emissions. In such a scenario, the expert evidence of Professor Steffen, a specialist in climate and ‘Earth System’ science, could be used as an evidentiary precedent.