- Justice Wheelahan reasoned that no duty of care arises because:
- The EPBC Act does not confer the role of controlling carbon dioxide emissions and protecting the public from personal injury from climate change onto the Minister. (¶ 839)
- It would not be feasible to establish an appropriate duty of care because it would interfere with the duties the statute does impose. (¶ 868)
- It is not reasonably foreseeable that approving the extension of the coal mine would cause personal injury under the common law tort of negligence to the respondents or their class. (¶ 886)
- However, the Full Federal Court did not dispute the substantial body of evidence that the applicants presented about the dangers of climate change to Australians and all of humanity. The evidence presented before the primary judge was not challenged or contested by the Minister, and the Full Federal Court dismissed the Minister’s submissions that the primary judge’s findings were incorrect and reached beyond the evidence. (¶¶ 273-290)
Potential takeaways for future climate migration litigation
- The Full Federal Court has eliminated the novel duty of care established by the primary judge and has restored the status quo.
- This decision is limited to the question of a duty of care in the context of the environmental minister’s role under a certain act (the EPBC Act). In future cases, similar duty of care arguments may be made in different contexts or under a different Act.
- The Full Federal Court upheld the findings of fact about climate change established by the primary judge. The minister’s failure to challenge these facts in the first instance are consistent with a broader shift in state defense strategy in climate change cases, from denying the facts of climate change to denying responsibility for climate change.
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