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Tag: Children

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Minister for the Environment v Sharma [2022] FCAFC

Date: 15 March 2022 

Court: Federal Court of Australia (intermediate appellate court) 

Citation(s): Minister for the Environment v Sharma [2022] FCAFC 35 

Short summary

In May 2021, The Australian Federal Court found that the Federal Environment Minister has a novel duty of care to prevent harm to young people as a result of climate change. After the Australian government’s appeal, the Full Federal Court now unanimously holds that the Minister for Environment of Australia does not owe a duty of care to Australian children to avoid causing personal injury or death. 

Summary by: Nicole Gasmen

Link to Original Judgement

Click here to open the case in PDF format

Weight of decision  

This decision sets aside orders 1 and 3 in Sharma by her litigation representative Sister Marie Brigid Arthur v. Minister for the Environment [2021] FCA 560. It is binding in Australia courts.  

Key facts 

See: https://legal.earthrefuge.org/sharma-v-minister-for-the-environment/  

Previous instances  

In July 2021, the Federal Court of Australia held that the Australian Minister for Environment owed a novel duty of care to Australian children under the Environment Protection and Biodiversity Conservation Act of 1999 (EPBC Act).  

This duty required the minister to take reasonable care to avoid causing personal injury or death to all Australian children at the time of the proceeding via the carbon dioxide emissions of the Vickery Extension coal project. The minister appealed the decision, and the Full Federal Court heard the appeal in October 2021. 

Summary of holding 

  • The Full Federal Court held unanimously (Chief Justice Allsop, Justice Beach, and Justice Wheelahan) that the novel duty of care to avoid causing personal injury or death should not be imposed on the Minister for Environment. Each justice wrote separately. 
  • Chief Justice Allsop reasoned that the duty of care should not be imposed because: 
    • The character of this matter is not appropriate for the judiciary; it should be left to lawmakers. (¶¶ 248-253) 
    • The duty of care was inconsistent with the EPBC Act because it is not primarily concerned with the protection of the environment or response to global warming. (¶ 101) 
    • The Minister of Environment lacks control over the harm of climate change and of climate-related disasters such as brushfires and heatwaves. Due to the lack of determinacy of the direct cause of these climate events, the Minister lacks liability for damages caused by such brushfires, heatwaves, and rising sea levels, not to mention damages ongoing into the future. (¶¶ 341-343) Further, the children who brought the case lack legal special vulnerability. (¶¶ 338-341) 
  • Justice Beach reasoned that the duty of care should not be imposed because: 
    • “There is not sufficient closeness and directness between the Minister’s exercise of statutory power and the likely risk of harm to the respondents and the class they represent.” (¶¶ 362-363) 
    • Imposing a duty would result in indeterminate liability. (¶ 702) 

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Sharma by her litigation representative Sister Marie Brigid Arthur v Minister for the Environment [2021] FCA 560

Date of judgement: 27 May 2021

Court: Federal Court of Australia

Citation(s): [2021] FCA 560

Short summary

The Australian Federal Court found that the Federal Environment Minister has a novel duty of care to prevent harm to young people as a result of climate change. Despite this finding, the Court did not issue an injunction to prevent the Australian government from extending a coal mine.

Summary by: Erin Gallagher

Link to original judgement 

Click here to open the case in PDF format

Weight of decision

This decision of the Federal Court bears significant weight in the Commonwealth of Australia.

Key facts

The applicants were eight Australian school children, and a catholic nun who acted as their representative. They brought the claim on behalf of themselves but also other children residing in Australia. 

The applicants made two claims against the Environment Minister. Firstly, they sought a declaration that a duty of care is owed by the Minister under the law of negligence and secondly, they argued that the Minister would be failing to exercise this duty of care if she approved a pending application from the Vickery coal mine to extract an additional 33 million tonnes of coal from a mine that had been set up and operated by Whitehaven, Vickery’s parent company. They therefore sought an injunction to restrain an apprehended breach of that duty.

The Minister is responsible for administering the Environment Protection and Biodiversity Act 1999 (Cth) (EPBC Act) and one of its purposes is providing for protection of the environment. Under the Act, the extension of the Vickery Coal mine would be prohibited unless the Minister approves the project under s130 and 133 of the Act. 

If approved, the increased extraction would result in an estimated 100 million tonnes of additional CO2 emissions. The applicants argued that children were particularly vulnerable to the effects of climate change and more likely to live through any future impacts caused by such emissions. 

The Applicants provided evidence from the IPCC and other expert climate scientists to demonstrate CO2 emissions will contribute to the increasing global temperature, and that there are devastating impacts resulting from this temperature increase. The Minister did not dispute this evidence. 

The applicants claimed that the additional 100 million tonnes of CO2 will contribute to the global increase in temperature. The Minister argued that the additional CO2 would be within the Paris Agreement’s budget.  

The Minister also argued that there is no such duty of care, and that recognition of one would impair her statutory task under the EPBC Act. She also denied that any injury to the Children resulting from approval of the project is reasonably foreseeable. She further argued that if such a duty of care were recognised, there is no reasonable apprehension that the duty will be breached and thus no grounds to grant an injunction thus the proceedings should be dismissed. 

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Juliana v. United States 

Date: 17 January 2020 

Court: U.S. Court of Appeals for the Ninth Circuit 

Citation(s): Juliana v. United States, 947 F.3d 1159 (9th Cir. 2020)

Short summary  

A group of young people sued the United States government for failing to prevent climate change, seeking an order requiring the government to develop a plan to phase out domestic fossil fuel emissions. The plaintiffs claimed violations of their substantive due process, equal protection, the Ninth Amendment, and the public trust doctrine. The court found that the plaintiffs established injury-in-fact and causation for Article III standing but that their claim failed for lack of redressability. 

Summary by: Nicole Gasmen and Luke Hancox

Link to Original Judgement

Click here to open the case in PDF format

Weight of decision  

This decision comes from the Ninth Circuit of the United States Court of Appeals and is therefore binding on all courts in the Circuit and persuasive in other federal courts.   

Key facts 

The plaintiffs were twenty-one young citizens, an environmental organization, and a “representative of future generations.” [1165] They sued the President (later dismissed from the action), the United States, and federal agencies. The complaint accused the government of continuing to “permit, authorize, and subsidize” [1165] fossil fuel use, despite awareness of its risks, leading to various climate-change-related injuries. The plaintiffs’ claims varied from psychological harm and impairment of recreational interests to exacerbated medical conditions and property damage. 

The complaint asserted violations of the plaintiffs’ constitutional rights: 

“(1) the plaintiffs’ substantive rights under the Due Process Clause of the Fifth Amendment; (2) the plaintiffs’ rights under the Fifth Amendment to equal protection of the law; (3) the plaintiffs’ rights under the Ninth Amendment; and (4) the public trust doctrine.” [1165] 

The plaintiffs sought declaratory relief and an injunction ordering the government to implement a plan to “phase out fossil fuel emissions and draw down excess atmospheric [carbon dioxide].” [1165] 

The court noted that the District Court record and this appeal recognized climate change is occurring at a rapid pace. The court stated that rising carbon emissions would wreak havoc on the Earth’s climate if left unchecked, and that the federal government long understood these risks and affirmatively contributed to their worsening. 

The government largely did not contest the factual basis for the plaintiffs’ claims, only that they lacked standing to pursue them. 

Previous instances  

The District Court denied the government’s motion to dismiss. That court stated that the plaintiffs had standing to pursue their claims that the government violated their constitutional rights, including a Fifth Amendment right to a “climate system capable of sustaining human life.” [1165] The District Court also found a separate viable “danger-creation due process claim” [1165] based on the government’s lack of regulation on third-party emissions and a public trust doctrine claim. 

At summary judgment, the District Court dismissed the President as a defendant and dismissed the plaintiffs’ Equal Protection claim in part. That court also dismissed the plaintiffs’ Ninth Amendment claims. The government then sought this interlocutory appeal to resolve the standing issue and other grounds for dismissal. 

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Xákmok Kásek Indigenous Community v. Paraguay

Date: 24 August 2010

Court: Inter-American Court of Human Rights 

Citation: IACtHR, Xákmok Kásek Indigenous Community v. Paraguay, 24 August 2010, Series C, No. 214 (IACtHR 2010) 

Short summary  

The Xákmok Kásek Indigenous Community lodged a petition against the State of Paraguay before the Inter-American Court of Human Rights, alleging failure to enforce their right to property, especially because of the creation of a private protected nature reserve on their ancestral lands without consultation. The Inter-American Court on Human Rights found that the lack of access to nature implied not only the breach of those people’s human rights, but also constituted discrimination.

Summary by: Lorenza Contin 

Link to Original Judgement

Click here to open the case in PDF format

Weight of decision

The jurisprudence of the Inter-American Court on Human Rights at the nexus between Indigenous people, environment and right to life was already consolidated at the time, and its rulings are presumptively enforceable on the states which appear before it, including Paraguay.

Key facts

Historically, the economy of Indigenous communities in Paraguay was based on hunting, gathering, and fishing, and thus they used to roam a very extensive area of the Chaco region to follow the seasonal patterns of nature. During the process of colonisation of the Chaco, their ancestral lands were gradually privatised, and they were forced into a process of sedentarisation, settling often around new ranches. The Xákmok Kásek Community is formed by members of different peoples, who traditionally inhabited and roamed the area then occupied by the Salazar Ranch in the mid-twentieth century. However, they gradually faced critical restrictions to their customary activities due to the privatisation of those lands.

On 31 January 2008, Paraguay declared a big portion of the Salazar Ranch a private wildlife reserve for five years. Around 4,175 hectares of the reserve are included in the 10,700 hectares claimed by the Community since 1990. Nevertheless, the Community was not informed nor consulted. Paraguayan Law No. 352/94, regulating protected rural areas, establishes that private nature reserves cannot be expropriated while the declaration is in force. It also enshrines a prohibition to hunt, fish, and gather, enforced through armed park guards able to make arrests. Therefore, because of the creation of the reserve, the Xákmok Kásek Community had to leave and move to a small and remote land, “25 de Febrero.”

Because of this process of displacement, the religion and culture of the Community – male and female initiation rites, burial methods, shamanism, and more – have “been almost entirely lost” (¶ 178). Since their departure from the Ranch, the State has supplied scarce quantities of water during some time periods or no water at all during others, and in 25 de Febrero there is no water source. In addition, food was not delivered regularly and, when it was, the quantity was scarce, and it was critically deficient in nutrients. Access to health-care services was extremely difficult – the nearest clinic, operating “deficiently, (¶ 203) being 75 km from 25 de Febrero. “For years the children did not receive general medical care or vaccinations,” (¶ 205) resulting in a high mortality rate among children, and they had to receive their education in the open air.

Previous instances

On 28 December 1990, the Community’s leaders filed an administrative action before the Paraguayan Rural Welfare Institute to reclaim their traditional lands under the provisions of Law No. 904/81, also known as the “Indigenous Communities Statute.”

As the competent administrative bodies did not respond to the administrative action, the Community’s representatives went to the Congress of the Republic on 23 June 1999 to demand the expropriation of their ancestral lands. On 16 November 2000, the Paraguayan Senate rejected their request.

Thus, on 15 May 2001, the Community lodged the petition at stake against the State of Paraguay before the Inter-American Commission on Human Rights. On 2 July 2009, the Commission, alleging that Paraguay had not ensured the traditional property rights of the Community and that this had compromised the Community’s integrity and living conditions, asked the Court to declare the State responsible for the violation of Articles 3 (Right to Juridical Personality), 4 (Right to Life), 8(1) (Right to Judicial Guarantees), 19 (Rights of the Child), 21 (Right to Property), and 25 (Right to Judicial Protection) of the American Convention on Human Rights. The Commission asked the Court to order the State to take certain steps as reparation.

On 31 July 2008, the Community filed an action of unconstitutionality before the Supreme Court of Justice against the abovementioned nature reserve declaration, enacted by the State in January 2008. The Prosecutor requested the suspension of the time limit for responding to the action, which remained suspended until the Inter-American Court on Human Rights’ judgment.

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