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Tag: DutyOfCare

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Daniel Billy et al. v Australia

Date: 22 September 2022

Court: United Nations Human Rights Committee

Citation: Views adopted by the Committee under Article 5 (4) of the Optional Protocol, concerning Communication No. 3624/2019

Short summary 

The indigenous minority group of four low-lying islands in the Torres Strait region, one of the most vulnerable populations to climate change impacts, filed a petition against the Australian government alleging a violation of articles 2, 6, 17, 24 and 27 of the International Covenant on Civil and Political Rights (ICCPR) due to Australia’s failure to implement measures for mitigation and adaptation to climate change, threatening habitability on the islands and displacement of the Torres Strait Islanders. In finding a violation of articles 17 and 27, the Committee requires Australia to make full reparation to individuals, providing adequate compensation, engaging in meaningful consultation with affected communities for assessment and continue implementing strategies for the safe existence of the islands and their inhabitants.

Summary by: Irene Sacchetti

Link to Original Judgement

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Weight of decision 

Though not legally binding, for the first time the Committee ascertains State’s responsibility for climate inaction leading to a violation of multiple rights, including cultural rights under the ICCPR.

Key facts 

The petitioners’ claims were based on Australia’s failure to implement adaptation strategies (e.g., infrastructure such as sea walls) and mitigation measures to reduce GHG emissions to combat adverse climate change impacts. They argued that sea level rise — already causing coastal erosion – flooding, and the destruction of marine ecosystems and resources all result in violations of Islanders’ rights to life and a healthy environment (article 6), home (article 17), practice cultural traditions on ancestral land (article 27) and intergenerational equity (article 24).

Citing the Teitiota decision, Australia responded that the petitioners “invoke a risk that has not yet materialized” and that “the State party is taking adaptation measures in the Torres Strait, thus rendering the harm invoked by the authors too remote to demonstrate a violation of the right to life.”

The Committee was asked to determine whether Australia violated the Covenant by failing to implement adaptation and/or mitigation measures to combat adverse climate change impacts within its territory resulting in harms to the authors’ rights.

Previous instances 

None: The petitioners’ rights under the ICCPR are neither protected by the Australia Constitution nor other domestic legislation – and the highest Court in Australia has ruled that the state have a duty of care to prevent environmental harm – so this was a case of first impression before the Committee.

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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

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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 

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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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Bundesverfassungsgericht, Order 1 BvR 2656/18, 1 BvR 96/20, 1 BvR 78/20, 1 BvR 288/20, 1 BvR 96/20, 1 BvR 78/20

Date of judgement: 24 March 2021

Court: Federal Constitutional Court of Germany 

Citation(s): BVerfG, Order of the First Senate of 24 March 2021 – 1 BvR 2656/18 -, paras. 1-270

Short summary 

In its decision, the Federal Constitutional Court classified the German Climate Protection Act in its current form as violative of fundamental rights because it disproportionately shifts the burden of greenhouse gas reduction to future generations, thereby recognising for the first time the existence and violation of the intertemporal dimension of their civil rights. 

Summary by: Robert Los

Link to original judgement 

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Weight of decision 

The order bears immense weight in Germany as the judgement indirectly grants a right to future generations with regard to protection or relief from CO2 emissions and other climate changes. 

Key facts

The Federal Climate Change Act (Klimaschutzgesetz – KSG) was drafted in response to the need for greater climate action efforts. Its purpose is to afford protection against the effects of global climate change (§ 1 S.1), and as stated under § 1 S.3, the basis of the KSG is the obligation under the Paris Agreement as well as the commitment made by the Federal Republic of Germany to pursue the long-term goal of greenhouse gas neutrality by 2050. 

Greenhouse gas emissions must be gradually reduced by the target year 2030 by at least 55%, relative to 1990 levels (§ 3(1)). In conjunction with Annex 2, § 4(1) sets out the annual permissible emission levels for various sectors in line with the reduction quota for the target year 2030. Provisions applicable beyond 2030 are not contained in the KSG. Rather, § 4(6) provides that in the year 2025, the Federal Government must – by way of ordinances – set annually decreasing emission levels for periods following 2030.

In support of their constitutional claims, the complainants − some of whom live in Bangladesh and Nepal − relied primarily on constitutional duties of protection arising from Art. 2(2) of the German Constitution Grundgesetz (GG), and Art. 14(1) GG, as well as the a fundamental right to a future in accordance with human dignity, and the fundamental right to an ecological minimum standard of living (ökologisches Existenzminimum), which they derived from Art. 2(1) GG in conjunction with Art. 20a GG and from Art. 2(1) GG in conjunction with Art. 1(1) GG. 

With regard to future burdens arising from the obligations to reduce emissions in the periods following 2030 – described by the complainants as an “emergency stop” – they relied on fundamental freedoms more generally.

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Ioane Teitiota decision, CCPR/C/127/D/2728/2016

Date of judgement: 23 September 2020

Court: United Nations Human Rights Committee

Citation(s): CCPR/C/127/D/2728/2016; Views adopted by the Committee under article 5 (4) of the Optional Protocol, concerning communication No. 2728/2016

Short summary 

In its first ruling on a complaint by an individual seeking asylum from the effects of climate change, the United Nations Human Rights Committee found that states may not deport individuals who face climate change-induced conditions that violate the right to life.

Summary by: Makaela Fehlhaber

Link to original Judgement 

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Weight of decision 

This decision is significant in that it is one of the first to acknowledge climate change-induced conditions as drivers of asylum claims. The Committee is responsible for holding states to account for upholding the International Covenant on Civil and Political Rights, however, its decisions are not binding. 

Key facts

The applicant sought asylum (and in the alternative, to be regarded as a protected person) on environmental grounds and argued that this was within the scope of the 1951 Refugee Convention. 

Further, the applicant contended that deportation back to Kiribati would violate Art. 6 (the right to life) of the International Covenant on Civil and Political Rights. The applicant sought determination by the Committee on the basis that he had exhausted all available domestic remedies (para. 8.3), a fact not disputed by the State party. 

New Zealand’s primary arguments surrounded the lack of evidence put forth by the applicant to support the argument that there was an imminent risk to his right to life, and that the claim should be deemed inadmissible. 

The Committee was asked to determine whether New Zealand had breached its obligations under the ICCPR by deporting the applicant back to Kiribati on the basis that the evidence did not support a finding that the applicant would face the risk, or would likely face the risk of arbitrary deprivation of life upon his return to Kiribati. 

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AC (Tuvalu)

Date: 04 June 2014

Court: New Zealand: Immigration Protection Tribunal

Citation: AC (Tuvalu) [2014] NZIPT 800517-520

Short summary  

A family appealed their immigration cases to New Zealand’s Immigration and Protection Tribunal, claiming their rights to life and protection would be violated if returned to Tuvalu because of climate change impacts. The Tribunal dismissed their claims, finding that they could not meet their evidentiary burden in qualifying as protected persons, nor in demonstrating that the government of Tuvalu failed to meet its duty to address the known effects of climate change on its populace.

Summary by: Keri Pflieger 

Link to Original Judgement

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Weight of decision  

The Immigration and Protection Tribunal is an expert forum administered by the New Zealand Ministry of Justice. It primarily assesses immigration and protection claims under New Zealand’s Immigration Act 2009, which codifies the Refugee Convention (§ 129), Convention Against Torture (§ 130), and the ICCPR (§ 131). The Immigration and Protection Tribunal’s decisions hold significant weight in New Zealand. Decisions may only be appealed to the domestic High Court on issues of law. 

Key facts

The Appellants were a Tuvaluan family (husband, wife, and two children) living in New Zealand who appealed the denial of their immigration cases and sought protected person status under New Zealand’s Immigration Act 2009.

The husband and wife each noticed the effects of climate change in Tuvalu, including increased land inundation, sea level rise, difficulties growing food, coastal erosion, and droughts. Prior to their departure from Tuvalu, they lost two late-term pregnancies, one of which they attributed to the quality of medical care in Tuvalu.

The husband and wife left Tuvalu for New Zealand in 2007, after the husband’s family home was demolished and the wife’s workplace shut down from insufficient funding.

The husband expressed fear for his family’s safety if returned to Tuvalu, due to minimal employment opportunities and lack of access to clean drinking water free from contamination. In addition to sharing her husband’s concerns, the wife also feared the quality of medical care facilities and availability of medicine access for her children, sea level rise’s negative effects on vegetation growth, and not having pathways to land ownership.

Previous instances

In November 2012, Appellants applied for refugee and/or protected person status. However, their claims were dismissed on 17 March 2013 by the Refugee Status Branch. Appellants appealed this dismissal under § 194(1)(c) of the Immigration Act 2009 with the Immigration and Protection Tribunal on 03 April 2014. This case, AC (Tuvalu), is the Tribunal’s assessment of that appeal.

AC (Tuvalu) is a joint appeal issued contemporaneously with AD (Tuvalu) [2014] NZIPT 501370-371. Under that appeal, appellants challenged deportation on humanitarian grounds under § 194(5) & (6), and § 196(6) & (7) of the Immigration Act 2009 to prevent separation of the husband’s family living in New Zealand. Appellants succeeded under that appeal.

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In re Katrina Canal Breaches Litigation 

Date: 18 November 2009

Court: United States District Court, Eastern District of Louisiana

Citation: 647 F. Supp. 2d 644

Short summary  

Hundreds of thousands of homes were lost in Hurricane Katrina and most homeowners’ insurance policies excluded them from compensation. This led many victims of Katrina to sue the United States government under the Federal Tort Claims Act (FTCA), alleging the U.S. Army Corps of Engineers (Corps) failed to properly maintain the Mississippi River Gulf Outlet, leading to the breach of one of New Orleans’ levees. The District Court held the U.S. was not immune from such a suit and held the Corps liable to some of the plaintiffs. This judgment was later reversed by the Fifth Circuit Court of Appeal, on the grounds that the U.S. has sovereign immunity under the FTCA from such claims. 

Summary by: David Cremins

Link to Original Judgement

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Weight of decision  

The ruling by the Eastern District of Louisiana District Court, insofar as its logic was affirmed by the Court of Appeals, holds precedential authority in the Fifth District (Texas, Louisiana, Mississippi) and persuasive authority in other U.S. Circuits (see, e.g., favourable analysis in the Northern and Central Districts of Illinois). However, this ruling has subsequently been read narrowly by the same Eastern District court (holding there must be “ample record evidence” the government neglected its duty to maintain waterways implicated in flooding).  

Key facts 

Under the Federal Tort Claims Act (FTCA; 28 USC §171), the U.S. government is immune from liability if its (in)action can be classified as a discretionary function (i.e., a policy decision left to an agency via legislation) rather than a specifically delegated ministerial duty not executed with due care.  

Under the Flood Control Act (FCA; 33 USC §702c), the U.S. government is immune from liability for damage stemming from its flood control efforts.  

The U.S. Army Corps of Engineers’ (Corps) were charged with construction, maintenance, and operation of the Mississippi River Gulf Outlet (MRGO), a navigational channel. This mandate was separate from the Corps’ efforts directed at flood control and levee construction and maintenance in southern Louisiana.  

Over decades, the Corps failed to prevent the MRGO from expanding well beyond its intended width, destroying wetlands which are protective against storm surges. This in contravention of the National Environmental Policy Act and despite repeated internal and external reports warning of the danger of not shoring up the MRGO’s banks. This failure was a substantial cause of the breach of a levee, leading to catastrophic flooding of St. Bernard parish in the New Orleans metropolitan area.  

Previous instances  

This case relies on Central Green v. United States (U.S. Supreme Court, 2001), wherein Justice Stevens held that the U.S. was not entitled to immunity under the FCA from damage caused by any and all flood waters. Instead, the government must show that flooding is connected with projects serving a primarily flood control purpose, in order for mismanagement of such projects to grant immunity.  

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