The slow growing variety … Climate litigation … Duty of care … Sharma case … Full Feds reluctant to meddle with minister’s coal mine approval … Assumption that politicians can make “wise policy” … More climate cases in the wings … Torres Strait case … Call for bold politicians and brave judges … Max Shanahan reports 

Allsop CJ reasoned that, even in the face of “possible catastrophe that may engulf the world and humanity,” it was neither the time to upset settled principles of tortious liability, nor the place to judge the adequacy of government policy. 

While the minister emerged victorious, the court’s decision in Sharma will not end attempts to found a climate-based duty of care in governmental decision-making. 

In Sharma, there is a good chance the litigants will seek leave to appeal to the High Court, while the upcoming case of Pabai & Pabai appears to have greater prospects of success. 

Jonathan Beach’s dicta should give hope to future climate litigants. Noting that “it is for the High Court not us to engineer new seed varieties for sustainable duties of care,” he questioned whether the current duty of care formulation was ripe for reevaluation:

“Such concepts in their present form may have reached their shelf life, particularly where one is dealing with acts or omissions that have wide-scale consequences that transcend confined temporal boundaries and geographic ranges … 

“The primary judge planted the seed of a cause of action in finding the posited duty, but envisaging that the seed may not fulfil its Aristotelian potential of a fully formed tort for many decades, if at all.”

The Sharma litigants, led by 18-year-old student Anjali Sharma and 88-year-old Brigidine Sister Brigid Archer, sought to argue that, in deciding whether to approve the Vickery coal mine expansion under the Environment Protection and Biodiversity Conservation Act (EPBC Act), the minister has a duty to avoid causing injury or death to all Australian children arising from carbon dioxide emissions. 

Similarly, the court failed to find a sufficient connection between the vulnerability of the children, and the minister’s control over climate change as the relevant harm. 

Allsop accepted the minister’s argument that the Vickery mine decision would make only a “tiny” contribution to a “world-wide risk of catastrophic harm not only to the children, but also to the world and humanity itself”. 

More than mere contribution to the apocalypse will need to be proven if liability is to arise in future. 

The court was careful to avoid any perception of involvement in political matters. The chief justice held that the impugned duty, framed as it was by reference to national emission contributions, “throws up for consideration at the point of assessing breach the question of the proper policy response to climate change and considerations unsuitable for resolution by the judicial branch”. 

Concerns over judicial policy-making will likely remain the greatest hurdle for establishing a climate-based duty of care, with the court pointedly noting that “we all rely on an elected government to develop and implement wise policy … That is not the foundation of the law of torts”. 

A continuation of unwise and ill-informed climate policy – making only a “tiny” contribution to catastrophe – will be unlikely to found a broad-based climate duty of care. 

However, litigation targeted at more specific scenarios could see greater prospects of success.

“The risk of harm … is highly variable across the variety of climatic conditions in Australia, impacting on the practicability of assessing the nature and extent of prospective liability. Contrastingly, conventional duties of care are usually concerned with a finite set of physical consequences flowing from an act or omission …”

The litigants in Pabai Pabai v Commonwealth – an upcoming case in the Federal Court brought by two Torres Strait native title holders – seek to establish a much narrower duty of care based, in contrast to Sharma, on “a finite set of physical consequences flowing from an act or omission”. 

The litigants argue that, pursuant to the Torres Strait Treaty, the Commonwealth is required to take necessary measures to protect and preserve the marine environment in the Torres Strait, and to take measures to control harmful pollution. 

It is further argued that, in setting below-par emissions reductions targets, the Commonwealth was aware of the vulnerability of the applicants to climate change, and that it was reasonably foreseeable that the applicants would suffer loss and damage as a result of policy which did not take into account best available science on climate change targets. 

It is argued that damage has already occurred – a key distinguishing factor from Sharma – through degradation of the marine environment and consequent loss of Ailan Kastom. 

Similarly to Sharma, the government will argue that emissions targets are a matter of policy, and that Australia’s contributions to global emissions are “very small” and therefore cannot be connected with the likely harm suffered by Torres Strait Islanders.

However, the closer connection with foreseeability, breach and damage sets Pabai apart from Sharma. 

Whether a trial judge will again be bold enough to impose a duty of care after Sharma remains to be seen, but with a potential High Court challenge and a profusion of new climate litigation, it is clear that, as Beach put it, the seeds of a cause of action have been planted.