• CMI Legal

Environment Minister Owes a Duty of Care when Deciding on Mine Expansion

The fight against climate change is on. South Australia became the first Australian state to ban single-use plastic products in November 2020. Around the same time, a superfund was sued for failing to inform its members of and manage climate change business risks. With such developments and more occurring in Australia and internationally, it is safe to say that the law has become more willing in recent years to intervene and regulate emissions.

In the case of Sister Marie Brigid Arthur v Minister for the Environment [2021] FCA 560, the Federal Court of Australia decided that a government decision maker has a novel duty of care under environmental legislation when approving a coal mine extension. The applicants in the case were a group of eight Australian children under 18 years of age, represented by their litigation guardian Sister Marie Brigid Arthur.

The Claim against the Commonwealth Minister for the Environment

The Children sough an injunction based on the claim that the Minister for the Environment, the Hon Sussan Ley MP, breached a duty of care owed to them and Australian children more generally in her decision to approve the extraction of coal from a mine. Such duty of care arises under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act). The injunction was also sought against Vickery Coal Pty Ltd, a subsidiary of Whitehaven Coal Pty Ltd. Whitehaven holds a development consent under the Environmental Planning and Assessment Act 1979 (NSW) to operate a coal mine in Northern NSW before applying to expand its operation in 2016.

Finding a Duty of Care

Justice Bromberg, in his analysis, accepted evidence showing that the coal extracted from the mine’s expansion would produce 100 million tons more of carbon dioxide upon combustion. His Honour held that the Minister should have considered the principles of environmental law when making decisions under the EPBC Act:

“… the relations between the Minister and the Children answer the criterion for intervention by the law of negligence.

That conclusion is confirmed when re-examined through the lens of the neighbourhood principle and the criteria of reasonableness fundamental to the law of negligence. By reference to contemporary social conditions and community standards, a reasonable Minister for the Environment ought to have the Children in contemplation when facilitating the emission of 100 Mt of CO2 into the Earth’s atmosphere. It follows that the applicants have established that the Minister has a duty to take reasonable care to avoid causing personal injury to the Children when deciding, under s 130 and s 133 of the EPBC Act, to approve or not approve the Extension Project.”

However, despite the presence of duty of care, Bromberg J refused to grant the injunction on the basis that there was no apprehended breach of such duty. For an injunction to be granted, it must be satisfied that (1) there is a reasonable apprehension breach of duty of care, and (2) the principles for granting a quia timet injenction are met (a quia timet injunction can be used to restrain an apprehended wrong which could result in substantial damage).

In supporting his refusal to grant the injunction, Bromber J stated that the relevant enquiries should include factoring in the Minister’s conflicting responsibilities as well as an assessment as to whether disapproving the mine’s extension was the only reasonably available response to the foreseeable harm to the Children. And accordingly: