未成年人的環境、生存權與全球暖化危機——澳洲聯邦法院上訴審對於本案之顯著變革：Minister for the Environment v. Sharma
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◎ 劉汶渝（台灣大學法律系學士）

Photo by Ella Ivanescu on Unsplash

Appeal from

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

Parties

  • Appellant: Minister for the Environment
  • Respondents: Anjali Sharma and others (represented by their litigation representative Sister Marie Brigid Arthur)

Facts

  1. The appeal based on,
    1. The five findings of fact by primary judge concerning catastrophic risks of global warming caused by greenhouse gas emissions are based on unchallenged expert evidence.
    2. Separation of powers and the Minister’s decision is a matter of policy and subject to discretion. Therefore, the greenhouse gas emissions is better suited for the Executive, and no novel duty of care should be recognized.
    3. Questioning whether the approved project would cause a net increase in global greenhouse gas emissions.
  2. The minister still granted approval for the proposed mine expansion in Sept. 2021, despite the Federal Court’s decision.

Holding

The Full Federal Court of Australia unanimously overturned the primary judge’s decision to impose a duty of care on the Minister, but rejected the Minister’s argument that the primary judge made findings based on evidence on climate change were unfounded.

Reasoning

  1. Chief Justice Allsop
    1. The duty owned by the Minister to the children, as well as the people of Australia, is a political duty, not a legal duty of care, and is unsuitable for the judicial branch to resolve.
    2. The EPBC Act does not purport to regulate climate change or the protection of the environment generally.
    3. Other factors against the imposition of the duty of care:
      1. The decision being made by many decades before any foreseeable harm may occur
      2. The Minister’s decision leading only to an increased “risk” of harm, not a material contribution to harm.
      3. The lack of control the Minister had over the harm, i.e. “worldwide” global climate catastrophe.
      4. The relationship between the Minister and the children, does not give rise to any special vulnerability on the part of the children.
      5. It is not proportionate to hold the Minister responsible for all the impacts of global warming.
  2. Justice Beach: The risk of harm lacked “sufficient closeness and directness” between the Minister and the children.
  3. Justice Wheelahan:
    1. The EPBC Act cannot establish a duty of care relationship between the minister and the children.
    2. Establishing a duty would be incoherent with the Minister’s functions under the EPBC Act.
    3. The approval of the coal mine extension caused no foreseeable personal injury to the children.
  4. The court found that the EPBC Act does not deal with climate change impacts or the protection of the environment generally.
  5. The primary judge’s findings of facts about the risk of harm of climate change to children remain. As “the nature of the risk and the dangers from global warming, including possible catastrophe that may engulf the world and humanity was not in dispute.”1

Reference