These Aussie teens have launched a landmark climate case against the government. Win or lose, it’ll make a difference



Five of the eight young plaintiffs. From left: Ava Princi, Izzy Raj-Seppings, Ambrose Hayes, Veronica Hester, Laura Kirwan.
Equity Generation Lawyers

Laura Schuijers, University of Melbourne

On Tuesday, eight young Australians aged 13-17 filed a class action seeking an injunction to prevent federal Environment Minister Sussan Ley approving a new coal project expansion.

They are bringing their case to the Federal Court. They argue if Whitehaven’s Vickery coal mine expansion in New South Wales is approved, it will contribute to climate change which endangers their future.




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Saying the environment minister owes the young plaintiffs a duty of care is a novel approach. In their view, signing off on a new coal project will breach that duty. Such an approach to a climate change case has not been tested before in Australia, and would chart new territory if successful.

Although a legal victory would appear difficult on these grounds, the implications of this case are already significant. They show young people, determined to fight for action on climate, will continue to find new ways to hold powerful people to account.

What is the case about?

The case concerns a proposal to construct an open-cut coal mine, about 25 kilometres north of the NSW town of Gunnedah. It’s an extension project, meaning it will expand a mine that has already been approved, increasing its coal production by about 25%, and emissions by 100 million tonnes of greenhouse gases over the life of the project. The coal would be exported.

Like many mining proposals, this one has been divisive. Farmers worry about competing for water, and the local community has expressed concern over the environmental record of the coal company.

Yet in August, the NSW Independent Planning Commission approved the proposal, finding the expansion is in the public interest, given the forecast jobs and revenue. It has not yet received federal approval.

What are the teenagers arguing?

The young plaintiffs are not bringing their case under environmental law, which would be the traditional way to launch a legal challenge objecting to a coal mine.

Environmental law invites government decision-makers to balance competing concerns — such as economic benefits versus environmental impact — with no clear stipulation as to how much weight to give each relevant factor.

There is limited recourse to argue a decision is wrong because the positive and negative impacts were not given particular priority by a minister. This means decision-making on major projects is largely within the political realm.

Instead, the plaintiffs are arguing the environment minister shouldn’t approve the coal proposal because doing so would breach a duty of care owed by the minister to protect them from the harmful impacts of climate change. This includes more frequent extreme weather events, and destruction of the natural systems that support human life.

The case has parallels with a landmark Dutch case, where it was successfully argued in 2019 that the Dutch Government breached its duty of care to its citizens through inadequate action on climate change.




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For the Australian case to succeed, the Court will first need to consider whether a duty of care exists in Australian law. There is no statutory duty (under laws created by the parliament), so the Court would need to “find” the duty as existing in common law.

Then, the plaintiffs would need to establish that the duty would be breached by the environment minister signing off on the coal project.

Will it succeed?

Establishing both these things is likely to be very difficult in our legal context. From past cases, we know Australian courts have been reluctant to find a causal link between climate change and individual projects, even large mines. However, this link was found in a NSW case last year.

The court is likely to look closely at the particular relationship between the minister and the vulnerable young people, who will be strongly impacted by climate change but have no voting rights. It will consider whether they represent a particular class of individuals, in relation to which the minister has a responsibility.

One of the plaintiffs’ lawyers recently highlighted a case that potentially paves the way to support this idea. In 2016, the Federal Court found the immigration minister Peter Dutton owed a duty of care to a vulnerable refugee with a history of trauma, who was detained on Nauru.

One thing in the current case’s favour is that, similar to the Dutch case, the plaintiffs are not seeking monetary compensation. If they were, the difficulty for the courts to determine what future obligation the government might have to pay out young people would, almost undoubtedly, prohibit success.

What’s also interesting about this case, unlike the Dutch case or the famous Juliana case that was recently quashed in the US, is that it’s not asking the government for broad-scale policy action on climate change. It’s only concerned with one coal mine approval. This is a more straightforward remedy which a court could be more willing to grant.

Beating the odds

If the case successfully established a duty and that it was breached, this would open up the possibility future coal approval decisions would also breach the duty — somewhat of a Pandora’s box.

Although we will have to wait and see what the Court says, the suit will draw attention to the government’s climate policies, whether or not it succeeds.

If the case succeeds, it might compel the government to stop approving any coal mines that would significantly contribute to climate change. If it doesn’t, it will remind us that it’s up to the government to respond to the threats climate change poses, rather than the courts.

Either way, the teenagers in this case are part of a growing number of people willing to find creative avenues to pursue action, even if it means taking a long shot. And beating the odds is exactly how the law tends to evolve.




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The Conversation


Laura Schuijers, Research Fellow in Environmental Law, University of Melbourne

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Swimming with whales: you must know the risks and when it’s best to keep your distance



Shutterstock/anna sanfeliu gozalvez

Chantal Denise Pagel, Auckland University of Technology; Mark Orams, Auckland University of Technology, and Michael Lueck, Auckland University of Technology

Three people were injured last month in separate humpback whale encounters off the Western Australia coast.

The incidents happened during snorkelling tours on Ningaloo Reef when swimmers came too close to a mother and her calf.

Swim encounters with humpback whales are relatively new in the Australian wildlife tourism portfolio. The WA tours are part of a trial that ends in 2023. A few tour options have also been available in Queensland since 2014.

But last month’s injuries have raised concerns about the safety of swimming with such giant creatures in the wild.

Close encounters

Until recently, you had to travel to Tonga, Niue or French Polynesia for similar humpback whale encounters in Oceania. Or you could swim with other species, such as dwarf minke whales on the Great Barrier Reef.




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But when we interact with wild animals there is always a risk to safety, especially in challenging environments such as open water.

Whales, like other wildlife, may behave unpredictably. Active surface behaviours such as breaching, tail and fin slaps present a significant risk for swimmers and whale watchers.

Four drawings of a humpback whale.
A humpback whale (1) breaching, (2) head lunge, (3) tail slap and (4) pectoral fin slap can all be a danger to people close by.
Chantal Denise Pagel, Author provided

In one of the WA encounters, the nursing female was reported to display pectoral fin and tail slaps. These are potentially threatening due to the size (up to 16 metres long) and power of humpback whales.

These behaviours are frequently observed in social interactions between humpback whales and can present a severe risk of injury to anyone close by, with potentially life-threatening results.

A recent study of the impacts of swimmer presence on humpback whales off Réunion Island (on Madagascar’s east coast in the Indian Ocean) confirmed a high occurrence of aggressive and/or defensive whale behaviour.

The researchers observed flipper and tail fluke swipes and thrashes – sudden movements of a whale’s extremities – especially in mother-and-calf pairs.

A humpback whale slaps its pectoral flipper and splashes the water
Active whale behaviour is exciting to observe, but that flipper can pack a powerful punch.
Flickr/Michael Dawes, CC BY-NC

Keep your distance

While the reasons for the Australian incidents are still unclear, a possible explanation could be that the swimming groups approached the whales too closely and ignored the signs the whales did not welcome visitors.

Maintaining a safe distance should be required of any tourists interested in seeing or getting close to unpredictable wildlife, especially in unfamiliar environments.

We cannot expect tourists, who are often first-time whale swim participants, to be able to read and interpret whale behaviour. So it is vital that crew members are skilled and experienced and can end an encounter if it needs to be.

Knowledgeable in-water guides are indispensable in commercial swim-with-whales programs. Yet this is often not a requirement by organisations issuing licenses for such activities.

For example, permits in New Zealand require “knowledgeable operators and staff”, but there is no requirement to have guides in the water during the encounter. People interested in swim-with-whale encounters should choose tour companies that provide in-water guides who join them in their adventure.

We should also question whether interactions with female whales caring for newborn calves should be allowed. Best-practice guidelines advise against interactions where calves are present.

A mother humpback whale underwater with her calf.
We need to be extra careful when near a mother humpback whale with her calf.
Shutterstock/Lewis Burnett

Recent research in the popular whale-swim destination Tonga showed mother-and-calf pairs avoid about one-third of tour vessel approaches by diving for longer periods.

Yet surface resting times are critical for calves. Any decrease in time spent resting for mother-and-calf pairs can affect a calf’s growth rate, overall fitness and chances of survival.

Similar observations were made in Réunion. Three out of four (74%) mother-calf-pairs changed their behaviour to avoid swimmers.

Safety first: for whales and swimmers

The Pacific Whale Foundation is undertaking a study to assess the impact of swimming with humpback whales in Hervey Bay, Queensland, Australia.

This research is to monitor the behaviour of humpback whales, providing critical insights into whether tourism activities add stress to this recovering population.




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But research into the suitability of wildlife species used for commercial tourism operations and their health and safety provisions still lacks fundamental depth.

In highly interactive tourism activities such as swim-with-wildlife programmes, tourists should receive education about the risks involved in these “bucket list” experiences. This should include information on animal behaviour and the potential consequences for swimmers.

Furthermore, training tour operators to identify behaviours that may indicate disturbance or have the potential to be harmful to clients is an important additional step towards safer interactions.The Conversation

Two images of a humpback whale breaching the water and one of a whale tail raised above the water.
Humpback whale breaching and tail slap.
Flickr/Grant Matthews, CC BY-NC-ND

Chantal Denise Pagel, Doctoral student | Marine Wildlife Tourism Professional, Auckland University of Technology; Mark Orams, Acting Dean, Health and Environmental Sciences, Auckland University of Technology, and Michael Lueck, Professor of Tourism, Auckland University of Technology

This article is republished from The Conversation under a Creative Commons license. Read the original article.