In a landmark judgment, the Federal Court found the environment minister has a duty of care to young people

AAP Image/James Gourley, Author provided

Laura Schuijers, The University of MelbourneThis morning, the Australian Federal Court delivered a landmark judgement on climate change, marking an important moment in our history.

The class action case was brought on behalf of all Australian children and teenagers, against Environment Minister Sussan Ley.

Their aim was to prevent Ley from possibly approving the Whitehaven coal mine extension project, near Gunnedah in New South Wales. They argued that approving this project would endanger their future because of climate hazards, including causing them injury, ill health or death, and economic losses.

The court dismissed the application to stop the minister from approving the extension. But that’s just the beginning.

Before making those orders, the court found a new duty it never has before: the environment minister owes a duty of care to Australia’s young people not to cause them physical harm in the form of personal injury from climate change.

‘Australia will be lost’: the court’s moving findings

The court considered evidence in the case from the Intergovernmental Panel on Climate Change, CSIRO, the Bureau of Meteorology, and globally renowned ANU climate scientist Will Steffen.

In a tear-jerking moment during the Federal Court’s live-streamed summary, the court found that one million of today’s Australian children are expected to be hospitalised because of a heat-stress episode, that substantial economic loss will be experienced, and that the Great Barrier Reef and most of Australia’s eucalypt forest won’t exist when they grow up.

It found this harm is real, catastrophic, and – importantly from a legal perspective – “reasonably foreseeable”. In decades past, courts have considered climate change to be a “speculative”, “future problem”.

That is no longer the case. The court concluded, in a moving paragraph from the written judgment:

It is difficult to characterise in a single phrase the devastation that the plausible evidence presented in this proceeding forecasts for the children. As Australian adults know their country, Australia will be lost and the world as we know it gone as well.

The physical environment will be harsher, far more extreme and devastatingly brutal when angry. As for the human experience – quality of life, opportunities to partake in nature’s treasures, the capacity to grow and prosper – all will be greatly diminished.

Lives will be cut short. Trauma will be far more common and good health harder to hold and maintain.

None of this will be the fault of nature itself. It will largely be inflicted by the inaction of this generation of adults, in what might fairly be described as the greatest inter-generational injustice ever inflicted by one generation of humans upon the next.

To say that the children are vulnerable is to understate their predicament.

Establishing a new duty of care

The children took a novel route in asserting the federal environment minister owed them a duty of care. A duty of care means a responsibility not to take actions that could harm others. A duty of care is the first step in a claim of negligence.

A similar duty was found in the Netherlands in 2015, as a global first. In 2019, the Supreme Court upheld that duty – the Dutch government owed its citizens a duty to reduce emissions in order to protect human rights.

Other cases around the world were inspired by that success, including the one decided in Australia today.

---

Read more:
‘A wake-up call’: why this student is suing the government over the financial risks of climate change

---

The court today didn’t say the minister has a duty to stop all coal projects of any size, as it was only considering the Whitehaven extension project. But this is still hugely significant.

Australia has been repeatedly criticised on the global stage for its stance on new coal and climate change more generally. Now, we may find the decisions made by its environment ministers could amount to negligent conduct.

The buck doesn’t stop at governments

Back in the Netherlands, something else significant happened this week — the world learned the buck doesn’t stop at governments.

In what’s been described as “arguably the most significant climate change judgement yet”, a court in The Hague ordered Royal Dutch Shell, a global oil and gas company, to reduce its carbon dioxide emissions by 45% by 2030 compared with 2019 levels, via its corporate policy.

This could have far-reaching consequences for oil and gas companies all over the world, including in Australia.

So now we have a dual momentum — governments need to be careful what they approve, and fossil fuels companies need be careful what they propose.

Putting the minister on notice

It’s important to recognise Ley hasn’t made a decision yet to approve the coal mine extension. The young Australians were seeking to stop her from approving it, and in that they didn’t succeed.

However, her responsibility to young people has now been formally recognised by the court.

Today’s children are vulnerable to climate change and they depend on the environment minister to protect their interests. We don’t know yet if the minister will approve the mine extension, or if she does, whether that means she has breached her duty to the children. But we do know how significant the harm from climate change will be.

In 2019, a NSW court confirmed now is not the time to be approving new coal, and every coal mine counts.

Today’s judgement opens the door for future litigation if the minister is not careful about approving projects that could harm the next generations of Australians.

But importantly, it puts the federal environment minister on notice — while political terms might be only short, decisions now have intergenerational consequences for the future.

Short-term financial gain can have detrimental impacts on the health and economic wellbeing of those who can’t vote yet.

---

Read more:
These young Queenslanders are taking on Clive Palmer’s coal company and making history for human rights

---

---

This story is part of a series The Conversation is running on the nexus between disaster, disadvantage and resilience. It is supported by a philanthropic grant from the Paul Ramsay foundation. You can read the rest of the stories here.

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

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

Advertisement

Environment Minister Sussan Ley faces a critical test: will she let a mine destroy koala breeding grounds?

Lachlan G. Howell, University of Newcastle and Ryan R. Witt, University of Newcastle

In the next few weeks, federal Environment Minister Sussan Ley will decide whether to approve a New South Wales quarry expansion that will destroy critical koala breeding grounds.

The case, involving the Brandy Hill Quarry at Port Stephens, is emblematic of how NSW environment laws are failing wildlife — particularly koalas. Efforts to erode koala protections hit the headlines last week when NSW Nationals leader John Barilaro threatened to detonate the Coalition over the issue.

---

Read more:
The NSW koala wars showed one thing: the Nationals appear ill-equipped to help rural Australia

---

Koala populations are already under huge pressure. A NSW parliamentary inquiry in June warned the koala faces extinction in the state by 2050 if the government doesn’t better control land clearing and habitat loss.

Ley could either continue these alarming trends, or set a welcome precedent for koala protection. Her decision is also the first big test of federal environment laws since an interim review found they were failing wildlife. So let’s take a closer look at what’s at stake in this latest controversy.

This female koala is under threat from the Brandy Hill Quarry expansion.
Lachlan Howell, Author provided

The Brandy Hill Quarry expansion

The NSW government gave approval to Hanson Construction Materials, a subsidiary of Heidelberg Cement, to expand the existing Brandy Hill Quarry in Seaham in Port Stephens.

The project would provide concrete to meet Sydney’s growing construction demands, as the state fast-tracks infrastructure projects to help the economy recover from COVID-19.

The approval came despite the known presence of koalas in the area. A koala survey report, completed on behalf of the developer in 2019, determined the project would “result in a significant impact to the koala”.

The report recommended the quarry expansion be referred to the federal Environment Minister under the Environment Protection and Biodiversity Conservation (EPBC) Act 1999, for its potential impacts on “Matters of National Environmental Significance”.

---

Read more:
View from The Hill: Barilaro keeps Nationals in the tent; koalas stay in limbo

---

The expansion site intersects habitat with preferred high quality koala feed and shelter trees. This habitat is established forest containing various key mature Eucalyptus trees, including the forest red gum and swamp mahogany.

The survey report didn’t propose any mitigation strategies to sustain the habitat. Instead, it suggested minimisation measures, such as ecologists to be present during habitat clearing, low speed limits for vehicles on site, and education on koalas for workers.

A disaster for koalas

In support of a community grassroots campaign (Save Port Stephens Koalas), we produced an report on the effect of the quarry expansion on koalas. The report now sits with Ley ahead of her decision, which is due by October 13.

Male koalas will bellow during the breeding season to attract females.

The expansion will clear more than 50 hectares of koala habitat. We found koalas breeding within 1 kilometre of the current quarry boundary, which indicates the expansion site is likely to destroy critical koala breeding habitat.

During the breeding season, male koalas bellow to attract females. Within 1km of the boundary we observed a female koala and a bellowing male koala 96m apart. A second male was reported bellowing 227m from the quarry boundary.

What’s more, the site expansion occurs within a NSW government listed Area of Regional Koala Significance. The expansion site actually has higher average koala habitat suitability than all remaining habitat on the quarry property.

The Koala Habitat Suitability Model from our independent report. The red boundary represents the Quarry expansion site containing high habitat suitability.
Map produced by S. A. Ryan using the Koala Habitat Information Base and arcGIS 10.6., Author provided

CSIRO research from 2016 suggests koalas in Port Stephens can move hundreds of metres in a day and up to 5km in one month. Movement is highest during the breeding season. This potential for koalas to move away was a key reason the NSW government approved the expansion.

Koalas can move in to the remaining property to breed, or they can move away from it. But habitat outside the expansion site is, on average, lesser quality, and this is where the expansion would force the koalas to move to.

---

Read more:
Stopping koala extinction is agonisingly simple. But here’s why I’m not optimistic

---

This habitat fragmentation would not only result in lost access to potential breeding grounds, but also further restrict movement and expose koalas to threats such as predation or road traffic.

Lastly, the expansion would sever a crucial East–West corridor koalas likely use to move across the landscape and breed.

Approved under the state’s weak environmental protections

It may seem surprising this destructive project was approved by the NSW government. But it’s a common story under the state’s protections.

Alarm over the weaknesses of NSW environmental protections has been raised by NSW government agencies including the Natural Resources Commission and NSW Audit Office.

---

Read more:
Our laws failed these endangered flying-foxes at every turn. On Saturday, Cairns council will put another nail in the coffin

---

The expansion approval is an example of how the NSW government relaxed the regulatory requirements for land clearing between 2016 and 2017. This led to a 13-fold increase in land clearing approvals, and tipped the balance away from sustainable development.

Female and male koalas spotted 1 km from the quarry boundary. The male was observed bellowing 96 m from the female koala. Photo: Lachlan Howell.

The expansion shines another spotlight on NSW’s poor biodiversity offset laws.

Biodiversity offsets involve compensating for environmental damage in one location by improving the environment elsewhere. Under the expansions approval, the developer was required to protect an estimated 450 hectares of habitat as offset.

But the recent parliamentary inquiry into NSW koalas recommended offsetting of prime koala habitat — such as that involved in the quarry expansion — be prohibited, which would mean not destroying the habitat in the first place.

---

Read more:
Let there be no doubt: blame for our failing environment laws lies squarely at the feet of government

---

The NSW decision also does not account for the Black Summer Bushfires which claimed 5,000 koalas and burned millions of hectares of koala habitat. The Port Stephens population was unburned but more than 75% of its habitat has been lost since colonial occupation. Securing this population is important for the overall security of koalas in the state.

The koalas are in Sussan Ley’s hands

Sussan Ley will now assess the expansion under the EPBC Act. A recent interim report into the laws said they’d allowed an “unsustainable state of decline” of Australia’s environment.

Rejections under these laws are rare; just 22 of 6,500 projects referred for approval under the act have been refused. However, it’s not impossible.

Earlier this year Ley rejected a wind-farm in Queensland which threatened unburned koala habitat. If Ley gives full consideration to the evidence in our report, she should make the same decision.

---

Read more:
Be worried when fossil fuel lobbyists support current environmental laws

---

Lachlan G. Howell, PhD Candidate | School of Environmental and Life Sciences, University of Newcastle and Ryan R. Witt, Conjoint Lecturer | School of Environmental and Life Sciences, University of Newcastle

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

Environment Minister Sussan Ley is in a tearing hurry to embrace nature law reform – and that’s a worry

Graeme Samuel, left and Environment Minister Sussan Ley.
Lukas Coch/AAP

Peter Burnett, Australian National University

The Morrison government on Monday released a long-awaited interim review into Australia’s federal environment law. The ten-year review found Australia’s natural environment is declining and under increasing threat. The current environmental trajectory is “unsustainable” and the law “ineffective”.

The report, by businessman Graeme Samuel, called for fundamental reform of the law, know as the Environmental Protection and Biodiversity Conservation (EPBC) Act. The Act, Samuel says:

[…] does not enable the Commonwealth to play its role in protecting and conserving environmental matters that are important for the nation. It is not fit to address current or future environmental challenges.

Samuel confirmed the health of Australia’s environment is in dire straits, and proposes many good ways to address this.

Worryingly though, Environment Minister Sussan Ley immediately seized on proposed reforms that seem to suit her government’s agenda – notably, streamlining the environmental approvals process – and will start working towards them. This is before the review has been finalised, and before public comment on the draft has been received.

This rushed response is very concerning. I was a federal environment official for 13 years, and from 2007 to 2012 was responsible for administering and reforming the Act. I know the huge undertaking involved in reform of the scale Samuel suggests. The stakes are far too high to risk squandering this once-a-decade reform opportunity for quick wins.

A dead koala outside Ipswich. Federal environment laws have failed to protect threatened species.
Jim Dodrill/The Wilderness Society

---

Read more:
Let there be no doubt: blame for our failing environment laws lies squarely at the feet of government

---

‘Fundamental reform’ needed: Samuel

The EPBC Act is designed to protect and conserve Australia’s most important environmental and heritage assets – most commonly, threatened plant and animal species.

Samuel’s diagnosis is on the money: the current trajectory of environmental decline is clearly unsustainable. And reform is long overdue – although unlike Samuel, I would put the blame less on the Act itself and more on government failings, such as a badly under-resourced federal environment department.

Samuel also hits the sweet spot in terms of a solution, at least in principle. National environmental standards, legally binding on the states and others, would switch the focus from the development approvals process to environmental outcomes. In essence, the Commonwealth would regulate the states for environmental results, rather than proponents for (mostly) process.

---

Read more:
A major scorecard gives the health of Australia’s environment less than 1 out of 10

---

Samuel’s recommendation for a quantum shift to a “single source of truth” for environmental data and information is also welcome. Effective administration of the Act requires good information, but this has proven hard to deliver. For example the much-needed National Plan for Environmental Information, established in 2010, was never properly resourced and later abolished.

Importantly, Samuel also called for a new standard for “best practice Indigenous engagement”, ensuring traditional knowledge and views are fully valued in decision-making. The lack of protection of Indigenous cultural assets has been under scrutiny of late following Rio Tinto’s destruction of the ancient Indigenous site Juukan caves. Reform in this area is long overdue.

And notably, Samuel says environmental restoration is required to enable future development to be sustainable. Habitat, he says “needs to grow to be able to support both development and a healthy environment”.

Many in the public are concerned at the state of Australia’s environment.
Dean Lewins/AAP

Streamlined approvals

Samuel pointed to duplication between the EPBC Act and state and territory regulations. He said efforts have been made to streamline these laws but they “have not gone far enough”. The result, he says, is “slow and cumbersome regulation” resulting in significant costs for business, with little environmental benefit.

This finding would have been music to the ears of the Morrison government. From the outset, the government framed Samuel’s review around a narrative of cutting the “green tape” that it believed unnecessarily held up development.

In June the government announced fast-tracked approvals for 15 major infrastructure projects in response to the COVID-19 economic slowdown. And on Monday, Ley indicated the government will prioritise the new national environmental standards, including further streamlining approval processes.

---

Read more:
Environment laws have failed to tackle the extinction emergency. Here’s the proof

---

Here’s where the danger lies. The government wants to introduce legislation in August. Ley said “prototype” environmental standards proposed by Samuel will be introduced at the same time. This is well before Samuel’s final report, due in October.

I believe this timeframe is unwise, and wildly ambitious.

Even though Samuel proposes a two-stage process, with interim standards as the first step, these initial standards risk being too vague. And once they’re in place, states may resist moving to a stricter second stage.

To take one example, the prototype standards in Samuel’s report say approved development projects must not have unacceptable impacts on on matters of national environmental significance. He says more work is needed on the definition of “unacceptable”, adding this requires “granular and specific guidance”.

I believe this requires standards being tailored to different ecosystems across our wide and diverse landscapes, and being specific enough to usefully guide the assessment of any given project. This is an enormous task which cannot be rushed. And if Samuel’s prototype were adopted on an interim basis, states would be free, within some limits, to decide what is “unacceptable”.

It’s also worth noting that the national standards model will need significant financial resources. Samuel’s model would see the Commonwealth doing fewer individual project approvals and less on-ground compliance. However, it would enter a new and complex world of developing environmental standards.

The government has said little about improving the environment on the ground.
Eric Vanderduys/BirdLife Australia

More haste, less speed

Samuel’s interim report will go out for public comment before the final report is delivered in October. Ley concedes further consultation is needed on some issues. But in other areas, the government is not willing to wait. After years of substantive policy inaction it seems the government wants to set a new land-speed record for environmental reform.

The government’s fixation with cutting “green tape” should not unduly colour its reform direction. By rushing efforts to streamline approvals, the government risks creating a jumbled process with, once again, poor environmental outcomes.

Peter Burnett, Honorary Associate Professor, ANU College of Law, Australian National University

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

Memo to the environment minister: a river does need all its water

Paul Humphries, Charles Sturt University and R. Keller Kopf, Charles Sturt University

Given her new role as federal environment minister, one of Sussan Ley’s comments in an interview with Nine Newspapers was eyebrow-raising, to put it mildly. She said:

Sometimes the environment doesn’t need all its water but farmers desperately do need water.

This is inaccurate and concerning, but not all that surprising, given the attitude to water and rivers of some in the community and federal government.

In this age of water sharing and trading, and storing water in dams, it is easy to lose sight of what water is to a river, and how every drop of water that enters (or should enter) a river defines the character and function of that river.

Ultimately, the community – not scientists or even river managers – decides how much water a river should get. But it’s essential to be honest about the effects these decisions have on rivers and the ecosystems they support. This is vital for long-term environmental sustainability, upon which all our industry, agriculture and indeed our society are based.

Crises and concerns

Recently the Murray-Darling river system has suffered several crises, including fish kills, hypoxic water, acid-sulfate soils, and algal blooms. These are all wake-up calls that the way we manage rivers are not working.

---

Read more:
Damning royal commission report leaves no doubt that we all lose if the Murray-Darling Basin Plan fails

---

But besides these disastrous incidents, there are many other ways in which river ecosystems are changing, that are not as obvious to the general public.

Contraction of native species’ ranges, local extinctions, success of invasive species and the “need” to stock non-native recreational fish species are just a few of the insidious symptoms of a general malaise.

Water to a river is like air to a balloon. Let out a little air and the balloon is still balloon-shaped, albeit less taut than before. But let out more air and there comes a point, which is hard to predict exactly, when the balloon suddenly collapses. By this analogy, the Murray-Darling Basin is very deflated indeed.

The point is that if we take water out of a river, or change the patterns of its flow, we inevitably change the nature of that river. Irrigators undoubtedly need water. But we shouldn’t kid ourselves that we’re not altering the river and its ecosystems by allowing them to take it.

Do we want healthy rivers?

Our job as river scientists is not to say what type of river the community wants. Our job is to inform people on what the actions of changing river management will do to a river and its life.

We already have seriously degraded river ecosystems. Restoring them is exceedingly unlikely under current demands and management. But if we take even more of a river’s water away, we need to acknowledge that the river will become yet a different river, and in some cases, one that we hardly recognise.

The public backlash following the fish kills earlier this year suggests that the community has decided that further degradation of our rivers is not acceptable.

---

Read more:
5 ways the government can clean up the Murray-Darling Basin Plan

---

Paul Humphries, Senior lecturer in Ecology, Charles Sturt University and R. Keller Kopf, Research fellow, Charles Sturt University

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

Snubfin Dolphin: WWF Seeking Protection

The article below concerns the WWF and Australia’s Snubfin Dolphin. WWF is seeking protection for the Snubfin Dolphin as a threatened species. The WWF is leading a campaign to have the threatened species protected through a letter writing campaign to the Australian Environment Minister Tony Burke. This can be done online via the link below.

For more visit:
http://wwf.org.au/ourwork/species/snubfin-dolphin-letter-to-tony-burke/