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.




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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.




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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.The Conversation

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.

National parks are for native wildlife, not feral horses: federal court




Don Driscoll, Deakin University and Dick Williams, Charles Darwin University

Today, the federal court ruled feral horses can be removed from the Victorian high country.

The case was brought by the Australian Brumby Alliance against the Victorian Government in 2018. Since then, the strategic management plan for feral horses has been shelved, allowing feral horse numbers to increase without control.

In the northern area of Kosciuszko National Park numbers jumped from an estimated 3,255 in 2014 to 15,687 in 2019, in the absence of any management.




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Double trouble as feral horse numbers gallop past 25,000 in the Australian Alps


Expanding numbers of feral horses roaming the Australian Alps – which are listed as a national heritage site – threaten the alp’s ecosystems, soils and unique species. More feral horses is also an animal welfare issue, as horses face starvation during droughts and have been hit by cars in Kosciuszko.

Feral horses cause extensive damage to fragile ecosystems.
Shutterstock

The ruling is a victory for national parks, which can once again be managed to protect native Australian ecosystems and species. But it stands in stark contrast to the NSW government’s controversial legal protection of feral horses.

Taken to court

The Victorian Government’s strategic action plan, released in 2017, was to remove all horses from the Bogong High Plains, where around 100 horses caused cumulative damage to sensitive alpine ecosystems.

The plan also aimed to trap horses in the eastern Victorian alps, but at a rate so low it was unlikely to make a dent in horse numbers.

Not satisfied with retaining thousands of horses in the eastern alps, in 2018, the Australian Brumby Alliance took out a court injunction to stop horse removal from the Bogong High Plains and prevent substantial reduction in horse numbers in the eastern alps.

High stakes

Twenty-five thousand feral horses in Australia’s alpine parks have damaged peat wetlands listed as threatened under federal and state legislation. Recovery will take decades to centuries.

Feral horses have also eliminated multiple populations of the native broad toothed rat and are a threat to other native species like the corroboree frog and mountain pygmy possum.

And habitat degradation and loss caused by feral horses is officially listed as a threatening process in Victoria and NSW.

Feral horse damage to a swampy area as they trample over important wetlands.
Meg McKone, Author provided

If the court had ruled in favour of the Australian Brumby Alliance’s case, it would have locked in escalating threats to the environment, including threatening already endangered species such as the alpine she-oak skink.

It would also have given at least informal legitimacy to NSW legislation that protects feral horses in Kosciuszko National Park.




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And possibly most damaging, it could have emboldened claims by brumby groups that feral horses should take priority over conservation in other contentious horse hotspots, such as Barmah, Oxley Wild Rivers, Blue Mountains, Guy Fawkes and Barrington Tops National Parks.

Feral horses have eliminated broad toothed mouse populations in the Alps.
Ken Green, Author provided

A matter of cultural heritage

The Australian Brumby Alliance argued removing horses from the alps would compromise its heritage value. They claimed feral horses are part of that heritage, including part of the mountain vistas, the pioneering heritage and myths and legends such as the Man from Snowy River.

The counterpoint from Parks Victoria was that it’s possible to remove horses from the alps while protecting the area’s cultural heritage.

It would be like taking cattle out of the high country, but nevertheless recognising pioneering exploits by preserving cattlemen’s huts.

These high plains will now be protected from feral horses.
Don Driscoll, Author provided

So what did Judge O’Bryan make of this? In a nutshell, the Australian Brumby Alliance did not have a legal hoof to stand on.

He rejected the Australian Brumby Alliance’s argument the Bogong High Plains horse population was likely to be genetically different from other feral horse populations in a way relevant to the case, and rejected claims feral horses could be beneficial to alpine ecosystems.

Judge O’Bryan also rejected the contention that the brumbies are part of the National Heritage values of the Australian Alps and accepted the evidence that feral horses cause substantial environmental damage.

The ruling acknowledged Parks Victoria’s strategic plan to control feral horses was consistent with legal obligations under the Convention on Biological Diversity, the federal EPBC (Environment Protection and Biodiversity Conservation) Act and the state’s Flora and Fauna Guarantee Act.

National parks for nature

Laws and the management of protected areas that reduce their integrity are a global concern. A 2017 study found one-third of Australia’s protected areas had been downgraded, reduced in size or had protection removed to make way for tourism ventures and other developments, like Snowy 2.0 in Kosciuszko National Park.

Kosciusko has faced the brunt of recent downgrading, notably where the NSW government voted to legally protect feral horses in 2018.

This unilateral decision has caused substantial concern for Victoria and the ACT as they face ongoing risks of feral horse incursions from NSW into their own protected areas.

The Australian Brumby Alliance’s court case threatened similar downgrading for Victoria’s alpine parks. However, state, federal and international laws, that place obligations on Australian governments to conserve native species and ecosystems in protected areas, have helped restore sensible park management.

Protecting natural heritage

Toyay’s federal court ruling upholds the right of state agencies to carry out their legal obligations. And it meets the general expectations of Australian society that our national parks exist to conserve native Australian ecosystems and species, particularly as extinction rates in Australia continue at unprecedented rates.




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It also reflects the intent of nature conservation laws. National parks are for conserving our natural heritage, the product of millions of years of evolution on this continent.

Brumby advocates concerned about recent European heritage in Australia can protect horses outside of national parks, an approach pioneered successfully in South Australia.The Conversation

Don Driscoll, Professor in Terrestrial Ecology, Deakin University and Dick Williams, Adjunct Professorial Fellow, Research Institute for the Environment and Livelihoods, Charles Darwin University

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

Regardless of what the Federal Court says, you shouldn’t put ‘flushable’ wipes down the loo


In the aftermath of a sewer overflow, “flushable” wipes are entangled in the vegetation.
Sydney Water Corporation

Ian Wright, Western Sydney University

On Friday the Australian Federal Court found in favour of Kimberly-Clark’s “flushable wipes” in a legal action brought by the Australian Competition and Consumer Commission (ACCC).

There was insufficient evidence to convince Justice Gleeson that Kimberly-Clark’s wipes were primarily responsible for significant blockages and were therefore unsuitable for flushing down the toilet.

This was a very different outcome to a 2018 court case, also in the Federal Court, in which White King Flushable Wipes were fined A$700,000 for misleading claims.




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Don’t believe the label: ‘flushable wipes’ clog our sewers


The water industry has responded with disappointment to the latest ruling. Sydney Water claims 75% of sewer blockages involve wet wipes. Part of the problem is that, once flushed, wipes are anonymous and the blame for blockages cannot be laid at a specific company’s door.

This case highlights the need to determine what “flushable” really means. Does it mean you can physically flush it down a toilet? Or that it will biodegrade without major issue in the sewerage system, in the manner of toilet paper?

Flushable problems

ACCC Chairman Rod Sims explained that the commission pursued the case against Kimberly-Clark because of increasing reports from Australian water authorities of “non-suitable products being flushed down the toilet and contributing to blockages and other operational issues”.

Consumer groups such as Choice have also expressed concern about the impact of these products for years. Choice has produced a video that demonstrates how poorly some wipe products disperse in water, compared with toilet paper.

The water industry is frustrated with frequent sewer blockages, many of which are caused by materials people should not have flushed down the toilet. The industry slogan is that only the “three Ps” – pee, poo, and (toilet) paper – should be flushed down the toilet.

What is all the fuss about?

Blocked sewers are deeply unpleasant for everyone involved: professionals who have to unblock them, local residents, and the animals and plants that live nearby.

This is also linked to another chronic problem in sewers: fats. These mainly come from cooking fats and oils that coagulate in sewers. They have combined to create horrific “fatbergs”, often photographed with disgusted fascination.

‘Fatbergs’ are made when fats and oils coagulate in sewers, trapping other material – like so-called ‘flushable’ wipes.
Courtesy of Sydney Water

Much less common are the images showing the discharge of liquid sewage due to the blockages. In my previous career as a scientist in the water industry, I visited hundreds of such scenes.

They are smelly and unsightly, but of more concern is the public health hazard they pose. Raw sewage is dangerous due to its abundance of disease-causing organisms. Overflows can happen anywhere, often in very public places.

Sewers are underground, and often beside waterways. This means they might be blocked and leak raw sewage for weeks before it is noticed.

Tree roots and drought

Drought and trees are also contributing to the problem wipes pose. Currently much of southeastern Australia is in drought. Many trees in our cities are desperate for water, and their roots invade sewers.

Wipes and similar materials are readily entwined in tree roots. Wipes have a well-known tendency to become entangled and accumulate gradually to build a blockage.

Whose standard do you believe?

The industry body Water Services Australia is currently working on an Australian industry standard for testing “flushability”. This is expected later in the year.




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On the other hand, many wipes companies claim their products do break down when flushed – although Kleenex, for example, advises not flushing more than two wipes at a time. These wipes comply with an existing industry standard for “flushability”, although this standard was developed by two trade associations that represent wipe manufacturers.

The development and application of a comprehensive Australian standard is urgently needed to address this problem.The Conversation

Ian Wright, Senior Lecturer in Environmental Science, Western Sydney University

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