Climate-related litigation in Australia – what can we learn in the UK?

Many countries have seen a significant increase in climate-related litigation over recent years. This trend has been particularly marked in Australia, which currently has the most climate- related litigation per capita in the world, and the second highest number of climate-related litigation cases of any nation, beaten only by the United States. 

As a fellow common law jurisdiction, Australia serves as a valuable benchmark for evaluating the progress of climate-related litigation in the UK. The rapid increase in claims and the evolution of related Australian jurisprudence may provide insights into the potential trajectory of case law in England and Wales.

Australia has seen a rise in climate-related litigation across all of its six states, but particularly in New South Wales and Queensland, where coal mining is especially prevalent. Beginning with the case of Gray v Minister for Planning in 2006, Australia’s first wave of climate litigation focused on public law claims, particularly judicial review. Increasingly, however, Australian climate-related litigation is expanding to feature a wider variety of claims, including those based in tort, corporate law and human rights. 

Sharma and others v Minister for the Environment 

Sharma was a particularly high-profile recent example, highlighting shifts in Australia’s climate-related litigation landscape. In September 2020, eight teenagers, claiming to represent all Australians under 18, filed a class action in the Federal Court of Australia. The purpose of the claim was to block government approval for a proposed extension to the Whitehaven Vickery coal mine in New South Wales. The claim was founded on the argument that the Federal Minister for the Environment owed a duty of care in tort to all young people under the Environment Protection and Biodiversity Conservation Act. It was argued that this duty would be breached if the extension to the mine was allowed, given the environmental consequences of the resulting (higher) carbon emissions. 

At first instance, the Federal Court found for the plaintiffs in a landmark decision which established a novel duty of care in tort.

However, the decision was overturned on appeal to the Full Federal Court. Several key points arose in the judges’ reasoning. 

• first, the court did not consider it was the role of the judiciary to determine political questions or influence matters such as emissions policy. 
• secondly, it was found that the children did not have a sufficiently close relationship with the Federal Minister such as to establish any duty of care, and 
• finally, the Court was concerned with the fact that the claim was issued prior to the Claimants having suffered any harm. 

Despite the appeal decision, Sharma has not definitively closed the door on negligence as a cause of action. For example, if a case were to arise in which, for example, a sufficiently close relationship between Claimant and Defendant could be established and where quantifiable harm had already been caused to the Claimant as a result of the Defendant’s actions, there may be a greater chance for success.

Pabai Pabai and Guy Paul Kabai v Commonwealth of Australia 

Pabai Pabai could be one such case. In 2021, two First Nations’ leaders from the Torres Strait Islands filed a case seeking to challenge the Australian government’s failure to cut greenhouse gas emissions. The Claimants alleged that the government’s policy would result in forced migration of their communities. The Torres Strait Islands are a series of small, low-lying islands which are vulnerable to global sea level rise. 

Here, the Claimants alleged that the Australian government breached its duty of care to protect the Islanders from the effects of climate change caused by the emission of greenhouse gases into the atmosphere. Similar to Sharma, the claim raises novel arguments around how duties of care are framed, i.e.: 

• a “Mitigation Duty”, framed as a duty to take reasonable steps to protect the Islanders and their traditional way of life from the impacts of climate change by mitigating global temperature increase and reducing emissions in line with the “best available science”; and
• an “Adaptation Duty”, framed as a duty to take reasonable care to avoid causing loss to people and property, arising from a failure to adequately implement and fund adaptation measures to minimise the impact of climate change.

With judgment currently reserved and a decision anticipated later this year, the Claimants seek the following remedies:

• Declaratory relief recognising the existence of a duty of care to the Torres Strait Islanders;
• Injunctive relief including a requirement to protect the Torres Strait Islanders and the customs and cultural practices of the Islanders from harm caused by climate change; and   
• A general wide-ranging claim for damages.

This case raises significant issues which will be relevant in the development of future jurisprudence - both in Australia and in other common law jurisdictions such as the UK. In particular, the claim may expand the scope of negligence claims if it can be established that there is a relationship (and duty of care) between the Islanders and the Australian government.

Waratah Coal Pty v Youth Verdict (2022)

Another example of the expanding scope of climate litigation is a 2022 case which centred on Waratah Coal Pty Ltd’s intended development of a thermal coal mine in the Galilee Basin, Queensland. To progress the project, Waratah applied for a mining lease and an environmental authority from the Minister for Resources for Queensland and the Chief Executive of the Department of Environment and Science respectively. A number of local organisations raised objections to the applications, alleging, in particular, that the mine would unjustifiably infringe their human rights.

Whilst this case bears numerous similarities to cases which have been heard in the UK (such as Finch) to the extent that it targets applications to a local authority for fossil fuel project developments, Waratah contains a specific human rights angle which could be adopted in future claims brought in England and Wales. 

In Waratah, the court held that it was necessary to consider the likely greenhouse gas emissions that would result from the coal mined when considering whether the application was in the public interest, regardless of where that coal would be used. As a result, they concluded that the development would pose “unacceptable climate change impacts to Queensland people and property”. This finding predates the English Administrative Court judgment of 2024 concerning the Whitehaven coal mine development (see our commentary here) where it was found that any Environmental Impact Assessment must take downstream greenhouse gas emissions into account.

Concluding thoughts 

One key distinction of these Australian cases compared with the UK is the absence of a national framework of human rights in Australia. The absence of constitutionally guaranteed human rights provides context for the diversity of approaches to climate change remedies seen in Australia, particularly in relation to raising novel duties of care. 

Nevertheless, decisions like Waratah Coal dovetail with the developing line of case law seen in the UK concerning decision-making for fossil fuel projects. Sufficient assessment of the climate impacts of fossil fuel projects is now an established position in UK law following the Supreme Court decision in Finch and the recent judicial review of the Rosebank and Jackdaw oil and gas consents (which you can read about here).

Despite the overturning of the first instance decision of Sharma, if the awaited decision in Pabai Pabai is successful, this could pave the way for negligence as a potential cause of action in future claims against governmental bodies.  

Sophie Pace-Bonello and Georgia Hanson are trainee solicitors at Burges Salmon, currently sitting in the Dispute Resolution department. They have a particular interest in Energy and Environment work, including ESG and climate litigation. 

Christopher Wenn is a Senior associate at Burges Salmon. Chris specialises in general commercial disputes, with a particular interest in ESG and climate-related litigation.