3. Jurisdiction
A fundamental requirement for any proceeding or appeal to be instituted is that the court in which it is proposed to be brought has the jurisdiction to determine it.
The claims and remedies that may be available in a case are tied to the jurisdiction in which it is brought. Alleged breaches of certain environmental laws, for example, fall within the exclusive jurisdiction of specialist environment courts.[1]
At times jurisdictional choices can thus enable different arguments. As human rights in Australia are not enshrined at a federal level and only to a limited extent in certain states,[2] the only climate-related human rights case in Australia to date was heard by the Land Court of Queensland in its administrative capacity.[3] Overseas, two current cases in German and Swiss courts are seeking to extend the application of domestic laws to climate-related harm experienced far outside the countries’ borders.
3.1 Specialist Environment Courts
Specialist environment courts exist in several jurisdictions in Australia.[4] The New South Wales Land and Environment Court (NSWLEC), established in 1980, was the first specialist environment court established as a superior court of record in the world.
The advantages of specialist courts include the potential for development of expert knowledge, coherent decision-making and flexible procedural rules.[5] For example, merits appeals in the NSWLEC are to be conducted with as little formality and technicality as possible.[6] The value of specialist environment courts and flexible procedure for environmental cases has been recognised widely, for example in the Bhurban Declaration, adopted in 2012 by various South Asian countries, in acknowledgement of the pivotal role of the judiciary in resolving environmental issues.[7]
However, while the first wave of climate litigation in Australia was predominantly heard in specialist environmental courts, many next generation cases fall outside their jurisdiction. This shift complicates the development of specialist knowledge and procedure that may be beneficial in grappling with complex questions involving climate science, such as whether and to what extent a defendant’s actions have caused particular damage from climate change.
3.2 Transboundary Harm
The broad and far-reaching impacts of climate change, which are not contained within country borders, disrupt traditional concepts of territorial jurisdiction. Outside international law (see International Law and Climate Change), remedies for transboundary harm are also being sought in domestic courts for climate impacts far beyond national borders. Jurisdiction in such cases is governed by private international law.[8]
The German case of Luciano Lliuya v RWE AG,[9] filed in 2015 by a Peruvian farmer from Huaraz, Peru, seeks declaratory judgment and damages against Germany’s largest electricity producer for its contribution to climate change, which has caused the Palcaraju glacier in Peru to melt. The claim applies German nuisance law, traditionally applied in neighbourhood disputes, to climate change impacts. The lawsuit was initially dismissed but this decision was overturned by the Hamm Higher Regional Court, which found that climate change with its cross-border effects has brought about a kind of global neighbourly relationship so the relevant provisions of the German Civil Code apply.
The Swiss case of Asmania et al v Holcim,[10] filed in 2022 by four Indonesian plaintiffs from the island of Pari against Swiss-based major buildings materials company Holcim, seeks compensation for climate damage, a financial contribution to flood protection measures, and orders for the rapid reduction of Holcim’s emissions. The plaintiffs rely on Swiss civil law provisions relating to the infringement of personal rights and redress for unjust harm and were granted free legal aid by the Swiss Cantonal Court of Zug.
Both cases rely on attribution science arguments to claim proportional compensation for loss and damage and the costs of adaptation measures from the respondent companies against which the claims are brought. The development of this area of science has been critical to enabling claims for liability and compensation against different actors. If successful, these cases could have widespread ramifications given similar provisions exist in other jurisdictions. Even if the cases do not succeed, they will serve as an important source of inspiration for alternative avenues and forums for establishing accountability for transboundary climate impacts. In the Australian context, future climate litigation involving attribution for transboundary harm may build on previous environmental class actions in the Federal Court of Australia which the Court allowed to be brought on behalf of group members who are not resident in Australia.[11]
Activity
- Look at the University of Melbourne’s Climate Change Litigation database (https://law.app.unimelb.edu.au/climate-change/) sorted by jurisdiction to see how Australian climate litigation to date is split between jurisdictions.
Key Questions
- What are the arguments for and against specialist environmental law courts, specialist environmental law divisions of existing courts, and the absence of specialised environmental law courts/divisions? How do these arguments apply in the context of climate litigation?
- When can a foreign plaintiff bring proceedings in an Australian court?
- Land and Environment Court Act 1979 (Cth) s 16; Land Court Act 2000 (Qld) s 5; Environment, Resources and Development Court Act 1993 (SA) s 7. ↵
- Human Rights Act 2019 (Qld); Charter of Human Rights and Responsibilities Act 2006 (Vic); Human Rights Act 2004 (ACT). ↵
- Waratah Coal Pty Ltd v Youth Verdict Ltd & Ors (No 6) [2022] QLC 21. ↵
- Land and Environment Court (NSW), Land Court (Qld) and Planning and Environment Court (Qld), and Environment, Resources and Development Court (SA). Certain jurisdictions also have tribunals with environmental divisions or streams: State Administrative Tribunal Act (WA), Victorian Civil and Administrative Tribunal (Vic), and Tasmanian Civil and Administrative Tribunal (Tas). ↵
- Chief Justice Brian Preston, ‘Operating an Environment Court: the Experience of the Land and Environment Court of New South Wales’ (Lecture on Environmental Law, Environment Commission of Trinidad and Tobago, 23 July 2008). ↵
- Land and Environment Court Act 1979 (NSW) s 38. ↵
- Bhurban Declaration 2012 — A Common Vision on Environment for the South Asian Judiciaries (adopted 25 March 2012). ↵
- See, eg, Reid Mortensen, Richard Garnett and Mary Keyes, Private International Law in Australia (LexisNexis, 5th ed, 2023). ↵
- (2015) Case No. 2 O 285/15. ↵
- See ‘Asmania et al vs Holcim’, Sabin Centre for Climate Change Law (Web Page, accessed 21 November 2024) <https://climatecasechart.com/non-us-case/four-islanders-of-pari-v-holcim/>. ↵
- BHP Group Limited v Impiombato & Anor (2022) 276 CLR 611; [2022] HCA 33; Sanda v PTTEP Australasia (Ashmore Cartier) Pty Ltd (No 7) [2021] FCA 237. ↵
Jurisdiction refers to the scope of a court’s authority to decide matters. It comes from the Latin ‘juris’ (the law) and ‘dicto’ (to say or declare).
Cases where climate change is a central issue in the dispute, climate change is raised as a peripheral issue, climate change is one motivation behind the case, or where the case has implications for mitigation or adaptation (Jacqueline Peel and Hari Osofsky, Climate Change Litigation: Regulatory Pathways to Cleaner Energy, Cambridge University Press, 2015, p. 8).
Adverse effects experienced in one State caused by or originating from an area under the jurisdiction of another State.
A sum of money awarded to a plaintiff at the conclusion of a successful lawsuit in satisfaction for the wrong suffered by the plaintiff.
Attribution science refers to ‘the process of evaluating the relative contributions of multiple causal factors to a change or event with assessment of confidence’.[1] In the context of climate change, attribution science is used to provide evidence of: (i) how human activities affect the global climate system (climate change attribution); (ii) how changes in the global climate system affect other interconnected natural and human systems (impact attribution); (iii) how changes in the global climate system affect the frequency, magnitude, and other characteristics of extreme events (extreme event attribution); and (iv) the relative contributions of different actors and activities to global climate change (source attribution).[2]
[1] IPCC, Climate Change 2021: The Physical Science Basis, Glossary
[2] Michael Burger, Jessica Wentz, and Daniel J. Metzger, ‘Climate Science and Human Rights: Using Attribution Science to Frame Government Mitigation and Adaptation Obligations’ in César Rodríguez-Garavito (ed), Litigating the Climate Emergency: How Human Rights, Courts, and Legal Mobilization Can Bolster Climate Action (Cambridge University Press, 2022) 223.
The negative impacts of climate change that occur despite, or in the absence of, mitigation and adaptation.
The process of adjustment to actual or expected climate and its effects (IPCC, Climate Change 2022: Impacts, Adaptation and Vulnerability).
