3. Future Trajectories

Tort-based climate litigation in this country is still in its infancy. There are a number of legal strategies that have been attempted overseas that have not yet been trialled here and that we might reasonably expect to see in our courts in the future.

One possibility is the pursuit of claims against fossil fuel companies, in the style of the Aotearoa New Zealand case of Smith v Fonterra^[1] (‘Smith’). In that case, Māori elder Michael Smith brought a claim in negligence and nuisance against seven of the country’s largest GHG emitters on the basis that they are collectively responsible for one-third of all of New Zealand’s GHG emissions. The claim is that the defendants knew (or ought to have known) of the need to reduce their emissions to avoid environmental harms that will impact specific Māori communities, such as loss of sites of cultural and spiritual significance, damage to fisheries and adverse health impacts. Demonstrating how a similar type of claim might be pursued in respect of Australian companies, McGrath notes that the operator of the Victorian Loy Yang A Power Station would be a ‘logical choice … [as] Australia largest single, direct emitter of GHGs’.^[2]

Another possibility suggested by Smith is the prospect of the courts simply creating a new environmental tort capable of responding to the climate crisis. This is a third ground for alleged liability in Smith, in addition to the claims in negligence and nuisance. In Australia, it seems unlikely the judiciary would take such a step, in light of its reluctance around other prospective new torts, such as a tort of privacy, but times change. For now, a more feasible option may be a new statutory tort. In that respect, Senator Pocock’s Climate Change Amendment (Duty of Care and Intergenerational Climate Equity) Bill 2023 (Cth) is interesting. It proposes two new statutory duties on government actors when making decisions likely to result in substantial GHG emissions: first, to consider the likely impact of those decisions on current and future Australian children; and second, to not approve exploration or extraction of fossil fuels where the resulting GHG emissions are likely to pose a material risk to current or future Australian children. Statutory duties may be actionable in tort where decision-makers fail to comply, in negligence or the tort of breach of statutory duties.

Overseas, a number of the most significant tort-based climate cases have been bolstered by human rights frameworks. For example, in Urgenda v The State of the Netherlands,^[3] Dutch citizens sued their government in negligence, arguing its inadequate climate policy was a breach of duty of its care. They were successful in this argument and obtained orders for more ambitious Dutch state emission reductions. Similarly, in Milieudefensie v Royal Dutch Shell plc^[4] (‘Milieudefensie’), seven non-government organisations argued that the company had breached its duty of care to Dutch citizens through its GHG emissions. They were successful in the first instance and obtained specific orders for the company to substantially reduce its emissions. However, this order was overturned on appeal on the basis that imposing mandatory emissions reductions on the company was not consistent with existing regional regulations. Nonetheless, the Hague Court of Appeal confirmed Shell’s duty of care and emphasised the relevance of human rights law to the determination of that issue. Indeed, in both cases the courts were aided in reaching their decisions by drawing on regionally binding human rights norms, as well as (in the case of Milieudefensie) the UN Guiding Principles on Business and Human Rights.

At present, human rights play little role in the interpretation and application of tort law in Australia. Australia does not have a national bill of rights, and it has few constitutional rights protections. However, there are renewed efforts towards a national human rights instrument in Australia that, if successful, could be consequential. In the meantime, the three existing state human rights acts offer possibilities for human rights to ground domestic legal actions that could be explored, as well as more use of statutory interpretive principles that enable rights considerations.^[5]