In the last two years, climate litigation has emerged as a diverse and popular tool for individuals, activists and shareholders alike to effect change in the behaviour of government and private enterprise directed to the reduction of carbon emissions.  However, the Full Federal Court’s decision to overturn Sharma earlier this year highlighted the legal and policy barriers to establishing a duty of care owed by government departments in respect of climate change risks and harm.  The Full Federal Court’s decision made it abundantly clear that such a duty of care will likely only arise after legislative reform imposing such a duty on Parliament and the Executive. See our previous article on the Sharma case - No 'Duty of Care' but risks of climate litigation continue to grow - insights from the Sharma decision.

Although the claim in Pabai Pabai relies on similar duty of care principles as were asserted in Sharma, the source of the alleged duty in Pabai Pabai is grounded in Native Title and cultural heritage rights, so could result in a different outcome. However, the resolution of that matter, and any further clarity on the potential imposition of a duty of care is some way off - with the hearing of expert evidence in that proceeding currently scheduled to take place over three weeks commencing on 30 October 2023.

Whilst a change in government has heralded a more pro-active climate change response by government, there is no apparent indication that the Albanese government will put a target on its, or any successive government’s back, by proposing such legislative reform.

Accordingly, we expect litigants will necessarily turn their focus to industry, where the existing legal framework is far more accommodating to climate litigation, through avenues such as shareholder activism and misleading and deceptive conduct claims.  On that note, the greenwashing claim against Santos, which commenced late last year, has been delayed after the Australian Centre for Corporate Responsibility (ACCR) added additional grounds to its complaint against Santos, purportedly arising from documents produced by Santos during the discovery process in that proceeding.  

Recent climate litigation cases in Australia

A number of other cases are also awaiting finalisation, including Australian Conservation Foundation Incorporated (ACF) v Woodside Energy Ltd & Anor in which ACF seeks to establish climate change impacts as a relevant consideration for the WA EPA exercising its approval rights. However, there were two notable decisions handed down in recent weeks, being:

• Santos NA Barossa Pty Ltd v Tipakalippa [2022] FCAFC 193: the rejection of Santos’ appeal of a decision of Justice Bromberg which found that Santos had failed to adequately consult with all traditional owners of the Tiwi Islands in respect of its offshore petroleum development in the Barossa gas field. The Full Federal Court concluded that Santos was required to consult with Mr Tipakalipppa (who commenced the primary proceedings) and the Munupi clan of which he is an elder in respect of its proposed development and that the regulator, NOPSEMA, could not be reasonably satisfied that Santos had carried out consultations with all relevant persons under the Offshore Petroleum and Greenhouse Gas Storage (Environment) Regulations 2009 (Cth) as to the environmental impacts of its activities; and
• Waratah Coal Pty Ltd v Youth Verdict Ltd & Ors (No 6) [2022] QLC 21: the judicial recommendation to the Queensland Minister for Resources that Waratah Coal’s application for a mining lease be refused. The objections to Waratah Coal’s application were heard by the Queensland Land Court, which application was challenged on the basis that the proposed mine would (amongst other things) impact the human rights of First Nations peoples by contributing to climate change.  In her concluding remarks, President Kingham of the Queensland Land Court found that “approving the application would risk disproportionate burdens for future generations, which does not give effect to the goal of intergenerational equity” and “while there would be substantial economic benefit if the application is approved, other factors must be considered. The impact on Bimblebox, the contribution of combustion emissions to climate change and the limitations on human rights cannot be reduced to a common quantitative unit of measurement, such as money.” See our article discussing this case “Mining leases rejected due to human rights and emissions impacts in Waratah Coal v Youth Verdict & Ors”

These decisions are a telling reminder to project proponents in carbon intensive industries such as mining, oil and gas that the level of public scrutiny in respect of their activities has reached an unprecedented intensity and companies must be proactive and genuine in their climate targets, policies and consultations with affected persons.  

Government agencies seem also to be coming to the party and represent another risk for firms, noting Australia’s corporate regulator ASIC obtained its first enforcement outcome for ‘greenwashing’ in October. Whilst that outcome was modest, it was a telling shot across the bow for all market participants that any statements as to carbon neutrality or climate impacts must be thoroughly vetted. 

Turning to 2023, in addition to increased activist litigation domestically, reforms are progressing in international law, the effect of which could have significant implications for entities with offshore interests.  International laws are largely only a reference point for legislators and do not take effect as Australian law unless they are legislated. But many other countries incorporate international law into their existing legal framework.  Of particular note is a member-led push for the UN International Court of Justice to provide an advisory opinion on climate change laws, the effect of which is highly persuasive, but not binding.  A more pressing development is the increasing support for a new international crime – ‘ecocide’ which reframes environmental and climate harm from a business and regulatory issue to a global crime and threat to survival. These developments are very much in their infancy but are indicative of changing societal expectations of governments and private enterprise alike.

We will continue to monitor climate litigation developments at home and abroad and will update CE+D subscribers as new developments arise.

Co-authored by Tom Penglis