Sunday, December 5, 2021

If governments do nothing, can courts save our planet?

The climate crisis threatens all life on our planet. Even people who, a few years ago, shouted from the rooftops that this was all a joke, suddenly realized the need for urgent action.

But Australia’s response remains the worst of the developed world. As a result, lawyers initiated several legal proceedings to bring about the change.

As their crops are flooded with salt water and their sacred sites disappear beneath the waves, a group of Torres Strait Islanders have filed a class action suit this week against the Australian government.

Two indigenous elders, Pabai Pabay and Paul Kabai, will argue in court that the Australian government has a responsibility to cut greenhouse gas emissions so that their homeland and their people are not affected by the climate crisis.

A house on Poruma Island in the Torres Strait, where a meter-high sandbag wall is all that stands between the tide and the back door.
Phillemont Mosby / PR Image of the handout

The class action follows another case brought against Environment Minister Sussan Lei by a group of eight children led by Anjali Sharma. The group tried to prevent the minister from approving the proposed expansion of a coal mine in Hunter Valley, New South Wales.

In a landmark ruling earlier this year, the Federal Court recognized the Minister

must take reasonable steps to avoid injury to children when making a decision […] approve or disapprove of the expansion of a coal mine.

This groundbreaking decision set an important precedent and clearly inspired the elders of the Torres Strait Islander to urge the Australian government to take urgent action to protect their homes, culture and food sources.

Basis for Claims by Torres Strait Islander

The class action lawsuit of Mr Pabay and Mr Kabay is based on the famous Urgenda case in the Netherlands, in which more than 800 plaintiffs argued that the Dutch government has a duty to protect its citizens from climate change. This business was successful and forced the Dutch government to take action to reduce greenhouse gas emissions in the Netherlands.

However, there is an important difference between the costumes. Although Dutch courts have concluded that the Dutch government has violated the European Convention on Human Rights, we do not have such protection in Australia. Environmental groups here are forced to use common law instead.

More: I used to win cases against the government. This is why I doubt a class action lawsuit against climate change will succeed.

To complicate matters, the Morrison government is trying to overturn Sharma’s decision by appealing it to the full Federal Court and possibly the High Court. This process is expected to take another two years.

It’s fascinating for lawyers to watch in real time as the negligence law, based on the Scottish case of 1932 about a woman who swallowed a snail in a bottle of ginger beer, expands to protect the Pacific islands from risk. future floods.

Unfortunately, these claims are not always successful.

The sea wall on Boigu Island in the Torres Strait.
The sea wall on Boigu Island in the Torres Strait.
Taley Elu

Legal obstacle in a similar New Zealand case

Last week, the New Zealand Court of Appeals ruled in another case that civil lawsuits were not an appropriate remedy for addressing climate change.

Like Mr. Pabai and Mr. Kabai in the Torres Strait Islands, Maori leader Michael Smith has argued that various places of traditional, cultural, historical, nutritional and spiritual importance to his people are located near the coast in the lowlands or at sea. Thus, they were all at risk of harm from the greenhouse gas emissions of the dairy giant Fonterra and six other companies.

As a result of legal criticism, three judges considered Mr. Smith’s three “tort offenses” arguments to deviate from fundamental principles of common law and refused to extend the existing law to his claims.

An offense is an offense committed by one natural or legal person against another, which is usually remedied by the award of compensation for damages. Since 2016, potential remedies have expanded from damages to injunctions as a result of the work done by the National Justice Project in the case of an asylum seeker.

Rejecting the idea that a negligence law was appropriate in the Fonterra case, the New Zealand court added that this is an inherently ineffective and ad hoc way of addressing climate change, which can lead to arbitrary outcomes and lengthy litigation.

More: Children deserve answers to their questions about climate change. Here’s how universities can help

Why are these cases important?

If applied by the Federal Court of Australia, the Fonterra case constitutes a major legal obstacle to the Torres Strait Islander class action.

Despite the potential for failure, climate change litigation based on tort law is instrumental in drawing the attention of all Australians to the risks of our federal government’s inaction.

Aerial view of Boygu Island.
Aerial view of Boygu Island.
Taley Elu

Importantly, these cases highlight the moral obligation of our leaders to do something, as Judge Mordechai Bromberg summed up in the Sharma case:

It is difficult to summarize in one phrase the devastation that plausible evidence is presented in this ongoing prognosis for children. […] Lives will be cut short. Injury will be much more frequent, and good health is more difficult to maintain and maintain.

None of this will be a mistake of nature itself. This will be largely due to the inaction of this generation of adults, which can rightly be called the greatest intergenerational injustice ever inflicted by one generation of people on the next.

While working for the National Justice Project, I worked over the years on strategic litigation to establish the federal government’s responsibility to provide health care to asylum seekers in Nauru and to address systemic prejudice.

I can say that the trial is complicated and protracted, but the results are worth fighting for. The way forward through the legal system can be difficult, but it can be a catalyst for change.

Mr. Pabay and Mr. Kabay should be congratulated for their courageous position.

This article is republished from – The Conversation – Read the – original article.

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