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The society, the professional body for more than 30,000 solicitors, notes in a new briefing paper that Australia is second only to the United States for the number of climate change cases since 1993. At 121 cases, its total is five times that of Canada.
“Significant shift”: NSW Law Society president Juliana Warner
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The society noted Australia has 121 climate cases (4.7 per million), Britain 77 (1.15 per million), European Union 56 (0.12), Canada 25 (0.65 per million) and New Zealand 25 (4.1). The latest figure for the US is 1343 cases (4.1 per million).
Climate change cases are defined as those that “raise material issues of law or fact relating to climate change mitigation, adaptation, or the science of climate change ... before a range of administrative, judicial, and other adjudicatory bodies”.
The paper cites comments by King & Wood Mallesons partner Daisy Mallett that Australia is a “particularly fertile testing ground for public interest litigation on climate change, given its sophisticated and independent legal institutions, a government policy supporting heavy industry, and the severe climate change impacts in the region”.
The first climate case was Greenpeace v Redbank Power in 1994, when the NSW Land and Environment Court ruled a new power station in the Hunter Valley could proceed, subject to several mitigation conditions.
Broader focus
The paper says cases “now often have a broader focus on holding companies and governments to account for their actions, or inactions, related to climate change”.
It predicts greenwashing claims – against those that trumpet eco-friendly credentials – “are likely to continue in coming years and focus on individual directors as well as corporate entities”.
New ground was broken in 2021, when 25 landholders and conservationists
known as The Bimblebox Alliance cited human rights law as they challenged an application by Clive Palmer’s Waratah Coal to develop a thermal coal mine in the Galilee Basin.
Waratah objected but the Land Court of Queensland said it did have jurisdiction because of the state’s Human Rights Act. There will be a hearing in February.
‘Rights turn’
The paper said the case was part of a “rights turn” in which litigants in Australia, Europe, the Philippines, South Africa, Pakistan and the Netherlands are arguing that climate change is a threat to human rights such as the right to life, health and a healthy environment.
The paper noted a crucial hurdle for litigants - “there is no freestanding right to a clean and healthy environment under core international human rights instruments, although over 100 national constitutions do now include such a right”.
Federal Court judge Mordy Bromberg also ruled in July that Minister for the Environment Sussan Ley had a duty to take reasonable care to protect children from the effects of climate change. An appeal has been heard.
NSW Law Society president Juliana Warner said climate change was “already having a significant impact on the economy, businesses, investor groups and the community”.
“Over the course of this year, there has been a really significant shift in the community about climate change and the urgent action which must be taken.”
Links
- Court gives student OK to sue government over climate disclosure
- (AU SMH) Can Court Cases, Boardroom Takeovers And Protests Save The Planet?
- (AU AFR) Court Gives Student OK To Sue Government Over Climate Disclosure
- (AU Canberra Times) Climate Warriors Counting Their Legal Wins
- Top judge urges lawyers to take stand on climate change
- Climate change excuses won't wash in court, say lawyers
- Senior environment judge Brian Preston tips wave of climate change litigation
- Climate change lawsuits are on the rise
- Lethal Heating: Doctrine of Public Trust
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