Australian Coal Mine Legal Challenge - Interview with a Plaintiff
As part of our series on ‘Using the Law to Fix the Climate’, we got in touch with Tom Webster Arbizu in Australia.
Tom is a climate activist and one of the plaintiffs in the legal challenge - Sharma and others v Minister for the Environment - being brought by Equity Generation Lawyers, 8 teenage plaintiffs and an 86 year old nun Sister Brigid Arthur who is acting as their litigation guardian. Their challenge is against the Australian government permitting a new extension to Whitehaven Coal’s Vickery coal mine in New South Wales. Coal is a significant export market for Australia, with exports worth an estimate AUS$37billion last year.
We put some questions to Tom and his lawyers about the case.
Tom, can you tell us a bit about your background in climate change issues and how you and the others came to be involved in this case?
I have been a youth leader in the Adelaide (Australia) School Strike for Climate movement for the last 24 months. I have organised rallies, given speeches in schools and on the steps of Parliament House, spoken to politicians and been on strike every Friday from school (until COVID-19). Through these actions, I have sought to raise public awareness for the ever-increasing and urgent need for climate action in the face of the catastrophic climate crisis we are experiencing. I feel a responsibility to fight for my future and the future of my peers and for the generations to come to protect against the devastating effects of climate change.
Is it right that the case is a challenge to the decision to allow an extension to the opencast Vickery coal mine in New South Wales?
Yes, this case specifically is about the extension to the Vickery coal mine in New South Wales, however, if the court agrees with us, there could be huge flow-on effects. This precedent could be applied to all new coal mines and perhaps other fossil fuel projects in Australia. It would mean that future permits for these projects would be very difficult, or perhaps impossible.
How big a deal is this particular mine, and the future CO2 emissions from the coal mined there?
This mine would produce 168 million tonnes of coal over the next 25 years. Over its lifetime, the mine would be responsible for 370 million tonnes of carbon dioxide – for context that is two-thirds of all of Australia’s emissions from 2019.
Is the nature of the challenge that there is a duty of care owed, to protect the younger generation from climate harm? Can you explain how that works, and what is the significance of the case being brought in that way?
Yes. The claim alleges that the Minister for the Environment has a duty to protect younger people from future climate change harms when making a decision on whether or not to approve a coal mine extension project. It is a duty of care that has not yet been recognised in Australia, however we are asking the court to recognise it, and determine that in approving this new coal project, the duty has been breached. We say that the Minister has control over whether or not the coal is dug out of the ground - which will make it possible to be burnt. The claim alleges the Minister owes a duty to younger people who cannot protect themselves from climate harms.
How does it compare with some of the other climate cases being brought with youth plaintiffs worldwide, and were any of them helpful to you in bringing this case?
Vulnerability is one aspect that claims by youth plaintiffs have in common worldwide. However, the claim is in negligence. In Australia we don't have a human rights framework (Duarte Agostinho and Others v Portugal and 32 Other States) and public trust jurisprudence (Juliana v United States).
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Duarte Agostinho and Others v Portugal and 32 Other States – European Court of Human Rights No. 39371/20. In this case, 4 children and 2 young adults from Portugal have filed a challenge to the climate plans and policies of 33 State signatories to the European Convention on Human Rights alleging infringement of their human rights through inadequate climate action.
Juliana v United States is one of the best-known series of cases brought on behalf of a group of young climate activists, challenging US government actions and inactions on climate on the grounds that they breach the plaintiffs’ constitutional rights.
What are the main counter-arguments from the coal company? Are they mainly about economics and jobs?
The main arguments are that the mine will not materially contribute to climate change and the resulting harms, and that the duty does not exist in the circumstances where the Minister must make a decision under particular environmental legislation.
Can you give us a sense of what is involved in preparing for a case like this?
A substantial amount of work was involved in preparing the evidence of all the applicants, as well as evidence of existing harms such as from bushfires. We also instructed a number of independent experts to prepare evidence on climate science, public health, and other physical and economic impacts.
Do you think the Australian wildfires in 2020 have made a difference to the way that the public there feels about climate change?
There was a definite change in how the media reported about climate change during the horrific Australian bushfires of the 2019/20 summer which for that period of time changed the public perception around climate change. However, it feels that since COVID, climate has been ‘swept under the rug’ and there has been very little focus on climate both in the media but also politics.
Do you feel this is a specifically Australian case, or in helping to bring it, do you feel part of a wider movement?
Whilst legally speaking this is an Australian case, climate change has no borders. The coal extracted from this mine in New South Wales, Australia would be exported to Japan, South Korea and Taiwan. Wherever the CO2 emissions are being emitted, it will be subtracted from the global carbon budget. Climate change has no borders and will impact us all.
What have you learned from being part of this case? When are you expecting to receive the court’s judgement?
I’ve been told that it could still be a month or two before we get the court’s ruling on the decision on the interlocutory (temporary) injunction and even longer for the ruling on the whole case.
I jumped at the chance to be part of this case when I first heard about it. As an as aspiring lawyer, this is the kind of law that I would want to practise in the future and it is so exciting to be part of such a novel case that could have huge implications on fossil fuel permits in Australia, and perhaps even around the world.