2021-08-31
Framing urgent action on climate change in terms of our Duty of Care to children has recently been taken up by several campaigners: The Greens should offer full support to this strategy
By Rob Delves, GI Co-Editor
It is obvious that young people are being treated unfairly in several ways. They have much poorer access to important opportunities most baby boomers assumed were theirs by right, such as low-cost education, affordable housing and secure, well-paid jobs. The injustices needing urgent attention are many and all impact on young people in important ways.
However, to adapt George Orwell’s most famous line from Animal Farm: “All problems are equal, but some problems are more equal than others.” The opportunity to live in a safe climate is more equal, much more equal, for the simple reason that it doesn’t just threaten children’s opportunity for a good life, but for life itself.
The Australian Greens recognise that climate change is by far the greatest unfairness we are imposing on our youth. The Principles section of the policy on Children and Young People begins by listing the many rights all children should have – such as healthcare, education, housing – but then Principle 3 makes clear that the right to a safe climate is in a class of its own:
The climate crisis poses an immediate threat to the rights of children and young people. Failure to address anthropogenic climate change is an act of profound intragenerational injustice. As children and young people will experience the climate crisis for the longest period of time, the consideration of the impact on their rights must be central to all decision-making and policy creation.
Most young people I’ve spoken to recognise that the climate threat is the big one, even when they are struggling to deal with very immediate in-your-face issues such as finding a good job and a decent, affordable place to live. It’s why they vote Greens (or at least “progressive”) in large numbers. It’s why Greta Thunberg’s unrelenting message resonates. It’s why they participate in climate strikes.
Earlier this year a bold and potentially game-changing campaign strategy was employed by eight Australian teenagers who had met through the climate strikes movement. It is likely they were inspired by the International Energy Association’s widely reported and uncompromising statement that there must be no new fossil fuel projects anywhere if the world is to have any chance of holding warming to 1.5 degrees. The teenagers sought to prevent the Federal Environment Minister, Sussan Ley, from approving an extension to Whitehaven Coal’s Vickery coal mine in NSW. Their action was to mount a court challenge to the coal mine extension on the grounds that Ms Ley had a duty of care to protect them and the environment from the impacts of climate change.
It was an historic challenge that most experts dismissed as hopeless because it was without precedent – and in the Federal Court in May, Justice Mordecai Bromberg did indeed refuse their application to overturn ministerial approval of the expansion. BUT … an important part of his legal decision immediately gained worldwide attention. Bromberg clearly supported the legal principle that the environment minister owed Australian children a duty of care to protect them from future personal injuries caused by climate change. What’s more, he didn’t mince his words in explaining why the minister had this legal obligation:
A million Australian children will be hospitalised at least once in their life for heat stress and the Great Barrier Reef will die along with the east coast’s eucalyptus forests should climate change not be halted. Many thousands will suffer premature death from heat-stress or bushfire smoke. Substantial economic loss and property damage will be experienced. Those potential harms may fairly be described as catastrophic, particularly should global average surface temperatures rise to and exceed 3 degrees beyond the pre-industrial level. None of this will be the fault of nature itself. It will largely be inflicted by the inaction of this generation of adults, in what might fairly be described as the greatest inter-generational injustice ever inflicted by one generation of humans upon the next.
Even though Justice Bromberg wasn’t satisfied that “a reasonable apprehension of breach of the duty of care by the minister has been established,” this is indeed a landmark decision: the first time a court of law, anywhere in the world, has recognised that a government minister has a duty of care to protect young people from the catastrophic harms of climate change. One of the students, 16 year-old Anjali Sharma, summed up the decision with a wonderful Greta Thunberg-like combination of wisdom and moral clarity:
It’s heartbreaking that young people even have to take to the courts for basic protection against the climate crisis, when we’re so obviously facing its impacts right now … But after too many years of politicians turning a blind eye, today’s historic ruling will make it harder for them to continue to approve large-scale fossil fuel projects that will only fast-track the climate crisis. We are delighted that the law of the land now states that the government has a duty to avoid harm to young people.
Two major youth-oriented organisations have come out strongly on this theme:
1. Save the Children Australia responded to the Federal Court decision with a very direct challenge to government:
Today the Federal Court has stepped in and told the Australian Government they need to place children’s wellbeing at the heart of climate policy. We are calling on the Environment Minister to listen to the voices of Australian children and meet their duty of care obligations.
2. UNICEF’s recent report, ‘The climate crisis is a child rights crisis’, produced a Children’s Climate Risk Index and its measurement in 163 countries. The Index incorporates 57 variables into two elements: a measure of exposure to eight climate and environmental shocks and stresses (eg: water scarcity, tropical cyclones, heatwaves) and a measure of factors that influence child vulnerability (eg: child health and nutrition, poverty). The findings are alarming: almost all children on Earth are exposed to at least one stressor; in 116 countries the Risk Index is High or Extremely High; Australia scores high on exposure but low on vulnerability. The report recommends that young people must be brought into policy development and decision-making. The Foreword is written by four young people and includes these fighting words:
Our futures are being destroyed, our rights violated, and our pleas ignored. It is immoral that the countries that have done the least are suffering the first and worst. We must acknowledge where we stand, treat climate change like the crisis it is and act with the urgency required to ensure today’s children inherit a liveable planet.
It's not clear to me why Justice Bromberg took this ground-breaking but also middle-ground position that while duty of care is indeed owed by Sussan Ley, this wasn’t sufficient to compel her to overturn her environmental approval decision. He recognised that this particular mine would have a measurable impact on global emissions: “In my assessment that risk is real – it may be remote but it is not far-fetched or fanciful.” Legal people inform me that Australian law doesn’t allow the courts much discretion to overturn a minister’s decision. It may also be that he wanted, even welcomed, opening up the issue to wider discussion, including in the courts of law. The teenagers’ lawyer, David Barnden, argues that the reasons behind the decision could have implications on other fossil fuel projects in future.
It also leaves Sussan Ley able to appeal the decision, which she is doing – it’s wonderful to know she is devoting our tax dollars to this worthy cause of denying responsibility to children. And of course Whitehaven Coal, at its opportunistic best, also welcomed the decision: “Our consistent position has been that this legal claim was without merit. The company sees a continuing role for high quality coal in contributing to global CO2 emissions reduction efforts while simultaneously supporting economic development in our region.” Yes, the word “reduction” isn’t a misprint!
In my opinion, this highly-publicised legal recognition of duty of care is a way of communicating the climate crisis that we should embrace. Just about every parent I know would/does make enormous sacrifices to ensure a decent life for their children. For example they spend whatever it costs to ensure good health and education (often huge amounts to buy a private education). With a lot of help from Coalition tax settings, these parents work hard to leave generous amounts in their will. For my part, I was very proud of my son (well, a bit of guilt relief as well) – when he said he wasn’t bothered about getting any will money, he just wants my generation to bequeath him a safe climate in which to enjoy that non-money: “go ahead and burn the inheritance, just don’t burn the planet at the same time.”
The framing of climate change as a Duty of Care surely gels with these parental yearnings.
Extinction Rebellion (XR) has recognised the power of this Duty of Care concept and have decided to make it their consistent message in all future actions. In Canberra on August 10th they sprayed “climate duty of care” on concrete outside Parliament, and glued themselves to the ground next to a pram they set on fire. Not everyone’s preferred tactics – personally I thought that burning the pram was a brilliant action to dramatise what the government is doing to Duty of Care, but graffiti isn’t my thing (chalking’s great, though).
From 8am till 9am on September 16th Perth XR is holding a Duty of Care action called Reclaim the People’s Parliament. It hopes to attract enough participants to completely encircle Parliament House, holding hands and facing outwards with placards messaging the Duty of Care theme. It is a family-friendly action, so parents are encouraged to bring their children. The Duty of Care to ensure a safe climate is most relevant to them.
I believe that this messaging is also most relevant to The Greens understanding of our climate crisis and of our commitment to a fair go for children and young people. Therefore we should make it central to our campaigning. The times suit it.
Header photo: A young woman glues her hands to the pavement next to a burning pram outside Parliament House in Canberra, during an Extinction Rebellion climate protest on 10th August. Credit: Extinction Rebellion/AAP
[Opinions expressed are those of the author and not official policy of Greens WA]