A class action launched on behalf of young people everywhere seeks an injunction to stop the Australian government approving an extension to Whitehaven’s Vickery coal mine, arguing it will harm young people by exacerbating climate change.
The injunction, filed in the Federal Court on Tuesday, is a first for Australia.
An expert says it could break new legal ground with widespread ramifications, causing problems for any new coal mine in Australia – and possibly any fossil fuel project – if it is successful.
Though the injunction itself is unique, it is part of a growing wave of climate litigation in Australia and comes less than two months after 23-year-old Melbourne law student Katta O’Donnell filed a class action against the Australian government for failing to disclose the risk climate change poses to Australians’ super and other low risk investments.
Izzy Raj-Seppings, 13, is one of the representative plaintiffs in this new case, and filed the injunction along with seven other young people aged from 13 to 17 – many of whom met during School Strike 4 Climate and were looking for more ways to take action.
The Sydney high school student made headlines last year when police ordered her to move on after organising a School Strike 4 Climate protest outside the Prime Minister’s Kirribilli residence.
She said climate change worried her, but taking part in action such as the lawsuit gave her hope.
“We’re trying to get the federal Environment Minister to prevent the Vickery coal mine going ahead because we believe she has a duty of care for young Australians and young people all over the world,” Ms Raj-Seppings said.
“I definitely have hope because if you look around, you can see all the incredible climate activists, young and old, all these people fighting for what’s right.
“And we are making change.”
First of its kind
Rather than making the claim under environmental law, the class action claims the federal minister, Sussan Ley, has a common law duty of care for young people and cannot approve actions that will make climate change worse.
The class action argues that by digging up and burning coal, climate change will be made worse and that will harm them in the future.
David Barnden from Equity Generation Lawyers, who is representing the students, said the impacts of climate change on youth go “over and above regular people” because of their age.
“The law operates to protect vulnerable people by saying that people in power have a duty to protect them,” Mr Barnden said.
“In this particular case, we say that the Environment Minister has a duty to protect vulnerable people.
“What this case does is say that ‘the coal needs to stay in the ground and it can’t be burnt’.
“And the minister has the obligation to protect younger people and not approve the mine.”
Mr Barnden is a specialist in climate litigation and is also representing Ms O’Donnell in her action against the Federal Government as well as 26 year-old Mark McVeigh, who revealed in January he is suing super fund REST for not doing enough on climate change.
This new case is a class action, with the eight young people claiming to represent every person in the world under the age of 18.
Class actions allow a group of people to bring a legal action on behalf of a larger group who are affected in a similar way.
Mr Barnden argues a precedent for this case was set in 2016 when an injunction stopped the then minister for immigration from moving a refugee to anywhere besides Australia, because he had a duty of care for her.
Emrys Nekvapil, one of the barristers who won that case, is also representing the students.
‘Huge ramifications’ for coal
The mine at the centre of the case is Whitehaven’s proposed extension to the Vickery Coal Mine north of Gunnedah in NSW.
Whitehaven’s application to build the extension is now before Environment Minister Sussan Ley, who must decide whether to approve it or not.
The case asks for an injunction on the Minister’s decision.
If it proceeds, additional coal from the mine extension will create roughly 100 million tonnes of CO2-equivalent greenhouse gasses, according to the NSW Independent Planning Commission — or about as much as is created each year in Australia by all forms of domestic transport combined.
Whitehaven did not respond to a request for comment.
A spokesperson for Environment Minister Sussan Ley confirmed they received the injunction application, but could not comment as the matter was before the courts.
The young people and lawyers behind the injunction application said it was about much more than one coal mine.
“If we win and if we can injunct the minister from making a decision to approve it, it could have huge ramifications for other new coal mines in Australia,” Mr Barnden said.
“And it might mean the end of any new coal mine in Australia.
“We’re playing to win.”
Barrister and legal academic Chris McGrath said the case would be difficult.
“That’s the nature of big litigation like this,” Dr McGrath said. “You’re breaking new ground – they’re hard by nature.
“You can see a whole heap of obstacles and things that will be thrown up by the government to try and hinder the case going forward and block it.”
Dr McGrath said even they did win, the impact was unclear.
He said it would be a thorn in the side of fossil fuel projects in the future, but governments would likely still be able to find ways of approving coal mines.
But according to Izzy Raj-Seppings, allowing coal mines to go ahead – no matter where the coal was burned – is harming her future.
“It will create more climate refugees and we’ll have a lasting health impact on all of us,” she said.