Outline
This workshop by the Commonwealth Lawyers Association (CLA), held on 30 August 2023, examined strategic climate litigation opportunities focusing on the Pacific, using a potential claim for damages by customary landowners in the Carteret Islands east of Bougainville, Papua New Guinea, against Australia’s largest climate polluter, the operator of the Loy Yang A Power Station, as a practical case study for problem-based learning.
Common themes for constitutional claims based on human rights as well as common law claims across the Pacific were discussed from the perspective of lawyers seeking remedies for clients impacted by climate change.
Key points
Key points made were:
- A global challenge for lawyers now and in coming decades is to find remedies for people harmed by climate change.
- Widespread liability for climate change already exists under current national laws but is largely unrealised at present.
- Transnational liability for climate change arises under both the common law and statute for actions in one country that result in damage in another country.
- Transnational litigation between private individuals provides an avenue to sue under existing domestic laws in national courts for harm caused by emissions in other countries, such as Australia, and compel payment for damages through existing frameworks in many countries recognising foreign money judgments.
- The human rights protected under many Pacific constitutions offer valuable causes of action for transnational climate litigation, coupled with common law claims such as public nuisance.
- In cases where there are multiple sources of harm, such as climate change, legal liability for individuals typically arises from making a “material contribution” to the harm.
- Limitation periods for many causes of action are not a barrier to climate litigation as damage such as sea level rise from past carbon pollution is ongoing, therefore, a cause of action continues to arise for many claims such as common law claims for public nuisance.
- In assessing damages for climate change, such as forced relocation of villages, awards for exemplary damages to remove commercial profits of polluters should play a substantial role, applying similar reasoning to the PNG Supreme Court in Rimbunan Hijau (PNG) Ltd v Enei [2017] PGSC 36; SC1605 at [51], given the ongoing enormous greenhouse gas emissions and extraction of fossil fuels in countries such as Australia, which are done for naked commercial profit in total disregard and disrespect for the rights and interests of people of small island states in the Pacific and elsewhere impacted by climate change.
- Transnational claims for climate damages are strategic litigation in the sense they are undertaken for wider purposes than simply the specific legal remedy between the parties before the court. Their strategic purposes include to:
- empower people and communities suffering from climate damage to take action and fight for justice in their own national courts, thereby providing access to justice;
- demonstrate widespread legal liability exists under current laws and many people can claim compensation for the harm they suffer from climate change;
- demonstrate that large climate polluters can be held liable for the damage they knowingly or wilfully cause for commercial profit;
- encourage a wave of litigation against climate polluters undertaken by commercial law firms and litigation funders; and
- deter companies and industries undertaking or financing climate polluting activities for profit, thereby mitigating future climate change.
The speaker
Dr Chris McGrath is an Australian barrister whose practice focuses on climate litigation as well as illegal logging in Papua New Guinea where he currently acts in two large class actions for thousands of customary landowners. He has acted as counsel in numerous large and complex cases against Australian coal mine and their carbon pollution and other environmental impacts. His website, Environmental Law Australia, provides case studies of many of the climate cases he has acted in. The workshop was based on his previously published research.
Moderator: Fiona Ey
Recording
The workshop was recorded and is available via Youtube:
The recording is also avaiable on the CLA webinar archive page.
Workshop paper
A workshop paper is available at this link.
Slides
Slides for the workshop are available at this link.
Q&A
Answers to questions posted in the Q&A during the workshop are available at this link.
References
Chris McGrath “Identifying Opportunities for Climate Litigation: A Transnational Claim by Customary Landowners in Papua New Guinea against Australia’s Largest Climate Polluter” (2020) 37(1) Environmental & Planning Law Journal 42-66.
Chris McGrath, “Survival strategies for climate litigators” (2021) 27 Pandoras Box 39-51.
