Sharma ex rel Sister Brigid Arthur v Australia (Minister for the Environment): A Unique “Anns-wer” to Public Authority Non-Liability for Climate Change Harms in Canada?

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Abstract

In Sharma ex rel Sister Brigid Arthur v Australia (Minister for the Environment), [2021] FCA 560, the Federal Court of Australia imposed a duty on the Minister for the Environment to take reasonable care, when exercising her statutory powers to approve (or not approve) a mine extension project, to avoid causing personal injury or death to Australian children arising from greenhouse gas emissions. This is the first time a common law jurisdiction had imposed a climate change–related duty of care on a public authority under negligence law. Before the decision was overturned, Australian legal scholars and the environmental community were hopeful that the decision would create pathways to recovery for climate change victims elsewhere. This article provides the first in-depth examination of Sharma and its application in Canada. It focuses on proximity at step one of the Anns/Cooper duty test and draws from Professor Bruce Feldthusen’s scholarship on unique public duties and the Canadian duty case law. The author argues a Sharma-type duty to avoid or protect against climate change–related physical harms would likely not be recognized under Canadian negligence law because it lacks sufficient private party proximity. The Federal Court of Australia had actually created a unique public duty of care based on a questionable assessment of double foreseeability. It is unique because it is based on a relationship that would not be sufficiently proximate to impose a duty of care on a private party defendant in the same situation. The author further argues Canadian courts would not recognize a Sharma-type unique public duty because it would be distinguishable from the existing and rare unique public duty precedents in Canada. It also does not align with the Supreme Court of Canada’s recent emphasis on proximity and its shift towards a corrective justice or rights-based approach to the duty of care analysis since Cooper. So long as this approach prevails over instrumentalist goals and social policy, common law negligence will not be the tool for regulating Canadian public authorities and their climate change–related discretionary decisions.
Original languageEnglish
Pages (from-to)181-220
Number of pages40
JournalMcGill Journal of Sustainable Development Law
Volume18
Issue number2
Publication statusPublished - 2022
Externally publishedYes

Keywords

  • Tort
  • Negligence
  • Duty of care
  • climate change litigation

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