Updated: Oct 3, 2021
By Dr Terri Janke, Clara Klemski and Laura Melrose
The Black Summer bushfires of 2019-20 caused unprecedented devastation across large swathes of land in NSW and other parts of Australia. Environmental experts cited human-caused climate change as a significant contributing factor to the disaster, warning that impacts will worsen as fire-prone weather becomes more frequent, prolonged and severe.
On 26 August 2021, a landmark decision was handed down by the NSW Land and Environment Court (NSWLEC) in Bushfire Survivors for Climate Action Incorporated v Environment Protection Authority  NSWLEC 92. The Court found that the state Environment Protection Authority (EPA) has a statutory duty to specifically address climate change in its objectives, policies and guidelines, and that to date it has failed to do so.
The decision has implications for landowners, including land and native title rights holders, rangers and environmental managers in NSW and signifies an emerging trend to draw upon international policy guidance for local decisions due to the global impact of climate change. It further supports the reasoning and wider ramifications of the Federal Court decision in Sharma by her litigation representative Sister Marie Brigid Arthur v Minister for the Environment1 and the Hague decision in Friends of the Earth v Shell, both of which were made in the context of international reports on climate change.
This article outlines the issues in the Bushfires case and consider how Indigenous knowledge has a role to play in adapting to and managing climate change.
Bushfire Survivors for Climate Action (BSCA) is a group of people affected by bushfires, including survivors, primary producers and agriculturalists, firefighters, and local and regional community leaders. Represented by the Environmental Defenders Office (EDO), BSCA brought a case in April 2020 following the Black Summer bushfires.
The case was a judicial review appeal in the NSW LEC seeking an order compelling the EPA to perform a statutory duty to develop environmental quality policies that would ensure the protection of the environment from climate change by measuring and regulating greenhouse gas emissions.
The case centred on section 9(1)(a) of the Protection of the Environment Administration Act 1991 (NSW) (POEA Act), which imposes a statutory duty on the EPA to protect the environment. That section provides:
9 Powers of Authority relating to environmental quality
(1) The Authority is required to—
(a) develop environmental quality objectives, guidelines and policies to ensure environment protection, and
(b) monitor the state of the environment for the purpose of assessing trends and the achievement of environmental quality objectives, guidelines, policies and standards.
BSCA argued that the duty under s 9(1)(a) of the POEA Act included a specific content requirement that the EPA address climate change as part of its environmental protection, as climate change constitutes a ‘significant threat’ to the environment in New South Wales. In making this point, BSCA relied on the Sixth Assessment Report from the Intergovernmental Panel on Climate Change, AR6 Climate Change 2021: The Physical Science Basis (IPCC Sixth Report), which was released three days before the hearing.
In the alternative, BSCA made two further arguments. First was that s 9(1)(a) is a purposive duty under public law that ought to include climate change considerations as ‘reasonably necessary’ to achieve the purpose of environmental protection. Second was that if there was no duty to include climate change in policy for environment protection, the EPA nevertheless had a discretion to do so, and it would be unreasonable to exclude climate change from those objectives, policies and guidelines.
The EPA contended in arguments that the duty in s 9(1)(a) did not demand that it develop instruments to ensure specifically that the environment in New South Wales is protected from climate change. It further argued that though the legislation did not demand it, the EPA had produced sufficient policies and instruments to discharge its duty under s 9(1)(a) and had addressed climate change in those instruments.
Three main issues were considered by the Court:
The nature and content of the duty imposed on the EPA by s 9(1)(a) of POEA Act;
Whether the EPA is in breach of the duty under s 9(1)(a); and
If the EPA is in breach, what order should be made to remedy the breach of duty.
Decision Chief Justice Preston found that the duty under section 9(1)(a) of the POEA Act included a specific duty to develop the requisite instruments to ensure protection of the NSW environment from climate change. In so finding, Preston CJ categorised the POEA Act as ‘always speaking’, rejecting the EPA’s contention that the duty was non-specific and finding that the duty would evolve in context to embrace changes in the type, magnitude and impact of threats to the environment in NSW.
The Court considered at length the IPCC Sixth Report brought by BSCA in evidence for their claim that EPA policies must regulate and reduce direct and indirect greenhouse gas emissions consistent with limiting global temperature rise to 1.5°C above pre-industrial levels. Preston CJ accepted the evidence of climate change as established by the report, though eventually ruled that it was beyond the scope of the duty to prescribe specifics of a policy within those instruments.
In defending the charge that it had breached its duty under s 9(1)(a), the EPA relied on seven documents in evidence. Two were prepared by other government agencies, to which Preston CJ ruled the EPA must develop the instruments itself and not delegate the responsibility. The remaining five were better described as ‘ancillary’ to climate change and were deemed insufficient to meet the statutory description. Though climate change was noted as a challenge to be addressed, Preston CJ in his assessment used the words “general and trite” and “hortatory and aspirational, not action forcing” to describe the documents.
The Court found that the EPA was in breach for non-performance of the statutorily imposed duty. It was subsequently ordered to develop environmental quality objectives, guidelines and policies to ensure environmental protection from climate change within New South Wales.
The Bushfire Survivors case is a new addition to a quickly growing landscape of climate change litigation in Australia. In May 2021 the Federal Court of Australia in Sharma v Minister for the Environment ruled in favour of the plaintiffs, a group of school children, and found that the government has a duty of care to consider, address and mitigate climate change in order to avoid causing injury to children.
The Sharma decision is being appealed by the Minister and it will be interesting to see how these findings are considered. It remains to be seen how the EPA will respond to the Bushfire Survivors decision, whether by appeal or by complying with the directive to develop specific climate change instruments.
Other notable takeaways from the Bushfire Survivors decision include:
Acceptance of climate change science by the courts – there is no longer a need to prove the ‘if’ of climate change, just the impacts and causal relationship;
Adaptable and evolving standards of environmental protection – the law evolves with new developments in scientific knowledge, meaning that statutory duties must be construed by reference to contemporary standards;
The public interest test required under Australian planning and environmental laws now necessarily includes consideration of climate change impacts for new approvals.
Cases like Bushfire Survivors and Sharma represent a strong response to the declining willingness in recent years of the EPA and other organisations like it to take meaningful action on climate change, and an increasing drive from the community to hold such organisations to account. They also demonstrate a new footing for climate change litigation in the public sector, from previous cases involving project proponents (like the Rocky Hill decision) or against companies investing in fossil fuels (Mark McVeigh v REST). Government and public agencies will continue to be held accountable for their policies, frameworks and actions relating to the impacts of climate change.
A need for cultural knowledge? First Nations peoples have been conducting cultural burns and traditional fire management practices across Australia for tens of thousands of years. Meaningful engagement with First Nations peoples in environmental policy may therefore significantly assist in adapting to its impacts.
For example, the year leading up to the Black Summer bushfires was the hottest and driest on record, with many parts of south-eastern Australia in severe drought for the years preceding. These dry conditions resulted in fewer safe days for hazard reduction burns, leaving dangerous quantities of fuel just waiting for a spark. Conventional hazard reduction burns are often started from the air and carried out during working hours. By contrast, cultural burns are carried out on foot, carefully monitored by people on the ground and can be lit during more favourable conditions in the early morning or late afternoon. They burn through dense undergrowth and leave the trees’ upper canopy untouched, creating prime conditions for native flora and fauna.
Cultural burns are necessarily more labour-intensive and must be adapted to different environments, but in circumstances where large-scale hazard reduction burns are being cancelled for their high risk factor, it’s hard not to see the value of a smaller, ‘cooler’ burn off.
A shift in focus toward increasing joint management between First Nations peoples and National Parks and incorporating Indigenous ecological knowledge in co-designed fire management plans could be part of the solution. In considering this approach, Professor Lynette Russell of the Monash University Indigenous Studies Centre warns that First Nations People must be afforded time and resources to re-learn their traditional practices, as they’ve been unable to conduct them with the same freedoms they once did:
“It’s very important that Aboriginal people are not set up to fail… Aboriginal communities don’t want to get this wrong. Where people have lost their knowledge, we have to be working carefully with them as they try new methods.”
Court decisions like Bushfire Survivors shine a light on the opportunities that government bodies like the EPA have to engage with First Nations peoples in the development of objectives, guidelines and policies that meet their statutory duties and realise the value of traditional practices.
Fires burning on the South Coast of NSW, 2019
Smokey skies over a South Coast NSW beach
Burnt leaves on the beach