Abstract
In her article, ‘Time and narrative in climate litigation: Reflections on Pabai v Commonwealth of Australia’, Joanna Kyriakakis explains how Torres Strait Islander elders’ attempt to ground a climate negligence claim in the history of colonialism clashed with the narrow scope of Western legal frameworks.
Part One
Purpose: To understand the background of climate litigation in Australia.
Background: In understanding the development of the common law, it is important not to consider cases as isolated events. For example, Kyriakakis observes that ‘Pabai follows up on the earlier negligence-based climate litigation, Sharma v Minister for the Environment (Sharma)’. To appreciate the significance of Pabai, we need to know what happened in Sharma and why.
Instructions: Conduct some research using legal and news media sources. Write a brief (one page) case note summarising Sharma, focussing on these key questions: • Who were the plaintiffs in Sharma? • What was the role of the litigation guardian? • What was the duty of care the plaintiffs argued for? • How was the case decided at first instance, and why? (That is, to what extent did the court agree with the plaintiffs, and to what extent did it disagree?) • How was the case decided on appeal, and why?
Part Two
Purpose: To understand how the Pabai plaintiffs sought to develop the common law.
Instructions: Conduct further research, using the article as well as legal and news media sources. Write a brief case note summarising Pabai, focussing on the following key questions. • Who were the plaintiffs in Pabai? • What was the duty of care the plaintiffs argued for? • What are the similarities and differences between this and the duty argued for in Sharma? • Why was it important for the plaintiffs in Pabai to frame their case in a different way? • How was the case decided at first instance, and why?
Part Three
Purpose: To consider whether courts or parliament should take the lead in law-making.
Background: Kyriakakis notes that ‘Wigney J is sympathetic to the applicants’ case’ in Pabai, and finds that ‘the applicants proved the factual allegations underpinning their claim in most material respects’, including ‘accepting their scientific evidence’ and the fact that ‘the relationship between the parties is distinctive and something more than’ the usual governmental relationship. However, she suggests the case failed because Justice Wigney considered that it raised matters of ‘high or core governmental policy and political judgment’ that are ‘inappropriate and impractical’ for judges to assess.
Instructions: Conduct a debate on this topic: ‘Courts should not be afraid to make common law that protects the community from harm, and if politicians disagree they should use parliament to abrogate those decisions.’