Could the Public Trust Doctrine be used for climate litigation in Australia? The modernisation of the Public Trust Doctrine in the US and Canada in the context of the climate emergency

摘要

Australia has reached a point in time where urgent decisions must be made to prevent the most catastrophic effects of climate change. Rather than take reasonable steps to avoid this outcome, actions are being taken in Australia that exacerbate the problem. Australians expect that our environment will be protected and maintained in perpetuity for current and future generations. This is particularly true in relation to places such as the Great Barrier Reef and other places of outstanding natural value but also, especially after the bushfire season of 2019/2020, the air and the atmosphere. The PTD could be a legal mechanism through which the Commonwealth or State/Territory governments owe a duty to the public to ensure continued maintenance and access, use and enjoyment of Australia's environments. The new generation PTD proceedings from the US and Canada are aimed at modernising the PTD as is relevant to the primary threat to many of our natural resources - catastrophic climate change. Analysing Juliana and La Rose gives us a sense of how the PTD might be applied in the Australian context. Now is the time for Australian lawyers to consider how the modernisation of the PTD could be the key to a new era of climate litigation to protect our environment.