The Duty to Adapt to Climate Change

Master Thesis


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University of Cape Town

The UNFCCC predicts that it is highly likely that global warming will cause sea-levelrise and coastal inundation and that may cause extensive damage to coastalproperty owners. There is little we can do to prevent these coastal hazards, but wecan adapt to climate change. This dissertation explores the possibility of theexistence of a legal duty to adapt to climate change in the legal jurisdictions ofQueensland, Australia and South Africa. It is argued that such a duty will most likelyfall on the government of a legal jurisdiction. The relevant policy and statutoryplanning regimes of both jurisdictions is firstly explored, from wide overarchingenvironmental policies to more specific planning statutes. Generally, the variouspolicies and statutes in both jurisdictions require public authorities to integrateclimate change considerations into planning decisions and decisions relating toenvironmental impact assessments, but this cannot be said to be a legal duty toadapt to climate change. It is then explored whether the duty can be said to exist incommon law. The common law is an ill-suited instrument to deal with modernissues such as climate change, owing to its roots in the industrial era. However, it isinherently flexible and is capable of being developed by the courts. Its application inthe public sphere is restricted by the doctrine of the separation of powers and socalled'tort-reforms.' The focus of this inquiry is on the 'duty of care' doctrine of thetort of negligence as applied in Australia and the element of 'unlawfulness' in theSouth African delictual system. The possibility of there being a duty of care on theQueensland and Commonwealth government towards coastal private propertyowners to adapt to climate change is dependent on the interpretation of tortreforms and the development of rules regulating the role the judiciary plays inpolicy-making. In South Africa, whether it is unlawful for the State to omit to adaptto climate change might well depend on State resources and the interpretation ofthe Constitution and its role in the common law.