Law Research News

Striking to uphold the law?

Dr Rowena Maguire, Dr Bridget Lewis and Dr Hope Johnson from the QUT School of Law discuss recent climate strike action, complacency around the climate crisis, and the need for Australia to have a credible climate policy.

Young people fight for their future

On Friday 20 September over four million people across 163 countries went on strike and marched through their towns and cities to take a stand against a lack of sufficient action to address the climate crisis. The climate strike was inspired by Greta Thunberg, the Swedish teenager who has educated and inspired school children across the globe about the necessity of taking sufficient action now to reduce greenhouse gas emissions. Thunberg passionately reminded world leaders that they should not be turning to children to find hope and or solutions to the climate crisis.

The school climate strike movement in Australia has three key demands:

  1. No new coal, oil and gas projects, including the Adani mine;
  2. 100% renewable energy generation and exports by 2030; and
  3. Fund a just transition and job creation for all fossil-fuel workers and communities.

These three demands are exceptionally reasonable given that Australia is a signatory to the Paris Agreement which has a long term temperature goal of limiting global warming to well-below 2 degrees above pre-industrial levels. Current predictions suggest that urgent action is needed now if there is to be any hope of meeting this internationally agreed target, as a common sign at the school strike reminded us: Denial is not a policy.

The school children on strike talk about their right to a future, an idea encapsulated in the international environment principle of inter-generation equity. This principle, which is part of most international environmental agreements and included in the Paris Agreement, states that current generations hold the earth in trust for future generations and requires that present generations manage the earth and its resources as custodians, as opposed to dominating or acting as masters over nature. In simple terms, school children are asking for leadership on climate change, so that they have a future to look forward to, a future which has diversity in plants and animals, a future that provides clean air, water and food, and a future that is not totally disrupted by natural hazards such as floods, drought, cyclones and fire.

Recently a group of eight Torres Strait Islanders submitted a petition against the Australian government to the United Nations Human Rights Committee. The petition alleges that Australia is infringing their right to culture, the right to be free from arbitrary interference with privacy, family and home, and the right to life. This is the first climate claim against the Australian government on human rights grounds and first claim internationally filed on behalf of inhabitants of low-lying islands.

Strong sense of complacency in Australia

At the 27th Annual Australian and New Zealand Society for International Law Conference in July 2019, Professor Christina Voigt reminded the audience in her keynote speech that international law does not have a great track record of dealing with international crises (such as war, natural disasters or refugees), thus highlighting the importance of taking action in the next 10 years to reduce emissions while there is still time to do so.

There has a been a strong sense of complacency around the climate crises, often justified by the belief that it is not possible to reverse climate change, that economic interests trump other interests and that it is too hard to change behaviour. Climate change is the product of generations of consumption and fetishized economic growth, and addressing it properly will require radical shifts in the way we think about our relationship with nature and a willingness to change the way we live. Consumption for the sake of consumption needs to be called out and questioned, consumption simply to fuel the economy is a misguided approach that underpins the current neoliberal economic model, which is premised on the need for constant economic growth, a goal which even economists acknowledge as being impossible to achieve.

Climate change is a huge problem but rather than articulate it in terms of its human consequences, it is often couched in methodical scientific and policy jargon, language which removes people from the equation, and allows people (especially politicians) to pretend that it does not exist. It is far too easy for our political leaders to hide behind carefully selected facts and figures or to point the blame in other directions rather than tackle the magnitude of the challenge that is before us. We need to start holding our politicians to account individually and asking them directly which side of history they want to sit on. Politicians need to start behaving like their house is on fire.

Australia needs a credible climate policy guided by Aboriginal & Torres Strait Islander knowledge and sovereignty

Australia does not have a credible climate policy, the current mixture of initiatives has been designed with the sole purpose of ensuring “business as usual”. Climate policy in Australia should be guided by Aboriginal and Torres Strait Islander knowledge of country and acknowledge their sovereignty over the land. This policy needs to demonstrate courage and reimagine the future, a future that is not premised upon economic growth, but a future premised on caring for people and the planet. Such a policy would:

  • Build Aboriginal and Torres Strait Islander leadership into its development and implementation;
  • Meaningfully represent the interests of future generations in decision-making;
  • Strengthen democratic institutions to ensure transparency and accountability over decisions that impact the climate;
  • Commit to reducing subsidies to fossil fuel projects;
  • Promote and enable renewable energy investments;
  • Support just transitions to a green economy, including through ensuring workers’ rights
  • Identify meaningful ways to prohibit land clearing;
  • Incentivize and support farmers to introduce climate smart agricultural practices;
  • Encourage local governments to introduce food protection zones to protect peri-urban farmland;
  • Invest in interventions to reduce consumption-based greenhouse gas emissions including by up-scaling public transport and promoting sustainable diets;
  • Encourage a shift away from an economy of consumption to an economy based on compassion and care.

Legal breakthroughs in NSW not applicable in Queensland

Promising developments in New South Wales over the last few months suggest that decision-makers in New South Wales agree with the school children that no new coal mines should be approved in Australia. The Rocky Hill coal mine was refused partially on climate change grounds – wrong mine, wrong time and NSW Independent Planning Commission recently refused to approve the Bylong Valley coal mine solely on the grounds of climate change and intergenerational equity, noting that while the economic benefits of the mine would accrue to present generations, the environmental, agricultural and heritage costs would be borne by future generations. These decisions show that when environmental law principles such as inter-generational equity are considered and applied they result in the inevitable conclusion that new coal mines cannot be justified.

Meanwhile in Queensland, the Adani coal mine has been given the tick of approval by both the governments and the courts, and the government recently extinguished native title over the proposed site, meaning that there are now only very low legal hurdles for the mine to jump before having full legal approval to go ahead. Environmental law in Queensland does not give blanket approval for new coal mines, however the interpretation of the law in Queensland has effectively done so in the past. Queensland courts are not bound by the decisions reached in NSW, but the recent decisions from NSW are certainly persuasive and hopefully influential in guiding future decisions of Queensland courts.

Extinction Rebellion, “emergency” defence and civil disobedience

Future climate action appears to be escalating largely led by the Extinction Rebellion, an environmental group using civil disobedience as a strategy to protest against inaction on climate policy. Extinction Rebellion will be leading a range of activities from 7-11 October across Brisbane and many of the protestors are willing to risk arrest and conviction to make their point. The last time that Australia saw this sort of citizen protest was during the movement to prevent building of the Franklin Dam in Tasmania where 1400 people were arresting (a campaign which was ultimately successful). The Queensland Police arrested 72 activists at the August climate strike for various offences including obstructing traffic and breach of peace. When defending these charges in the court, Extinction Rebellion members will test the extraordinary emergency defence  a defence created to respond to rare situations where a person breaks the law because of an emergency. In the context of the climate protests, the argument is that breaking laws, such as breaches of the peace, is defensible because we are in a climate emergency. Dr Nikki Rogers has just published a book which examines the emergency discourse and the extraordinary emergency defence. The relevant question for the court when considering the defence is “what is reasonable”? When determining “reasonability”, it is suggested that the court needs to take into account the structures that limit what an ordinary citizen can do regarding the climate crisis. When our government is failing to act in response to the impending crisis and citizens’ options are limited, is it not reasonable to take strong action through civil disobedience?

The school climate strike movement, unlike previous environmental law movements, shows some awareness of the impact of colonization upon global environmental degradation. The climate strike rally in Brisbane prioritised Indigenous voices and knowledge, a lesson that should be more broadly adopted in all environmental governance forums. With respect to the climate emergency debate, however, it is really important to acknowledge that there are concerns associated with declaring a “climate emergency” under the law. Emergency framing has historically been associated with the granting of significant power to leaders to take extreme action. In Australia, the framing of emergency was used to justify extreme measures against Indigenous populations such as the Northern Territory Intervention in 2007. Groups concerned with climate justice have advocated against the use of the term emergency on the basis that such framing opens the door for the introduction of untested geoengineering solutions becoming justified or seen as the inevitable action required to reduce greenhouse gas emissions when what is needed is systematic behaviour and economic change.

The window for averting climate disaster is closing and the changes we need to make are daunting. The determination of the school strikers and their supporters will only continue to grow until sufficient action is taken. Their commitment ought to spur us on to make changes in our own lives, and to demand stronger action from our politicians. The younger generation has called on us to act now to assure their future. It is up to us to not let them down.

Dr Rowena Maguire, Senior Lecturer, QUT School of Law
Dr Bridget Lewis, Senior Lecturer, QUT School of Law
Dr Hope Johnson, Lecturer, QUT School of Law

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