Keynote speech: Professor Mary Robinson
Mary Robinson’s keynote speech was on the climate crisis from a justice perspective. She believes that a justice focus helps us remember that this is a people problem. She outlined five injustices in the climate crisis. First, that the climate crisis is felt more severely and earlier in more vulnerable parts of the world, such as Africa and small island nations, and amongst more vulnerable communities such indigenous peoples. Second, there is a gender injustice. Despite having less power and fewer recognised rights, women hold important social roles in communities. Now they have to go further to put food on the table and ensure their communities are resilient. Third, the injustice to children and the intergenerational element of climate change. We have not listened to scientists and children will pay the price and also bear the burden of becoming activists. Fourth, the injustice of different pathways to development. Industrialised countries built their economies on fossil fuels, and when they move away from this it is the workers who will lose their jobs and suffer. For developing countries, they need help in order to develop in a “green” way, but they are not receiving it. And the fifth injustice is to to nature herself.
The next matter Mary focused on was the lessons learnt from COVID-19 that are applicable to the climate crisis. First, collective human behaviour matters, it is the only thing that protected us without vaccines. We need to change our behaviour to combat the climate crisis, and this requires collective action. Second, the importance of government. It was with strong government leadership that, for example, New Zealand was able to open up so quickly. Third, the importance of science. Governments thus need to take strong action and listen to the science experts and take them seriously. The fourth lesson is that of compassion and neighbourliness. This was missing before COVID, and people could not bring themselves to care about countries far away who were suffering from climate change. However, COVID has shown how everyone is truely interconnected.
The final point Mary made was three steps everyone can take to help address the climate crisis. First, make the climate crisis personal by taking steps in your own life, such as recycling, eating less meat, or reducing electricity use. Second, get angry about who should be doing more - governments, corporations and those in positions of power. And finally imagine the world we should be hurrying towards. She finished by reminding us, on a positive note, of the Nelson Mandela quote: “It always seems impossible until it’s done”.
How can Bangladesh strengthen the law in the context of climate change adaptation and equity for women? Judge Fatema Sharna (Bangladesh)
Developing countries are at the frontline of the effects of climate change but are also the least able to respond due to lack of resources. There are different approaches to climate change. Fatema’s focus is climate change adaptation. The IPCC in 2014 defined climate change adaptations as a response to global warming that seeks to reduce the vulnerability of social and biological systems to relatively sudden change and thus offset the effects of global warming. Responds to actual and future climate change. Nations are creating domestic and transnational legal mechanisms to implement this.
Climate change often impacts women more, especially in developing nations. Thus a gender based approach is needed to climate change that ensures their meaningful participation and contribution in climate activities. This is reflected in the Cancun Agreement 2011 and the Lima Work Programme on Gender 2014.
In addition to gender, Fatema’s focus is on Bangladesh. Different countries are experiencing climate change differently and have different levels of climate vulnerability. Bangladesh is one of the most vulnerable nations. In 2007, the IPCC defined vulnerability in the context of climate change as the degree to which a system is susceptible to, and unable to cope with, adverse effects of climate change, including climate variability and extremes. Bangladesh is the 9th most vulnerable nation in 2019 to climate change. This is for two reasons: the frequency and scale of climate disasters, and then geosocial, cultural and economic features of Bangladesh. Within this, women are especially vulnerable. Female climate disaster casualties in Bangladesh amount to four times more than men.
Bangladesh is one of the most active countries in climate issues, signing and ratifying most conventions and treaties. It has also included the Sustainable Development Goals in its seven year fiscal plan. Yet while Bangladesh has a variety of environmental laws, it only has three environment courts. It is also constrained in how far these laws can be enforced. There is therefore still much to be learned from other countries. For example, Bhutan which is the only carbon neutral country in the world. It also has constitutional protection of the environment in Article 5 of its constitution and has adequate female representation in conservation.
From Ripple to Torrent: Riding the Waves of International and Regional Climate Change Litigation: The Hon Justice Rachel Pepper and the Hon Justice Nicole Pain (NSW)
Many governments have laws and policies to deal with climate change issues, but people turn to the courts for enforcement of those laws. Justice Pepper and Pain discuss climate change litigation by reference to the first, second and third waves.
The first wave of climate change litigation began in wealthy countries such as Australia and New Zealand, and included judicial review of particular development approvals. These included determining cases on their merits such as whether construction of a large coal mine should get approval, which could lead to controversy. In the United States, the litigation landscape is slightly different as it reflects the difference in tort law and their public trust doctrine.
The second wave focuses on human rights (specifically environmental rights) litigation. It is now recognised that to have social, cultural and economic rights, and civil and political rights, there must be a healthy environment. In January 2020, the Human Rights Committee decided a case where a man sought to avoid deportation from NZ to Kiribati. He argued that New Zealand had an obligation to not deport him as he could not live safely in Kiribati due to the groundwater suffering from salt water inundation as a result of the rise in sea levels. The Committee allowed him to make a complaint, but the majority held he had not shown that he faced imminent or likely risk of arbitrary deprivation of life. Two members of the Committee dissented.
The success of rights-based litigation depends on the country’s human rights framework, but agenda-evidence is also needed within a robust framework to enable plaintiffs to achieve concrete change. However, a country with a strong constitution protecting environmental rights does not necessarily mean the country is good at achieving strong environmental outcomes. For example, although India has a strong environmental constitution, it was ranked 177th out of 180 countries in the 2018 environmental performance index. To have good environmental outcomes, countries must also have good policy and political will. The judiciary also plays an important role in holding the government to account.
The second wave has only just arrived in Australia. Although there is no explicit recognition of human rights in the commonwealth constitution, the enactment of the Human Rights Act 2019 in Queensland now provides a base for climate change litigation in that State.
The third wave is now upon us and is described as a “possible tsunami”. In the United States, investors have begun to bring class actions against oil and gas companies. The third wave involves commercial and corporate litigation and is thought to be able to do what the first and second waves have failed to do: create economic incentives to mitigate against climate change. However, there is a difficulty in linking the adverse weather events and climate change to carbon emissions by companies. To combat this, regulators are requiring companies to disclose climate risk. In 13 Apr 2021, New Zealand was the first country to introduce legislation to require companies to disclose climate risk in line with Task Force on Climate-Related Financial Disclosure recommendations. Scientific advances help plaintiffs establish the connection between emissions and loss and so climate-attribution science has a very important role to play.
The third wave also includes green-washing complaints: for example, complaints that advertising campaigns promote false information on climate change impacts. For example, there was a complaint to the OECD about BP’s advertising campaign, that it misrepresented to the public by overstating the scale of renewable and low carbon energy in BP’s portfolio. Consumers should be able to make informed decisions.
Hon Justice Teresita Asuncion M Lacandula Rodríguez (Philippines): Philippines Environmental Mediation in Mining Conflicts
The Philippines suffers many environmental issues such as population growth and exploitation of resources for economic growth. Indigenous peoples, farmers, fishermen, women and children are the most affected by the consequences of those environmental exploitations, such as flash floods and extreme weather. Mining conflicts result from the clash of competing interests over resources. For example, the Australian mining company, Oceania Gold, destroyed the homes of people in a village to get access to gold.
The courts in the Philippines have made use of mediation of climate change disputes filed in court as a simple and inexpensive tool to dispose of cases. If the mediation fails, the judge is then tasked with helping the parties reach settlement. Mediation is good as it enables the parties to work towards mutually beneficial solutions, rather than an adversarial process where there will be a winner and loser. Mediation is also a good tool to help mitigate the imbalance in power between parties, for example, between the community affected by proposals and the corporations wishing to exploit the resources.
Hon Justice Christian Whata (NZHC)
Having an understanding of matauranga Maori (Maori knowledge or system of knowledge) and environmental jurisprudence can help one to understand the discourse relating to climate change. The concepts of whakapapa, whanaungatanga and kaitiakitanga are important principles for conceiving the environment. But there is a problem of translation that prevents these concepts from being fully understood.
For Maori, the world is defined by whakapapa and the connection to all things. This is evidenced in the pepeha: one defines themselves in relation to various environmental landmarks, but those relationships are not defined as ownership or control. The kauri tree is a good metaphor for this: for it to survive, it must be firmly rooted in the ecosystem. If kauri die in large numbers, the whole ecosystem dies with it.
Concepts of kaitiakitanga or guardianship are recognised in the Resource Management Act 1991, but there is a translation problem that results from people looking from the outside in, rather than from the inside out. This results in a misunderstanding of these concepts which leads to adverse outcomes in litigation. For example, in the Friends and Community of Ngawha Inc case, the Environment Court (upheld by the High Court, and then Court of Appeal) held that the term “environment” does not extend to protect the taniwha or other mythical and metaphysical beings. That decision completely misses the point. But there are cases being decided at the moment (he is probably referring to Ellis before the Supreme Court) and the Ngati Hokopu decision by Judge Jackson that may help with properly understanding and applying these concepts.
Hon Justice Germana de Oliveira Moraes (Brazilian Federal Court)
The Andean concept of Pachamama conveys the symbiosis between humankind and Nature, giving Nature due respect. It was an accepted worldview centered on Mother Earth and is known in South America as Well Living (Buen Vivir). As part of the 17 Sustainable Development goals, we must give a voice to Mother Earth. One way to do this is for the United Nations to draft a Universal Declaration of the Rights of Mother Earth to complement the United Nations Declaration of Human Rights.
Reported by Rachel Buckman and Xin Yee Lau