Chief Judge of environment court exhorts lawyers to imperial expansion of the sector
Tom McLoughlin, solicitor NSW, Bsc(zoology)/Llb hon, principal ecology action Sydney http://cpppcltrust.com/ecologyactionsydney , editor sydneyalternativemedia/blog
Opening address by Brian Preston Chief Judge NSW Land & Environment Court at Beyond Environmental Law conference
Preston CJ was inspired – or perhaps simply reading the riot act given the ‘environmental crisis’ - in his opening address to the annual EDO conference recently called Beyond Environmental Law 16-17th February 2007:
The Judge exhorted the full house of academics and practitioners numbering some 200 to make environmental law the “over arching” paradigm for land, constitutional, criminal, corporate, tax, contract, international and other legal disciplines. He noted this form of conference was first done in 1991 via Tim Bonyhady at ANU (this author’s lecturer in 1984, refer Tim Bonyhady, The Colonial Earth. Melbourne: The Miegunyah Press ) and suggested quite radically:
Picture: arrival first morning of conference
“Property law can be adapted to the environmental crisis and put into service of a habitable planet”
Similarly he noted
- constitutional law could address climate and water needs,
- human rights law could embody right to clean air and water to sustain that life,
- environmental law devices are already applied in criminal law (strict liability, mandatory reporting),
- tax law and the need to remove perverse incentives,
- corporate law adopting social and environmental objectives not only financial,
- torts eg toxic torts as per Erin Brockovich http://en.wikipedia.org/wiki/Erin_Brockovich; positive duties of care argued by Joseph Sachs; and wider notions of who is my neighbour beyond Lord Atkin in Donohue v Stevenson (the famous contaminated ginger beer case)
- on legal access the notion that the environment should have standing
- trade law barriers founded on good science regarding customs and quarantine
It was during this soliloquy I noticed the Judge adopt ‘the Josiah Bartlett pose’ (hands in pockets, lean back with relaxed confidence) made famous in the West Wing TV series episode 44 "Two Cathedrals", probably the best episode of the 7 series of shows. I was too busy listening to get a picture of the stance in time.
Picture: Beryl Timbery-Beller of La Perouse gives a lively and gracious Indigenous welcome to country by permission of traditional custodial of the Cadigal People (Alan Madden). Brian Preston Chief Judge of the Land & Environment Court is seated 2nd on the left, with 4th from left is Cambridge University keynote speaker Professor Kevin Gray .
The energy of his friendly speech belied a physically greyer, more pinched, and paunchy figure than I remembered.
As he spoke the eyes of eminent Prof Kevin Gray of Cambridge, the key note speaker and author of a 1700 page tome on Land Law, sitting nearby were widening with I think admiration at the zeal of sleek Preston CJ (also an author of Environmental Litigation. What a brain they both are.
It was enough to give nightmares to CEOs and their paid off pollies and big media everywhere more interested in profit margins at any development cost (witness the determination to keep ‘clean’ coal mining as our number one export earner in the news recently).
Mind you Preston is a very pragmatic judicial officer. This author well remembers working as a paralegal to solicitor Bruce Woolf in Diamond v Baulkham Hills Council &Anor 10064 of 1998, the PF Formations sand mining case, when Preston walked into the pre hearing conference. My role was to assist applicant Neville Diamond but instead I was turning a shade of ghostly white at the eminence of counsel for the pro mining Council consent authority. It was my own Erin Brokovich moment. And like the good Erin we forced the wicked sandminer and Council and yes their counsel Preston ‘to save’ the bush on Trig Hill at Maroota by way of settlement orders by consent.
I say ‘save’ in the Maroota conflict because PF Formations just cleared parts of it anyway a few years later in contempt of the court orders, and presumably sand mined it for the Olympic construction programme in 2000 or thereafter, which indeed echoes a depressing theme in the scholarly conference proceedings of defeats rather than victories at law.
The key note speaker Professor Gray in his speech about “takings” by government of private property echoed the sad realities of life in the case of Lucas V South Carolina Coastal Council 505 US 120 L Ed 2d 798 (1992) where the council regulated to protect coastal land from development, was forced to pay compensation to the developer, and then sold it off for development to cover its financial losses in the litigation. The only winners were the lawyers, cynical politics and the new developer.
Picture: Rory Treweeke Chair of the Western Catchment Management Authority asks Prof Gray about native vegetation clearance regulation in NSW. The conference was referred earlier to Gray’s paper which addresses farmers concerns about legality of NSW govt interference, at p12 “Once it is conceded that statorily authorised regulation may sometimes be classifiable as a virtual expropriation which requires compensation, a vital focus is inevitably thrown upon the common law understanding of the key terms, ‘property’ and ‘taking’. It is here formidable problems emerge, rendering it unlikely that common law takings doctrine can catch anything other than fairly rare and exceptional instances of regulatory intervention…..”
This author reports on some of the real politik in Big Media on native veg clearing here: Miranda Devine airbrushes bushfire arson motive at Goonoo, backs redneck attack on scientists, public servants
At index.blog?topic_id=1083881 [see entry 9th Feb 2007]
Cambridge Professor Gray seemed in sync with Judge Preston with support for “a new modern model of civic morality” regarding land use.
Details of the conference
This was a great and good conference organised by the Environmental Defenders Office, Sydney University, Australian Centre for Environmental Law, with sponsorship from Malleson’s Stephen Jacques a big commercial firm – even as the environment movement is losing the war despite the odd legal victory, and why perhaps Preston CJ was exhorting greater exertions and indeed greater courage from the audience.
The conference organisers are referenced here:
and the venue is here
Conference agenda is here:
Picture: (left to right) Some but not all of the excellent speakers Magistrate David Heilpern (criminal law with image of Kirribili House protest) with the cheeky demeanour of a young Rumpole, Prof Hope Ashiabor (tax) with the style of a West Indian criketer, Jessie Connell Llb hons (private international) beauty exceeded by brains, Karen Bubna –Litic UTS senior lecturer (corporate) a sharp feminista right out of West Wing series, Dr Peter Cashman Vic Law Reform Commission (torts) very dry at times cynical wit, Prof Jan McDonald (international trade) radiating scholarship and kindness.
Vocational activist perspective
This writer, a public interest lawyer with 15 years of green activism and a science (zoology) degree spends most time on media and environmental policy analysis for blogging in what I call the fifth estate to pressure the 1st to 4th estate. We first read about the EDO conference only a day prior. Two phone calls, one rebuff, an email of my 2003 EDO conference report, and I effectively jumped “15 others already turned away” to attend on the promise of this community media report and maybe some fees for Continuing Legal Education (CLE) credits (1 point per hour, minimum 10 per year). Thanks to organiser Val Carey (Sydney Uni Law School) and Tisha Dejmanee (EDO) for the conference registration, not least the impressive folder of papers.
As an overeducated agitator, into rock climbing as well as intellectual thrill seeking, my skills base is both a help and a hindrance at such forums. Really an activist amongst wage slaves, I am inevitably perceived as a bit loud, a bit of a smart alec, which is surely accurate but also a virtue for pesky reporters. On the downside being a conceptual ‘free climber’ one does tend to feel like the proverbial Cassandra: My opinions tend to be found correct perhaps years later when all is lost and too awkward to honestly review: Like the 70 million tonnes of woodchips from natural forest since 1996 under both Coalition federal but also ALP state governments such as here:
Carr dodges 95-99
Carr alp dodges 1999-2003
or the phoney basis of the ‘Lake Cowal ‘Environmental Trust’:
Nov 06 - Alarm of independent greens over miner 'Environment Foundation' pay off to badly compromised 'peak' greens
Here are some revealing images below from our dusty files of that Maroota sand mining scourge mentioned above still going on today 40 km north west of Sydney, the top set showing damage to the remnant bushland of local landmark Trig Hill public reserve gradually chipped away in breach of court approved consent orders such as this:
“1.3 Land Excluded from Development The Maroota Trigonometrical Reserve and part of the Shale Sandstone Transition Forest …shall not be extracted and accordingly will be excluded from the phasing of development otherwise approved by this consent”
The whole Maroota region 40 km north west of Sydney is under the shadow of a bipartisan State Govt economic policy in support of the Sydney construction industry.
Picture: (from top left to right) (1) trees felled to (2) camouflage something worse namely a wide illegal bulldozed track down to an adjacent sandmining area, with (3) more illegal clearing at the lower edges of the reserve (3 and 4), presumably to end up similar to images 5,6,7,8 and 10 (taken at another nearby PF Formations Pty Ltd sand mine. Second last image (9) is the Maroota valley itself below the sandming precinct.
So literally I write a report of my conference experience with a heavy heart at the surreal situation we are in of dangerous sea rise yet life as usual: Preston CJ is quite right to assert moral superiority over all other legal pursuits in this light: Ecology (my science degree) is the new dismal science trumping economics for that salutation now. Like the figure in the Radiohead song There There here on YouTube
most truly dedicated activists (like Bruno Manser http://borneoproject.org/article.php?id=273 )
are fated to a singular lonely end in a forest or similar, hopefully with that haunting tune alongside. But until that time comes we dedicated downshifters have a moral licence to sharply analyse society and the legal and environment movement colleagues in that paradigm without fear or favour. As Peter Garrett has been known to sing in an earlier career
“The bombs never hit you when you're down so low” in Read About It,
whether enemy or friendly fire. Similarly The essence of good report writing is talking about real stuff and may it be so here.
Brian Preston was dead right. Even if the audience perhaps didn’t fully understand his imperialistic battle cry to colonise, indeed annexe the rest of the law in this unprecedented time of climate unravel danger and immorality, which is surely required. This writer has traversed the largely unreported urgency here over dangerous sea level rise sourced to Dr James Hansen of NASA, Dr Chris West, director of UK Govt Climate Impacts Programme, and locally Professor Tim Flannery here globalWarming . Here are some of the stories in this rapidly emerging reality written February 2007 latest to earliest:
New Scientist Feb 10th on global warming - Big Media are sanitising the threat
Turnbull, China/India coal use, pioneering Montreal Protocol and West's capacity to ban carbon intensive imported goods
Washington Post brackets PM Howard and coal global warming problem
Australian of the Year, Professor Flannery calls for coal industry shut down
'West must cut first' says China in greenhouse game of deadly chicken
Chocolate pollies in choccy parliament melt in the global warming?
NASA director agrees sea rise is the major threat
Sea level rising 12 metres if Greenland and West Antarctic ice melt , and likely they will
1/2 metre sea rise? Try 5+ metres and ignore Big Media deception
Indeed it became apparent the well intentioned conference presenters and audience were not really aware of this fast moving recent advice from the world’s leading scientists on dangerous sea rise. Which did not bode well for the 70% of Australians with no tertiary education.
Balanced against this whistle blowing, no less than 3 conference presenters (heavy weight constitutional law author Tony Blackshield, consumer rights litigation lawyer Peter Cashman, and indirectly senior corporate law lecturer UTS Karen Bubna-Litic) noted a grotesquely biased article in the Daily Telegraph of that day 16th February 2007 stating:
“Climate doomsayers are just full of hot air” by “Associate Professor Stewart Franks ….a hydroclimatologist at the University of Newcastle”.
Similarly we have denial from such as Catholic Cardinal of the Archdiocese of Sydney, George Pell here a day after the conference:
Keeping a cool head amid warming hysteria Sydney Sunday Telegraph 18th Feb 07 p7 Opinon section.
A strange blind sort of contribution quite out of step with most other Christian environmental thought when perhaps 100 million lives are in immediate jeopardy in low lying areas, putting Pell way out of his depth: For instance in 2005 http://catholicearthcareoz.net/conference.html
And in 2006
It still looks quite safe to take Australia and the world’s best scientists at their word over the vain waffle of Pell and others in News Ltd. And the latter showed its colours anyway with another story on the 16th Feb
Seeds of survival/Icy ‘Noah’s Ark’ of food to save us from disaster
Apparently, located in Norway where no doubt they think about melting Greenland nearby, Dr Cary Fowler Fowler of Global Crop Diversity tells us:
“The design will accommodate even worst case scenarios of global warming. ….130 m above current sea level … well above a 7m sea rise that would accommodate the melting of Greenland’s ice sheet, or even a 61m rise that could follow a total meltdown of Antarctica.” [bold added]
But you don’t read these enormous sea rise figures in the mainstream press to avoid spooking the political economy into panic. Yet panic is probably a logical response to what looks increasingly like an inevitability.
My brooding impression we are fast approaching the day a global government by such as Greenpeace will be needed at the political level. A two or three step change in western civilisation energy use and material consumption patterns as well, not to mention population levelling out by say 2050 at 9 billion bodies according to Harvard Professor EO Wilson.
‘Not for nothing’ (said with West Wing TV series drawl) did Harvard Prof EO Wilson recently present a unity ticket with his academic colleague also of Harvard Professor in Divinity Studies Harvey Cox recently, there in the land of evangelical politics, to implore the world to get its act together on saving the ecology/God’s Creation:
EO Wilson and Harvey Cox on Saving The Planet
Can science and religion come together to save the planet? Join two big thinkers, eminent biologist EO Wilson and influential Harvard theologian Harvey Cox as they consider the fate of the creation. Recorded at the Free Library in Philadelphia, USA.
You know when science leaders handshake furiously with eminent religious folks we are in Big Trouble. Indeed the broadcast was a parallel conversation to my own with kindly local Jehovah Witness God Botherers complete with their apocalyptic New Testament references.
These are the realities I took into the Beyond Environmental Law Conference room air conditioning silently blaring over us with the enormous Pacific Princess pleasure cruiser just out the window reminding us of sea rise predictions of 6 metres for Greenland, another 6 metres for West Antarctic, and the moral depravity of western civilisation courtesy the abominable death of one Mrs Brimble on a ship just like that one all in one chunky symbol.
An older fellow told me it reminded him of the very enjoyable Spirit of Tasmania ocean ferry trip from Sydney past Bermagui and Flinders Island. This in turn reminded me (the smartarse again) of a bill board at Rozelle past majestic ANZAC bridge of perched lakes on mountain peaks screaming out for a “woodchipping sux” buggerup graffiti or sticker. I suggested the ugly pall of forestry over the Tasmanian government’s reputation, let alone World Heritage beauty, ended the Spirit’s tourism gambit in the Sydney market place. He accepted my suggestion with good grace but
we didn’t speak again.
Other notable speakers
All the speakers were satisfying and the lack of a photo reflects some dodgy images by this inexpert photographer, or too busy just listening. Several started quiet and slow and ended with an avalanche of detail and animation. The Asian Elephants talk by Prof Margaret Allars (Administrative) around political violence via licence shopping to circumvent the CITES convention against trade in threatened species by Taronga Zoo was a real worry. Adjunct Professor Tony Blackshield (Constitution) was roguishly charming breaking into song at one point. Tony McAvoy, Aboriginal barrister (Indigenous law) was photographed but we seem to have deleted in the chaos of the ALP election launch the next day reported here:
Sunday, 18 February 2007, Premier Morris Iemma's 'civic theatre' for the ALP bruvvers and sisters, at index.blog?topic_id=1083881
EDO director Jeff Smith’s image had too much shadow. Honourable mentions to Gordon Renouf of Choice (formerly Australian Consumers Assoc), Dr Karen Hussey (human rights), and Assoc Prof Elisabeth Peden (contract) for their scholarly whimsical speeches.
Real politik is still king, law a nuisance?
Unlike the idealistic exhortation of the leading judicial officer Brian Preston to a quite youthful energetic audience, in the main the presentations over the next two days reinforced the axiom “real politik is king”. Magistrate Heilpern outlined the harsh exclusion by new regulation of forest protesters from public forest with his slogan “the boots are on” but declined to make electoral comment on the free rein now for shooters in those public recreation areas except to note it’s $550 fine for saving forests under a PIN notice from a govt forestry officer, but only $200 fine for shooting while unlicensed. The implication is clear the NSW govt supports shooters more than forests.
Similarly Peter Cashman was depressingly honest, with possibly a hint of acid, saying political action is likely to achieve more than tort law. Keynote speaker Prof Gray agreed “it’s all political” regarding native vegetation clearance here. Tony McAvoy gave the senior executives of the NPWS a spray for daring to issue consents to destroy of Aboriginal cultural heritage in fairly brutal terms. Prof Allars noted the “regulatory failure” over import of Asian elephants for exhibition in breach of CITES treaty. Prof Blackshield noted the Daily Telegraph dismissal of environmental “doomsayers” while voting with his feet and voice to support the conference.
Similarly corporate lawyer Karen Bubna-Litic noted an email she received offering $10,000 to write a criticism of the recent Stern report on climate change [Stern being the top ex World Bank economist who predicts financial impacts of a Great Depression and 2 World Wars if no action is taken]. Nevertheless she remained steadfastly constructive encouraging enlightened self interest, incentive and opportunity over regulation to help the SME (small to medium size enterprises).
In one break an RMIT academic mentioned gossip that Robert Gotliebsen a business writer heard from the CEO of the world’s biggest company Exxon Mobil at Davos World Economic Forum in Janaury 2007, that their own US$2B in research convinced them climate change was real and big. From a company doing its best to sabotage govt policy on reversing climate change.
All this affirmed this writers activist direction of 5th estate blogger discipline on the other institutions of power in Big Politics and Big Media for their real politik games.
In this respect the conference had two glaring omissions in a packed agenda already, so this is meant in a constructive way:
1. The James Hardie asbestos environmental tort fought tooth and nail in legal, media, political and many other civic forums in this country over recent years: In the shadow of the corporate veil: James Hardie and asbestos ..
2. One spin off of the union ALP campaign against James Hardy is reform of the defamation law to openly criticise and attack corporations like James Hardie but now this may be subverted by a recent action to apply s.52 of the Trade Practices Act in David Jones v Australia Institute to be heard: www.theage.com.au - David Jones yet to learn lesson of the lawsuit
[additionally 3. Implications of the Wielangta Case of December 2006 Bob Brown v Forestry Tasmania, where Justice Marshall of the Federal Court ruled against logging of federally threatened species despite a Regional Forest Agreement between Federal and State governments based on interpretation of the Environment Protection (Biodiversity Conservation) Act 1999 (C'th): Aas discussed here on ABC Law Report Wielangta Forest Federal Court decision 20th Feb 2007.]
Perhaps the last word should go to Prof Hope Ashiabor who noted ‘petrol causing climate change’ in semi nomadic Waltzing Matilda Australia ‘costs less than milk or orange juice’. And that the oft criticised Kyoto Protocol was no different qualitatively to the Montreal Protocol on ozone depleting substances as regards staged inclusion of developing countries China, India etc. I suggested to him later privately we should probably prefer a Resting Matilda ethic in this new reality and he laughed at that.
Otherwise we may all end up on huge boats like this one in Sydney Harbour to much excitement (20th Feb 2007) after polar ice melt, looking for the seed store in Norway mentioned above, like actor Kevin Costner in Waterworld
Picture: Queen Mary 2, too high to pass under the Harbour Bridge, as tall as Centrepoint Tower (from end to end), and a future enclave against dangerous sea rise?
Posted by editor
at 8:44 AM EADT
Updated: Wednesday, 21 February 2007 3:34 PM EADT