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Environmental law: No longer unprecedented

Environmental law: No longer unprecedented

By Dr Leonie Kelleher

Environment Environmental Protection 

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At the end of a year of environmental calamity, now is not the time for lawyers to give up. It is time for rebirth and renewed energy.

Australia’s environmental issues
  • Climate change inaction
  • COVID-19 related climate change – biohazard impacts
  • Bushfires – pyro catastrophe
  • Water supply, groundwater as well as surface – Murray-Darling Basin
  • Flora and fauna –loss of biodiversity
  • Actioning recommendations of the Environment Protection and Biodiversity Conservation Act 1999 review
  • Resourcing enforcement and oversight of federal-state bilateral agreements
  • Indigenous cultural heritage damage
  • Coral bleaching in the Great Barrier Reef
  • Land use and corporate interests. 

What a bleak year we have had. Calamitous bushfires, unbreathable air, plague, contaminated water, wild winds, dust storms and vast loss of flora and fauna. The world yearns for rebirth. The festive season 2020 is like no other. 

We move to another bushfire season, with experts warning of pyro calamity. Bushfires now are beginning to jump bush to target the timber of residential areas. The Natural Disasters Royal Commission’s Interim Report stated that last year’s bushfires are “no longer unprecedented”.

We witnessed wanton destruction of ancient Australian heritage at Juukan caves. The federal government recently fast tracked the Roxby Downs uranium mine expansion, incorporating a tailings dam seven stories high and 200 times the size of the MCG for (half-life 10,000 years) uranium deposits. Graeme Samuel strongly critiqued national environmental law failure. Two Auditor-General’s reports recorded catastrophic failure to protect federally listed grasslands in metropolitan Melbourne. Black Lives Matter raced around the world and into Australia. We still have no clear national climate change policy. Yet seas, oceans and earthly ice caps move in their might. They do not care. From deep time and cold galaxies come the stars.

Lawyers, including environmental, Indigenous and human rights lawyers step up to leadership – often flagging with despair at their powerlessness to effect change. Young lawyers begin righteous environmental litigation. Law students sign up for the Monash University Climate Justice Clinic, passionately skilling themselves for the work ahead. 

Our professional bodies advocate law reform to better protect the environment, address bushfire danger, protect human rights and take action on climate change. Often this advocacy is highly successful. Many of our reforms are accepted by the inquiry, be it a royal commission, parliamentary review or government department. But nothing happens. Then, a year or so later, another inquiry begins – at yet further taxpayer expense – to canvas the same issues. Yet more worthy lawyers give up their time without fee to craft yet more submissions by their professional bodies. Again, this advocacy is often successful. Yet more recommendations and, yet again, no action. The pattern exists on the Barrier Reef, forest policy and waste management regulation – as only three of many environment examples. In some instances, this carousel has gone round six or seven times. Still no action, while the problem grows. 

“What is the point?” these lawyers ask, with rising righteous anger. But we lawyers must not forget who we are. We are the advocates and the advice givers. We find paths through the thickets of the law. We are not politicians. Save the judiciary, we are not final decision-makers. We are the writers and the persuaders. Gifted with intelligence, education and knowledge of societies’ laws, we must continue to take one red shoe step, then the next. 

We must never allow ourselves to be silenced, let alone silence ourselves. We must always give voice, speaking out at injustice to advocate better law and policy.

In 2020, we cannot know how close we are. Those advocating the end of slavery in England had no knowing that the 1807 Reform Act lay ahead. It happened suddenly. Unexpectedly, the universe shifted. 2020 evidences that sudden seismic shift can be reality.

Investors, shareholders and directors lived a unique experience this year. They called large companies to account – and will continue to do so. Their children lived through 2020 as did those children’s teachers. So did their family and friends. It is from utter destruction that transformative creation emerges. Now is not the time to give up. It is the time for rebirth and energy. 

Let us savour the festive season with those we love – and rest. Then, let us approach the dawn of the new year with hope, trust and kindness. 

Senior practitioners must model courage to their junior colleagues and urgently pass on knowledge as have Indigenous cultural elders since earliest time. Future challenges facing younger lawyers are truly enormous. The human rights and environmental dangers that seem almost inevitable may make COVID-19 as of nothing economically and socially. We must be ready for this new legal world. The dramatic legal issues we will meet are vast and new. 

American poet Maya Angelou, at President Obama’s inauguration, faced the dawn:

“Here on the pulse of this new day
You may have the grace to look up and out 
And into your sister’s eyes, into
Your brother’s face, your country 
And say simply
Very simply 
With hope

Good morning."

Let us shine our light, star bright, into the new morn.

Season’s greetings colleagues. ■


Dr Leonie Kelleher is the director of Kellehers Australia, LIV accredited specialist in environment and planning law and a member of the LIV’s Environment Issues Committee.


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