Showing posts with label law. Show all posts
Showing posts with label law. Show all posts
Thursday 6 June 2019
Climate change litigation and Australia
Pointing out the potential risks to business and government of ignoring or denying the reality of climate change.....
The
Canberra Times,
29 May 2019:
Since the late 1990s,
Australian politics on climate change has been divisive.
Although Australia
signed the Kyoto Protocol in 1998, it did not ratify it until 2007.
Then, in
2011, the Clean Energy Act purporting to reduce greenhouse emissions was passed,
only to be repealed in 2014.
In 2016, Australia
ratified the Paris Agreement and the Doha Amendment to the Kyoto Protocol;
however, any serious action on climate change remains to be seen.
At the same time, some
states and territories also have emissions reduction targets.
The uncoordinated
approach is a problem for at least two important reasons.
First, climate change is
an ever-increasing phenomenon, with tremendous impact on corporate, social and
political discourse. Any meaningful legal framework to govern climate change
requires the development of a legal consensus at the federal level, in line
with international commitments.
Second, there is a
rising wave of climate change-related litigation globally which is headed for
Australia. Climate change litigation 2.0 (targeting companies) and climate
change litigation 3.0 (targeting governments) will sink Australia, unless
drastic measures are implemented.
Under the current legal
regime, company directors may only be liable if found to be in breach of their
duty of care or for failing to address a foreseeable risk. However, guidance
from case law suggests that it is difficult to establish that the actions or
omissions of a particular entity or director caused or contributed harm to be
suffered by another. With the arrival of climate change litigation 2.0, this
will all change.
For one, litigation 2.0
will force companies to assess and report on the risks of climate change and
potentially set out plans for mitigating those risks. The recent tide of
comments from the Australian Securities and Investments Commission, the
Australian Prudential Regulatory Authority and the Reserve Bank of Australia
are a testament to this.
Companies and their
directors could soon face liability (including personal liability) if they fail
to assess and address risks relating to climate change. Investors, shareholders
and even communities will be able to recover losses and seek damages from
companies and their directors, auditors and advisors, for failing to assess and
mitigate risks.
As major climate change
attribution studies emerge to assist in tracing particular weather events with
greenhouse gasses, causation will be easier to establish. It is likely that in
the future, courts will rely on such studies to conclude that a particular
entity has contributed, at least in some proportion, to a particular harm……
Although unprecedented
and unheard of in Australia, climate change litigation 3.0 will be the next
phase. It will allow Australians to bring action against the government for
failing to mitigate risks.
Claims of this nature
around the world are already proving to be quite successful.
The Urgenda
litigation in the Netherlands is the leading example. In that case, a Dutch NGO
argued that the Netherlands Government had breached its duty of care to the
Dutch people by failing to mitigate the risks of climate change and reducing
greenhouse gases. The remedy ordered by the court was that the Netherlands
Government reduce emissions by at least 25 per cent by the end of 2020….. [my yellow highlighting]
It should be
noted that on 8 February 2019 the NSW
Land and Environment Court in its judgment Gloucester
Resources Limited v Minister for Planning [2019] NSWLEC 7 accepted
that climate change formed part of critical reasons to reject a mine
development.
Gloucester Resources
decided not to appeal this decision and the proposed 830ha Rocky
Hill Coal Mine in the Hunter Valley region will not proceed.
Labels:
climate change,
coal,
Gloucester,
Land and Environment Court,
law,
mining
Tuesday 4 June 2019
US Court Blocks Trump's Border Wall As Court Case Proceeds
It would appear that two years and four months after Donald Trump was sworn in as President of the United States of America a healthy resistance against his heavy-handed autocratic tendencies is still alive and well........
“The position
that when Congress declines the Executive’s request to appropriate funds, the
Executive nonetheless may simply find a way to spend those funds “without
Congress” does not square with fundamental separation of powers principles
dating back to the earliest days of our Republic." [Judge
Haywood S. Gilliam, US District Court Northern District of California, Sierra Club et al v Donald J. Trump et al, 24
May2019]
American
Civil Liberties Union (ACLU),
25 May 2019:
From the beginning of
his campaign for president, Donald Trump claimed that he was going to build a
wall along the southern border. He said “nobody
builds walls better than me.” He said the wall would be “big”
and “beautiful.” He said someone
elsewould pay for it. And he said it would be built so fast that “your head would
spin.”
Last night, for the first time, a federal judge made clear to President Trump he couldn’t get his wall by illegally diverting taxpayer money.
The judge’s ruling comes in an ACLU lawsuit on behalf of the Sierra Club and the Southern Border Communities Coalition (SBCC). Together, the Sierra Club and SBCC represent the communities who live in, protect, and treasure the lands and communities along our southern border. For years, these communities have engaged in the democratic process and successfully persuaded their congressional representatives to deny President Trump funding to build his wall.
Our lawsuit centers on the question of whether the president abused his power to divert funds for a border wall Congress denied him. Unfortunately for President Trump, the Constitution is clear on the matter: only Congress has the power to decide how taxpayer funds are spent. And Congress, like border communities, said no to the President’s wall.
Congress didn’t bow to Trump’s pressure even after he caused the longest government shutdown in U.S. history over his demands for billions of dollars for his wall. Congress allocated only a fraction of the money that Trump demanded, and imposed restrictions on where and how quickly any border barriers could be built.
In a blatant abuse of power meant to circumvent Congress, President Trump declared a national emergency on February 15, 2019, and announced he would illegally divert $6.7 billion from military construction and other accounts for the border wall project.
From the beginning, the emergency was obviously a sham. Trump said as much himself when he declared the emergency, saying he “didn’t need to do this” but he’d prefer to build the wall “much faster.” He added that he declared a national emergency because he was “not happy” that Congress “skimped” on the wall by denying him the billions he demanded.
Despite this, the Trump administration tried to argue in court last Friday that Congress never actually “denied” President Trump the billions of dollars he is now trying to take from the military. The court rejected the administration’s argument, reminding the administration that “the reality is that Congress was presented with—and declined to grant—a $5.7 billion request for border barrier construction.”
The court’s ruling blocks the sections of wall that the Trump administration announced would be built with military pay and pension funds. It also invites us to ask the court to block additional projects as they are announced in the future. The judge emphasized the government’s commitment to inform the court immediately about future decisions to build.
It may be easy to ridicule President Trump’s desperation for a border wall — an absurd and xenophobic campaign promise for which he has only himself to blame. But as pointless and wasteful as it may be, Trump’s campaign promise now threatens to cause irreparable and real damage to our constitutional checks and balances, the rule of law, border communities, and the environment.
The wall is part of an exclusionary agenda that President Trump has targeted, over and over, at people of color. From his notorious Muslim Ban, to his efforts to eliminate protections for immigrants from Haiti, Sudan, Nicaragua, and El Salvador, courts have found“evidence that President Trump harbors an animus against non-white, non-European” immigrants. Trump has repeatedly justified his wall by lying about border communities, falsely claiming that America needs a wall.
Border communities know firsthand that walls are dangerous and wasteful. They divide neighborhoods, worsen dangerous flooding, destroy lands and wildlife, and waste resources. As our clients explained to the court, “we are a community that is safe, that supports migrants, that works well together and supports one another, that is worthy of existence.” What border communities truly need is infrastructure and investment, not militarization and isolation.
The court’s order is a vindication of border communities’ advocacy for themselves, and of our Constitution’s separation of powers. As the court wrote, “Congress’s ‘absolute’ control over federal expenditures—even when that control may frustrate the desires of the Executive Branch regarding initiatives it views as important—is not a bug in our constitutional system. It is a feature of that system, and an essential one.”
Labels:
ACLU,
Donald Trump,
law,
people power,
US politics
Wednesday 15 May 2019
Palmer loses bid in Australian High Court to stifle election coverage on 18 May 2019
Clive Palmer before he resigned from parliament ahead of the 2016 federal election Image: Huffington Post |
Mining billionaire Clive Palmer may be back onto the Forbes Australian Rich List and currently attempting to 'buy' his way into the Senate on 18 May 2019, but the High Court of Australia is unimpressed by his latest legal foray.
The Court unanimously dismissed Clive Palmer's application with reasons to be given at a later date.
The Court unanimously dismissed Clive Palmer's application with reasons to be given at a later date.
SBS
News, 7 May2019:
Clive Palmer's attempt to delay the publication of early results on federal
election night has been shot down by the High Court.
Mr Palmer wanted the
detailed data kept quiet until all polling booths had closed, lest last-minute
crowds in far-flung locations be swayed by the results.
He was concerned West
Australian voters who left their run until the last two hours could be
influenced by early figures from the eastern states.
But the full bench of
the High Court ruled the Australian Electoral Commission does not need to wait
for stragglers in WA before broadcasting indications in east coast seats.
"The court is
unanimous in its view that the application should be dismissed," Chief
Justice Susan Kiefel said on Tuesday…..
Mr Palmer's case takes
aim at the AEC's two-candidate preferred counting practice.
This is used on election
night to give an early indication of results.
But the two candidates
listed are almost always from Labor and the coalition, rather than the minor
parties or independents. But the two candidates listed are almost always from
Labor and the coalition, rather than the minor parties or independents…….
Solicitor-General
Stephen Donaghue downplayed the potential "bandwagon" effect.
Mr Donaghue said
last-minute voters in WA voters could be influenced by many other factors,
including basic voting figures and exit polls.
He also argued the
federal election was not a presidential race, with people in WA voting for
different local candidates than those on the east coast.
Palmer's United Australia Party is said to be standing candidates in every federal electorate and for Senate positions in every state.
Palmer's United Australia Party is said to be standing candidates in every federal electorate and for Senate positions in every state.
The
Guardian
reported on 1 May 2019 that almost 40% of all United Australia party candidates
do not live in the electorates they are standing for and, the party has
recruited senior executives from Clive Palmer’s mining interests to fill its
ranks.
Monday 13 May 2019
All drink driving in NSW to result in immediate loss of licence from 20 May 2019
NSW Transport for NSW,
media release, 6 May 2019:
Immediate loss of
licence for all drink drivers
All drink driving
offenders can now immediately lose their licence under tough new penalties
announced by the Minister for Transport and Roads Andrew Constance today.
From May 20 drink
drivers who are first-time, lower range offenders will receive an immediate
three month licence suspension and fine of $561.
“This means anyone
caught drink‐driving
in NSW, at any level, including low-range, can now lose their licence
immediately,” Mr Constance said.
“This reform makes it
clear if you break the law, you will pay the price. We are taking a
zero-tolerance approach to drink and drug driving.”
Under the new laws,
simpler and more certain penalties will also apply for drug drivers.
Offenders who drive with
the presence of illicit drugs for the first time will receive a $561 fine and a
three month licence suspension if the offence is confirmed by laboratory
analysis.
Alcohol related crashes
claimed the lives of at least 68 people on NSW roads last year, accounting for
nearly one in five road deaths, including 55 lives lost on country roads.
Fatalities from crashes
involving a drug driver accounted for similar numbers of deaths.
“Drivers who have an
illegal level of alcohol in their blood or have used illegal drugs have no
place on the road,” Mr Constance said.
Assistant Police
Commissioner Michael Corboy said this reform will protect all road users by
ensuring swift and certain penalties.
“Alcohol is one of the
major factors in crashes that kill or injure people on NSW roads.The 0.05 blood
alcohol limit has been in place for almost 38 years. There are no more
excuses,” Assistant Commissioner Corboy said.
Labels:
drink driving,
law,
New South Wales
Sunday 12 May 2019
Illegal net fishing on Clarence River costs fisherman $18,000
The Daily Examiner, 7 May 2019, p.4:
If you think illegal net
fishing is no big deal, you may be about to get tangled up in a very expensive
process.
The warning comes from
NSW Department of Primary Industries Fisheries on the North Coast as they
successfully prosecuted commercial fisherman from Iluka over seven illegal
fishing offences in two years.
And the cost to him?
More than $18,000 in fines and professional fees.
DPI director of
fisheries compliance, Patrick Tully said all matters in relation to the
offences were heard in court on April 10, with the offender convicted of all
charges.
“This offender has
incurred significant penalties related to the illegal use of nets in the waters
of the lower Clarence River on two separate occasions in 2017 and 2018,” Mr
Tully said.
“In November 2017, the
offender failed to stop his vehicle when requested by Fisheries officers who
then pursued him to his residence where they found him to be in possession of
an illegal net and a number of fish taken illegally by that net. Then in April
2018, the offender was found using a net by illegal methods.
“On both occasions the
nets and illegally taken fish were seized by DPI Fisheries officers.”
The man, a repeat
offender, was convicted on all six fishing-related offences and one of
obstructing fisheries officers. He was also required to pay the department’s
professional costs….
Anyone with information
on suspected illegal fishing activity is urged to contact their local DPI
Fisheries office, call the Fisher Watch phone line on 1800043536 or report
illegal fishing activities online.
Labels:
Clarence River,
fishing,
law
Thursday 2 May 2019
The Trouble with Water: National Party conflicts of interest and the rising odour of corruption
The
Saturday Paper,
27 April 2019:
Former Australian
Federal Police commissioner Mick Keelty is examining links between political
donations and the issuing and buyback of agricultural water licences, amid
concerns that undeclared conflicts of interest could be fuelling corruption.
Keelty told The
Saturday Paper this week he is concerned about the extent of undeclared
conflicts of interest among politicians, lobby groups and businesses operating
in the water market.
“I’m interested to see
how conflicted politicians are declaring their conflicts of interest when
decisions are made about water policy,” he said.
“Where you get those
conflicts of interest and they’re not addressed, that’s ripe for corruption.”
His comments come as the
Commonwealth Environmental Water Holder confirmed to The Saturday Paper that
two contentious water licences for which the federal government paid
$79 million have returned next to no water to the environment since they
were purchased two years ago.
Keelty is conducting
inquiries in his capacity as the Northern Basin commissioner for the
Murray–Darling Basin, a position to which the federal agriculture minister,
David Littleproud, appointed him in August last year with the support of the
Labor opposition.
On the issue of water
licences, he draws a direct comparison with the management of development
applications by local government, where conflicts of interest are required to
be declared.
“We’re not seeing it in
water, and it should be there,” he said.
Keelty, who was also the
inaugural chair of the Australian Crime Commission, is not categorical about
what exposing such conflicts might reveal, though he suggests they are
widespread.
“I’m not saying it’s
corruption; I’m saying it’s conflict of interest,” he said. “But you could draw
a conclusion that if conflicts of interest aren’t transparent, it could lead to
corruption … Water is now the value of gold. If you have corruption in other
elements of society, if you have corruption in other areas of business, why
wouldn’t you have it here, when water is the same price as gold?”
“IT IS NOT AS TRANSPARENT AS I FIRST THOUGHT AND IT IS
MUDDIED BY IN-KIND DONATIONS AND THIRD-PARTY COMPANIES OR ENTITIES THAT ARE
CREATED TO OBSCURE WHO THE REAL DONORS ARE.”
Over the past decade,
Keelty has undertaken inquiries and investigations for various governments on
issues relating to integrity in government policy, especially in emergency
management.
Now turning his
attention to the struggling river system, he is aiming to improve transparency
in the management of the northern Murray–Darling Basin, which has a far worse
compliance record than the river system’s southern half.
His task is to ensure
that water gets back to the river system where it is needed and that those who
rely on this water, and should have rights for its use, are not being ripped
off, especially disenfranchised Indigenous communities and others living
downstream.
Keelty argues that
excessive numbers of water licences have been issued – sometimes on
questionable grounds – and are seriously damaging the river.
“When you look at it
strategically, there are too many licences having been allocated for the amount
of water that is available,” he told The Saturday Paper.
“Nobody is addressing
that, that I can see.”
Keelty also believes the
system is too dependent on property owners acting within the law and reporting
their own activities.
“The system relies on
honesty and integrity but if you look at the number of prosecutions and
infringement notices issued in New South Wales in the last 12 months, the
pillar of honesty doesn’t appear to be that strong,” he said.
“I can understand the
suspicion and the frustration in the southern basin states because they are
directly impacted by the efficiency of the systems in the northern basin.”
Keelty is currently
examining the Australian Electoral Commission records of political donations,
checking links between donors, decision-makers and recipients of water licences
or sales contracts.
“Clearly the National
Party is probably, I guess, a glaring example of where politicians could be
conflicted because their constituency are the very people who are using the
water and the very people who are lobbying about water policy,” he said.
But he is examining
links to other parties as well. “It’s not just the National Party. Different
governments will make decisions about water policy that presumably benefit
their state and their constituents.”
Keelty has concerns
about the system of political donations more broadly.
“It is not as
transparent as I first thought and it is muddied by in-kind donations and
third-party companies or entities that are created to obscure who the real
donors are,” he said. “I’ve found it more difficult and less transparent than
what most of us probably think it is.”
The former police chief
is also arguing for proceeds-of-crime legislation to be more clearly linked to
offences in the water market because he believes the risk of losing a farming
property would be a significant deterrent.
“Where you can prosecute
criminal charges for offending, it makes sense to have parallel action in
proceeds of crime because that will have more of an impact than perhaps some of
the civil charges that are being used to remedy the situation to date,” he
said.
Read the full article here
Wednesday 1 May 2019
Facebook spends more than a decade expressing contrition for its actions and avowing its commitment to people’s privacy – but refuses constructive action
“It is
untenable that organizations are allowed to reject my office’s legal findings
as mere opinions. Facebook should not get to decide what Canadian privacy law
does or does not require.” [Canandian Privacy Commissioner Daniel
Therrien, 25 April 2019]
Facbook Inc. professes that it has taken steps to ensure the intregrity of political discourse on its platform, but rather tellingly will not roll out transparency features in Australia that it has already rolled out in the US, UK, Eu, India, Israel and Ukraine.
The only measure it commits to taking during this federal election campaign is to temporarily ban people outside Australiabuying ads that Facebook determines are “political”.
So it should come as no surprise that Canada issued this three page news release…….
Office of the Privacy Commission of
Canada, news
release, 25 April 2019:
Facebook refuses to
address serious privacy deficiencies despite public apologies for “breach of
trust”
Joint investigation
finds major shortcomings in the social media giant’s privacy practices,
highlighting pressing need for legislative reform to adequately protect the
rights of Canadians
OTTAWA, April 25,
2019 – Facebook committed serious contraventions of Canadian privacy laws
and failed to take responsibility for protecting the personal information of
Canadians, an investigation has found.
Despite its public
acknowledgement of a “major breach of trust” in the Cambridge Analytica
scandal, Facebook disputes the investigation findings of the Privacy
Commissioner of Canada and the Information and Privacy Commissioner for British
Columbia. The company also refuses to implement recommendations to address
deficiencies.
“Facebook’s refusal to
act responsibly is deeply troubling given the vast amount of sensitive personal
information users have entrusted to this company,” says Privacy Commissioner of
Canada Daniel Therrien. “Their privacy framework was empty, and their vague
terms were so elastic that they were not meaningful for privacy protection.
“The stark contradiction
between Facebook’s public promises to mend its ways on privacy and its refusal
to address the serious problems we’ve identified – or even acknowledge that it
broke the law – is extremely concerning.”
“Facebook has spent more
than a decade expressing contrition for its actions and avowing its commitment
to people’s privacy,” B.C. Information and Privacy Commissioner Michael McEvoy
says, “but when it comes to taking concrete actions needed to fix transgressions
they demonstrate disregard.”
Commissioner McEvoy says
Facebook’s actions point to the need for giving provincial and federal privacy
regulators stronger sanctioning power in order to protect the public’s
interests. “The ability to levy meaningful fines would be an important starting
point,” he says.
The findings and
Facebook’s rejection of the report’s recommendations highlight critical
weaknesses within the current Canadian privacy protection framework and
underscore an urgent need for stronger privacy laws, according to both
Commissioners.
“It is untenable that
organizations are allowed to reject my office’s legal findings as mere
opinions,” says Commissioner Therrien.
In addition to the power
to levy financial penalties on companies, both Commissioners say they should
also be given broader authority to inspect the practices of organizations to
independently confirm privacy laws are being respected. This measure would be
in alignment with the powers that exist in the U.K. and several other countries.
Giving the federal
Commissioner order-making powers would also ensure that his findings and
remedial measures are binding on organizations that refuse to comply with the
law.
The complaint that
initiated the investigation followed media reports that Facebook had allowed an
organization to use an app to access users’ personal information and that some
of the data was then shared with other organizations, including Cambridge
Analytica, which was involved in U.S. political campaigns.
The app, at one point
called “This is Your Digital Life,” encouraged users to complete a personality
quiz. It collected information about users who installed the app as well as
their Facebook “friends.” Some 300,000 Facebook users worldwide added the app,
leading to the potential disclosure of the personal information of
approximately 87 million others, including more than 600,000 Canadians.
The investigation
revealed Facebook violated federal and B.C. privacy laws in a number of
respects. The specific deficiencies include:
Unauthorized access
Facebook’s superficial
and ineffective safeguards and consent mechanisms resulted in a third-party
app’s unauthorized access to the information of millions of Facebook users.
Some of that information was subsequently used for political purposes.
Lack of meaningful
consent from “friends of friends”
Facebook failed to
obtain meaningful consent from both the users who installed the app as well as
those users’ “friends,” whose personal information Facebook also disclosed.
No proper oversight over
privacy practices of apps
Facebook did not
exercise proper oversight with respect to the privacy practices of apps on its
platform. It relied on contractual terms with apps to protect against
unauthorized access to user information; however, its approach to monitoring
compliance with those terms was wholly inadequate.
Overall lack of
responsibility for personal information
A basic principle of
privacy laws is that organizations are responsible for the personal information
under their control. Instead, Facebook attempted to shift responsibility for
protecting personal information to the apps on its platform, as well as to
users themselves.
The failures identified
in the investigation are particularly concerning given that a 2009
investigation of Facebook by the federal Commissioner’s office also found
contraventions with respect to seeking overly broad, uninformed consent for
disclosures of personal information to third-party apps, as well as inadequate
monitoring to protect against unauthorized access by those apps.
If Facebook had
implemented the 2009 investigation’s recommendations meaningfully, the risk of
unauthorized access and use of Canadians’ personal information by third party
apps could have been avoided or significantly mitigated.
Facebook’s refusal to
accept the Commissioners’ recommendations means there is a high risk that the
personal information of Canadians could be used in ways that they do not know
or suspect, exposing them to potential harms.
Given the extent and
severity of the issues identified, the Commissioners sought to implement
measures to ensure the company respects its accountability and other privacy
obligations in the future. However, Facebook refused to voluntarily submit to
audits of its privacy policies and practices over the next five years.
The Office of the
Privacy Commissioner of Canada plans to take the matter to Federal Court to
seek an order to force the company to correct its privacy practices.
The Office of the
Information and Privacy Commissioner for B.C. reserves its right under
the Personal Information Protection Act to consider future actions
against Facebook.
Related documents:
* Note: my yellow highlighting
Nor should this alleged 'mistake' made by Facebook cause surprise.......
The
New York Times,
25 April 2019:
SAN FRANCISCO — The New
York State attorney general’s office plans to open an investigation into
Facebook’s unauthorized collection of more than 1.5 million users’ email
address books, according to two people briefed on the matter.
The inquiry concerns a practice
unearthed in April in which Facebook harvested the email contact lists of a
portion of new users who signed up for the network after 2016, according to the
two people, who spoke on condition of anonymity because the inquiry had not
been officially announced.
Those lists were then
used to improve Facebook’s ad-targeting algorithms and other friend connections
across the network.
The investigation was
confirmed late Thursday afternoon by the attorney general’s office.
“Facebook has repeatedly
demonstrated a lack of respect for consumers’ information while at the same
time profiting from mining that data,” said Letitia James, the attorney general
of New York, in a statement. “It is time Facebook is held accountable for how
it handles consumers’ personal information.”…
Users were not notified
that their contact lists were being harvested at the time. Facebook shuttered
the contact list collection mechanism shortly after the issue was discovered by
the press…..
Facebook Inc's rapacious business practices has been the death of online privacy and now threatens the democratic process.
Labels:
data breach,
data mining,
Facebook,
information technology,
Internet,
law,
privacy,
safety
Sunday 10 February 2019
And now for some good news......
David Morris, CEO of EDO NSW: Our argument was based on science, economics and – we argued - the
proper application of the law. The climate contention as a ground for refusing
this mine was innovative; the first time climate change has been addressed this
way in an Australian court using the concept of a carbon budget as its basis.
Like so many great ideas – its strength was its
simplicity. While there was lots of necessary evidence and discussion about the
carbon budget, geopolitical climate policy and Australia’s legal framework for
climate change, ultimately our argument was simple: if you accept
the science, then the local legal framework compels you to refuse the mine
because it’s clearly not in the public interest to increase emissions.
As Professor Steffen said “it’s one atmosphere,
it’s one climate system, it’s one planet - and so we need to start thinking
more carefully about the net effect of wherever coal is burnt, or oil or gas…
The project’s contribution to cumulative climate change impacts means that its
approval would be inequitable for current and future generations”. [EDO NSW, media release, 8 February 2019]
The
Sydney Morning Herald,
8 February 2019:
When Planning
Minister Anthony Roberts intervened a year ago to give a coal miner
the unusual right to challenge its project's refusal in court, neither would
have countenanced Friday's outcome.
Instead of settling the
future of Gloucester Resources' controversial Rocky Hill coal mine near
Gloucester, the NSW Land and Environment Court just cast a cloud over coal mining
in general.
The miner had thought it
was merely challenging the Department of Planning's rejection of the mine's
impact on visual amenity in the bucolic valley around Gloucester.
Instead, the
Environmental Defenders Office, acting for residents opposed to the mine,
grabbed the opportunity to join the appeal.
In what EDO chief David
Morris describes as a "delicious irony", the court got to hear about
the project's detrimental impact on climate change and the town's social fabric
- despite Gloucester Resources arguing such intervention would be a
"sideshow and a distraction".
Future generations will
wonder why it took so long for any court in the land to hear such evidence when
considering a coal mine project.
But Justice Brian
Preston didn't just allow the EDO to provide expert evidence of the role
greenhouse gas emissions play in driving climate change. He also accepted it as
part of the critical reasons to reject the mine. "The decision forms part
of what
is a growing trend around the world on using litigation to fight
climate change," Martijn Wilder, a prominent climate lawyer from
Baker & McKenzie, says. "While early on some of this litigation was
not successful, increasingly it is."
Gloucester
Resources Limited v Minister for Planning [2019] NSWLEC 7, 8 February 2019 judgment here.
Labels:
Berejiklian Government,
climate change,
coal,
court,
law,
mining,
New South Wales
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