Drought, deaths and prayers. Won’t someone think of the Australian farmer.

 

This is an edited version of a presentation I gave to the Journal of Environmental Law ‘Environmental Law and Populism’ Workshop held at The University of Oxford in November 2019.

Introduction

My geographical focus today will be the Murray Darling Basin, a geography that encapsulates five sub national jurisdictions and is co-managed under referred legislative powers by the Commonwealth government and state and territory governments under the Water Act 2007 (Cth) (‘Water Act’) and the Murray Darling Basin Plan.

I am going to talk to you about the rise of a populist discourse in Australia centred on the interests of the farmer. It is a discourse that has become especially evident over the past 12 months following fish deaths in the Darling River in New South Wales (‘NSW’) and the political declaration of drought in the eastern Australian states. It is grounded in rural unrest about the allocation of water rights, and has been deployed to resist legislative or political action to address the climate catastrophe enveloping Australia. And so for these reasons, I view the ‘farmer interests’ discourse as an environmental discourse.

What I hope to highlight is that the problems that fomented the discourse (especially climate change and water mismanagement) are not those problems being addressed by the laws that are being supported by the discourse. At least for the time-being.

The discourse is present in news media, notably the Australian tabloid press and the mostly Sydney-based right-wing radio stations, in posturing by politicians within and outside of parliaments, and it has more recently been mocked and satirised on social media through the use of memes.

The environmental discourse has been used to achieve a political response this year, especially in the form of drought relief for farmers – a controversial policy because many of the farmers receiving assistance to keep them farming face a reality of prolonged dry periods and some within the industry[1] are arguing that the time is right for some farmers to transition off barren lands.

The discourse has been used to support legal changes in 2019 – including in NSW: laws that diminish native vegetation controls, that alter the law of nuisance for agricultural production and that further criminalise on-farm protests by animal rights activists, and federally in the attempts to regulate milk prices by the fringe and conservative populist party: Pauline Hanson’s One Nation Party.

What is an environmental discourse and how is it relevant to populism?

My understanding of what environmental discourses are is informed by the 1990s scholarship of Hajer[2] and Dryzek.[3] Environmental discourses are a ‘shared way of apprehending the world’[4] or an ‘ensemble of ideas, concepts, and categorizations’ which are given meaning through their reproduction and repetition and the political ecology within which they are struck.[5] They bring together adherents, into discourse coalitions, in order for them to interpret information and stories about the environment.[6] Although the discourses and their coalitions of supporters shed or disguise complexity[7] and are oftentimes lacking in coherence.[8]

Discourses comprise ‘vocabularies of motive’,[9] language, metaphors, analogies, clichés, catch phrases, and concepts and structures of bias. They are condensed into often simple, succinct, and agreeable storylines within which actors are able to attach their disparate views, values, and interests.[10] They become ‘world views’, emblematic and ritualised and infiltrate common language in a way that shape and highlight particular knowledge.[11]

Elsewhere Chris Hilson has written of the presence and role of narrative in climate litigation in engendering a populist frame and movement,[12] and he has contrasted the presence of narrative, storylines and discourses within environmental jurisprudence and law making, and encouraged viewing these prisms of language and positionality as drivers for legal action and involvement.

What’s more, as Hilson writes in preparation for this workshop, ‘populism appeals to emotions over rationality’ and this emotion is often wrapped up in narratives of experiences and feelings.[13] There is within populist movements, says Hilson, an appeal to the ‘will of the “real people’ and as Fisher notes a ‘telling of simple stories’:[14] especially of ‘the people against the elite, and [of] the “real” people’: like Australia’s farmers: sometimes referred to as the ‘real Australians’, including by Australian politicians.[15] Preston similarly writes of sloganeering and propagandising driving policy and politics.[16] I hope to colour these perspectives today.

The fish kills

As I have noted, I am interested in the rise and power over law and policy of the ‘farmer interests’ environmental discourse. In the context of the recent Australian popular interest in the wellbeing of the bush, and the re-energisation of populist political parties I trace the farmer interest discourse to the widespread community shock about the fish kills – an environmental catastrophe – in the Darling River around Menindee from 11 months ago.

Of course, there is a strong poetic narrative, dating to colonial times, of Australian ‘bushmen’ and farmers being central to the Australian identity.[17] And while that narrative certainly helped consolidate the discourse, other events have shaped the discourse for present social media times.

A video in the aftermath of the first fish kill in December 2018 (featuring a farmer holding a dead Murray cod who had previously brought a High Court challenge over the diminution of his business’s water rights)[18] went viral[19] triggering much political anxiety. Both the federal government and, unconventionally, the federal opposition initiated inquiries into the cause of the deaths to both qualm and exploit the community shock and anger.[20]

Scientists identified mismanagement of water allocations, including over-allocation to high water users, and low environmental flows arising from the NSW government policies of water release as the primary causes.[21] An earlier corruption scandal, leading to a Royal Commission by the state of South Australia, was the result of water users in NSW taking greater volumes of water than they were allocated or that they were entitled having earlier benefited financially from claiming water use efficiency dividends. All of this occurred according to the terms of the federalist Murray Darling Basin Plan under the watch of the NSW government, meaning that environmental and downstream flows were reduced.[22]

And then there was the contribution of a changed climate, exceptionally wet then dry and hot weather conditions; with the government’s investigators explaining that ‘climate change amplified these conditions and will likely result in more severe droughts in the future’ and with it more fish kills.[23]

The NSW government saw the effect of the community anger over its role in water mismanagement in the electorates that contain the Darling River and adjacent rural centres in the March 2019 state election, with populist parties, most notably the Shooters, Fishers and Farmers Party with its policy platform of reform to water law and policy,[24] and independents, recording large swings to them as voters deserted the rural conservative National Party.

The drought

The federal government, despite avoiding the same electoral damage as its NSW conservative counterparts and being returned to power thanks it claims to the votes of the ‘quiet Australians’ has, however, experienced community anger as drought conditions have worsened in NSW in particular, and it has refused to revisit its market-based water policy.

Communities further downstream in the Murray Darling Basin have been agitating for some of the dedicated environmental flows under the water plan and Water Act to be reallocated to agricultural purposes, and for a reallocation of water from high use, high profit, principally export cropping – think cotton and almonds for instance, to a larger number of farmer interests, particularly those who are a part of the local food supply system, and to dairy farmers.[25]

The federal minister, David Littleproud, whose extended family was implicated in water allocation manipulation,[26] has borne the brunt of farmer and rural constituency wrath[27] for the government’s inaction.

The national discourse

The broader and generally urban community, supported by commercial media, especially talk back radio and breakfast television, and supermarket chains, has organised a charitable response. Australians have been urged to buy bales of hay for farmers (that was on my opening slide), to donate dollars at the supermarket till, to adopt a farmer. Governments are claiming to be thrifty with spending and focussed with government policy such that immediate farmer interests are prioritised – in terms of social welfare and drought policy.[28]

And such commentary has been mimicked on social media.[29] The Australian farmer has become the cause of populism to such an extent that it is now being mocked through memes on social media.

Among other figures of mockery has been the Prime Minister whose government has resisted calls for policy or legal responses to address the causes of the experience of drought – climate change and water allocations. Turning to prayer and government financial assistance; assistance characterised as too little by the populist class.[30] Yet to challenge the discourse – especially to raise climate change as part of the problem is to be dismissed as taking advantage of the predicament faced by Australian farmers; and to be identified as no longer one of the government’s preferred obedient quiet Australians.

While laws to address the core challenges faced by those on the farmlands have not (yet, perhaps) eventuated from the farmer interest discourse, other laws and legal manoeuvres have arisen from the discourse, perhaps opportunistically or by design. I want to note three legal changes where the discourse was deployed in the speeches and commentary supporting the proposed legislation.

The Native Vegetation Act amnesty

First, in the decision of the NSW government to direct its Department of Planning, Industry and Environment which regulates native vegetation protection to cease its investigation, penalisation and prosecution of suspected unlawful land clearing undertaking under laws that the NSW parliament repealed in 2017 – the Native Vegetation Act 2003 – and which it replaced with a more permissive and self-regulated system of native vegetation management on private lands. The Department is now required to work with landholders to achieve compliance with Codes.

The Minister responsible for agriculture,[31] not the Minister responsible for the environment, explained his government’s decision to a NSW farmers conference:

“I don’t want to see farmers who undertook activity, which if they did it today it would be completely legal, prosecuted for activity that they did 10 years ago that might’ve been illegal at the time”.

Yet it has since been reported that many of the investigated parties were not farmers as imagined or recalled – dust covered and Akubra hat wearing; rather large industrial cotton agribusinesses.[32] The distinction, however, was not drawn out in the populist demands for the change led by the Sydney radio station 2GB.[33]

Radio personality Ben Fordham campaigned for this legal-policy change under a promise of fighting for Aussie farmers facing “bankruptcy”[34] from action by government ‘bullies’ and from “being forced off their land because of the aggressive tactics” of the Department.[35] Farmers, already doing it hard, weren’t getting a fair go. Lost in the hyperbole of concern and victim making was an acknowledgement that a native vegetation officer was shot dead five years ago doing his job enforcing these laws.[36]

The Right to Farm Bill 2019 (NSW)

Which is awaiting royal assent having passed both houses of the NSW parliament, is the second and most notable legal change supported by the farmer interests discourse this year.

The Act achieves two primary but disconnected goals. First, it creates higher penalties up to three years for trespass onto agricultural land (compared to other private lands) and creates new offences of organising – directing, inducing counselling – such trespass activities. These are legal changes directed towards animal rights protesters by the least quiet and most unAustralian of Australians at the moment – vegan extremists.

These laws add to other laws passed by the Commonwealth parliament this year that create crimes of using a carrier service to organise trespass or property damage on agricultural land.[37]

Second, it creates a defence to claims of private nuisance where what would otherwise be an ‘unreasonable interference’ has occurred on commercial agricultural land (or farm affiliated land – including land used for rodeos) consistent with other laws, primarily planning laws, for at least one year, and has not been undertaken negligently.[38] This is the second version of the US Right to Farm statute, following Tasmania in the 1990s.[39]

Adam Marshall, Minister for Agriculture and Western NSW in introducing the bill explained how tough our farmers are it doing in the face of drought,[40] and proclaimed that the bill:[41]

enshrine[d] in law a farmer’s right to farm their land, to grow the food and fibre to feed and clothe [us and would tackle] on-farm trespass … and the questioning by vegan vigilantes and other ideologically motivated groups of a farmer’s right to undertake lawful activities. 

The Protecting Australian Dairy Bill 2019

While defeated in the Senate by 30-31 votes this month, and which sought to include a base minimum price for milk for each dairy season, is worth noting because it showed the discourse on display and used against the government who continues to be a key figure in the discourse coalition[42] in an ongoing battle over milk pricing policy and the power imbalance between Australia’s supermarket duopoly and dairy farmers.

In introducing the bill and also in the media,[43] Pauline Hanson, populist Queensland Senator, pleaded for her proposed law to be passed for the people of the nation – embodied in the Australian dairy farmer:[44]

We have to stand up for all the dairy farmers. … I call on everyone in this parliament: represent the people of this nation—the dairy farmers, who are on their knees and going under. All they want is a fair price for their milk, and the public will pay for it.

The climate change activist farmers

I will finishing by mentioning that while this discourse has not been used to address the kinds of existential problems facing Australian farmers through law and policy, it has given a voice and power and space for discussion by farmers. And so it might present another avenue, perhaps more conciliatory, less disruptive or threatening to government to achieve legal and policy change of the sort required merely for Australia to fulfill its international targets and meet other nations in the challenge to avert a climate crisis.

The Guardian newspaper has a journalist producing regular stories about climate change from the bush framed through the experience of the farmer,[45] rural and agricultural policy think-tanks have raised concerns about government inaction on climate change[46] and the new grouping of Farmers for Climate Action, led in part by one of Australia’s most effective young climate activists and thinkers, Anna Rose, is reshaping the image of the modern and the future farmer and articulating their understanding of the climate policy needs required to keep them on the land and Australia the land of sweeping plains and bushwomen.

[1] The National Farmers Federation is urging exit packages: Ean Higgins, ‘Call for “exit packages” for drought-hit farmers’, 23 October 2019. The Australian. Editorial, ‘Structural solution to the farm “crisis”’, 24 October 2019. Australian Financial Review.

[2] Marteen Hajer, The Politics of Environmental Discourse: Ecological Modernization and the Policy Process (Oxford, 1995).

[3] John Dryzek, The Politics of the Earth: Environmental Discourses (Oxford, 1997).

[4] Dryzek, 8.

[5] Hajer, above n 2, 44.

[6] Dryzek, above n 3, 8.

[7] Hajer, above n 2, 45.

[8] Hajer, above n 2, 44.

[9] Ray Kemp, ‘Why not in my backyard? A radical interpretation of public opposition to the deep disposal of radioactive waste in the United Kingdom’ (1990) 22 Environment and Planning A 1239, 1244.

[10] Marteen Hajer, ‘Discourse coalitions and the institutionalization of practice: the case of acid rain in Britain’ in Frank Fischer and John Forester (eds), The Argumentative Turn in Policy Analysis and Planning. (Duke, 1993) 43.

[11] Hajer, above n 2.

[12] Chris Hilson, ‘Law, courts and populism: climate change litigation and the narrative turn’ Chapter 5 in  Susan M. Sterett and Lee D. Walker (eds), Research Handbook on Law and Courts (Edward Elgar, 2019).

[13] Chris Hilson, ‘Climate populism, courts and science’ (2019) 31 Journal and Environmental Law 395.

[14] Elizabeth Fisher, ‘Unearthing the relationship between environmental law and populism’ (2019) 31 Journal and Environmental Law 383.

[15] Christopher Mayes, ‘Cultivating a nation: Why the mythos of the Australian farmer is problematic‘ The Conversation, Littleproud meets with parched farmers hoping for rainCountryman, 28 March 2019. 

[16] Brian Preston, ‘The end of enlightened environmental law’ (2019) 31 Journal and Environmental Law 399.

[17] See the 1890s work of Bajo Patterson, for example. Mayes, above n 15.

[18] Arnold v Minister Administering the Water Management Act 2000 240 CLR 242.

[19] Paige Cockburn and Kevin Nguyen, ‘Mass fish deaths at Menindee sparks viral video as Minister receives threats’ ABC News, 

[20] See the letters to the editor, Sydney Morning Herald, 11 January 2019; Cameron Gooley, ‘Menindee rotting fish clean-up to begin next week‘ ABC News, 

[21] NSW Government, Department of Primary Industries, Fish Death Interim Investigation Report: Lower Darling River Fish Death Event, Menindee 2018/19 (January 2019); Australian Academy of Science Expert Panel, Investigation of the causes of mass fish kills in the Menindee Region NSW over the summer of 2018–2019 (2019)

[22] Anne Davies, ‘Damning Murray-Darling report says NSW ‘well behind’ on water-sharing plansThe Guardian, 15 January 2019; Bret Walker SC, Murray-Darling Basin Royal Commission Report (January 2019).

[23] https://theconversation.com/we-wrote-the-report-for-the-minister-on-fish-deaths-in-the-lower-darling-heres-why-it-could-happen-again-115063

[24] Shooters Fishers and Farmers Party (NSW), SFF strategy on Murray Darling Basin water management. The party’s principle environmental policy position is the rejection of protected areas for environmental preservation.

[25] Peter Hannam, ‘On their knees’: Drought and nuts blamed for ‘decimating’ food sector’ Sydney Morning Herald, 25 October 2019.

[26] Kerry Brewster, ‘One of Queensland’s largest irrigators expected to be charged with fraud The Guardian, 8 April 2018.

[27] Warwick Long, ‘Effigy of Federal Water Minister David Littleproud floats toward SA in Murray-Darling Basin Plan protestABC News, 20 September 2019.

 

[28] Peter Lewis, ‘There is growing empathy for those on Newstart. The dynamics of welfare politics are changingThe Guardian, 13 August 2019.

[29] Viki Gerova, ‘Thousands Sign Petition To Scrap Sydney’s NYE Fireworks And Donate Funds To Fire Relief10 Daily, 17 November 2019.

[30] Michelle Grattan, ‘View from The Hill: Alan Jones v Scott Morrison on the question of how you feed a cowThe Conversation, 15

[31] John Ellicott, ‘Marshall takes stick to old veg laws, reviews all old ordersThe Land, 1 August 2019.

[32] Anne Davies, ‘NSW farmers granted amnesty for illegal land-clearingThe Guardian, 1 August 2019.

[33] Davies, above n 32.

[34] 2GB, ‘Ben Fordham’s fight to save Aussie farmers from bankruptcy‘ 2GB, 21 May 2019.

[35] Anne Davies, ‘Farmers prosecuted for land clearing allege former NSW minister gave them green lightThe Guardian, 17 October 2019.

[36] Kathleen Ferguson and Jennifer Ingall, ‘Native Vegetation Act amnesty angers partner of slain environment officer Glen TurnerABC News, 2 August 2019.

[37] The Criminal Code Amendment (Agricultural Protection) Act 2019 (Cth) creates offences of:

  • Using a carriage service for inciting property damage, or theft, on agricultural land; and
  • Using a carriage service for inciting trespass on agricultural land

[38] The ‘defence’ was originally drafted as:

No action lies in respect of nuisance by reason only of the carrying out of a commercial agricultural activity if:
(a) the activity is carried out lawfully, and
(b) the activity is not carried out negligently, and
(c) the activity is carried out on agricultural land, and
(d) the land on which the activity is carried out has been used for the purposes of agriculture for a period of at least 12 months.

It was amended at the initiation of the Shooters Fishers Farmers Party:

No action lies in respect of nuisance by reason only of the carrying out of any of the following activities if the activity is carried out lawfully and not negligently and that type of activity has been carried out on the land for at least 12 months:
(a) a commercial agricultural activity,
(b) an activity carried out for the purposes of any of the following:
(i) any business or undertaking in which cattle, poultry, pigs, goats, horses, sheep or other livestock are kept or bred for commercial purposes (for example, a dairy, saleyard or feedlot),
(ii) a business or undertaking for the commercial production of products derived from the slaughter of animals (including poultry) or the processing of skins or wool of animals, including abattoirs, knackeries, tanneries, woolscours and rendering plants,
(iii) a business or undertaking for forestry (including timber mills) or aquaculture,
(iv) a show or competition involving livestock (including a rodeo).

[39] Primary Industry Activities Protection Act 1995 (Tas).

[40] Adam Marshall, NSW Legislative Assembly Hansard, 17 September 2019 (Second Reading Speech). The Minister noted:

Our farmers are doing it tough, as every member of this House knows, and the amendments to the Inclosed Lands Protection Act 1901 and the new Right to Farm Bill 2019 are part of a broader suite of initiatives by the Government. We all know how hard the drought is for all communities and farmers in rural, remote and regional New South Wales. That is why in July 2019 the Government announced an additional $1.1 billion in drought support. The acts of trespassers can undo the great work that our farmers do every day to protect and maintain the world-class biosecurity regime we have in New South Wales.

[41] Marshall, above n 40.

[42] Susan McDonald, Senate Hansard, 11 November 2019 (Second Reading Debate). National Party senator for Queensland,  McDonald claimed:

There is no more important industry in Australia than agriculture in growing the food and fibre that feeds the nation and feeds a good part of the world. Dairy is indeed an important part of that industry. They are doing it as tough as anybody at this moment—as tough as pork producers, as tough as feed lotters and as tough as anybody who is having to pay a dollar a kilo for feed, who are struggling to get water in the face of a deep drought. But these are not things that can or should be solved by this legislation.

[43] The New Daily, ‘Pauline Hanson weeps at plight of dairy farmersThe New Daily, 18 October 2019; Matt Coughlan and Daniel McCulloch, ‘Pauline Hanson can’t milk support for dairy billThe New Daily, 11 November 2019.

[44] Pauline Hanson, Senate Hansard, 11 November 2019 (Second Reading Speech).

[45] Gabrielle Chan, ‘For farmers climate change is the headline to our lives, but McCormack’s Nationals avert their gazeThe Guardian, 11 November 2019.

[46] Australian Farm Institute and Farmers for Climate Action, Change in the air: Defining the need for an Australian agricultural climate change strategy
(June 2019).

Pipeline risk and regulation on the Australian urban-rural fringe. An invisible legal geography.

This is a copy of the presentation I gave at the 2017 Annual Meeting of the Law and Society Association at Mexico City.

Cite as: Brad Jessup, ‘Pipeline risk and regulation on the Australian urban-rural fringe. An invisible legal geography’ (Speech delivered at the International Meeting on Law and Society, Mexico City, 20 June 2017).

Overview

The goal of this presentation is to make sense of an extensive, mostly doctrinal, body of research on the regulation of pipelines; on the intersection between pipelines hazard regulations; and on planning laws and zoning controls.

I argue that planning laws and zoning controls are more appropriate than the prevailing regulatory approach to reduce the risk of harm arising from sensitive land uses and high pressure gas pipelines meeting on the urban-rural divide.

A critical legal geography perspective supports this conclusion because planning laws  visibilise and materialise objects and landscapes, and make information about objects and landscapes explicit. These features make it a suitable regulatory option to manage pipeline explosion risk. Afterall, risk is best manage when it is seen, tangible and known. My contribution to legal geography concepts is modest. This presentation will instead offer empirical support for the more theoretical ideas of information, visible and material geographies.

Introduction

In 2012, I completed a broad survey of land use planning and risk regulation of Australian high pressure gas transmission pipelines for the Energy Pipelines Co-operative Research Centre. I am drawing on that work for the purpose of this presentation, so I acknowledge the financial support I received in conducting that project.

The earlier research and this presentation are focussed on the high pressure gas transmission pipelines that exist in three networks across Australia. Most of the research effort and attention is on the eastern network, crossing Australia’s most populated areas.

The industry funded research was triggered by concerns that Australian urban development was unknowingly “encroaching” upon pipelines and into privately mapped “safety buffers” for high pressure gas transmission pipelines in historically rural areas.

Concerns were especially heightened in south-east Queensland, enveloping Brisbane; and in northern Adelaide, in the state of South Australia, by the release of long term strategic city plans that showed to the industry that residential development was being strategically directed to locations where these rural pipelines traversed.

Change of land use within the city was not a concern: there, high pressure gas transmission pipelines are buried deeply, are made of reinforced materials, and are covered by layers of concrete: they are not simply out of view, but out of touch.

Change of land use outside of the city – or “encroachment” as the industry frames the phenomenon – affects pipelines that were constructed decades ago expecting that for the duration of the material life of the pipeline they would be situated in a farming setting; so the pipeline material, depth and coverage was not, and is not, suitable for a residential context.

It is very much an internalised concern – that is: a concern within industry – because only industry members; with the knowledge of pipeline location, hazard and risk contours (typically called ‘radiation contours’) understand the consequences. The wider public has no real way of knowing about the safety implications of these pipelines and humans meeting.

Indeed, the impression from the strategic planning documents suggests that parts of government does not really know either. By way of example, the Adelaide Plan locates pipelines on a broad scale map, and notes as policy to ‘define and protect strategic infrastructure sites and corridors from inappropriate development to ensure the continued functionality of the services they provide’. Yet the plan directs residential development around the once rural town of Gawler adjacent to rural pipelines.

San Bruno

The industry’s concern was heightened following the San Bruno gas explosion in California in 2010. As other scholars researching pipeline risk and security have demonstrated (Peter James Forman in the UK and Danya Scott in Canada), loss of life and property damage have triggered policy and regulatory changes for pipelines.

What happened in San Bruno is what the Australian industry is determined to avoid. San Bruno involved the explosion of a natural gas pipeline in the south of San Francisco. Post-event evaluations attributed the cause of the explosion to deteriorating material and poor pipeline maintenance. The age of the pipeline meant it could not accommodate modern testing devices. The review of the explosion by the National Transport Safety Board clearly implies, without concluding, that the pipeline built in the 1950s should have been upgraded before residential development began in the estate.

The explosion led to the death of eight people and the destruction of 37 homes, many of which were built right up to the gas pipeline easement. The pipeline was beneath a lightly vegetated corridor behind household fences, but the evidence showed that the mere presence, not even the risk, of the pipeline was not well understood by those people resident in areas of potential risk.

There are lessons to take from the review of the tragedy. As part of its safety management program, the pipeline operator, PG+E, had written to 15,000 residents proximate to the pipeline. Its subsequent consultations revealed that more than half residents did not recall seeing any pipeline safety information from PG+E and just under half had a poor understanding of the location of the pipeline. In sum, there was poor visibility of information and material.

My research

What was apparent from my research in Australia was that pipeline explosion risk was being assessed and regulated separately from and mostly invisible to planning laws (though sometimes opaquely visible to some planning officials and sometimes with vague strategic support to protect infrastructure in planning policy: a factor that amounts to a not irrelevant consideration for planning decisions).

A similar conclusion about the UK was reached by Gordon Walker, ‘Risk, Land Use Planning and Major Accident Hazards’ in Chris Miller (ed), Planning and Environmental Protection: A Review of Law and Policy (2001, Hart).

Predominately, high pressure gas transmission pipelines in Australia are regulated in codes and standards, which remain some of the most inaccessible forms of regulation, available only to those willing to pay to view them. They are regulations situated along a blurry boundary between public and industry self-regulation. This raises questions about the private domain over common resources and the function of governments, as explored by Eve Darian-Smith, ‘Who Owns the World? Landscapes of Sovereignty, Property, Dispossession’ (2016) 1 Journal of the Oxford Centre for Socio-Legal Studies. Within natural resources policy and practice, Darian-Smith writes of resources becoming enclosed – out of research of ‘ordinary people’ and transformed from the places in which they are located. The state becomes sidelined.

As it is in part with pipelines being exempt from planning laws throughout the country and rarely triggering EIA laws. Environmental and safety assessments are undertaken centrally as part of the licensing process for pipelines. Not locally, not publicly, not controversially.

Where planning law is involved in the regulation of spaces around pipelines it is often where pipeline operators have developed relationships with local municipal planners or where there have been adopted ad-hoc ‘gas pipeline corridor’ setbacks – for instance of up to 660m in parts of WA. In those circumstances, those planners make decisions about land use changes and developments proximate to pipelines with knowledge of location and risk provided on an informal or guideline basis. This industry co-ordinated or co-opted approach to regulation reflects findings from Peter James Forman’s research (‘Securing Natural Gas: Entity-Attentive Security Research’, 2016), which has found that in the UK pipeline safety is informally integrated within the planning system. There, the health and safety agency (UK HSE, HSE’s Land Use Planning Methodology (2016)), rather than pipelines operators, provide maps and guidance on near-pipe approval decisions, and – significantly – provide cumulative risk assessment guidance.

Regulation of pipeline safety in the context of changing land use

There is a common framework for pipeline regulation around Australia, even though laws are made at the sub-national level. The common framework is attributable to the national standard to which all laws reference and regulators defer.

At the state level, by way of example, the Victorian Pipelines Act 2005:

  • Exempts the holder of a pipeline licence from the requirement to obtain a planning permit under the Planning and Environment Act 1987 (s 85).
  • Prevents the building within three metres from a pipeline (s 120) or digging within three metres of a pipeline (s 118) within consent or authority – a provision designed only to avoid contact with pipelines (to reduce the likelihood of harm not to alter the consequences of harm).
  • Imposes a duty to minimise hazards and risk on the pipeline operator (s 124) in these terms:

A licensee must manage any pipeline operation so as to minimise as far as is reasonably practicable—(a) hazards and risks to the safety of the public arising from the pipeline operation; and (b) hazards and risks to the environment arising from the pipeline operation.

What is reasonably practicable is explained using conventional risk assessment models (s 125): considering the likelihood and severity of harm arising, knowledge of risks and risk avoidance, and the availability, suitability and affordability of eliminating or reducing risk.

  • Requires the development and review of safety management plans [and separate environmental management plans] consistent with the relevant Australian Standard (ss 126-132).
  • Creates a Pipelines Register of licences (s 186).

Australian Standard (AS) 2885

AS2885 is the overarching Standard that applies to the pipeline industry in Australia. It specifies best practice for the design, construction, testing, operation and maintenance of high pressure gas and petroleum transmission pipelines.

Safety management plans must be consistent with this standard, and risk management approaches are directed by this standard.

One requirement under the standard is for the licensee to continually assess the safety of its pipelines in their landscapes. This is done by using risk contour zones devised by reference to classifications of the landscape and the existing risk management features of the pipeline. For land classified ‘urban’ a risk profile and contour zone is created depending on a pipeline’s depth, material and coverage. For land classified ‘rural’ different risk profiles and contour zones are devised.

Significantly, where there is a change of factors or landscape classification to a risk profile, the statutory duty to minimise hazards becomes especially pertinent. One extreme response to mitigate risk upon the change in classification of landscape (for instance from rural to urban) would be to replace the pipeline, deepen the pipeline, and/or cover it in concrete.

Clause 4.2.1 of the AS2885 provides:

‘For an existing pipeline, changes in land use from those for which the pipelines was designed introduce an obligation for a safety management study of the pipeline and where required, the implementation of design and/or operational changes to comply with the safety obligations of the Standard’.

Legal geographies

My research has directed me to the work of legal geographers and material, visible and information geographies, because the research concerns infrastructure that is buried and out of view. The regulation, too, is often not visible.

Irus Braverman explains (‘Hidden From Plain View: Legal Geography from a Visual Perspective’ (2010) 7 Law, Culture and the Humanities 173) that legal geography can be ‘about the hidden stuff that lies beneath the physical or the spatial’, or about what is ‘readable’ in a landscape – and vice versa.

Pipelines are hidden and buried. They are also either formally hidden from, or vaguely and inconsistently represented in, planning laws. The Australian Standard that is their primary risk regulation is not freely available; not readable if you like.

Moreover, despite it being the most specific regulatory document for high pressure gas transmission pipelines, the Australian Standard is reviewed and amended by committee out of the view of the community and Parliaments. Consequently, the community, and indeed most municipal and strategic planners, seemingly have very little understanding about risk profiles and contour zones enunciated in the Australian Standard, and no apparent way to influence this type of regulation of risk.

What appears about the Australian regulatory regime reflects Dayna Scott’s view (‘Situating Sarnia: “Unimagined communities” in the New National Energy Debate’ (2013) 25 Journal of Environmental Law and Practice 81) that the undergrounding of pipelines leads to their limited governance.

There is a burying of the socio-economic together with the material of the pipeline. The burying entrenches established social relationships and power mechanisms especially through permitting and approval laws: an idea revisited by Scott in her other work (‘The Networked Infrastructure of Fossil Capitalism: Implications of the New Pipeline Debates for Environmental Justice in Canada’ (2013) 43 Review generale de droit 11).

Through the legal process, communities become Scott’s ‘unimagined’. Or as Forman argues, ‘public consciousness’ about the pipelines becomes ‘erased’. The gas risk regulation becomes ‘concealed from everyday view’ once pipelines are in the ground. This undergrounding is done for the security of pipelines, but it also leads to a securitisation of corporate/industry interests in them.

These empirically-based perspectives lead to obvious connections with the more theoretical work of Andreas Mihalopoulos-Philippopoulos (Spatial Justice: Body, Lawscape, Atmosphere (Routledge, 2014)) who conceives a ‘lawscape’ as being different from a landscape. A lawscape is often invisible: the law is hidden despite being affective on land. Moreover ([with Sharron FitzGerald] ‘From Space Immaterial: The Invisibility of the Lawscape’ (2008) 17 Griffith Law Review 438), the invisibility of law may be a deliberate attempt to make the law ambiguous, slippery, messy and unverifiable.

Planning as an information geography

The planning system is the communities’ primary source of land use information in Australia. I want to argue that planning law and zoning controls are an information legal geography. A legal geography analysis demonstrates how planning laws visibilise  pipelines and their risk profiles, thus making them a more appropriate (at least supplementary) form of risk regulation to the pipelines laws and standard.

Trevor Pinch argues that information drawn out through planning contests has the effect of materialising infrastructure that may otherwise be materially indecipherable. His research explores an invisible fence that is translated into a barrier through planning debates by virtue of the need to situate and draw the fence (‘On making infrastructure visible: Putting the non-humans to rights’ (2000) 34 Cambridge Journal of Economics 77).

In his study of a dispute about a pipeline through the nation of Georgia (Material Politics: Disputes Along the Pipeline (John Wiley & Sons, 2013), Andrew Barry found that information – about construction, location, impacts, risks and operation – when made public through planning processes materialises pipelines. Their visibility depends on information in the public realm – the ‘production of [public] information’, he says, ‘maximis[es] visibility’.

When pipelines are regulated, and that regulation involves circulating information about location about materials, they are materialised and visibled. The evidence of the existence and site of the pipeline is in the regulation and the information.

Information and material becomes geographic because of the spatiality and temporality of public knowledge they generate. The legal dimension is often wrapped up in the question of who has access to the information, and what information remains in the private domain. Moreover, the governability of pipelines is improved as the behaviour of materials across spaces is understood through transparent and accessible information.

How are pipelines visibilised now?

Within Australia there is already an information geography of pipelines – but not at the scale that materialises or visibilises them for the community. Nor is this information geography transparent and accessible.

Each state has a list of pipeline licences, and some post on the internet licence application and management information. Where information is given about the specific location of pipelines, however, it is done mathematically or textually, not visually.

For example: the SEA Gas pipeline – connecting Victoria and SA – built during the early 2000s is not visibilisied to those communities through which it traverses despite it being listed in a pipelines register, its route being described in GPS co-ordinates, and it being mapped at a regional and suburban scale.

Because their property tenure is sometimes in an easement, pipelines may also be mapped at a fine grain. However, not all pipeline licensees have obtained easements. They have depended instead on statutory ‘corridor’ rights and laws that prevent development in these corridors as sufficient tenure.

In 2010 the Victorian Law Reform Commission (Easements and Covenants: Consultation Paper (2010)) noted the problem of such an approach:

Even owners who have held the land for some years may not know about [the pipelines], or realise the implications, until late in the process of building on the land’.

The Australian Standard also directs signage in the landscape. Yet while localised, these signs are disconnected, and in the periphery of most peoples’ vision. The research into community understanding of the San Bruno pipeline suggests that these kinds of signs go unnoticed.

Planning law can further visibilise pipelines?

Although pipelines can currently be seen and located – the scale is unhelpful to reduce risk or to make them transparent. The maps are too magnified, too granular, too obscure. The information is inaccessible and too localised.

The Victorian Law Reform Commission in 2010 argued that property statements should be issued on request detailing pipelines on a lot. Yet only those landholders with infrastructure assets on their land would be notified of the presence of such pipelines, not those who might be within the zone of risk for the pipeline. We know that zone can be as wide as 660 metres.

The only way to chart pipelines now – is to physically traverse them or to follow the easements where they exist in the land titles registry. This is not a task conducted by local council planners when confronting land use change or development applications. Nor is it done by landholders as they plan developments and subdivisions.

For other land uses and infrastructure (including linear infrastructure including roads and rail), planners already use planning maps to manage separation between offensive and hazardous land-uses from sensitive land uses – they are a tool used to ‘manage’ ‘encroachment’ (Rachel Gallagher, ‘Protecting existing uses from urban encroachment’ (2015) 14(8) Local Government Reporter 142). States have also been willing to protect existing uses on an ad-hoc way (eg speedways, airports, tips) through planning schemes. That protection is achieved through the visbilisation and creation of transparent information about hazards and risk. Planning achieves a separation; an informed and public enclosure. By separating the hazard from the vulnerable, planning reduces the consequence of risk.

As Christopher Miller and Claire Fricker have argued (‘Planning and Hazard’ (1993) 40 Progress in Planning 167), and has Barry demonstrated in his study, planning is effective to reduce risk through information and material geographies, and to both politicise hazard by making it public, and to depoliticise risk through consistency and transparency.

Through planning law, authorities and oftentimes disempowered or ‘unimagined’ communities can therefore become aware of the location, the nature and the accumulation of hazards even while the pipelines remain buried and out of view.

The Australian Pipeline Industry has developed ‘notification zones’ along pipeline routes, where it seeks to be advised by local authorities when a development application concerns land in this zone of potential risk. This is the information that it informally shares with planning officers – but it is not on planning maps and the process of referral not articulated in planning law or policy.

Where used, landholders are alerted to the notification zone only when the landholder propose to change use or develop land. But only then. There is a selective visibility. A privatised visibility. The infravisibility of pipelines; their material ambiguity; and a selective visibility persists as a result. So does the power differential and entrenched and buried social relationships that result in communities being unaware of the risk that is behind and beneath them.

This kind of visibility, information geography and material geography is inconsistent with the core purposes of planning law – of transparency, clarity and orderliness in land use and development. Making the notification zone visible and present in the planning system, however, would achieve a visible, material, information and legal geography. That is what I propose.

 

Endings and Fairness: The Clean Energy Act 2011 (Cth) and Queensland Nickel

Originally published at Opinions on High, the Melbourne Law School High Court blog.

Australia’s first national laws to put a price on carbon were effective to their end; reportedly leading to reductions in Australia’s combined greenhouse gas emissions. In their absence it has been reported that increases in emissions have resumed. While our new Prime Minister grapples with how to rein in these emissions, the High Court last year confirmed that the carbon price laws were lawful, and through the prism of the Constitution fair, to their end. The history books will show, however, that politicians failed to make the case for a carbon price law, but they devised and crafted a successful, if complex though geographically unfair, legal policy. Over the past few days the protagonist in the High Court case, Queensland Nickel, with the business faltering, has brought claims of fairness into the political discourse around this business’ carbon intensive operations.

The Constitution and no interstate discrimination

In Queensland Nickel Pty Ltd v Commonwealth [2015] HCA 12, notable also as Nettle J’s first judgment, the High Court dismissed a claim by Queensland Nickel that regulations supporting the principal Act, the Clean Energy Act 2011 (Cth), were unconstitutional based on their geographic effect. Arguments relying on s 99 of the Constitution, the non-discrimination provision, that the regulations inadvertently and indirectly discriminated against the Queensland-based refinery business wholly owned by Clive Palmer MP, the federal parliamentary member for Fairfax, were rejected.

The High Court concluded that the additional financial liability imposed on Queensland Nickel relative to other refineries in Western Australia that triggered the case was not a cause of a difference or discrimination on the grounds of physical or jurisdictional geography but a result of past decisions made by Queensland Nickel on purely financial grounds. The effect of the laws as experienced by Queensland Nickel relative to its Western Australian competitors may have had an increased financial burden on Mr Palmer’s company, which has not been attributed to the company’s financial woes, but that burden was not attributable to the law; rather business decisions made by the company in its infancy.

In the High Court case, Nettle J adopted the plurality view in the Fortescue Metals case, and found that the particular parts of the carbon price regulation that set out liabilities for nickel refineries ‘did not discriminate between States. In terms, it applied equally to eligible persons carrying on the production of nickel regardless of the State of production’ (at [56]). Although Nettle J acknowledged a difference in practical effect of the laws for Queensland Nickel, he considered that ‘in this case it does not appear that any of the differences between the plaintiff’s and the Western Australian nickel producers’ inputs, production processes or outputs were due to differences between Queensland and Western Australia in natural, business or other circumstances’ (at [58]).

Instead, Nettle J focussed on past decisions about mining processes as giving rise to the different effect of the laws. The mining process adopted by Queensland Nickel was found to have been the reason for the greater financial burden under the laws. Although Nettle J conceded that the mining process decision ‘was informed by geographic considerations’ (at [61]), the decisions were ultimately based on delivering to each firm the greatest possible financial windfall at the time the decisions were made in the historical technological settings.

This conclusion, which eschews considerations of the geography of place, effect, and time in preference for considerations of financial autonomy offers an appropriate and consistent ending for the Clean Energy Act 2011, because financial interests trumped geographic interests and fairness throughout its invention, implementation and repeal.

The carbon price laws and unfairness

In the lead up to the last federal election Clive Palmer claimed to have advice that the carbon price legislation was unconstitutional, drawing in the then federal opposition leader, Tony Abbott, and then Queensland Liberal National leader Campbell Newman in support of his case. One of the frames developed to oppose the carbon laws was fairness and justice. This particularly included fairness to Australia internationally and fairness for businesses in Australia, especially those smaller businesses facing higher electricity costs, and fairness to families facing higher electricity costs (not all caused by the carbon price laws). At that time, in 2013, however, opposition to the laws was not widespread or strong, with most people ambivalent towards them (as distinct from the deeply felt opposition to the then Prime Minister’s popularly understood broken promise not to introduce a carbon tax). Moreover, opposition to the carbon price laws diminished further in the year following the election of the Tony Abbott led government and in the lead up to their repeal.

There could have been a more sophisticated level of opposition to the laws, not triggered by the financial costs created by the laws (as that was their very deliberate intention), but based on geographic fairness. By geography I mean the distribution between places and jurisdictions and across space, time and scale of social, environmental, political and economic advantages and burdens, whether deliberate or consequential.

The remainder of this short piece tries to record those geographic bases for opposition to Australia’s recent political and legal responses to the issue of carbon emission reductions, which, unlike Mr Palmer’s claims, did not rise to prominence in law or the media. With Mr Palmer’s recent attempt to deploy a discourse of fairness in the context of the financial predicament of Queensland Nickel it is a timely to record these fairness bases.

Geographer Lesley Head has demonstrated that those Australians with lowest incomes experienced the greatest burden of reducing emissions from electricity use under the carbon price legislation. In contrast, the rich simply paid more to run their air conditioners and wine fridges. Indeed, any consideration of the distribution of effect of climate policies and laws across the spectrum of advantage in Australia is typically not prioritised. The recent history of Australian climate policy has examples of ignorance of their geographic fairness, and the discourse of ‘climate justice’ is rarely highlighted in this country while claims about financial business injustices are.

Moreover, the way the carbon price laws were comprised and then administered demonstrated a lack of concern for geographic fairness in place of economic purity and attention to dominant financial interests. For instance, the laws were ultimately not accompanied by regulations that mandated improvements on those coal-fired generators that disproportionately affect carbon exposed communities. Rather the laws did include exemptions to protect trade-exposed business. Moreover, the promise to close down the least efficient power generators in order to achieve significant additional reductions, and indirectly improve the environmental health of the host communities, came to nothing. The long-advocated greenhouse trigger for environmental assessments in the federal Environment Protection and Biodiversity Act 1999 (Cth), which would have protected more communities from future pollution, was dismissed again — this time as being incompatible with the market approach of the carbon price regime.

The repeal of the laws, however, has entrenched localised pollution (an exception is in Anglesea where the generator supplying the local aluminum smelter has been decommissioned on financial grounds). Large coal fired generators are now not required to reduce their emissions at all. The Australian domestic approach to emissions reductions now also reflects its international agenda of using offsets in place of reductions: a policy approach I have previously questioned as being geographically unfair.

While the High Court’s approach to the issue of the geographic effect of the carbon laws was cursory, that should not leave us to think that the recent and current approaches to carbon emissions reduction laws and policies passed the geographic ‘fairness’ test. Rather, these laws created and have embedded geographic discrimination of a type that s 99 of the Constitution is unable to redress.

Queensland Nickel’s financial struggles and retorts to fairness

As for Mr Palmer’s claim that the Queensland government should have guaranteed Queensland Nickel’s immediate financial security on the basis of fairness, that’s far more difficult to unpack. As Antony Green alludes to it seems that Mr Palmer was attempting to use ‘fairness’ as a slogan in the same way the present government has for its current reform agenda: an agenda focused on matters economic and overlooking the geographic unfairness of climate change law and policy. Lost also in the framing of the debate by Mr Palmer, but identified by the Queensland opposition, is the fairness of the State potentially being called upon to rehabilitate the refinery site lest the local community continue to bear environmental harms without any economic advantages from the operation of the refinery.

From environmental citizenship to heritage citizenship? The Victorian Ombudsman, the Brookland Greens gas leak and the Windsor Hotel redevelopment

This an abridged version of a paper I delivered at The University of Melbourne, Australian Institute of Art History “International Conference to explore approaches to the preservation of urban built heritage, with a focus on Melbourne” in October 2014.

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The Victorian Environment Protection Authority’s embrace of the notion and principles of ‘environmental citizenship’ points towards a principled attempt to begin the process for redistributing power and reprioritising community concerns in environmental laws in the state. Lightly grounded in scholarship, particularly the work of Dobson, Victoria’s Environmental Citizenship Strategy positions the community as having a role in environmental regulation and asserts that the authority’s function is to enforce environmental standards and be responsive to community concerns about environmental harms. The enthusiasm for a novel form of citizenship-based policy development, notwithstanding that the policy is part of the broader State government Environmental Partnerships program, has not, however, migrated to heritage laws. There is no policy support for an idea of ‘heritage citizenship’, for instance. I argue that there should be; that we need to reflect on the purpose and function of heritage laws with concepts of citizenship in mind.

My paper relies on two place-based controversies connected by time, by government mishandling, and – most significantly for the paper – by the critique of the Victorian Ombudsman. The environmental citizenship concept can be traced to the Ombudsman’s report into the Brookland Greens Estate gas leak saga in Cranbourne, while the other Ombudsman report – about the redevelopment of the heritage-protected Windsor Hotel has led us to nowhere in particular. This is despite the nature and topic of the Ombudsman’s critiques being comparable. The paper distills the similarities in the Ombudsman’s critique and offers some preliminary thoughts about what a notion of ‘heritage citizenship’ would mean in our existing legal landscape.

The Ombudsman’s report into the Brookland Greens Estate gas leak concluded that the Victorian Environment Protection Authority particularly had mishandled regulatory oversight and made poor administrative decisions about the estate development and regulatory control over the adjacent landfill from where the gas emanated. Specifically, the authority:

  • had poorly enforced the laws it was charged to administer. It prioritised relationships with organisations it was supposed to regulate instead of prioritising the welfare of the people it was supposed to protect.
  • did not compel compliance with the law. It did not adequately respond to improved standards and environmental knowledge and failed to escalate enforcement when there was a clear need to do so.
  • lost sight of its overarching environmental protection objectives.
  • had consolidated decision making within a bureaucratic elite, making the organization unresponsive and rendering itself functionally hamstrung.
  • did not take a formal or influential role in court proceedings when it had the opportunity to do so and the knowledge to influence.

The Victorian Ombudsman, 16 months after its inquiry into the Brookland Greens Estate was directed to inquire into the events that led to the planning and heritage approval of the highly contested Hotel Windsor redevelopment. The Victorian government approved the redevelopment through the Minister for Planning in his role as responsible authority: a role he had because of the proposed size of the redevelopment. His decision was supported by an advisory committee recommendation. The project had the support of the City of Melbourne. Heritage Victoria also promptly granted a heritage permit under the Heritage Act.

The focus of the Ombudsman’s report was a plan hatched within the Minister for Planning’s office to generate community opposition to the project upon the release of the advisory committee recommendation report. This was intended to curate a political imperative to reject the project, but the plan was inadvertently disclosed and the rejection of the redevelopment became a political impossibility (and potentially a legal minefield). From the Ombudsman’s report it can be deduced that:

  • an appointee to the advisory panel was implicated in conflict, having previously worked on the site with a member of the development team, bringing into focus the small and interconnected community working on the Windsor Hotel.
  • key decisions, recommendations and strategies were devised by Ministerial staffers with insufficient oversight, accountability, expertise and management.
  • the community was seen as something to use for political purposes rather than as contributing meaningfully to decisions about heritage.
  • the Department of Planning, through its then Secretary, asserted that decisions made under the Heritage Act can be reached by a decision-maker giving equal weight to impacts on heritage of development and to the impacts of economic use of a heritage place arising from non-development. This dispelled any idea that the administration of the Heritage Act ought to achieve its main statutory goal: ‘to provide for the protection and conservation of places and objects of cultural heritage significance and the registration of such places and objects’.

Across both Ombudsman reports there were findings or suggestions about inappropriate administrative conduct, power resting in an exclusive elite, a failure to prioritise community concerns and expectations. and a sidelining of the community in decision-making. Still, the inquiry into the Windsor Hotel has not led to a policy response comparable to the Environmental Citizenship Strategy, which was triggered by the report of the Ombudsman and others prepared for and by the Environment Protection Authority about the Brookland Greens Estate.

However, there is a breadth of scholarship on urban citizenship and justice that could – or may still – provide a starting point for reconsidering legal and policy frameworks and encounters with heritage and planning laws. A notion of ‘heritage citizenship’ could be extracted from this scholarship. Selectively and notably, Fainstein has argued that a just city is one that is one that is diverse, democratic, and equitable; where the community and its collective “quality of life”, rather than politics, is the central figure. Her work draws upon justice theories and philosophy as well as social geographers, prime among them Harvey, whose work articulates a right of city dwellers to urban identity, citizenship and belonging; a right not to be dispossessed. Of particular relevance to heritage, Szerszynski has argued that urban citizenry includes the right to be and of the visual and a responsibility to the visual. Smith and Mcquarrie argue that urban citizenship is not only about belonging within the city, but also belonging within the law of the city, where ‘belonging’ is different from simply ‘being heard’ in law. Finally, legal scholar, Merryman has argued that the basis for heritage conservation is the public interest. So the public should be central in decisions about heritage.

Under the existing planning and heritage law regime, however, the experience that many in the community have, including those opposing the Windsor Hotel redevelopment, is that they are kept on the periphery. Planning and heritage laws restructured around a concept of heritage citizenship would, however, bring community into the framework more explicitly. Community rights and interests and their position in the city as dwellers and responsibility bearers should mean that heritage laws are primarily and unashamedly about heritage protection for them; rather than their interests merely being a factor to balance against proprietary and capital interests. Heritage citizenship would see also a dispersal of power within the administrative system for heritage protection, with less dependence on a professionalised and hierarchical bureaucracy, power reallocated away from the Minister, and a more purposeful role for all of us urban citizens.

Clearing the Air: Australia, environmental justice and ‘toxic’ pollution

Here is a speech I gave at a public seminar hosted by Environmental Justice Australia on 8 July 2014 on the topic of air pollution and environmental injustice.

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The focus of this evening’s seminar is the recently published ‘Clearing the Air’ report into air pollution by our hosts, Environmental Justice Australia.

However, I want to start my presentation by taking you back a couple of years to the report that saw this organisation shift its attention, and ultimately its name, towards concerns of environmental justice.

In that report, the final report of the Environmental Justice Project (pdf), the Environment Defenders Office (‘EDO’) – as it then was – explained an absence within Australia of a narrative – or movement – for environmental justice and a policy gap in the promotion of environmental justice principles throughout the country.

For those of you unfamiliar with the concept of environmental justice it is a term with an evolving definition: it is defined differently depending on context and perspective. What links the definitions, however, are two concerns about fairness.

First, fairness in terms of where environmental harms are situated. In this respect the concept is understood as having distributional or geographic aspects.

Second, a concern about fairness in decisions about projects or policies that are perceived as having environmentally harmful effects – wherever those effects may be located. So in this respect the concept is also understood as having procedural or political aspects.

When understood at its most basic level within these two terms, I am sure you will agree that for many decades these concerns about fairness have been evident in Australia. I am confident that each of you could recall a case, a project, a decision, a pollution event that either gave rise to concerns about distributional unfairness or procedural or political unfairness.

Some readers of the EDO’s Environmental Justice Project Final Report, however, suggested that the concept of environmental justice is novel to Australia: that the EDO’s work was the first time that environmental justice had been brought into view in Australia. That is not accurate. A review of the footnotes of the EDO report makes plain that there has existed and been recorded for a period of time in Australia events and literature on environmental justice.

In fact, the experience of air pollution in Australia allows you to trace environmental justice concerns for decades. The graphic locating geography hot spots of air pollution in the Environmental Justice Australia report, (pdf, see page 16), offers you an opportunity to reflect on how long those spots have been presenting distributional, unfair health problems to those communities. They have not just appeared over the past two years.

The principal messages in my presentation today, drawn from my research and also what I learned in putting together and recently teaching the subject Toxics, Waste and Contamination Law is that environmental justice concerns have played a part in our pollution laws over the past 40 years.

It is only now are we as a community of scholars and of individuals beginning to frame our laws as being directed to achieve environmental justice. The report we are discussing tonight is part of this movement; part of the trend.

I want to offer two potential reasons for this interest in environmental justice: not simply the concepts but also the words, the discourse, the phrase, the term.

First, we are seeing demands that human health impacts be a priority when governments respond to incidents and reports of degraded environments and, associated with that, a second potential reason (and this is somewhat preliminary and speculative) is the displacement, in the view of non-government entities, of sustainability as the predominant policy goal of environmental laws.

To reach these conclusions, however, it has been necessarily for me to take what is becoming an unconventional route to understanding what environmental justice means.

The conventional route is to see environmental justice as having emerged from the environmental racism movement in the USA, exemplified by the incident in the late 1970s and early 1980s in Warren County where abandoned chemical wastes were relocated in the face of African America led opposition to a tip created in the least wealthy and least white county in North Carolina.

A less specific, less limiting and arguably more global and less instantaneous, alternative starting point for the emergence of environmental justice is in the anti-toxics movement.

Political scientist John Dryzek traces the discourse of environmental justice to this movement and social scientists Buell and Szasz also separately reached this view.

For them ‘toxic’ was and is a word of political power and an expression and encapsulation of human health concerns. Szasz writes of toxic as ‘icon’, a rallying point. Buell writes of the ‘global rhetoric’ of toxicity predating the 1970s. Dryzek notes the difficulty in disproving toxicity: hence it has symbolic and political power.

Toxic was proxy – for justice, for fairness, for protection of human health. It remains so. You are also likely seeing it appear more in our environmental language. Alkon et al in recent scholarship in the journal Local Environment argue that we should not always be looking for environmental justice as a term to understand its meaning and force, but to be mindful of proxy terms.

So if you are looking for a narrative of environmental justice in Australia a search for concerns and complaints about toxicity can be a proxy. You are all likely aware of the long standing National Toxics Network. Some of you might be aware of the book Local Heroes edited by Kathleen McPhillips which recounts incidents of toxic pollution and threats around Australia, including at the periphery of Coode Island here in inner Melbourne. These, as well as some of those locations in the pollution hot spots map, are Australia’s early stories of environmental justice. They date for decades.

What is central in the toxics terminology is the human – toxic effects on humans. So having sketched out a path for you to see environmental justice as having resonated through our experience of pollution laws, I now want to turn to emphasise the centrality of human health to those concerns. To show the parallel experience of health and toxicity in our modern environmental laws.

If you look at the origins of the Environment Protection Act 1970 (Vic), you will see a focus on human health concerns within the broader community.

Former federal MP Lindsay Tanner, in his co-authored 1978 book, The Politics of Pollution, pinpoints the proposal for the Carrum sewerage treatment plan with an effluent pipeline into Port Phillip as a trigger for the public to demand a comprehensive pollution control regulatory system in Victoria: a system that would protect the “quality of life” of the public. Tanner’s book also records the election promise of the Bolte government to create the Environment Protection Authority in May 1970 in response to community demands for government intervention to control pollution for their benefit.

While these laws have changed over the past 40 years, particularly in the post-Rio legal sphere, and while governments have repositioned the laws to achieve environmental protection and meet principles of sustainability, recent reports analyzing the conduct of the Environment Protection Authority reiterate that in the community’s view these are laws ought to protect them, their well-being and their health, and that their health has been missing from the agency’s regulatory enforcement activities.

My research has also led me to suspect that if the community ever signed up to the concept of environmental sustainability it has since signed off.

With Annette Jones I reviewed submissions to human rights dialogues, which clearly (and perhaps naturally because of the subject matter) prioritized human well-being, particularly of the most vulnerable in the community, over environmental sustainability and protection concerns. This was so even when governments invited submitters to consider explicitly a right of ‘environmental sustainability’, as the Tasmanian government had proposed. There the Tasmanian people rejected that right in preference to a right to a healthy environment.

The issue of human health as a regulatory priority of pollution laws will be explored in a forthcoming volume of the Michigan Journal of Environmental and Administrative Law. In the introductory essay by Uhlmann, he notes that:

“I would submit that the environmental laws themselves are human-centric … Our environmental laws focus on the need for pollution prevention to protect public health.”

He argues that in contemporary times: “We regulate hazardous waste, … when it has the substantial potential to be harmful to “human health and the environment (in that order).”

Ulhman is not alone in suspecting an internal US change in approach to greenhouse gas emission regulation (with human health as its core) is symbolic as well as pragmatic. In the same volume he notes that Tracy Bach presents research that shows the community is more likely to accept greenhouse gas regulations if climate change is understood as a human health issue. Bach, an environmental pragmatist, argues that we should attempt to secure atmospheric environmental protection through human interest.

Elsewhere in the US, the need for change climate regulatory responses are framed in environmental justice terms in order to persuade regulators to require emissions reductions from power plants rather than letting markets do that work so that communities that host energy infrastructure should see real benefits and changes in the quality of the air that they breathe. President Obama, admittedly with limited alternatives, has responded in a manner that his advisors claim responds to environmental justice and the claims of environmental justice advocates to limit emissions in vulnerable communities.

So, I want to bring you back to environmental justice in Australia. Now, perhaps as a result of the EDO’s two-year old report, we are seeing a clearer and more conscious and deliberate engagement with the concept in Australia. Chakraborty and Green have produced and analysed National Pollutant Inventory data maps with social advantage data showing a clear and strong correlation in Australia between a lack of advantage and presence of potentially harmful pollutants.

Moreover, Felicity Millner (pdf) from Environmental Justice Australia has written about the need to achieve fair access to justice in the environmental law field in Australia. This organization may take on a role as justice advocate, a role that Alkon et al identified as important in driving the environmental justice narrative, and the Clearing the Air report challenges us to confront and come up with a way to respond to an environmental injustice.

Sharing Melbourne and the Sustainability Business Clinic

This is a short roundtable presentation I gave at the Sharing Economy Leaders Forum in Melbourne on 29 May 2014 in which I introduced the Ashurst Australia / Melbourne Law School Sustainability Business Clinic to a band of sharing economy enterprises and enthusiasts.

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The Sustainability Business Clinic will be the first law clinic set up within Melbourne Law School for the law school’s Juris Doctor students. While this clinic will be new for Melbourne Law School, it builds upon a much longer tradition of clinics in law schools, especially in the United States. In the US there have been efforts to incorporate experiential learning and practical learning in the form of clinical programs for decades.

With the shift at Melbourne Law School to a post-graduate law programs the importance of clinics has been emphasised – with students now taking typically three rather than five years to complete their studies. Students want to pack as much practical leaning into their programs as they can to make sure they are job ready by the time they graduate.

For those of you unfamiliar with law clinics, they are essentially small student populated law firms on campus. Upper year level law students get to use their legal skills and knowledge in a practical setting. Their work is overseen by and supported by experienced lawyers and teachers. The legal service the students offer is provided free to worthy clients.

Within the Sustainability Business Clinic, students will be supervised by lawyers from the global law firm Ashurst, and I will provide the learning framework and supervision to the students.

This year the clinic is running in semester 2 (from July through October) from Melbourne Law School at The University of Melbourne Parkville campus. Eight students will work for eight or nine clients one day a week over 12 weeks.

All of Melbourne Law School’s experiential learning offerings are centred around the objective of advancing the public interest and Ashurst’s involvement builds upon its ethos and commitment to provide pro-bono (that is: free) legal service to worthy clients. The Sustainability Business Clinic has a mission of public interest interpreted through an imperative of sustainability.

Melbourne Law School and Ashurst hope to assist through the clinic businesses or community or non-profit entities that are supporting or leading our transition to a sustainable future through enterprise. For us the sharing economy is an expression of sustainability. So, we are aiming to help business like you: businesses that are thinking creatively about how we, as a community, can share rather than consume, to build more robust and networked communities and improve our environmental well-being. The enterprises we will support might be hoping to turn a profit, or not, but aside from their sustainability objectives what will be common among the clinic clients is that they will not currently have the capacity to pay for specialist legal advice.

Our first tranche of clients are sharing businesses, disruptive business, social enterprises and community co-operatives. They are all taking business initiatives without and before the development of policy support and (sometimes) laws that support or guide their activities. They are all in the formative stages of the evolution of their businesses.

The clinic will help clients in various legal aspects. Starting out, advising on permits or consents, traversing a sometimes complex or uncertain regulatory environment, and preparing standard documents. Our goal is to offer legal assistance for discrete legal questions to many clients, not to build long term lawyer-client relationships. There are emerging law services that can offer those long term relationships once business are up, running and able to afford to pay for legal services.

To best suit the skills of the students who will occupy the clinic, we have asked our first clients to think about legal problems that require thoughtful legal research rather than legal strategy; tasks that will allow the students to develop drafting skills and encounter different types of legal documents.

There is a bit of give and take involved. In exchange for free legal service, we want our clients to interact with, be appreciative of and encouraging of our students. We hope that people like you see the value in giving students practical training – particularly in the areas of law and legal documents that your industries want to see developed further. Moreover, we hope that clients will see the benefit in being involved within an institution – The University of Melbourne – that wants to analyse and research emerging trends in society. That is keen to help shape opinions about the sharing economy, among other sustainability matters, and to critique the laws that affect new, dare I say ‘green’ businesses attempting to do good for the public.

The sharing economy and the law

Last year, when Time Magazine named 10 ideas that will change the world, high on the list was an entirely new concept: ‘collaborative consumption’.

Got a spare driveway? Rent it to a driver using ParkatmyHouse. Extra space in your shed? Let it out via Open Shed. A small job that needs doing? Find someone to do it through Airtasker. Old clothes? Exchange them with Clothing Exchange.

Also termed the sharing economy, the access economy, or the peer-to-peer economy, this new economic model is based on ‘access to’ rather than ‘ownership of’ physical and human assets like time, space and skills.

The ‘sharing economy’ has mushroomed in Australia, and Melbourne in particular has seen a range of initiatives start up.

Back in 2004, Melbourne was among the first to embrace the sharing economy concept with the launch of car-sharing. These days, Melbourne boasts bike-sharing schemes, community-owned energy projects, solar leasing projects, and carpooling schemes for city commuters. Our city rooftops now grow vegetables and host beehives, and the Melbourne City Council is developing other initiatives to encourage a shared use of resources in the city.

Operating in the sharing economy brings multiple benefits: profit, community building, strengthened local economies and reduced waste. But it’s becoming clear that these sharing initiatives also pose major challenges to our legal system.

That’s because our laws are based around ownership of goods, rather than access to them. Our legal frameworks have evolved to regulate established relationships such as employer/employee, landlord/tenant, developer/homebuyer, business/investor and producer/consumer.

The sharing economy often doesn’t fit within these categories. Is a person who spends time tending to a community share garden in return for vegetables an employee? Or a volunteer protected from negligence actions? What is the extent of their contractual rights and obligations?

This has already given rise to legal tensions in the United States. In the US, services like Lyft, SideCar and Tickengo connect individual private drivers with people who are looking for a lift, reducing traffic congestion and the need to own a car. But in many US states, these peer-to-peer car-sharing services are illegal. Last September, California was the first state to legalise technology-based ride-sharing services, providing a regulatory framework for them to operate.

In New York, Airbnb is being investigated for possible breaches of a 2010 law making it illegal to sub-let your apartment. New York City’s Attorney General has filed a subpoena for data on all Airbnb hosts in the city. Peers, an organisation that supports the sharing economy, is currently lobbying New York law-makers to introduce regulations to allow for Airbnb to operate legally.

Similar legal issues are starting to emerge from such initiatives in Australia. Community energy groups are grappling with their incorporation, while initiatives like rooftop gardens are being constrained by planning laws. Food sharers must comply with the same food safety rules as larger not-for-profit enterprises. Despite community support for sustainability projects, overcoming legal barriers is a significant impediment to sustainability projects getting off the ground. However, the need for specialist legal advice comes at a time when many projects do not yet have the capital to pay for lawyers.

The legal and commercial factors sustainability companies need to consider in order to get moving include determining the right legal structure, securing the right legal approvals and licences, developing an effective finance model, raising start-up capital from investors (which may include the community through crowd-sourcing) and offering a service that is in demand, understood by consumers and is simple to use.

Recognising the difficulties environmentally-minded companies face in navigating a minefield of laws and regulations, leading global law firm Ashurst has teamed up with University of Melbourne to establish a Sustainability Business Clinic.

The first of its kind in Australia, the Clinic begins this year and will see law students provide legal advice to start-up companies under the supervision and guidance of environmental lawyers.

Projects that are in the public interest benefit the environment and do not have the capacity to pay for specialised legal advice may have access to the Clinic. It is expected that a broad range of legal issues will arise, spanning environmental, planning, property, corporate, finance, intellectual property and energy law.

It is hoped the clinic will not only help sustainability initiatives get off the ground, but will also equip the lawyers of the future with the practical skills required to advise companies operating in the emerging and rapidly growing sharing economy. If Time Magazine is right, then these skills will certainly be in demand.

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This article was co-authored with Katherine Lake and was first published in The Voice.