A perspective on the climate negotiations at Durban

The path agreed upon at Durban is much the same as the path the world has been heading at least since Bali. We have known that the successor to the Kyoto protocol will be an ‘all-in’ agreement, with all nations taking on some responsibility to reduce emissions. Insofar as the nations within the UNFCCC all remain committed to reducing emissions we should be considering the outcome a positive one.

However, not much progress can be seen in the words negotiated at Durban on the important matter of what agreement will be reached about future emissions reductions. Certainly there is no clarity about the obligations that will be imposed on nations with the most advanced economies and those nations with emerging economies in a future agreement. In particular, the world has not agreed on what is fair for developed nations to expect of developing nations and how much responsibility developed nations should take for their past carbon excesses.

But there is clear progress nonetheless. This is particularly evident if you look at the lead protagonists. Australia has forgone its role as the churlish spoiler, despite the fact that it remains steadfastly supportive of the US and entrenched in the Umbrella Group of developed nations who operate as dampeners and delayers of progress.

The passage of the carbon price legislation means that our nation is no longer a frustration to global progress. And we were long a frustration. Durban has showed us that nations like China and India would not be put in the spotlight until countries like Australia committed to reduce its emissions. Compared to past meetings China, by all reports, appears to be have been less steadfast. It was India, whose voice has only started to be significant in negotiations as other polluting nations like Australia came on board, that spoke loudest in the end.

And from the US, you would not even know that the meeting was taking place. Global negotiations on emissions reductions seems to have no traction with the media, with the current to-ings and fro-ings with the Republican nomination and European financial crisis entrenched in the news.


This comment was written for and published by The Conversation under the title: Global climate change pact in Durban: expert comment.

So much for a fair go: Kyoto protocol lets Australia offload climate responsibility

If climate change ever was in equal part a moral, economic and environmental challenge, then it is no longer so. Morality has fallen from attention.

The economists have long dominated the climate change discourse. Ross Garnaut set Australia firmly on this course in 2007 and has reminded us of the priority we continue to place on the economics of climate change through the recent release of his final report.

The science of climate change, like the recently published report of the Climate Commission, is now used to support a chosen economic policy of Australia’s federal government.

Even the environmental movement is focusing on the opportunities of “change”. Half of the speakers in the recent ‘Say Yes’ television advertising campaign spoke of economic and financial changes that will result from Australia’s current proposed response to climate change.

The strategy seems to be to downplay the environmental imperative.

Meanwhile, the morality of climate change remains the domain of the academy, the occasional public thinker and the personally anguished.

Only rarely now are Australians reminded about the need to contribute a “fair share” to climate change strategies. However, fairness and the morality of our efforts will soon come into focus. This will particularly happen if Australia adopts an emissions trading scheme, as the government intends after a three-year carbon tax.

The Clean Development Mechanism under the Kyoto Protocol allows countries with international law obligations to limit greenhouse gas emissions to fund projects, like gas plants or wind farms, in developing countries and take the credited emission reductions for themselves.

Most of these projects have so far occurred in China and India but there is scope and likelihood of these projects occurring more widely.

The Joint Implementation program, also under the Kyoto Protocol, allows the same sort of projects to be funded in other countries that have international obligations to reduce emissions but whose economies may be weaker.

These so-called “flexibility mechanisms” allow countries like Australia to reduce greenhouse gas emissions most cheaply in foreign countries. They have the supposed added benefit of increasing the livelihoods of communities in less-developed parts of the world.

The mechanisms are firmly entrenched and are unlikely to disappear from the legal landscape any time soon. They are also largely unchallenged domestically.

The defeated Carbon Pollution Reduction Scheme Bill, for instance, would have allowed companies to meet their emissions reduction obligations at the lowest cost from whereever in the world they could do so. Last week Garnaut told us that his proposed floating price for carbon “will assist in allowing emissions reductions to take place where they are cheapest”.

However, are these mechanisms fair, and do they actually realise environmental and community benefits? The evidence so far suggests that they are not.

Often the projects are proponent-driven and occur outside of a comprehensive climate change framework. They are set up in places without stringent environmental laws and without the participation of locals. These people will bear the burden of the development but are supposed to benefit from this form of “sustainable development”.

The projects might not even be the ones the developing country wants – or most needs. Reports from the World Bank indicate that any development benefits and capacity building have been low.

Most problematic, though, is that while these projects are allocated a notional emissions reduction figure, most of the time we do not really know if they actually reduce emissions.

What we do know, however, is that as a consequence this notional figure of emissions will not be achieved in the developer’s country, like Australia. And any real emissions reductions can never be claimed by the developing country because they cannot be counted twice.

If the international community wants to retain this system it should change it.

Comprehensive national strategies that clarify emissions profiles and outline the development and energy needs and priorities of communities ought to be a pre-condition. As an international community we should, first and foremost, listen.

Accordance with robust environmental practice even when the local law does not require it should be mandated.

Finally, at least part of the realised emissions should be banked for the future benefit of the developing nation. That’s just fair.


This article was written for and originally published by The Conversation.

The failure of the EPBC Act to preserve the heritage values of ANZAC Cove

The controversy surrounding the Australian Government’s request of the Turkish Government to undertake road building works at ANZAC Cove, and the ensuing damage alleged to have been caused to the heritage values of ANZAC Cove, raises questions about how the work was requested and approved by the Commonwealth Government without being assessed under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act).

The Federal Parliament passed the Environment and Heritage Legislation Amendment Act (No 1) 2003 (Heritage Amendment Act) in August 2003. Following Senate approval, the then Minister for the Environment and Heritage, Dr David Kemp (minister), commented that ‘for the first time, Australians will be able to nominate and protect those places that define us as Australians, that tell us stories about who we are and how we came to be the nation we are today’ and that the laws would ‘provide real protection for the heritage values of the places’.

The Heritage Amendment Act established a National Heritage List. Places in Australia and abroad that possess outstanding heritage values to Australia because of their importance to Australia’s natural and cultural history are eligible for inclusion on the List. A place that has been included on the National Heritage List is referred to as a National Heritage place.

Shortly before the Heritage Amendment Act commenced on 1 January 2004, the Prime Minister, in a door-stop interview on 18 December 2003, commented that ‘… ANZAC Cove … seems overwhelmingly the appropriate first choice for listing on the National Heritage List’. However, ANZAC Cove is not among the seven places that have been listed in the 16 months since the Heritage Amendment Act commenced.

If ANZAC Cove had been listed on the National Heritage List (or indeed, should it be listed in the future), it would have been protected under sections 15B(7), 15C(11) and 15C(12) of the EPBC Act. These sections generally provide that a person must not take an ‘action’ outside of Australia that has, will have or is likely to have a significant impact on the national heritage values of a national heritage place without the approval of the minister. These sections create maximum penalties of up to $5.5 million for a corporation and imprisonment for a term of up to seven years for a natural person.

Under international law, a nation cannot impose its laws on a foreign entity acting in a foreign land. Consequently, the above sections of the EPBC Act could only apply to Australian citizens, governments and corporations. This means that even if ANZAC Cove had been listed on the National Heritage List, the fact that the offensive road building works were undertaken by a Turkish company meant that the EPBC Act could not have regulated the works.

Nevertheless, even if ANZAC Cove had been listed on the National Heritage List, the Australian Government could have requested and approved the building works without the need for the works to be assessed and approved under the EPBC Act. Under the EPBC Act, the Australian Government’s request to the Turkish Government to construct the road, and any approval of the Australian Government of the design and extent of works, would not amount to an ‘action’ regulated under the EPBC Act. This was recently confirmed in the January 2005 case of Save the Ridge Inc. v Commonwealth of Australia [2005] FCA 17, where the Federal Court held that the adoption and amendment of development plans by a federal government agency is not an ‘action’ under the EPBC Act. By implication, this case stands for the proposition that ‘actions’ can only be taken by the entity or person physically undertaking the work on the ground.

Despite these limitations, section 160 of the EPBC Act provides a potential avenue to address this shortcoming. Section 160(1) requires Commonwealth agencies and employees to obtain and consider an advice from the minister before it gives certain types of authorisations as listed in section 160(2) or prescribed by regulation. For example, section 160(2)(a) requires such advice to be obtained before the Commonwealth, under Australia’s foreign aid program, enters into a contract, agreement or arrangement for implementing a project that has, will have or is likely to have a significant impact on the environment anywhere in the world. A regulation made under section 160(2)(d) could require such advice to be obtained by a Commonwealth agency or employee before requesting, recommending or approving an action that has, will have or is likely to have a significant impact on the heritage values of an overseas place inscribed on the National Heritage List.

Of course, this would only be effective if ANZAC Cove was placed on the National Heritage List. While Turkey has objected to the perceived intrusion of such action on its sovereignty, introducing a regulation under section 160(2)(d) still has merit—the Turkish Government may at some point change its mind, and other places around the world, Kokoda for example, may also justify inclusion on the National Heritage List.

This commentary was written by me and published on Freehills’ website. Freehills owns the copyright and should be cited as the author. It has been reproduced here with Freehills’ consent.