Pub: Sydney Morning Herald
Section: News and Features
Courts the new battleground in war against nature
Perhaps we’ve always been at war with nature. Romantic imaginings of native people living in breast-swinging harmony with their environment are all very well. But when you think of Maori herding the moa off cliffs until cannibalism became a Baden-Powell survival skill, or the effect of Aboriginal fire-stick farming in crisping up Australia’s endangered megafauna, not to mention climate, the obvious surmise is it’s been war all along.
In fact, our willingness to war with the great mother – war, that is, and win – is usually seen as a main ingredient in our success. It’s basic economics, really. Just as America’s is now a war economy, addicted for the past 60-odd years and the indefinite future, so the global economy has come to depend on a permanent war footing, just to keep ticking over.
And yet in this war, as in most, it’s woe betide the winner. So now, as we stand victorious astride Gaia’s limp and bloodied form, feeling for a pulse, now is the moment to ask; is there another way?
Resistance to change – of anything bigger than a light bulb – is fierce, and exacerbated by our war habit. Like any addict, we move into denial, even as we mobilise the war machine in defence of war itself. Meta war. Thus, we spend $100 million inventing the fantasy of “clean” coal, bolstering our dig-and-burn mentality while we dismiss renewables as too expensive. We devote vast ingenuity to sustain our profligacy rather than find ways to use less. We count the cost of changing our habits, but not of changing the climate.
Can we kick the war habit? That the answer is a matter of belief, not fact, makes it the best possible basis for war without end. But as climate’s meta war spreads from politics to the law, judges will have to adjudicate these imponderables.
Sure, there are still the desperate flat-earthers who deny climate change altogether, or our part in it. Generally, though, it’s now agreed – by the Intergovernmental Panel on Climate Change, the Stern report and the CSIRO, among countless scientific bodies – that climate change is real and that carbon dioxide resulting from human activity is its biggest single cause, coming 75 per cent from fossil-fuels and the rest mostly from deforestation.
This makes climate change ideal ground for tort law, such as underpins the recent swell of public health litigation over tobacco, asbestos and, in the US, guns and cars. The case of Automakers v California, where the state is suing six car manufacturers over carbon dioxide production, is regarded by many as vexatious. Sooner or later, though, the courts will have to decide not just who is responsible for climate change but who, given its uneven effects, should pay. Who compensates the atoll nation drowned by rising tides, or destroyed by climate-induced extreme weather?
Australia’s property industry can barely spell climate change. Those developers who can assess the risk mainly in terms of asset protection; their assets. But when you collect climate change, the litigation tide and the recent Anvil Hill finding (that government has a duty of care to consider climate change in its decision-making) governments and companies may soon have to insure, not against damage but against liability.
This is what makes a case against Foster’s and the NSW Minister for Planning, Frank Sartor, interesting. The case, brought by a Chippendale student, Matthew Drake-Brockman, argues that Sartor’s approval in February of the $2 billion Carlton United Breweries site project breached this duty of care and thus is unlawful.
Three weeks back, in lodging his case, Drake-Brockman wrote to the Premier and Foster’s, proposing a meeting. The Premier was mute; Foster’s flicked back a see-you-in-court. And so it will.
Drake-Brockman’s claim, prepared by the enviro-lawyer Michael Mobbs, is that the approved CUB concept, in allowing up to 2800 residents, 4800 workers and 2320 parking spots, all within spitting distance of transport central, will generate up to 84,000 tonnes of greenhouse gases a year, and 120 million litres of sewage, a quarter of which will overflow, raw, into Blackwattle Bay. A sustainable development, the claim says, would generate perhaps 7600 greenhouse tonnes a year – less than one-tenth of the proposed – and, through on-site collection and recycling, reduce water usage and sewage generation to virtually zero.
The figures will range lawyers and their consultant retinues at 50 paces. Foster’s insists it has complied with “all appropriate processes in NSW”, and that the suit has “little legal merit”. But that’s not the point. It’s not about compliance by Foster’s with government rules. It’s about whether those rules are adequate and properly applied. This is especially intriguing since Part 3A of the Planning Act, covering CUB and Anvil Hill, means there are no rules, really – except that court-applied duty of care.
As the Freehills partner John Taberner wrote, days after Sartor’s approval, “litigation focusing on climate change has now firmly emerged in Australia”. Now the courts must decide not only who compensates the mother of a child hit by Hep A from sewer-scum in Blackwattle Bay, but whether exploitative property speculation carries similar climate responsibility to exploitative coalmining. And if not, why not?
Elizabeth Farrelly writes on architecture, planning and aesthetic issues for the Herald.