When prominent global warming scientists hail a legal decision as a ‘watershed’ for climate change action, you know that judgment must, at the very least, make for good reading. But the judges attending last week’s environmental law training offered by the Judicial Institute for Africa (Jifa), took one step further – they met, listened to and discussed environmental law issues with the very author of that decision, Australian judge Brian Preston, chief judge of the New South Wales land and environment court.
For some of the judges attending last week’s environmental law training, it was a first opportunity to meet new colleagues from other jurisdictions in the Southern African Development Community countries; others enjoyed meeting up with friends already encountered in previous training offered by the Judicial Institute for Africa (Jifa).
[Cormac Cullinan presenting on river rights]
But for most, the subject of environmental law was new; a subject dealt with to some extent in their country’s constitution, perhaps, or in some law. Not a field they had so far needed to get to grips with.
Things changed quickly. The whole of the first day they were given an immersion course by the head of marine and environmental law at the University of Cape Town, Professor Sandy Paterson. Bringing the subject to life with entertaining or alarming visual aids, he soon had everyone keen for a further, more intensive specialist course in the future. By then, everyone was also sufficiently up to speed to listen to and engage with Australia’s Brian Preston, chief judge of the New South Wales land and environment court and one of the world’s most influential environmental law jurists.
A decision he delivered in February, involving a proposed coal mine, has won international acclaim for its concern about the local and global environment. Mining company, Gloucester Resources Ltd (GRL), was keen to get its hands on the coal under the surface of a picturesque valley near the country town of Gloucester. GRL estimated it could produce 21m tons of coal over a period of 16 years. But the scheme ran into problems when the minister for planning refused development consent and GRL appealed to the land and environment court.
At 165 pages, the Preston judgment is lengthy, but well worth reading for a number of reasons. One technical issue to note is that he announces his decision in the eighth paragraph. When, as sometimes happens, the whole of a decision is read aloud, litigants will always be relieved to know the outcome immediately, rather than having to wait for hours, or even days, as the court reads through the whole decision before reaching its order.
Most judges are not yet not accustomed to writing decisions involving environmental law and issues like climate change and greenhouse gases. This decision shows how it can be done. It is also a model of how to organise a great deal of complex material. If you do read it, notice the attention given to the cultural significance of the area for the ‘indigenous communities’ and others.
[Judge Chifundo Kachale taking notes]
One aboriginal man told the court that an important ancestor had buried the ‘King Stone’ in the area, regarded as ‘the most sacred tribal ground’. ‘From the King Stone and the initiation routes, the scar trees, burial sites and birthing sites. All these locations are scattered through the … area and proposed mining site or adjacent to the site.’ The exact location of some could not even be made public ‘due to the sacred nature of the sites.’
The court’s engagement on issues of soil usage and planting during the life of the mine was impressive, as was its close attention to a wide spectrum of issues that an outsider might not have otherwise considered. Like the proposal for night lighting: lights would be left on through the night for security purposes after mining stopped at 10pm. The impact of mining on air quality, people’s health and wellbeing and its social impacts, positive and negative, are closely examined. The judge’s commitment to the principle of concern for future generations, outlined by Professor Paterson during his introductory sessions, is also obvious in the decision. The judge said while the economic and social benefits of the mining project would last only for the life of the project, its burden would endure long after that, with some vital elements changed forever.
Then he moved to consider the impact of the mine and its emissions on climate change, greenhouse gases, the carbon budget and the demands of the Paris Agreement – a section for which his decision has been hailed as particularly noteworthy.
For an environmental law beginner, the judgment also provided food for thought: in the way the court deals with the claims of the mine’s economic benefits via income tax and jobs, for example, against the loss to the local economy from declining tourism. And for the court’s comment that just because a useful natural resource exists under the ground does not mean that it has to be dug up or exploited. In fact, it may be that, to meet climate change targets, very few coal mining projects will be approved in the future.
His final remarks have been widely quoted: the mine would be in the wrong place at the wrong time. ‘Wrong place because an open cut coal mine in this scenic and cultural landscape … will cause significant planning, amenity, visual and social impacts. Wrong time because the greenhouse gas (GHG) emissions of the coal mine and its coal product will increase global total concentrations of GHGs at a time when what is urgently needed, in order to meet generally agreed climate targets, is a rapid and deep decrease in GHG emissions.’
Many of the judges at the Jifa course said their exposure to the challenges of environmental law had been inspiring and left them wanting more. Environmental law was like ‘the new human rights,’ they said. Among the many ideas to which participants were exposed, one has stayed with me. It was a question asked by Judge Preston: Why do we assume that the right to life only refers to human beings, he asked. ‘Why shouldn’t that right apply to other living things? To all living things?’ – why indeed.
[Judge Raimundo Khavinha from Mozambique receiving his course certificate]
[Magistrate Natasha Burian from the Seychelles receiving her course certificate]
- *Newsletter, Judicial Institute for Africa (Jifa), 5 September 2019