Climate-Induced Displacement: Call to Action for the Rule of Law

There have been several times over the past two years where my career in consulting and studying a law degree was met with confusion and concern as to the link. As I come close to the end of the degree, recent world events, either through climate or human causation, have validated the observations made back in 2020 sadly giving confidence to this decision.

Building on the observations shared last week, the implications of climate change with government, the rule of law and corporate strategy in the context of Australia, the level of preparation and responsiveness to human displacement varies between the levels of Government. Each level looks at a disaster through a different lens. Further, each level has different responsibilities, which can be observed through the Federal requirement to provide political leadership, State’s need to define and set specific laws and the Judiciary’s requirement to interpret and uphold them.

When faced with the issue of climate change, the requirement that government should implement more robust legal and policy-based outcomes is more easily achieved when all three lenses address the issue holistically. In situations where the three levels of government are not operating in support of one another, conflicting priorities, and gaps in communications result in policies that were indented to be synergistic and end in tension. Just like any team or company right?

Federal:

Overall accountability for Australia’s response to climate change, policy, investment, and partnerships are levers that will enable Australia to navigate this crisis. Seen by budgets needing to be managed, reduced and re-prioritised during the recent unprepared-for crises, the ability of the Government to satisfy all citizens is reduced. As both sides of Australian politics have focused their attention on the energy-related conversation, measures to prepare the country for displacement impacts are still limited. The cost of post-crisis displacement is still not reflected in the price of goods and services in terms of environmental impacts to the environment. This choice to not impose stricter costs on national industries results in the Government needing to maintain this reactive approach to funding and redistributing funds from other services.

The Federal Government is yet to take necessary action that can support the impacts of displacement, however, though its decision to look to energy as its main climate policy, in the long term will drive benefit, there are more immediate short-term concerns that remain unaddressed. This view is changing with mechanisms like the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) which seeks to add transparency to ministerial decisions as both Federal and State Governments must review, However, without innovative policy or stricter taxation, the cost of repair may not be addressed in a manner that satisfies this concern. Whilst this Act is an excellent example of the Government influencing states to be accountable for their national climate outcomes with minimal assistance. A trade-off could be seen by the opportunities missed in the short term whilst supporting infrastructure is built, the ability to drive synergy is required to come from a Federal Level.

In a national environmental crisis (regarding the recent bushfires and flooding), it was visible that Australia’s institutions can work, together effectively. Despite a lack of policy, there are strong signs of emerging leadership on climate action at health service, network, and State and Territory levels. Although this coordination was reactive, the result did not serve to reduce the risk of displacement, but the highlighted partnership was possible and effective. Success was seen by seeking to create more meaningful and respectful partnerships with First Nations communities is an essential responsibility that is not reflected yet in emergency response and recovery. This extended to sharing data globally to amplify recovery efforts. Although Federal Government takes their responsibility seriously, there are clear constraints on policy and delivery accountability that result in only one climate narrative to be addressed.

States:

Responsible, through their autonomy to try and avoid disaster recovery from being required, however, inaction has inadvertently caused repeat victims of climate disasters. Over 85% of the nation’s population is vulnerable to physical risks associated with rising sea levels and changing weather patterns. Preventative measures are particularly important where planned relocation is being contemplated, to reduce the risk of future displacement. Each State has the autonomy to govern its use of land and planning, water and environmental (specifically coastal) protection. However, even with that autonomy, South Australia, ACT and Queensland chose to be reactive, whereas Victoria’s 2017 Climate Change Act strives to be proactive. Still in the minority, the articulation of one state remains an isolated example to drive climate change reduction throughout the nation.

A limitation on the responsibility of a State is linked to funding and autonomy. This lack of clarity at times is supplemented by the Federal direction still being seen as a direct driver, through their funding and incentives, on what topics and how a State, can act. This also serves as an excuse that shifts accountability away back to the Federal lens. This system of funding support seemingly halts innovative policy design as guidelines for how a broader government believe something should be developed must be adhered to. This approach erodes the ability to drive synergy by bypassing any of the possible advantages that are unique to geography. If the State Government adopted a collaborative dignity over cost approach, citizens' displacement may shift to addressing disasters before they occur, allowing or better, eliminating local displacement.

Judiciary:

As the responsible vanguards of the law and subject matter where specialist courts are accountable for preventing regrettable displacement. With a history of advancing ecologically sustainable development, the judiciary will not shy from challenging any level of Government. This provides a quicker and cheaper mechanism to ensure climate rights are held. Courts that are encouraged to be decisive separate them from the more mature laws like Property and Tort as opposed to the more infantile Climate jurisprudence.

Courts are becoming more confident in their adjudication, not hesitating to repudiate entire contracts where no consideration of climate has been made. However, a critical driver of this confidence is having environmental expertise assisting judicial decision-making. This approach is paving the way for new and more elaborate litigation as more frameworks are being applied to decide novel scenarios with the support of specialised judges. Such legal change can be daunting when developing new law, however, these courts provide an advantage mainly when progress is restricted due to political deadlock.

Australian courts are trying to facilitate this by ensuring there is a robust aspect to this changing context. As this mechanism strikes a balance between cost and dignity, it allows possible victims of displacement to have the means to rely on this mechanism to ensure their protection is maintained. However, a risk inherently exists that any positive outcomes may be undermined by subsequent legislative changes, especially if the Government of the day believes differently about tomorrow. Therefore, the accountability of a court is limited by its ability for laws to not negate decisions that the judiciary believes are principled.

Gaps:

These three levels inherently function on similar topics and areas, however, have different roles and responsibilities to resolve. The overlap in resolution can be attributed to the Doctrine of Separation of Powers where that Australian law functions in support of this overlap. This then alludes there may also be a gap that needs to still be addressed. For those who are displaced abroad and seek refuge in Australia, this is a large gap. By international human rights law, it is up to the Federal Government to define a policy that ensures people are not removed whilst fleeing a real climate risk. Although these obligations are partially reflected in Australia’s complementary protection provisions in the Migration Act 1958 (Cth), which is essentially a soft stance on this topic, Australia could take steps to strengthen the focus on human dignity.

There have been calls for action from ancillary sectors (like healthcare) in response to climate declaring inadequate conditions, policy coherence and political leadership as barriers to climate policy design. In this situation, all levels of Government could be seen as having a responsibility to protect those who face displacement, but lack of assurance on an area of government providing it meant unclear accountability. Currently, there is enough evidence to highlight Australia can address this by ensuring any policy designed allows for partnership in a crisis and constructive overlap of policy implementation focusing on dignity over cost.

Conclusion:

The varying legal and policy responsibilities of local, state and Commonwealth bodies can be applied synergistically, which creates a platform that articulates responsibility clearly and applies laws that ensure policy ensures dignity for every citizen. As such, each area of the public sector should be assessed against its impact to cost versus dignity. A common theme between recent climate cases and policies and case law that appears is the importance of being principled when determining the environmental impact. Taking this approach through laws, policy, and actions rather than leaving differences between the three areas of government allows for better and more robust solutions to appear but also does not inhibit partnering during a crisis.

[1] The Renewable Energy (Electricity) Act 2000.

[2] Mark Kammerbauer and Christine Wamsler, A governance mechanism for supporting equitable risk reduction and adaptation? (Climate, Society and Elemental Insurance, 44 2022).

[3] Environment Protection and Biodiversity Conservation Act 1999 (Cth).

[4] Jon Barnett, National Climate Change Adaptation Research Plan: Social, Economic and Institutional Dimensions (National Climate Change Adaptation Research Facility 2010), 28.

[5] Xiangbai He, Legal and Policy Pathways of Climate Change Adaptation: Comparative Analysis of the Adaptation Practices in the United States, Australia and China (Transnational Environmental Law, 7:2, 2018) 8.

[6] Network for Greening the Financial System, The Macroeconomic and Financial Stability Impacts of climate Change: Research Priorities, (Web Page, June 2020) <https://www.ngfs.net/sites/default/files/medias/documents/ngfs_research_priorities_final.pdf>.

[7] Bragge Armstrong et al., Climate Change and Australia’s Health Systems: A Review of Literature, Policy and Practice, (Web Page, 5, October 2021) <https://www.racp.edu.au/advocacy/policy-and-advocacy-priorities/climate-change-and-health>.

[8] Australian Government, Department of Climate Change, Adapting to Climate Change in Australia: An Australian Government Position Paper (Web Page, 2010) <https://coastaladaptationresources.org/PDF-files/1236-gov-adapt-climate-change-position-paper.pdf>.

[9] Australia Red Cross, Australian Bushfires 2 Year Report (Web Page, 14, 2020) <https://www.redcross.org.au/globalassets/corporatecms-migration/publications-research--reports/bushfire-report-2-year.pdf>.

[11] Nicole Gurran et al., Climate Change Adaptation in Coastal Australia: An Audit of Planning Practice (Ocean & Coastal Management, 86, 2013) 102.

[12] International Federation of Red Cross and Red Crescent Societies, Planned Relocation in the Context of Disasters and Climate Change: A guide for Asia Pacific National Societies, (PDF, May 2022) < https://disasterlaw.ifrc.org/sites/default/files/media/disaster_law/2022-05/2021-Planned-Relocation-in-the-Context-of-Disasters-Climate-Change-Guidance-for-AP-National-Societies_final_0.pdf>.

[13] Jacqueline Peel, Climate Change Law: The Emergence of a New Legal Discipline (Melbourne University Law Review, 32(3), 2008) 943.

[14] Change and Greenhouse Emissions Reduction Act 2007.

[15] Climate Change and Greenhouse Gas Reduction Act 2010.

[16] Sustainable Planning Act 2009 (Qld).

[17] Climate Change Act 2017 (Vic).

[20] Jacqueline Peel & Hani Osofsky, Climate Change Litigation: Regulatory Pathways to Cleaner Energy (Cambridge University Press, 2015), 275.

[21] Gray v. Minister for Planning (2006) NSWLEC 720.

[22] Rosemary Lyster, Chasing Down the Climate Change Footprint of the Private and Public Sectors: Forces Converge’ (Pt 1), (Environmental and Planning Law Journal, 24(4), 2007) 306.

[23] Lisa Vanhala, The Comparative Politics of Courts, and Climate Change (Environmental Politics, 22(3), 2013) 462.

[24] Justice Brian Preston, Characteristics of Successful Environmental Courts and Tribunals (Journal of Environmental Law, 26(3), 2014) 385.

[25] Gippsland Coastal Board v. South Gippsland Shire Council (2008) VCAT 1545.

[26] Walker v. Minister for Planning (2007) NSWLEC 741

[29] Brian Preston, ‘Benefits of Judicial Specialization in Environmental Law: The Land and Environment Court of New South Wales as a Case Study’ (Pace Environmental Law Review, 29(2), 2012) 428.

[30] Jacqueline Peel & Hani Osofsky, Sue to Adapt? (Minnesota Law Review, 99(6), 2015) 2221–2.

[33] Anna Huggins, Is Climate Change Litigation an Effective Strategy for Promoting Greater Action to Address Climate Change? What Other Legal Mechanisms Might Be Appropriate? (Local Government Law Journal, 13, 2007) 191.

[34] Displacement Solutions, ‘The Peninsula Principles on Climate Displacement Within States’ (Web Page, 18 August 2013) <https://displacementsolutions.org/wp-content/uploads/ 2014/12/Peninsula-Principles.pdf> accessed 24 June 2016.>.

[35] Jasmina Nedevska, An Attack on the Separation of Powers? Strategic Climate Litigation in the Eyes of U.S. Judges, (Sustainability, 13, 2021) 5.

[36] UN Human Rights Committee (HRC), Ioane Teitiota v New Zealand (advance unedited version now available: 23 September 2020) UN Doc CCPR/C/127/D/2728/2016 (7 January 2020).

[37] Erica Bower & Sanjula Weerasinghe, Leaving Place Restoring home enhancing the evidence base on planned Relocation cases In the context Of hazards, Disasters and Climate (Platform on Disaster Displacement and Andrew & Renata Kaldor Centre for International Refugee Law, 2021) 12.