Lee Godden

Climate Change Law in an Era of Multi-Level Governance

As international negotiations struggle to deliver timely, binding commitments to reduce greenhouse gas emissions to safe levels, the environmental legal community has begun to contemplate the scope for climate governance ‘beyond’ the international climate change regime. Many see merit in a more decentralized, disaggregated approach, operating across multiple governance levels. This article examines the development of climate change law in an era of multi-level governance. It analyzes several case studies of current manifestations of multi-level governance in climate change law, including: the fragmented global emissions trading system; developing arrangements governing forests and land-based sinks; the growth of climate litigation establishing transnational liability principles; efforts to ensure adaptation to unavoidable climate change; and the emergence in federal systems of a decentralized approach to climate change regulation. The article concludes by considering whether the emerging multi-level system of climate governance is adequate to meet broader international goals of climate change mitigation and adaptation.

Property and the law in energy and natural resources

The law of energy and natural resources has always had a strong focus on property as one of its components, but there are relatively few comparative, book-length, treatments of both property law and energy and natural resources law. The aim of this edited collection is to explore the multiple dimensions of the contemporary relationship between property and energy and natural resources law.

Australia's Carbon Pricing Mechanism

The commencement of the carbon pricing mechanism (CPM) on 1 July 2012 marks a significant milestone in Australia’s legal and policy response to climate change. Negotiated as part of a suite of measures forming the Clean Energy Package, the CPM represents an important achievement for Australia, which has up until this point struggled to implement comprehensive national climate change policy. After an initial fixed price period, the CPM will transition to fully flexible cap-and-trade emissions trading scheme on 1 July 2015, bringing it into line with other jurisdictions around the world. This note outlines five key features of the CPM: (1) the institutions and governance arrangements; (2) the price containment measures; (3) the scope for inclusion of offset credits; (4) the possibility for linking with other emissions trading schemes; and (5) the compensation arrangements for emissions-intensive industries. The article comments on how these design features affect Australia’s ability to contribute effectively to global emissions reduction efforts through the CPM.

REDD+: climate justice and indigenous and local community rights in an era of climate disruption

In the context of the International Bar Association report, Achieving Justice and Human Rights in an Era of Climate Disruption, this commentary highlights the challenges in adopting a human rights framework for the REDD+ programme which is designed to reduce greenhouse gas emissions. It identifies the potential inequities involved in mitigation efforts directed toward reducing emissions from avoided deforestation, forest degradation and associated forestry activities in terms of the potential impacts upon indigenous peoples and local forest-dependent communities. The potential impacts upon these communities are now well recognised, and issues of climate justice have been raised. The introduction of safeguards under the REDD+ model, is an important step towards incorporating human rights into the REDD+ framework. Yet even given the emphasis on securing tenure and participatory rights, such as free, prior and informed consent, REDD+ may still entrench inequalities for some indigenous and local communities, in areas such as the utilisation of traditional knowledge in fire management.

The Impact of Climate Change Mitigation on Indigenous and Forest Communities: International, National and Local Law Perspectives on REDD+

The Impact of Climate Change Mitigation on Indigenous and Forest Communities is a rich and much-needed new contribution to contemporary understanding of this topic.

The Kandyan Convention 1815: Consolidating the British Empire in Colonial Ceylon

Abstract The Kandyan Convention (1815) was definitive in consolidating British sovereignty over colonial Ceylon. The Convention and later legal instruments reflect a shift in British colonial policy regarding the acquisition of territories of Empire. Previously, British Government policy had favoured indirect rule through mercantile interests. Seizing opportunities provided by Kandyan power struggles, Governor Brownrigg, at the far reaches of Empire, implemented direct British rule. The Convention, however, straddled an emerging sense of ‘rights’ by making a specific commitment to ‘protect’ Buddhist faith and authority. The centrality of Buddhism to Sinhalese society made these provisions a powerful inducement for the Kandyan ruling elite. Nevertheless, as subsequent events revealed, the protection of these rights proved to be less important than the establishment of full British colonial control through forceful administrative measures. The Convention was, therefore, an early precursor to the modes of governance pursued by the British Government as its formal Empire expanded over the latter part of the nineteenth century.

What Price Democracy?: Blue Wedges and the Hurdles to Public Interest Environmental Litigation

The Blue Wedges’ campaign against dredging of Port Phillip Bay in Melbourne has been a prominent environmental protest with high profile in the media in 2007 and into 2008. The campaign has been among a number of communityled challenges to major infrastructure and project developments in recent years, including the protest against the Tasmanian pulp mill and the Victorian desalination plant. Community groups from around the Melbourne bay area strongly supported the anti-dredging campaign, although the Victorian state government remained adamant that it would proceed. The Blue Wedges Coalition undertook a series of legal actions challenging decisions by state and federal government. The campaigners were unsuccessful in seeking an injunction in the Victorian Supreme Court, in a Federal Court challenge to Ministerial approval under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (the ‘EPBC Act’) in early 2008, and the group also failed in a later appeal.3

Terrorism: reinvoking the barbarian to secure the space of civilisation

Terrorism is held to create an exceptional moment in history which precipitates an extraordinary response, a state of war.3 However, the designation of the current war on terrorism as an exceptional moment outside the flow of history serves only to highlight the continual use of ‘exceptionalism’ as a strategy in defence of civilisation. Civilisation is ‘threatened’ but also reconstituted by reference to the exceptional, such as terrorism. Terrorism provides a justification

Grounding Law as Cultural Memory: A ‘Proper’ Account of Property and Native Title in Australian Law and Land

But how shall we fix things in their proper place and how shall we ground them twixt heaven and deep earth?2 The land has no markers of possession and no boundaries of division, it is terra nullius whispered the Strange God3 who sat on the right hand of the Sovereign: the Sovereign who was no longer God but merely King.4 Ah, replied the Sovereign, we shall ground and fix it in law. And so begins an account of the proper grounding of property [and law] within Australia.

From sovereignty to modernity: revisiting the Colebrooke-Cameron Reforms – transforming the Buddhist and colonial imaginary in nineteenth-century Ceylon

The Colebrooke-Cameron Reforms (1831) have been characterised by David Scott (1995) as marking the transformation of colonial Sri Lanka from one kind of political rationality – that of mercantile sovereignty – to another – that of colonial governmentality. Whilst consonant with the view that the Commission marked a moment when the colonial administration moved away from a strategic reliance on Asokan or Buddhist forms of authority in the earliest phase of British rule, we argue that there is a more nuanced genealogy to this transition. The Reforms, while directed to the administration, judicial and political institutions of the colony, also contemplated extensive commercial restructuring that inculcated a self- improvement mode into ‘everyday life’. Drawing on colonial archives, we show how elements of a logic of governmentality, such as educational, land, and fiscal reform, were utilised at different times by the colonial administration to commence the modernisation of the colony well before 1832. It is also evident that the transformation was partial, and at points strongly resisted by local Buddhist communities. Instead of marking a clear point of transformation, the Colebrooke-Cameron Reforms gave legibility and a national imprimatur to a process already in train, while providing further impetus to a socio-political rationality that had begun to shift decades prior. The secular logic of the colonial State, however, was later to unleash a movement of Sinhalese Buddhist reform and cultural re-valuation that generated, ‘a more modernised Sinhalese Buddhist nationalism to create expanding areas of social, cultural and religious life for the nationalist cause.’