4. The Climate Crisis and the Australian Legal System

The previous section described the specialised international and domestic laws addressing climate change. However, if we just focus on the specialised fields of law that are concerned with promoting climate change mitigation and adaptation, we will fail to see how all areas of law have relevance for climate change. To understand better how current legal relations are implicated in facilitating the climate crisis, and how they could be re-purposed to mitigate or adapt to the effects of climate change, a deeper interrogation of the role of law in relation to climate change is needed.

One of the main drivers of climate change is the institutionally protected entitlement to, accumulation of and subsequent disposal of the environment^[1] at a global scale by European and British imperial powers through their colonisation of places and peoples across the world.^[2] Research by legal scholars from several sub-disciplines of law illustrates the significant role that the law plays in producing and reproducing the socio-economic conditions of climate change, as well as the crucial role that laws and policies can play in addressing this.^[3] It is impossible to appreciate the sociogenic^[4] complexity of climate change without analysing how the law, as a powerful socio-economic institution and specialist regulatory toolbox, conceived and constructed the rights of polluters to emit GHGs. International and domestic legal regimes also enabled the legal rights of fossil fuel producers and distributors to do what they do in lawful ways.

Legal research on the significance of law to climate change is consistent with many First Nations and Indigenous analyses of adverse impacts on landscapes, waterscapes and countries from European and British colonisation and their maladapted legal institutions.^[5] The laws of Indigenous peoples are often understood as being ‘place-based’, which means that they are responsive and specific to particular local geographical conditions and ecologies. Indigenous laws and regulatory regimes are often characterised by holistic ways of thinking about life and the world. Holistic ontologies (ways of being in the world) contrast with the dominant western worldview in which landscapes and ecologies are regarded as a suite of separable natural resources for the purposes of commodification, ownership and exchange. The sociogenic logic of nature as a suite of resources through which British and European laws regulate human relationships with non-human things as commodities constructed “‘regimes of dispossession”’^[6] and entitlement to the goods of life. The universalising and abstract nature of this logic contrasts with the geographically specific and seasonally responsive nature of Indigenous legal regimes.

It is important to recognise that there is no pan-Indigenous legal regime. But historical, anthropological and socio-legal scholarship is replete with studies of the myriad ways through which many place-based economies and laws foreground the authority, contingency and presence of non-human life, the interdependence of all life and the situation of life within the dynamism of time.^[7] These legal regimes are antithetical to economic models of infinite growth and global development.^[8]

Some of the dominant Anglo-European legal concepts and doctrines of our time — indeed the private-public taxonomy of law itself — were arguably developed to protect and defend the socio-economic institutions that constructed the conditions of what we now recognise to be climate change. One legal historian contends that the separation of public from private laws in the development of English common law was manufactured to shield private interests from the “‘pursuit of collective goals”’ in liberal democracies.^[9] Such historical accounts resonate with analyses of contemporary law as a form of regulatory capitalism through which markets themselves have now become “‘important national, regional and global regulators”’ protecting private interests from public interests such as taxation, public health and industrial relations.^[10]

Private law plays an instrumental role in climate change through its regulation of the “‘building blocks of economic development”’ and by “‘promoting the maximisation of economic growth”’.^[11] Today, private corporations boast some of the largest economies in the world and are the locus of the vast majority of the goods of life. Groundbreaking analysis by Richard Heede has quantified the contribution of different corporate actors to the climate crisis and shown that just 90 producers of fossil fuels and cement — the so-called carbon majors — have created 63 per cent of cumulative worldwide emissions from 1751 to 2010.^[12] The legal rights to those goods are largely concentrated and protected through the key institutions of law: the corporation and private property.^[13] As such we might say that “‘the structure of the corporate form in terms of its purpose and its relationships is incompatible with the world’s fragile environmental ecosystem”’.^[14] Legal research has brought to light the global environmental harms facilitated by these legal institutions and their rich doctrinal toolboxes.^[15] The characteristic abstractness of Anglo-European laws and their disconnection from physical and material contexts is problematic in the context of climate change, since institutions such as corporations and rights over property are not situated within the materiality of geographical and metabolic relations and limits.^[16] The laws of all human societies are significant to the health and viability of terrestrial, atmospheric, riparian and marine environments and ecosystems within and between their jurisdictions. In the case of the dominant global legal forms of the corporation and private property, that significance is profoundly upscaled: these legal forms and attendant armour have become contingent features of and threats to planetary health.

The paradigms of the Enlightenment and liberalism that underpin the dominant legal subject, that imaginary autonomous individual who acts rationally and in their own self-interest. The paradigms have long been critiqued as inaccurate and unrealistic characterisations of human decision-making, since our relationships with others are fundamental to our experience and wellbeing in more connected, complex and networked ways.^[17] In addressing climate change, we must recognise that the dominant view of legal subjectivity as individualistic and self-interested is unhelpful at best and is at worst a barrier to adaptation. There are no solutions available to us by extending or reproducing these dated ideas of human decision-making and the economic models and legal doctrines “‘born in colonial Britain”’.^[18] “‘To continue current global trends of “‘progress and development”’ is to ensure the decline of all life on Earth.”’^[19] The affluent populations of the world must “‘open their eyes wide … to see and know law beyond the colonialist foundation”’.^[20] It is necessary for lawyers to think and learn about the significance of law in the world differently — but how should we think differently?