Opinion

‘Never Again’, or Never?

Samuel Naylor explores some of the legal and philosophical limits to environmental justice in Australia.

‘Western Australia’ - Image by Jeremy Zero, via UnSplash.

‘Never Again’ is the title of the Interim Report of the Federal Parliament Joint Standing Committee on Northern Australia on the “destruction of 46,000 year old caves at Juukan Gorge in the Pilbara region of Western Australia”. Published in December 2020, the Report sets out the circumstances behind the detonation by Rio Tinto of explosive blasts in the Juukan Gorge, destroying “a vital part of [the] living culture” of the Puutu Kunti Kurrama and Pinikura (PKKP) peoples.1 The rationale behind the blast was the extension of Rio Tinto’s Brockman 4 iron ore mine.2 A shocking feature of this tragedy – “one of the worst avoidable disasters” in Australian history3 – was its legality. Recommendation 1 of the Report urges Rio Tinto to “negotiate a restitution package” with the PKKP and reinstate the site.4

“The Australian legal system (inheriting the English common law) has always struggled to acknowledge and remedy certain kinds of ‘intangible’ loss.”

This is a perfect illustration of where the wrong and the remedy are misaligned. ‘Look we fixed it! … and here is some money’ could never mend the cultural and spiritual insult suffered by the PKKP people. And yet, what more could be done? This article explores some of the inherent limits of the Australian legal system, which raise questions about its capacity to adequately address wrongs done to the environment and to Indigenous heritage. While such limits are neither new, nor surprising, environmental litigation provides some illustrative examples of how our formal idea of justice falls short.

The Australian legal system (inheriting the English common law) has always struggled to acknowledge and remedy certain kinds of ‘intangible’ loss. Indeed, our courts are most at home when a natural person has suffered a discrete injury to their physical person or property and the loss can readily be translated into monetary damages. An illustrative historical example is psychological injury5 or mental illness which, for much of the 20thcentury, Australian courts refused to recognise as the plaintiff could not point to a physical wound or damaged possession. Unfortunately, damage to nature and Indigenous sites presents a similar challenge: a court will demand to know how the particular claimant has suffered. But it would be arrogant to suggest that environmental catastrophes can be measured solely by a single human’s suffering; and further, Indigenous heritage is ladened with spirituality beyond any one person. With this in mind, let us turn to some current examples ‘environmental justice’ in Australia and New Zealand.

The law has become increasingly responsive to environmental risk and destruction. In Sharma v Minister for the Environment,6 the Federal Court for the first time recognised, based on the common law of negligence, that the Federal Environment Minister owes a duty of care to protect young people from the human health risks of climate change in deciding whether to extend a mining project.[7] In Waratah Coal Pty Ltd v Youth Verdict Ltd & Ors,8 the Queensland Land Court recognised a possibility that the Galilee Coal Project in Northern Queensland may breach the Human Rights Act 2019 (Qld) by inciting climate change and endangering human lives. Such actions form part of a global trend pushing domestic courts to prevent, rather than react to, environmental damage.9 This undoubtedly gives reason for hope. However, these claims remain stubbornly tethered to human loss, rather than treating the environment as inherently valuable. This fits in with what has been described as the “human rights turn” in climate litigation.10

And yet, climate litigation has taken on far more perverse colours. When I turn my mind to climate change, I think of endangered species, habitat destruction, climate refugees, even future generations. I don’t well up with empathy for wealthy private investors. In July 2020, a law student commenced a claim against the Australian Government, alleging its failure to disclose climate change risks to the value of government bonds.11 Similarly, Australian shareholders of BHP Billiton are suing the company for drops in share value triggered by the Samarco dam collapse in Brazil in 2015, which killed 19 people and poured 40 million tonnes of iron ore tailings in the river system.12 Are these really the claimants most deserving of the court’s ear?

Turning to my second theme, one group that, to me, is intuitively more meritorious are First Nations peoples who have been living with the land since long before colonisation. Christine Winter, in the context of the Te Whanau-ā-Apanui tribe of New Zealand, notes that “The Land is a flow of relationships, of spiritual connection, intergenerational responsibility, care, and reciprocal obligations. From The Land comes identity”.13 She describes the testimony of an Apanui tribesman in New Zealand High Court about the Māori environmental philosophy, in resistance to a ministerial decision to allow sea oil prospecting:

“What we witness is a form of epistemological injustice in which the very structure of the knowledge presented could not be ‘heard’ by the Court. The Court could only ‘hear’ a corpus of rules that legitimate extraction at the expense of the environment and Māori communities.”14

Winter identifies this moment as a collision between European Enlightenment thinking, and its emphasis on human superiority and technology, with Indigenous knowledge systems.

Aboriginal Australians find themselves similarly alienated in the Australian legal system. Indeed, before detonating the explosives in the Juukan Gorge, Rio Tinto had complied with all legal requirements; yet systemic imbalances in the Western Australian Native Title regime gave the PKKP people practically no voice. The sum of these imbalances has meant that: “Ironically, Native Title has become another means to destroy Indigenous heritage.”15 Also, as almost all native title claims hinge on Aboriginal claimants formally demonstrating an unbroken hereditary connection to the land, this can result in the artificial fracturing and scrutinization of different family groups.16

“This gives cause for optimism that Indigenous knowledge systems might be meaningfully embraced into Australian justice for the benefit of First Nations peoples and the environment.”

It is difficult to know how to improve these shortcomings of our legal system. As regards environmental destruction, one possible step would be to recognise legal personhood in nature: in 2017, by an Act of Parliament, the Whanganui in New Zealand became the first river in the world to be recognised as an “indivisible and living being”, defined in terms of “the intrinsic spiritual values of an indigenous belief system.”17 Such a significant change to the law is likely something which only Parliament could do. Nonetheless, the Australian High Court has before shown the capacity of the common law to embrace Aboriginal Australians’ connection with country.18 Such flexibility is supposed to be the hallmark of our legal system.19 This gives cause for optimism that Indigenous knowledge systems might be meaningfully embraced into Australian justice for the benefit of First Nations peoples and the environment.

References

 1. Joint Standing Committee on Northern Australia, Parliament of Australia, Never Again: Inquiry into the destruction of 46,000 year old caves at the Juukan Gorge in the Pilbara region of Western Australia (Interim Report, December 2020) 1 [1.1] (‘Interim Report’).
2. Ibid.
3. Isabella Higgins, ‘Rio Tinto should pay compensation for Juukan George caves blast, inquiry recommends’, ABC News (online, 9 December 2020) <https://www.abc.net.au/news/2020-12-09/juukan-gorge-caves-rio-tinto-report-handed-down/12967816>.
4. Interim Report (n 1) 17 [1.53].

5. For a notorious example of this, see Chester v Waverley Council (1939) 62 CLR 1 and a recent book, Gideon Haigh, The Brilliant Boy: Doc Evatt and the Great Australian Dissent (Simon & Schuster, 2021).
6. [2021] FCA 560;
7. see ss 130 and 133 of the Environment Protection and Biodiversity Conservation Act 1999 (Cth).
8. [2020] QLC 33.
9. See, eg, Elisa de Wit, ‘Climate change litigation update’, Norton Rose Fulbright (December 2020) <https://www.nortonrosefulbright.com/en-au/knowledge/publications/0c9b154a/climate-change-litigation-update#5>.
10.Ibid; and see Joana Setzer and Catherine Hingham, Global trends in climate litigation: 2021 snapshot (Policy Report, LSE Grantham Research Institute on Climate Change and the Environment, July 2021)
11. O’Donnell v Commonwealth.

12. Nick Toscano, ‘BHP loses bid to limit shareholders claims in dam disaster class action’, The Sydney Morning Herald (online, 1 December 2020) < https://www.smh.com.au/business/companies/bhp-loses-bid-to-limit-shareholder-claims-in-dam-disaster-class-action-20201130-p56j6i.html>.
13. Christine J Winter, ‘Disaster? No surprise’ (2020) Environmental Politics 1, 11.
14. Ibid 15.
15. Higgins (n 3).

16. See, eg, Benedict Scambary, ‘No Vacancies at the Starlight Motel: Larrakia Identity and the Native Title Claims Process’ in Benjamin R. Smith and Frances Morphy (ed), The Social Effects of Native Title: Recognition, Translation, Coexistence (ANU Press, 2007) 151.
17. Jeremy Lurgio, ‘Saving the Whanganui: can personhood rescue a river?’, The Guardian (online, 30 November 2019) <https://www.theguardian.com/world/2019/nov/30/saving-the-whanganui-can-personhood-rescue-a-river>.

18. See, eg, Mabo v Queensland (No 2) (1992) 175 CLR 1 (rejecting terra nullius and recognising Aboriginal native title over land) and Love v Commonwealth (2020) 94 ALJR 198 (accepting that an Aboriginal Australian is not capable of being an “alien” under s 51(xix) of the Constitution and therefore could not be deported).
19. See, eg, Michael Kirby, ‘‘Judicial Activism’? A Riposte to the Counter-Reformation’ (2005) 11 Otago Law Review 1.


Samuel Naylor is in his final year of a Bachelor of Laws at the University of Sydney, having finished a Bachelor of Economics in 2019. He is also the Secretary of the University of Sydney Philosophy Society. Sam’s interest in philosophy was properly enlivened when he went on exchange to Paris at the end of 2018, taking courses in political thought and ethics. Since then, he was sought to explore how philosophy can play an important role in our thinking about everyday experiences and problems: here focussing on the climate, the courts and First Nations peoples.