Of Protest, the Commons, and Customary Public Rights: An Ancient Tale of the Lawful Forest

In this article, John Page and I explore an ancient tale of customary public rights that starts and ends with the landmark decision of Brown v Tasmania. In Brown, Australia’s highest court recognised a public right to protest in forests. Harking back 800 years to the limits of legal memory, and the Forest Charter of 1217, this right is viewed through the metaphor of the lawful forest, a relational notion of property at the margins of legal orthodoxy. Inherent to this tale is the tension that pits private enclosure against the commons, a contest that endures across time and place – from 13th century struggles against the Norman legal forest, through to modern claims of rights to the city.

This article is now available as an Advance copy with the UNSW Law Journal.

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The Darling’s dead fish of late capitalism

Humans of Late Capitalism (HOLC) is a social media account that plays on the massively popular Humans of New York (HONY) phenomenon to starkly highlight the reality of what it is like to live on our planet today. Its darkly humorous images serve as an ironic critique of our society and, particularly, our economic system.

Over the last few weeks, Australia has produced two symbolic images that fit well into the HOLC narrative: a massive fish kill in Menindee lakes on the Darling River and Walgett, the town with two rivers and no water.

Water is critical to life on this planet. And yet clean water supplies are dwindling due to the impact of human activity, while demand continues to increase. The United Nations has estimated that ‘by 2050, at least one-in-four people is likely to live in countries affected by chronic or recurring shortages of freshwater’.

Read more over at Eureka Street.

Climate change is here, now we need to adapt

Wentworth voters sent a strong message to the Coalition that it needs to start taking serious action on climate change or risk seeing its vote continue to fall.

The ALP should also sit up and take notice of exit polling from the Australia Institute, which found an overwhelming majority of voters (79 per cent) were influenced by climate change (and the need to replace coal with renewable energy), while almost half (47 per cent) indicated that this issue had a lot of influence on their vote, and a full third (33 per cent) named it as the most important issue.

Meanwhile in the Netherlands, the Hague Court of Appeal has upheld the historic decision in Urgenda Foundation v. The State of the Netherlands (2015), which ‘determined the Dutch government must reduce CO2 emissions by a minimum of 25 per cent (compared to 1990) by 2020 to fulfil its obligation to protect and improve the living environment against the imminent danger caused by climate change’.

— Read more over at Eureka Street

Christian PM should have a heart for climate

Australia has always been a land of bushfires, but usually not in winter. This past month, however, the NSW Rural Fire Service was faced with over 80 significant bushfires. Scientists were reportedly shocked by the scale of the fires and environmental change academics have, unsurprisingly, blamed global warming.

And what did our government do in response to these fires (and related widespread drought)? It decided to continue to play Survivor: The Musical Chairs Edition and knock off another leader — on the basis of his desire to introduce emissions reductions, no less. Good times.

As others have noted, climate change policy has played a key role in the political instability of Australian politics over the last decade. And it has mostly been due to the recalcitrance of our political class in resisting any action that might jeopardise its cosy relationship with the fossil fuel industry.

— Read the rest over at Eureka Street

 

The fight to make water a human right

[Excerpt from article over at Eureka Street.]

In 2010, the United Nations General Assembly and Human Rights Council recognised the existence of a human right to water, guaranteeing access for everyone to ‘sufficient, safe, acceptable, physically accessible and affordable water for personal and domestic uses’.

Eight years on, it is past time that Australia incorporated this right into domestic law. Nonetheless, any push to do so will face an uphill battle, due to the awkward position occupied by human rights within our culture.

Surveys of the Australian population have found a significant gap between those who believe our human rights are sufficiently well protected, and those more disadvantaged groups who experience a very different reality. Our political class also has a history of ambivalence, or even hostility, to providing more comprehensive protection for human rights, and has been especially reluctant to legally recognise socioeconomic rights.

–Read more over at Eureka Street.–

Law, legitimacy and activism in the Anthropocene

In the first episode of The Handmaid’s Tale, Offred reflects on how she and her fellow Handmaids found themselves in their current predicament – living in a world where a small group of elites have rewritten the law in line with an inhumane and brutally enforced ideology that serves their own interests.

When they slaughtered Congress, we didn’t wake up. When they blamed terrorists, and suspended the Constitution, we didn’t wake up then either. … Nothing changes instantaneously. In a gradually heating bathtub, you’d be boiled to death before you knew it.

In the real world, there’s a dominant narrative that we are blindly walking down the path to catastrophic climate change, which is a pretty depressing thought. But the truth is even scarier – we are being shepherded down this path quite deliberately. We may have taken a while to wake up, but ever since we did and began to object, our governments have been making ever increasing use of state power to silence us.

I reflected on this during a recent trip to Heron Island on the Great Barrier Reef. Heron’s reef supports around 4000 turtles, while many more return to the island in spring to nest. During one afternoon snorkeling trip, I was lucky enough to see three turtles, including a small juvenile, feeding on seaweed just metres from me. As I watched, my feelings turned from wonder to horror as it occurred to me that they are likely to see the reef die around them; gradually boiled to death.

[Please buy your copy of AQ: Australian Quarterly to read the rest of my article.]

Clearing homeless camps compounds the violation of human rights and entrenches the problem

On Wednesday evening, the New South Wales state government passed legislation empowering police to dismantle the Martin Place homeless camp in the heart of Sydney’s CBD. This follows similar actions in Victoria, where police cleared a homeless camp outside Flinders Street Station. Melbourne Lord Mayor Robert Doyle proposed a bylaw to ban rough sleeping in the city.

In March, the UN special rapporteur on the right to housing, Leilani Farha, censured the City of Melbourne’s actions, stating that:

… the criminalisation of homelessness is deeply concerning and violates international human rights law.

As the special rapporteur highlighted, homelessness is already “a gross violation of the right to adequate housing”. To further discriminate against people rendered homeless by systemic injustice is prohibited under international human rights law.

Continue reading

The forgotten people of the Flint water crisis

Last Wednesday, five Michigan officials were charged with involuntary manslaughter for their role in the unfolding health crisis in Flint, Michigan — a crisis that has included at least 12 deaths from Legionnaires’ disease, in addition to the possible lead poisoning of a whole population.

These charges are significant, but there are lingering questions as to who else is culpable and why the crisis remains unsolved.

Despite the narrative you often hear, the water crisis in Flint was not discovered by investigative reporters, Virginia Tech researchers, or doctors. The people of Flint were aware that something was wrong from the moment their water was switched over to the Flint river in April 2014. They just couldn’t get anyone to listen.

I have a new article in Eureka Street on the Flint Water crisis. You can read the rest of it here.

Lactivism – a review

I was recently asked to review Courtney Jung’s book, Lactivism, for the Alternative Law Journal. While I appreciated much of the nuanced critique of American neoliberal social policy and the penalty that it imposes on mothers under the guise of individual ‘choice’ (an issue that is also very relevant to Australia), ultimately I wasn’t convinced by the central premise of the book – that ‘Lactivists’ (rather than neoliberal governance) are the real culprits in this situation.

My full review can be found here.

The government vs the environment: lawfare in Australia

The good people at The Conversation asked me to write an article about the government’s proposed changes to the EPBC Act after the success of the litigation against the Adani Coal mine:

A key feature of authoritarianism is that the government is above the law – it is not accountable to the people for its actions. In contrast, under a democratic system, the rule of law means that the government is constrained by law and can be held accountable by the people. Continue reading