Lawyers have an obligation to follow the lead of "climate-conscious" practitioners and help repair a "wounded" planet, according to the nation's leading environment law judge.
Justice Brian Preston, chief judge of the NSW Land and Environment Court, says that on top of advising their clients on legal issues, there are myriad ways for lawyers to follow "the path of climate consciousness".
Writing in the latest issue of The Australian Law Journal, the judge, who helped found the NSW Environmental Defenders Office in 1985, says lawyers "need to integrate ethical thinking and ethical action into their day-to-day legal practice".
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"A climate-conscious approach requires an active awareness of the
reality of climate change and how it interacts with daily legal
problems," writes Justice Brian Preston. James Brickwood
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"By the lawyer’s moral persuasion and negotiation, the client may be prepared to modify its behaviour so as to mitigate the climate change consequences of its projects or activities and promote climate change justice," he writes.
He says other ways include promoting human rights and encouraging industry to "advance efforts towards sustainable business models that mitigate their contribution to climate change".
He also suggests lobbying the executive, legislative and judicial branches of government "to address the climate change crisis", engaging in "intellectual activism" and acting pro bono.
Justice Preston stresses the professional obligation to advise clients against risk, a point also made by former banking royal commissioner Kenneth Hayne.
"A climate-conscious approach requires an active awareness of the reality of climate change and how it interacts with daily legal problems,'' he writes.
"A climate-conscious approach demands, first, actively identifying the intersections between the issues of the legal problem or dispute and climate change issues and, second, giving advice and litigating or resolving the legal problem or dispute in ways that meaningfully address the climate change issues ...
"If the failure to provide advice on the relevant climate change issues meant that the advice was not to the standard expected of a reasonably competent lawyer, this may amount to professional negligence."
He notes that company directors have not been targets for litigation but that could soon change given the greater awareness of the risks of climate change.
Lawyers would also need "to predict what courts are likely to pronounce to be the legal responsibilities in future litigation, rather than look backwards to what courts have held to be legal responsibilities in past judgments".
"The courts of the future will be asked to determine the legality of present action and inaction of governments and enterprises in relation to climate change."
He cites the example of Gloucester Resources, which appealed the minister’s refusal of consent to the Land and Environment Court, in warning against a "climate blind" approach.
"Neither party initially raised the impact of the mine on climate change as an issue in the proceedings."
The NSW Environmental Defenders' Office succeeded in being named as a party to the action last April and widened the argument to include the effect of the open-cut coal mine on climate change. It was cited by Justice Preston as another reason for its refusal.
Justice Preston invokes the parable of the Good Samaritan in suggesting that ethical approaches "can be shaped by following the example of climate-conscious lawyers and emulating their climate conscious attitudes and behaviours".
"An intuitive understanding of the parable is that lawyers should act likewise to climate conscious lawyers.
"Climate-conscious lawyers have compassion for people and a planet wounded by climate change and are, in their daily legal practice, providing advice and taking action to heal these wounds."
Links
- Doctrine of Public Trust
- Senior Environment Judge Brian Preston Tips Wave Of Climate Change Litigation
- 'We Won': Landmark Climate Ruling As NSW Court Rejects Coal Mine
- These Residents Stopped A Coal Mine, Made History And Sent Ripples Through Boardrooms Around The World
- 'New Weapon': Courts Offer Hope For Driving Serious Climate Action
- Climate Change Activists Worldwide Look To Courts As A Powerful New Ally
- A Surge Of Climate Lawsuits Targets Human Rights, Damage From Fossil Fuels
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