At the moment our society is very short-term oriented. Our economy focuses on short-term economic growth, materialism, and promotes overconsumption. Our media focuses on the breaking news of today, but often leaves out long-term trends. Our politicians are influenced by lobbyists, election campaigns and their four-year election cycle. And even our brains are programmed to focus on the short-term.

This short-term thinking has disastrous consequences for how we shape our society. It impacts our natural environment, and through that the living environment we pass on to future generations. We engage in large scale destructive activities, such as destroying and polluting habitats and causing the extinction of animal species. With chemicals and plastics we pollute the water, soil, plants and animals that we and future generations depend on, for example for food and drinking water. On many places nature is exhausted and in need of regeneration. And like humans of future generations, non-human nature does not have a voice in the political decision-making that shapes its future.

What if we could give future generations a voice? And what if they were genuinely heard? For example, we could lower the voting age to let young people vote for their future. Or we could establish a parliamentary committee, ministry, commissioner or ombudsperson that will represent the interests and needs of future generations—locally and nationally, in every chamber or council where decisions are being made. How could they incorporate the needs and interests of all?

And what if we change our political, economic and legal institutions a bit, in a way that will prevent them from making choices with small short-term benefits and large long-term costs? Maybe the Senate or Upper House—or a new ‘Future House’—could veto plans that would be disastrous for the future? Or we could expect political parties to regularly report on the long-term impact of their party program?

Which examples and actions could we (symbolically) adopt? What would your country look like if it had an open and inclusive procedure to make political decisions, in which the interests of future generations are explicitly considered and prioritised? We will discuss some examples.

The Children’s Fire

The Children’s Fire is an Indigenous tradition, where a symbol—a fire, a candle, or a flower arrangement—is placed in the middle of a decision-making space to symbolically represent future generations. Through this, all actions, decisions and thoughts are at the service of the wellbeing of children and future generations of all species in nature, till seven generations into the future. Is the proposal also in the interest of future generations? Then it’s adopted. Is it (also) detrimental to future generations? Then we won’t do it.

Citizens’ assemblies

What if everyday citizens—free of the short-term pressures of elections, media or making profit—would have a bigger voice in matters that influence the wellbeing of future generations? Citizens’ assemblies are multi-day gatherings where ordinary citizens learn about societal problems, deliberate the issue, and form recommendations for policy-making. The group of citizens is picked through lottery, and proportionally reflects the citizens in their constituency. So not politicians who want to win your vote, or scientists who sometimes forget everyday reality, but fellow citizens engage in open, independent and informed conversations. And because these citizens from diverse backgrounds learn about their topic together, and deliberate on the pros and cons, citizens’ assemblies often end in mutual understanding and widely supported proposals for change.

In the Netherlands there are plans for a citizens’ assembly about the future of agriculture in the country, and other places like Scotland and France have already organised successful assemblies on climate change. Or maybe instead of organising one-off and ad hoc assemblies, we could also integrate continues citizens’ assemblies in our political system, such as in East-Belgium.

Ombudspersons for Future Generations

What would it be like if we had local representatives who represent the interests of our and future generations? No weekly meetings about the future, but a representation and dedication for the children of tomorrow. An Ombudsperson or Municipal Commissioner for Future Generations can actively work on policies, regulations and legislation that translate the interests of our great-grandchildren into our actions; in the here and now.

The annual Day of the Future

What if, once a year, we completely focus on the future? For a full day, we truly prioritise the wellbeing of current and future generations? This day, leaders of political parties could publish a rapport on how their party program will positively or negatively influence—the climate, living environment, wellbeing, society and opportunities of—children and future generations. Media could focus the nation’s attention to how we can build a better future together. Schools could help their students think about the future that they want, and how they can influence their future, for example with the Toolkit for Future Thinking. And an annual speech of the nation’s royalty or ombudsperson for future generations will inspire the nation with a vision about building the best possible future.

Lab Toekomstige Generaties (‘Lab Future Generations’) is a collaboration of professionals in the Netherlands, which includes the Dutch Observing Ombudsperson for Future Generations. Their mission is to ensure that in 2050 future generations are considered in all important decisions in the Netherlands, and the world.

Nicky van Dijk is PhD-candidate at the law faculty of the University of Tasmania. Her research focuses on why and how we should consider the interests of young people and future generations in our legal and political institutions.

This article was originally published in Dutch on the website of Lab Toekomstige Generaties under the title ‘Hoe zou werkelijke representative van toekomstige generaties eruit zien?’, on 23 November 2021.

On Tuesday 16 October the Climate Justice Network, sponsored by the law faculty of the University of Tasmania, organised a public forum about Giving Future Generations a Voice.

You can find the recording of this night below. We apologise for the bad resolution, but hope you can nevertheless enjoy the recording as a podcast.

The night was moderated by former Tasmanian Anti-Discrimination Commissioner Robin Banks, and the panel included:

Prof Jonathan Boston (Victoria University of Wellington, NZ)
Associate Prof Bridget Lewis (School of Law, QUT)
Dr Peter Lawrence, (Senior Lecturer, UTAS Faculty of Law )
Jan Linehan (Adjunct Researcher, UTAS Faculty of Law)
Dr Phillipa McCormack (post-doctoral researcher Adelaide Law School, Adjunct Lecturer UTAS Faculty of Law)
Nicky van Dijk (PhD-candidate, UTAS Faculty of Law)
Cleo Hansen-Lohrey (PhD-candidate, UTAS Faculty of Law)

Fossil fuel subsidies should be prohibited and phased out globally. They encourage, rather than deter, the extraction and consumption of fossil fuels, and in doing so set the world back in efforts to address the climate crisis, including through the achievement of the Paris Agreement’s goal to limit global warming to 2°C, and as close to 1.5°C as possible.

Yet the Australian Government, amongst others, continues propping up the coal, oil and gas sectors with public money. The Prime Minister has spoken of a ‘gas-fired recovery’ from the economic hit of the COVID-19 pandemic, a frightening concept following the 2019-2020 Australian bushfire season. To deal with one crisis by exacerbating another is of course not a sensible way to ‘recover’. 

And gas is just one fossil fuel the Government seems determined to support financially. Set to be Australia’s largest mine, the Carmichael Coalmine is being developed in Central Queensland by Bravus Mining and Resources (Bravus), formerly Adani. The Queensland Government has granted the mine a seven-year ‘royalty holiday’, which means postponing the payment of royalty fees for coal sold from the Carmichael Coalmine.

Internationally, subsidies are regulated by the World Trade Organisation’s (WTO) Agreement on Subsidies and Countervailing Measures (ASCM). The ASCM specifically prohibits certain subsidies and classifies other subsidies as ‘actionable’ if they cause adverse effects to other WTO Members.

Is the royalty holiday a subsidy?

For the purposes of the ASCM, a subsidy is deemed to exist if there is a financial contribution by a government or public body and a benefit is thereby conferred. The agreement between Bravus and the Queensland government is that the royalties will be deferred and eventually repayable with interest, which constitutes a loan. While the royalty holiday is not an explicit ‘transfer’ of funds, similar measures including tax concessions and the modification of a loan through debt forgiveness have been held to constitute a direct transfer of funds by the WTO in the past, fitting within its definition of a ‘financial contribution’. Moreover,the annual interest rate of 2-3% is more favourable than any commercial loan available to other Queensland industries or to Queenslanders themselves, meaning the loan confers a benefit to Bravus.

It the royalty holiday prohibited by the WTO?

The ASCM prohibits certain subsidies, including those contingent in law or fact on export performance.

The negotiations of the royalty holiday at issue were shrouded in secrecy, and there has been no disclosure of the loan’s value, size, the length of repayment, or the type of security. We cannot know whether its granting was contingent in law on export performance.

But a subsidy is de facto export contingent when its granting is ‘geared’ to promote the recipient’s ‘future export performance’. Factors that can indicate export contingency include the country’s awareness that their domestic economy is unable to absorb the subsidized product’s production, the recipient’s export orientation, and the scale of exports, amongst other things.

The ASCM is clear that a WTO Member, which Australia is, shall neither grant nor maintain subsidies contingent, in law or in fact, upon export performance.

We know that coal production for domestic consumption, especially on the scale proposed by Bravus, is unnecessary. Demand is met by current production levels, and renewables continue to decrease domestic demand for coal. The Australian economy is unable to absorb the Carmichael Coalmine’s coal. Bravus is clearly export orientated, making well known its intention to export coal primarily to India. And the scale is vast: the Carmichael Coalmine will produce over 2.3 billion tonnes of coal over its 60-year lifespan.

Based on these factors, it seems the royalty holiday is indeed de facto export contingent, and hence prohibited by the WTO’s ASCM.

What next?

Despite the vast scale of fossil fuel subsidies globally, no disputes have been brought before the WTO challenging them under the ASCM. They seem to be tolerated despite being at odds with the WTO’s core values of open markets and trade liberalization, as well as its commitment to sustainable development.

In theory, any WTO member that has reason to believe that a prohibited subsidy is being granted or maintained by another member may refer the matter to the Dispute Settlement Body. This Body will establish a panel to determine whether the measure in question is a prohibited subsidy, and will recommend the subsidy be removed if it is found to be prohibited.

However, the lack of transparency in subsidy reporting in accordance with ACSM requirements may prevent members from taking action on, or negotiating an end to subsidies. The strongest hope for action lies in non-government organisations, notifying Bravus royalty holiday to the WTO Secretariat’s Trade Policy Review Body. This body regularly reports on the trade policies of WTO members, which can shame members into compliance with WTO law, and encourage others to take action through the WTO’s dispute settlement system.

Andonny Papastamatis is a final year Bachelor of Arts and Bachelor of Laws student at the University of Tasmania

Camilla More is a researcher and Australian-qualified lawyer, specialising in international climate law and policy. She holds a Bachelor of Science and Bachelor of Laws with Honours from the University of Tasmania. 

In this last month of summer, two events in Hobart highlight a widening, deepening awareness of what climate change will mean as this century wears on.

Climate justice is about ensuring that everyone has some protection from the most damaging impacts of climate change and the disruption that comes with building a sustainable society, while also being enabled to take an active part in that transformation.

Last week lawyers, philosophers, political scientists and sociologists, the odd scientist and many other luminaries from across Australia and abroad descended on Hobart for Imagining a Different Future, a symposium on climate justice hosted by the University of Tasmania.

In the many years I’ve been writing about climate change I’ve attended countless conferences including some excellent ones around human health. But there have been none quite like this one, focusing on the ethics that underlie the reshaping of society by our changing climate.

I hope there are more to come. Imagining a Different Future had important messages for all who want to get their heads around the barriers we face in responding to climate change, where concerns about justice and equity are repeatedly being drowned out by the deafening din of populism.

While it’s true that politicians continue to ignore those who wrestle daily with climate issues, this was anything but a gathering of do-gooders wailing that no-one is listening to them. Speaker after speaker emphasised that in this long, complex game everyone is responsible.

Collective responsibility was underlined in a public lecture by one of the conference’s star guests, US political and environmental philosopher Steve Vanderheiden, author of the award-winning 2008 book Atmospheric Justice.

Like everyone else at last week’s conference, I’ve struggled over the years to articulate to myself and others how an individual person should respond to the climate challenge. I’ve usually got around the problem by asserting that the most effective response is to lobby politicians to act.

In his Hobart Town Hall presentation, Vanderheiden shifted the focus back to his audience – ordinary citizens wanting to do their bit. He pointed out that people refuse to engage with the climate issue, or become downright hostile about it, because objectives are too big and far away.

“What if our individual obligations had a different, more attainable objective?” he asked, and listed things that anyone can do with little effort which, added together, amount to a great deal.

Things like reading, observing, listening, supporting science and professional journalism and government institutions, joining with others in cooperative effort, monitoring personal footprints, divesting from the carbon economy, and above all, persevering.

Borrowing from the conference’s title, Vanderheiden enjoined us to imagine a different future, and then live it.

This may not be music to the ears of your average eco-warrior, hungry for direct and decisive action, but it gets to the heart of the things that are holding us up. We will not win this battle by individual heroic effort, however welcome, but by collective acceptance of a different future.

....

To read the rest of the article by Peter Boyer, which also covers a talk by Paul Hawken on his project, Drawdown, and his speaking engagements in Hobart, see the Mercury for 13 February 2018 or Peter Boyer's website Southwind, http://southwind.com.au

The apocalypse, while never an appealing notion, has been somewhat in literary vogue since the bible was first published. The arrival of the climate change induced apocalypse in literature is a fairly new literary game. The apocalyptic fiction I grew up reading included the despair inducing Children of the Dust (1985) and Robert C O’Brien’s particularly depressing Z for Zachariah (1974). The apocalypse in those books, which were published during the Cold War, was nuclear induced. There is a new wave of post apocalyptic books that imagine a world fraught from climate change, a world that we inhabit more and more every day.

Three recently published books, The Island Will Sink by Briohny Doyle, The Map of Bones by Francesca Haig and The World Without Us by Mireille Juchau all relate a world directly impacted by climate change. The only similarity these books share is that they are fiction, though as we wake up every morning with the tides lapping higher, and the winds blowing harder, elements that are, like so much rendered in speculative fiction rapidly becoming a reality.

The Island Will Sink by Bryony Doyle (The Lifted Brow 2016) is a ripper of a book, based around a film producer who has been cashing in on the apocalyptic nature of a ‘post’ climate change world. His current opus is to film Pitcairn Island as it sinks, to create an immersive disaster experience for viewers. It is set in the near future, and houses are designed to withstand the unpredictable tempests.

The ‘post’ in post apocalyptic in these book varies. UK based Tasmanian poet and novelist, Francesca Haig’s Fire Sermon Trilogy (Harper Collins) is set very much in the post-post climate change world. The change has occurred, fractured communities and resulted in some children being born marked differently and considered dangerous. The memory of the change that tore life as we know it asunder, is now muted, almost mythic. The reader is still left in no doubt that the changes that caused daily life in this novel to be so profoundly different from how we live today were made by changes in the climate.

The World Without Us is an exquisite story that sits snugly in the literary fiction genre. It is primarily about the nature of grief, and this is told through the story of a family who have lost a sister, a daughter, and a family who has produced honey for a long time. The ‘without us’ in the title refers to a world without bees, though it also alludes to a deeper loss. I’m no scientist and while I understand that the decline in bee populations around the world is chemical related. You might say that it also alludes to the loss of species predicted to occur as a result of climate change.

To finish, and not to leave you with a dystopic taste in your mouth, I would like to mention that these books, as depressing in parts as they may be, all share characters with common human resilience. It is their uniting element, so profoundly disparate in genre as the books are. They show an evolutionary drive to adapt though they in no way celebrate the loss and profound change of their settings, and the changes in day to day life as a result of climate change.

The portrayal of climate change in fiction is a powerful mechanism to educate, and indeed offers an opportunity for creative activism. Storytelling about climate change is a stealth mechanism for making positive change in the world, indeed the power of art to convey messages otherwise lost through issue fatigue, or insidious political agendas must be recognised and celebrated. These three books do that, as did Z for Zachariah, for my ten year old self that taught me to fear nuclear war, and even better to challenge an apathetic status quo.
 

Rachel Edwards is the editor at Transportation Press.

In August 2015, 21 youth from across the United States, launched the ground-breaking constitutional climate lawsuit Juliana v. United States in the U.S. District Court for the District of Oregon. The youth are supported by Our Children’s Trust, a non-profit organisation coordinating a legal campaign to secure the fundamental right to a stable climate system for young people and future generations.

The Juliana case is just one of a suite of legal actions since 2011 filed by young people with the help of attorneys at Our Children’s Trust. These actions have been filed in many U.S. states and globally, each seeking comprehensive, science-based government action on climate change. Not content to leave the task of climate recovery to protracted political negotiation or incremental, development-by-development legal challenges, these lawsuits are both imagining and achieving a more ambitious vision of climate justice in the courtroom.

Yet even within this movement, Juliana is distinct. Its target, the United States, is currently the world’s second-largest and historically the world’s largest emitter of greenhouse gases. The case is based, in the words of the United States District Court, a “novel” legal theory based on both the Due Process and Equal Protection Clauses of the United States Constitution, and the common law public trust doctrine. And it has already attracted a large public profile, having been covered in publications ranging from Teen Vogue to the New Yorker, and even has its own #youthvgov hashtag.

Despite motions to dismiss the case, in November 2016, 2 days after the U.S. presidential election, the District Court denied the motions, recognised a fundamental right to “a climate system capable of supporting human life,” and paved the way for Juliana to go to trial. As a result, the 3 fossil fuel industry intervenors that had previously intervened in the case elected to withdraw in May 2017. The U.S. government has since taken the extraordinary and rarely-used step of petitioning for a Writ of Mandamus directly in the Ninth Circuit Court of Appeals. The Ninth Circuit’s decision is currently pending, and has seen its own twists and turns since oral arguments were heard last December.

Meanwhile, the United States is in the midst of a Trump presidency, noted for its consistent and effective moves to suppress climate science, wind back environmental regulations and promote fossil fuels. It is important to recognize, however, that Trump’s election has really done very little to change the case’s fundamentals. As one of the youth plaintiffs in the Our Children’s Trust-coordinated lawsuit in Washington State––Foster v. Ecology––explains:

“Our lawsuits are really not about Trump; they were filed before he was in office. A lot of what we’re seeing right now suggests that every march and every protest are just about this one guy. As if we could get rid of this one guy and everything would be all great.

“What we’re suing for is a specific climate recovery plan, because the United States government has known for years about climate change and what fossil fuels do to our environment, and they’ve continued to make it worse.”

The allegations in Juliana v. United States, and the evidence plaintiffs intend to submit at trial, attest to U.S. government knowledge of the risks of climate change dating back to the 1960s and multiple government plans, not implemented, to stabilise the climate and transition away from fossil fuels. Despite knowledge of climate risks and opportunity for change, both Republican and Democratic Administrations continued to permit, promote and subsidise fossil fuel extraction, combustion and export.

Nor has the Trump Presidency altered the scientific urgency of emissions reduction or lessened the severity of the climate crisis. Rather, past and present government action supporting fossil fuels, and inaction on climate change, have persisted even as we have move well past safe levels of atmospheric CO2 (i.e., below 350 parts-per-million) and into a dangerous climate system. We simply cannot wait in hope that the Trumpocene will soon pass to take radical action: winning slowly is the same as losing. Anything other than a rapid drawdown of greenhouse gas emissions will burden future generations with a choice between exorbitantly expensive and unproven technological fixes, runaway climate change, or a combination of both.

 Just as the U.S. government is by no means the only government guilty of both long-standing knowledge of the risks of climate change, and recalcitrant climate and energy policies, so too the fossil fuel industry bears responsibility for its actions in the face of known climate risks. Unsurprisingly, legal actions against both governments and the fossil fuel industry are rapidly proliferating. Each kind of case articulates a different narrative of responsibility for climate change and of climate justice. It remains to be seen whether these narratives can be harmonised both inside and outside the courtroom.

Nevertheless, what these cases do show is that, if we are to both imagine and achieve a different future––and overcome decades of business-as-usual, political half-measures, lip service to real action, and largely symbolic international treaty-making––then novel, potentially transformative legal actions like Juliana v. United States are likely to play a crucial role.  

A panel discussion on Climate Litigation will be held this Friday 9th February, on day two of Imagining a Different Future: Overcoming Barriers to Climate Justice Conference. Other speakers on this topic include Jacqueline Peel, Timothy Baxter, Margaretha Wewerinke-Singh, and Hari Prasetiyo.

Danny Noonan is a Climate Law Fellow with Our Children’s Trust, having graduated from Sydney Law School in 2017. He is writing in his personal capacity.

One of the most vexed questions in the international climate negotiations is how to share the effort of keeping warming below dangerous levels. If we have to reduce pollution to stabilize the Earth’s climate, then how much should each country contribute, and who should pay?

In the global agreement adopted in Paris in 2015 countries agreed to a goal of keeping warming below 2 degrees C above pre-industrial levels, with efforts to limit warming below 1.5 degrees C.

To achieve this objective, the volume of greenhouse gasses building up in the atmosphere must peak and decline rapidly over the next few decades, with the world’s net emissions and removals balancing out at zero in the second half of this century.

Wealthier countries have argued that many of the opportunities to avoid growth in emissions arise in developing countries, which have not yet built their energy systems and infrastructure, and so action should take place there.

Many poorer countries, by contrast, have argued most of the emissions causing warming have come from wealthy countries over many decades as they built infrastructure and developed, and wealthy people in these countries continue to consume and pollute well above the global average. Poorer countries, in turn, have a right to eradicate poverty and develop sustainably.

As well as concerns about who takes a lead in reducing climate pollution, are questions about how to pay for it – in other words, who should contribute the money, technology and capacity needed to get the job done, and how much it will cost.

Poorer and more vulnerable countries are also faced with the question of how to balance the cost of cutting emissions, with efforts to tackle the devastating impacts of climate-related disasters – witness the recent effect of hurricanes in the Caribbean.

These elements are linked together – how much the planet warms affects how much countries and communities need to adapt to adverse climate impacts, and levels of damage. On the other side of the equation, greater efforts to cut pollution imply lower atmospheric concentrations and temperatures, and lower damage. In each case, finance, technology and capacity is needed to help countries, particularly the poorer and more vulnerable ones, to mitigate and adapt to climate change (see diagram).

The UN climate regime is founded on the principle that countries with greater responsibility for causing climate change (e.g. historical emissions), and with greater capabilities to address it (e.g. wealth, income or technology), should lead efforts to address it.  Parties are to protect the climate system for the benefit of current and future generations “on the basis of equity”.

Despite this, the UN climate talks are not on track to solve the problem. Rather than ensuring countries take on legally binding emission reductions, the Paris Agreement enables each country to contribute what it “nationally determines” – effectively institutionalizing the problem (often referred to as a “tragedy of the commons”) that caused climate change.

Current levels of global emissions could place the world on track for up to 5 degrees C of warming by 2100.  According to the UN environment agency, pledges under the Paris Agreement – assuming they are implemented – place the world on track for warming in excess of 3 degrees C.

Developed countries have walked back from their binding obligations under the Kyoto Protocol in to a much weaker international regime for the richest countries, largely to accommodate the US and President Obama’s desire to sign the Paris Agreement without taking it to Congress – an approach that enables President Trump to “unsign” it with similar ease.

And the emissions reductions proposed by developed countries are woefully inadequate. Pledges by industrialized countries to cut climate pollution in the pre-2020 period were far less than those by developing countries.  Pledges for the post-2020 period under the Paris Agreement aren’t much better – analysis by civil society suggests the US and EU “nationally determined contributions” each amount to around half their respective fair shares.

Moreover, the levels of finance under discussion fall short. The finance goal of USD100 billion agreed in 2009 in Copenhagen, and extended in Paris, is far less than is required.  Analysis by University of Tasmania students participating in the International Justice Initiative suggest the figure is likely to be well above USD4 trillion. 

The international negotiations are, of course, a projection of the domestic politics of numerous countries. To scale up ambition globally will require greater pressure on national governments and polluters by concerned citizens, organizations and enterprises. It will also require a greater commitment to fairness within nation states – in the identification of solutions, the sharing of benefits and burdens, and the distribution of political power.

To achieve a better future, more effective movements for climate justice at local, national and global levels are urgently needed, and the climate justice conference taking place in Hobart later this month is one important opportunity to discuss how to achieve this.

Matthew Stilwell is a Convenor of the International Justice Initiative at the UTAS Faculty of Law and a public interest lawyer who has counselled governments, international- and non-governmental organizations in multilateral negotiations on trade, climate, energy and sustainable development.