2022 has seen major developments in climate, environment and energy policy at both the Commonwealth and State level. With the change in Federal Government, Australia has re-engaged on the international stage on issues such as climate change and biodiversity, as well as introducing a raft of national policies. In Western Australia, we have seen a suite of changes in relation to land tenure and indigenous engagement, as well as a push to move away from coal reliance. This article summarises our top 5 highlights from 2022.
1. COP27 concludes with a breakthrough on loss and damage, and with important directions for the business community
The 27th UN Climate Change Conference, COP27, was held in Sharm el-Sheikh in November 2022. Significantly, country Parties agreed on a global loss and damage fund to provide climate change assistance to vulnerable countries. Financing climate change mitigation and adaptation was a key theme of the conference: a new long-term climate finance goal was and will continue to be deliberated, even if the current goal remains elusive. Adaptation was another focus, with Parties agreeing to develop a framework to guide the achievement of enhancing adaptive capacity, strengthening resilience and reducing climate change vulnerability. Parties also continued to finesse the rules for Article 6.
Australia was noticeably active and involved in this COP, a marked change from previous COPs, with the Australian pavilion running numerous side events focused on Pacific climate priorities, the importance of First Nations Peoples’ perspectives on climate change and the role of nature-based climate solutions. COP27 also saw outcomes around guidance to business on climate disclosure, with the recommendations of the United Nations’ HighLevel Expert Group on the Net Zero Emissions Commitments of Non-State Entities and the release of the Australian branch of the Business Council for Sustainable Development’s ‘Triple A+: The Business Role in Accelerating Australia’s Climate Recovery: Ambition, Action, Accountability’ report. Gilbert + Tobin’s Head of Climate Change and Sustainability, Ilona Millar , was in attendance at COP27. For more, see our article COP27 concludes with a breakthrough on loss and damage, and with important directions for the business community .
2. UN Biodiversity Conference convenes to agree to a new set of goals for nature over the next decade
The UN Biodiversity Conference (COP15) is currently underway, having commenced on 7 December in Montreal, Canada. Although covering related issues to COP27, COP15 focuses on the Convention on Biological Diversity, a treaty adopted for the conservation and sustainable use of biological diversity and related issues. This year, the ‘Post-2020 Global Biodiversity Framework’ is expected to be adopted, the first biodiversity framework in 12 years. The framework includes 21 targets for 2030, including:
a $200 billion increase in international financial flows from all sources to developing countries;
at least 30% of land and seas globally conserved; and
a 50% greater reduction in the rate of introduction of invasive alien species, and controls or eradication of such species to eliminate or reduce their impacts.
On 8 December 2022, the Commonwealth Minister for the Environment and Water announced that the government will reform Australia’s existing environment laws and develop National Environmental Standards to improve protections and guide decision-making. In addition, a National Environmental Offsets System will be released by the end of this year which is proposed to enable proponents to make conservation payments where they are unable to finalise proposed developments due to the inability to find suitable environmental offsets. The announcement comes as a response to Professor Graeme Samuel AC’s independent review into the Environment Protection and Biodiversity Conservation Act 1999 (Cth) which concluded such Act is outdated, ineffective and requires fundamental reform.
3. Momentous progress in Australia’s climate and energy policy
Since the Commonwealth Labor Government came into power, Australia’s climate and energy policy has undergone rapid transformation, including:
its first step in its “rewiring the nation” election promise with the entry into an agreement, alongside Victoria and Tasmania State Governments, for:
$1 billion in concessional finance put towards the Marinus Link, interconnecting Victoria and Tasmania; and
$1.5 billion in concessional finance put towards renewable energy zones in Victoria.
The funding for Victoria’s renewable energy zones includes a $750 million loan from the Clean Energy Finance Corporation to ensure the KerangLink, which interconnects the states of Victoria and NSW, is completed by 2028. AEMO has stressed the urgency of completing KerangLink to ensure appropriate transmission infrastructure is in place before the anticipated closure of coal-fired power stations.
4. WA Government overhauls land tenure and Aboriginal Heritage laws and announces transition away from coal
For more on diversification leases, see Diversification leases policy released for public comment in WA and WA Government diversification lease policy should be tough on land use .
5. 2022 Litigation Trends & What to Expect in 2023
Litigation against Government in respect of alleged duties of care
The Full Federal Court’s decision in Minister for the Environment v Sharma [2022] FCAFC 35 highlighted the legal and policy barriers to establishing a duty of care owed by government departments in respect of climate change risks and harm. Although the claim in Pabai Pabai (which relies on similar duty of care principles but is grounded in Native Title and cultural heritage rights) may yield a different outcome, that proceeding will not be determined for at least another year.
Litigation against major industry players and the beginning of regulatory action in this space
Many of the proceedings commenced against major industry players in the last two years are still trundling towards hearing or otherwise awaiting finalisation, including those against Woodside (in relation to the Scarborough gas project) and Santos (in relation to claims of ‘greenwashing’). However, notable events in recent weeks and months include:
Looking forward to 2023
So long as there remains a disparity between society’s expectations and the response of government and private enterprise to climate change risks and harm, activist litigation will inevitably continue in Australia in 2023. Although domestic legislative reform appears some way off, reforms are progressing in international law, with growing support for a new international crime of ‘ecocide’, which could be problematic for Australian-held offshore interests.
For more on the litigation trends of 2022, see ‘Climate litigation’ on ice for government, but industry to feel the heat .
KNOWLEDGE ARTICLES YOU MAY BE INTERESTED IN:
A year of progression and disruption: 2022 Clean Energy and Decarbonisation yearbook
How the Pilbara is creating the most sustainable and secure clean energy
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