The legislative challenge of facilitating climate change adaptation for biodiversity

The need for our laws to facilitate increasing climate change adaptations for Australia’s biodiversity was the subject of the winning essay for the annual prize of the Academy of Law for 2017. The prize – $10,000 – was presented to Ms Phillipa McCormack, of the University of Tasmania, at a ceremony at the Federal Court of Australia in Melbourne on 23 October 2017.  

The essay was written in response to the topic of “how well do Australian legal institutions respond to climate change? How could that response be improved?”

Phillipa is currently undertaking a PhD at UTAS, researching Australia’s legal and policy frameworks for conservation and their capacity to facilitate biodiversity adaptation as the climate changes.

In responding to the topic, her essay opens with a statement about Australia’s already

“unenviable record of species extinctions, ecological fragmentation and biodiversity decline [and she notes that] anthropogenic climate change is now rapidly emerging as a significant new threat to Australia’s biodiversity”.

In her essay, Phillipa argues:

“that the explicit and implicit purposes of conservation laws are to preserve the status quo. These laws typically reflect a false presumption that nature is ‘stationary’, and that biodiversity can be preserved indefinitely within historical, ‘native’ distributions and species compositions. This presumption is demonstrably false and, without legislative reform, conservation laws based on static purposes will continue to be ill-equipped to facilitate adaptation-oriented approaches to conservation”.

As she later comments,

“legal scholarship around the world increasingly supports a shift from a ‘stationarity’ or ‘preservation’ paradigm towards more dynamic conservation approaches”.

However, as Phillipa explains, our

“legislatures remain ill-equipped or unwilling to acknowledge the fundamental challenge that climate change represents for conservation law and practice in Australia”.

Phillipa concludes by saying that her essay “is designed as a specific and proactive effort to identify challenges for the legislature”, at both Commonwealth and state and territory scales.

A fundamental challenge for these legislatures is to design conservation laws “premised on the inevitability of change”, which is already being amplified and accelerated by changes in our climate.

“Current conservation efforts and the application of conservation laws will be wasted unless legal purposes can also facilitate climate adaptation for Australia’s rich and unique biodiversity”.

Phillipa’s essay represents a significant contribution to the increasingly important issue of the correct approaches to be taken by the law to climate change.

The essay will be published in the Australian Law Journal in 2018.

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