Agrégateur de flux

Gloucester Resources v Minister for planning [2019] NSWLEC 7 is perfect material for my international environmental law classes at Monash come next (Australian) winter (September). Proposition is a permit for an open cut coal mine. Consent was refused on the basis of 3 reasons: the creation and operation of an open cut coal mine in the proposed location is in direct contravention of each zone’s planning objectives; the residual visual impact of the mine would be significant throughout all stages of the Project; and the Project is not in the public interest. Refusal was evidently appealed.

Preston CJ, the Chief Judge of the Land and Environment Court of New South Wales delivered serious support for an internationally engaged Australian (New South Wales) climate law approach. Although he did cite the Paris Agreement (439 ff: providing context to Australia and NSW’s future challenges; and including an interesting discussion on the balanced measures that might be needed to achieve Australia’s Paris Goals, refuted at 534 ff) and the UNFCCC, he did not need Paris, Kyoto, UNFCCC or anything else ‘international’ to do so. He applied the NSW principle of ‘ecologically sustainable development’ (ESD; a notion which often rings tautologically to my ears).

A blog post cannot do justice to a 700 para judgment – Note the following paras:

At 694 ‘Acceptability of proposed development of natural resource depends not on location of natural resource but on sustainability. One of the ESD principles is sustainable use– exploiting natural resources in manner which is ‘sustainable’ ‘prudent’ ‘rational’ ‘wise’ ‘appropriate’

At 696 ‘In this case, exploitation of coal resource in Gloucester valley would not be sustainable use and would cause substantial environmental and social harm. The Project would have high visual impact over the life of the mine of about two decades. The Project would cause noise, air and light pollution that will contribute to adverse social impacts. Project will have significant negative social impacts; access to and use of infrastructure, services and facilities; culture; health and wellbeing; surroundings; and fears and aspirations…The Project will cause distributive inequity, both within the current generation and between the current and future generations.’

At 514: rejection of the relevance of the limited impact which the project will have on Australia’s GHG emissions overall, with reference to US (EPA v Massachusetts) and the Dutch Urgenda case.

No doubt appeal will follow – a case to watch.

Geert.

After years in the making, the revised HCCH draft Guide to Good Practice on Article 13(1)(b) of the Child Abduction Convention has been completed and is accessible here. It has been submitted to the governance body of the Hague Conference on Private International Law (i.e. the Council on General Affairs and Policy) for approval.

There are five exceptions under the Child Abduction Convention and this is one of them; see also Arts 12(2), 13(1)(a), 13(2) and 20 of the Convention. Under this exception, the judicial or administrative authority of the requested State may refuse to return the child to his or her State of habitual residence following a wrongful removal or retention.

According to the latest survey of the Hague Conference of applications made in 2015, the refusals on the basis of Article 13(1)(b) of the Child Abduction Convention amount to 18% of the total judicial refusals. Thus, this is the most frequently raised exception. Other grounds for judicial refusal relate to the scope of the Convention (such as the lack of habitual residence or rights of custody). See the survey available here (p. 15).

Article 13(1)(b) contains the following three different types of risk:

• a grave risk that the return would expose the child to physical harm;
• a grave risk that the return would expose the child to psychological harm; or
• a grave risk that the return would otherwise place the child in an intolerable situation.

Particularly useful for practitioners are the examples of assertions that can be raised under this exception, which include but are not limited to (see paras 53-77):

• Domestic violence against the child and / or the taking parent
• Economic or developmental disadvantages to the child upon return
• Risks associated with circumstances in the State of habitual residence
• Risks associated with the child’s health
• The child’s separation from the taking parent, where the taking parent would be unable or unwilling to return to the State of habitual residence
• Separation from the child’s sibling(s)

In my opinion, the Child Abduction Convention, and in particular this exception, can no longer be interpreted in a vacuum and one should also look to the human rights case law which is quickly developing in this area (in addition to the applicable regional regulations).