Climate Justice

Don't you just think everyone's craving social interaction at this point, Paul? Anything you can hang on to. Anything.

Hi students. Hello. Yes, somebody's like, "I am. I'm craving it." Somebody on the chat. Good for you, that person.

Any break from a pandemic is welcome, even if it is a pandemic thing. This is perhaps more depressing. If there's one thing worse than a pandemic, it's climate change. There was a lovely quote you had from Arundhati Roy, a lovely article in the Financial Times you sent us, as were the others too, of course.

Well, maybe I'll make a start, because I've got some housekeeping matters that'll take up a couple of minutes, Bryn. So let's welcome everybody. Good evening and welcome. This is the second event in the Justice Series talks in this session of the virus, and this topic is, of course, climate justice. My name is Paul Redmond, with Erica Serrano, who's on the screen. I'm the joint director of the Brennan Program for this year, and I'm joined by Erica, but also by Crystal McLachlan, the program administrator, and most importantly by our special guest this evening, the presenter, Bryn O'Brien.

I'll introduce you to Bryn in just a moment, but I've got some housekeeping matters that I need to share with people. I guess they're going to be familiar to most of you from classes, but you each have the ability to hide and show your camera, as well as mute and unmute your microphones. As you may have found in your classes, when you're not speaking, please put your microphone on mute. If you find the event is freezing on your Zoom, please hide the camera. That'll free up some bandwidth. When you're speaking, we'd love you to show your camera, show your screen, if you're comfortable in doing so. We ask that so we can see your friendly face. As we do expect quite a few Brennan community members tuning in, you may like to turn off your camera and only turn on when asking a question during question and discussion time, and we'll get to that in the second half of this hour.

Lastly, an important request: in order to get your five ROJ points, I would ask you to list your full name now in the chat box as it appears on the UTS systems. The Brennan team here will award you points on the basis of this event. You can also use this chat box for any other questions during the event, climate justice related or Brennan Program related, and Erica and Crystal will respond while Bryn presents.

Now, after all that housekeeping, I'd like to introduce you to our guest speaker, Bryn O'Brien. This is the lovely part for me.

Bryn's a lawyer and strategist, has a background in human rights, global work and migration issues. She's the executive director of the Australasian Centre for Corporate Responsibility. Bryn is an expert, and I can say this with great confidence and some authority, in the field of the human rights responsibilities of business, in particular the UN framework on business and human rights expressed in the Guiding Principles. Her experience covers both commercial and human rights law, and she's worked extensively also in human trafficking and slavery in global supply chains. Bryn's an alumna of UTS Law School, where she received First Class Honours in Law, Bachelor of Medical Science, and she went on to take out a Master of Laws degree at Columbia University in New York.

Now, the Australasian Centre for Corporate Responsibility—I've got some script to read, but I think it may save you, Bryn, having to talk it through—promotes better performance of Australian companies on human rights, environmental and governance issues. As an activist shareholder organisation, the Centre engages with Australian listed companies and their investors on these issues, including through filing shareholder resolutions. In 2019, the Centre filed shareholder resolutions to mining, utilities, airline, retail giants on climate change, corporate governance and social issues. I invite you to look at the Centre's website just to see the resolutions that they have actually moved, and the success of those resolutions over the last few years, particularly under Bryn's leadership.

The two I would draw your attention to particularly are the Santos AGM this month, a major oil and gas producer, where the conditional resolutions on climate-related lobbying and the Paris Climate Goals attracted voting of 46% and 43% respectively. The other one which I think is really significant is the resolution in relation to Qantas flying children off from detention centres, arguably in breach of the Convention Against the Rights of the Child. The dramatic increase between the 2018 and the 2019 voting on that conditional resolution from 6% to 24% is really quite remarkable, and a tribute to Bryn's very effective engagement with institutional investors, both privately and in support of shareholder resolutions, to address a range of really central issues, of which the climate justice one is fundamental.

Now, Bryn, I'm going to hush up and hand the floor to you, and thank you in advance for the presentation, and look forward not just to the presentation, but to the questions and answer discussion that will follow. Thanks, Bryn.

Thanks so much, Paul. What I need to add to that very generous bio is that I'm actually also a PhD dropout. I was Paul's PhD student for a number of years—he was my long-suffering but very, very generous supervisor—and at the point at which ACCR started to take off a couple of years ago, I decided that the time was right to exit. But really, the work that I did with Paul over that time, and Michael Rawling, another academic at UTS, is foundational to basically everything that we do at ACCR. So our kind of activist shareholding, and the way that—what we seek to do is influence companies by getting them to live out the commitments they make to international standards.

Tonight, I'm talking about climate justice. As Paul said, I was a corporations lawyer, and then I was a human rights lawyer. I started working on climate change issues less than three years ago. So the first ever act that I did as a climate activist was to file a shareholder resolution to BHP about its relationship with climate denial lobbying organisations like the Minerals Council of Australia in 2017. So if you haven't done climate change work before, don't feel intimidated by the science. I'm going to take you very briefly through some of the science and some of the accepted problems that we're up against tonight. I absolutely warn you, it will be very intense and depressing, but I'm really looking forward to the Q&A.

So let's go to the first slide. Paul, thankfully, is steering my slides today because I'm not able to do it from my device. I sent you a few readings. This is from the World Meteorological Report from the end of last year. This was released before, I guess, the bushfires had run their course, but what it shows is the record low rainfalls between the 1st of January and the 31st of December, 2019. So this must have been released after—anyway, I'm getting my diagrams confused. But Australia, as we all know, had a horrific summer, and this is part of the reason for why. Low rainfalls attributable in part to changed weather patterns, attributable to climate change, has led to absolute parched dryness on the east coast of Australia. And we all know what happened over our last summer. Let's go to the next slide.

So we hear a lot all the time, and I guess we have heard from various actors in Australian public and political life over the last two decades that perhaps there isn't the evidence to support the theory that the world's temperature is increasing. So this is five of the leading earth sciences research units around the world. Basically, at the end of last year, we ended up at sort of 1 to 1.3 degrees of temperature increase. At 1 to 1.3, we see the kinds of impacts that we saw over the summer—absolutely catastrophic climate impacts in Australia and absolutely catastrophic human rights impacts for that matter. So in Australia, we essentially had hundreds of thousands of people displaced over the course of one summer. I probably don't need to convince or persuade many of the people on the call. The recent research shows that people in the age group of what I imagine is the average law student overwhelmingly accept climate science. So perhaps we will move on to the next slide.

So climate change is—it sounds trite to say it—but climate change is everything change. Climate change affects the predictability of the world as we know it. Predictability is really important in the way that our systems operate. It's really important in the way that legal systems operate. It's really important in the way that financial systems operate. It's really important in the way that insurance markets operate. So all of these things that are connected with our legal system and our legal and financial order, climate change affects all of these things. As you may know, there are parts now of the New South Wales South Coast and of Queensland where property is uninsurable. As we also know, climate change is a threat to human rights. We need look only at the last summer to know how climate change can take away people's shelter. It can take away people's, of course, right to life. It can take away or erase cultural sites for First Nations people. It is really a direct threat to human rights. And again, it's a threat to organised human existence. It's a threat to our food systems, the way that we work. There are, you know, over the last summer in those record temperatures, there were many workers under stress from heat and from smoke. It really is a threat to the way that we live, and it's a threat multiplier. So climate change increases the risk of resource conflicts between nations or between peoples. It increases the risk that people may need to migrate, perhaps because, as I said around one of the readings—a talk I gave at the UN Forum on Business and Human Rights last year—it increases the risk that a river that a person is living next to might flood and then never recede. It increases the risk that areas of fertile horticultural production are much drier or much wetter than before, thereby not allowing for the same growth of crops. And climate change is—and this is where my expertise is—primarily caused by the industrial extraction and combustion of fossil fuels. So it's not primarily caused by people using straws or plastic cups. It's not primarily caused by people driving their car from A to B. It's not primarily caused by any of the kinds of consumer activities that the fossil fuels industry has led us to believe are a matter of shame for us. It is primarily caused by the industrial extraction and combustion of fossil fuels. So let's go to the next slide.

This is a fabulous, groundbreaking report that came out in 2017 by my colleagues at the Carbon Disclosure Project, which is an NGO now housed out of basically ACCR's sister organisation, called Share Action, based in London. They found in their report that there were just 100 companies responsible for 71% of industrial greenhouse gas emissions between 1988 and 2015. As you will see on that—that's the top 20 or so—BHP and Rio Tinto both feature. So two Australian listed companies, both dual listed in Australia and the UK. There are some state-owned enterprises: China Coal, Saudi Aramco, Gazprom, the Iranian National Oil Company, Exxon. These are coal, oil, gas producers and major diversified miners. Let's go to the next slide.

This is the slide that I don't think is going to work—Paul's going to give it a go, and if it doesn't, I don't think it's going to play. It's a video, and basically it just shows—sometimes people think of climate change and these tables of companies as being a hard thing to relate to, a difficult thing to relate to. But really, over this last summer, things became very, very personal for us on the east coast of Australia. The video that is not playing right now is video of burned out bush less than 10 kilometres from my childhood home. It's bush in Kangaroo Valley, and it is absolutely burnt to a crisp. It was an extraordinary summer for everyone, but for the south coast of New South Wales, it was a very scary and devastating time. But this is, again, 1.2, 1.3 degrees of warming. We are on track for, at the most optimistic projections, three degrees plus. So let's go to the next slide.

Given all that we know about the relationship between the industrial extraction of fossil fuels for combustion, what we now need to do is translate that into human rights language—human rights and justice language. It may sound surprising for you to know that only recently, and still, it's a kind of nascent area of work. I'm supposed to be writing a paper for the UN Working Group on Business and Human Rights, making these connections, but the pandemic unfortunately keeps dragging me onto other things. We need now to position emissions reduction as a core human rights demand—a demand borne out in international human rights law and elucidated through the UN Guiding Principles on Business and Human Rights, which is central to the state responsibility to protect human rights. So states, in order to discharge that responsibility, must be implementing policy to ensure that, at a national level, we are aggressively reducing emissions in line with the Paris Agreement's goals—getting to, at an absolute outset, net zero by 2050, but really moving very, very quickly before then. Obviously, Australia is not doing it. Our emissions have increased over the last couple of years, or the last five at least. It's also a non-negotiable component of the business responsibility to respect human rights. I say non-negotiable because the business responsibility to respect human rights really is always up for negotiation, and climate—emissions reduction—is always negotiated out of it. So you can talk to some of the largest fossil fuels producers in the world—and certainly I have—that will say, "Well, we have a fantastic modern slavery policy," but their business model is incompatible with the survival of organised human existence. So, coming to that point, aggressive emissions reduction is absolutely, at this point, necessary for human survival. It's not happening, and it's forcefully opposed by fossil fuels lobbyists and the companies that pay them. Next slide, please.

This is part of an article that was circulated to you by Arundhati Roy, the absolutely incredible, brilliant Indian author and thinker. This brings our conversation of climate change and capitalism, and the nature of extractives capitalism—fossil fuels extractives capitalism—into the present day. I won't read it all out to you, but essentially what she says is that there is now—and I've felt this actually quite deeply over the last couple of months—what there now exists is a disruption, or she calls it a rupture. I was more existentially despairing about the state of the world before the pandemic hit, if that sounds terrible, than I am now. This is not the disruption that anyone wanted or anyone wished for, but nonetheless, it's the disruption that we have. As Arundhati Roy says, "Nothing could be worse than a return to normality." She suggests, then, of course, famously, that this is a portal—a gateway between one world and the next. We have choices to make now about what we take with us into the future and about what we're willing to fight for. There's an entire conversation swirling globally about recovery—what recovery looks like, and what a climate solutions-driven recovery looks like, and a climate justice-driven recovery looks like. Just a footnote on justice: I cannot recommend any piece more highly than Arundhati Roy's piece. If you haven't done any of the readings, don't worry at all—just go and read this one piece by Arundhati Roy. It's a thousand words or so in the Financial Times, an opinion piece in a newspaper, and I don't know if it mentions the word climate at all, but the way that she describes how the model of global capitalism that we had up until the moment before the pandemic hit says everything you need to know about climate and justice. We must be positioning ourselves for a just and green recovery, and a recovery that respects people's human rights. Now, we're not, and we can talk maybe about that in the Q&A, but a really incredible piece of writing, and I commend it to you. Let's go to the next slide.

Just to recap the journey a little bit: we spoke about what climate change is, the way that temperatures are increasing, 100 companies are responsible for 70% of the world's greenhouse gas emissions over this really critical time period. The pandemic is a portal, and we can choose to walk through it, through this gateway, with better ideas about how to live our lives. But here we are. This is the UN Environment Programme's Production Gap Report from the end of last year. The pink line at the top is the production plans and projections—this is where we are headed. The blue line at the bottom is production consistent with a 1.5 degree world. The pink line at the top is production consistent with a 3+ degree world. The gold line below the pink line is production implied by the climate pledges that states have taken. Now, a small note on climate pledges: Australia has pledged a very weak pledge to reduce our emissions by 26 to 28% by 2030. We're not going to go anywhere near that. Australia is actually tracking above the pink line at this point in time—we're increasing our production. The green or teal line is production consistent with two degrees. So the portal is there, the gateway is there, but the amount of luggage that we need to shed in order to walk through it is enormous—absolutely enormous. It is a fundamental, radical shift to the ways that our economies operate. But the thing that gives me optimism at this point in time is that we have, in the last month, proven that radical shifts are possible if so much is at stake—if our lives are at stake, and they are with climate change, they absolutely are. Now our job is to communicate and to convince, to persuade people that, yes, things will be difficult and the sacrifices will be significant and many, but we have just shown it's possible with the pandemic. In fact, the sacrifices are much—while they will drag over for the rest of human existence, maybe until we have technology to suck carbon out of the atmosphere, which we do not have now—they are not nearly as severe over the medium term as the ones we've had imposed on us over the last month that we have all accepted because they are necessary. So let's go to the next slide.

This one, again, seems a little bit self-indulgent, but this is the text of a talk I gave at the UN Forum last year where I just think it's really important that we know it's not just fossil fuel companies and governments—it's every other actor in our economic and political systems and cultural space that facilitates the expansion of the fossil fuels industry. We simply must not expand fossil fuels in this country anymore. Every major bank, global law firm, engineering services provider, investment institution, big four accounting and auditing practices—all of the organisations that have great summer clerkship programs, so the kinds of organisations that, rightly, many of you will seek to work for—are all absolutely complicit in this horror at this moment in time. And again, every civil society organisation that blue or green washes—every, you know, Sydney Opera House is sponsored by Exxon—what an absolutely ridiculous thing at this point in time. We are in the kind of broken middle, this really difficult space that we must transition out of. I think that one of the key drivers of corporate change, particularly at these kind of services-level firms, is recruitment and retention of brilliant new graduates like yourselves. So when you're doing those interviews, if you feel that you can, ask them, raise the question: "I have discomfort with these kinds of activities." I can understand certain kinds of activities adjacent to the fossil fuels sector that don't involve expansion, but every one of these providers currently facilitates the exploration for more of the stuff that is incompatible with our existence. So let's go to the final slide, which is: What Will You Fight For? Let's open it up to Q&A. I'm not sure quite how this is going to run, but I'm in your hands, Paul and Crystal.

[Q&A session begins. Crystal and Erika facilitate questions from students via chat and video.]

[Eugenia:] I was just wondering, I'm really interested in climate change litigation, and I was just wondering what your perspective is on what the role of that will be, especially in Australia in the coming years?

[Bryn:] Great question. I am an enthusiastic supporter of climate change litigation and, in fact, my organisation may end up a plaintiff in some corporations law litigation this year—maybe. We're getting advice on a range of different issues. Litigation is a really, really interesting and powerful threat to make, in particular to corporations, but we need to be realistic about the length of time that it takes litigation to run. I think that climate litigation can cover—as I said, climate change is everything change—and I think we will see climate litigation become a part, or climate themes become a part, of almost all commercial law themes or many commercial law cases, as well as public law cases. As we all know, the environment for public law and human rights litigation in Australia is very constrained. I'm aware of a couple of different cases going on. One: there is a complaint to the UN Human Rights Committee on cultural rights made by Torres Strait Islanders and their representatives, which is a law firm based in London called Client Earth, and they have some excellent Australian lawyers working with them. There is also a fascinating case, McVeigh and Rest. Rest is an industry superannuation fund. McVeigh is a 24-year-old who is litigating against his superannuation fund for failing to disclose certain things about how they manage climate change in their investments and failing to manage climate risk in their investments. I think fossil fuels companies will come under increasing scrutiny about how they represent the value of their investments. We've seen a really fascinating period over the last month in terms of the oil and gas industry. There's this kind of triple threat to the oil and gas industry, which involves a Saudi-Russian oil price war intending to bankrupt the US shale oil industry, there's the COVID-19 pandemic, which has led to massively increased oil demand, and then there's the carbon bomb—that those two threats are seen, or that the recovery, potential recovery from those two threats are seen through a carbon lens. I think there may be significant litigation arising out of this kind of event and the failure of companies to plan for it. Absolutely, if you're considering a career in litigation, you'll almost certainly need to know something about climate change.

[Paul:] Thank you, Eugenia and Bryn. If you would like to have a question, maybe you could simply indicate through the chat screen. I can see that Vincent Collins has a question. Vincent, if you could unmute and let us have your question.

[Vincent:] Hi, first of all, just wanted to say thank you to Bryn, Paul, Crystal and Erica for organising. I just wanted to go back to the point that you raised about law students thinking about clerkships and graduate careers in these big firms. As someone that wants to pursue environmental law in practice, what are some pathways that you can recommend to avoid that sort of rhetoric, given as well that those opportunities, obviously, being realistic, present much more of a livelihood than volunteering at a community legal centre full time? But yeah, what kind of pathways would you recommend in order to get your foot into practising environmental law in an ethical way?

[Bryn:] So the first thing I should say, when I mentioned all of those actors, I'm certainly not saying don't go and work for any of them. I think, you know, if you feel comfortable, raise it during recruitment processes—I can't think of a single firm that would hold that against you. I think that's really important feedback for them to have. But also, don't feel pressure to do it. I mean, I'm being a bit rhetorical when I said that, but if you feel comfortable, definitely do it. You also shouldn't feel like climate change is your own personal responsibility alone. That is a lie, a myth sold to us by the fossil fuels industry to paralyse us against action. So, you know, if you need to go—I started my career at Mallesons. I can't say that I was exceptionally happy there, but certainly it was excellent training. So I would suggest that if that is attractive to you, then pursue it without guilt or shame, but put a time limit on it. And if what you truly want to do is to pursue environmental justice—unless Mallesons shifts, or I won't only say Mallesons, unless any of those major firms shift dramatically—they are not on the side of justice. So if that is important to you over your career, I would say don't think about it as the place you end up and don't get sucked into it. As an initial pathway, the kind of training that you get at a major law firm or at a major accounting firm or management consultancy, if you can stomach them for the initial period, is excellent. So, you know, don't worry about it. But yeah, I think it's that long game—what do you want to stand for? And will you be able to? I certainly think there are ways to influence those firms, and I think them hearing from their recent graduates and perhaps, you know, the timing is a matter for each individual interaction, but raising these issues over time is really important. When I was at Mallesons, I started doing this thing where I just refused to work on a couple of matters. I refused to work for an asbestos company, and that was not seen badly. So anyway, I think those pathways are there. Maybe it was an unusual situation, but I wouldn't feel overwhelming shame or guilt about making the kinds of professional choices you need to make as an early career lawyer.

[Paul:] Thank you, Vincent. Kurt Cheng has a question now.

[Kurt:] Thanks, Paul. Hello, Bryn. My question is that I'm very interested in the activist shareholding that works within the ACCR portfolio, and I was wondering how they actively engage with companies as a means to address the justice deficit?

[Bryn:] Yeah, great. So, a little bit of background: ACCR, while it's an NGO—a non-profit organisation—we have an active shareholding in most of the ASX 50 to 100 companies, and we use that shareholding to avail ourselves of the rights afforded to shareholders under corporations law, which is in filing and voting on shareholder resolutions and voting around directors and remuneration reports and so on, but also to present a credible enough threat that, through our collective powers as shareholders—so 100 shareholders acting together can file a shareholder resolution—we present a credible enough collective threat so that corporate executives meet with us and engage with us. So our average engagement—as Paul mentioned at the very start, we had a very large vote on Santos a couple of weeks ago, 43% and 46% on our resolutions. We've actually got an AGM tomorrow, which is the Woodside AGM, another Australian oil and gas producer, which we expect to be the first ever NGO resolution to tip 50%. I think we will get more than 50%. Paul alluded to some complications around shareholder law—corporations law with respect to shareholders—earlier, so even if we get 50%, we won't actually have a binding resolution, but it will be a kind of historic moment, I think, tomorrow. I give you that background to say that AGMs and voting behaviour is one moment in a very long campaign. We have been holding Woodside and Santos for years. We have been meeting with Woodside and Santos on a regular basis, perhaps a six-monthly basis for the last three years. We have extensive engagement with their institutional investor base. We subscribe to research services like the Bloomberg Terminal that give you a relatively accurate list of the top 200 shareholders in a company—we have relationships with maybe 100 of them. So we go and talk to them and we brief them. We brief other actors of systemic importance in the investment system—proxy advisors, for example, are organisations that advise investors on how to vote on shareholder resolutions and other matters. We use this kind of shareholding as a way to crack open the door to a range of other tactics that allow us to present arguments about climate change and human rights and labour standards and modern slavery to an ecosystem of people and institutions that have economic power. They have economic power in Australia, they have significant political power in Australia, but they also have global economic power. To give you one final example before we go to the next question: I hosted a webinar last week, and we put it on very quickly, working with some really fantastic First Nations justice campaigners. There's an organisation called Original Power, which is Indigenous-led and run, that supports communities around Australia—in this case, in the Northern Territory on country—to be able to exercise their rights over land to protect country. As the COVID-19 pandemic played out, one of the key risks to Aboriginal people in the Northern Territory was their proximity to FIFO (fly-in, fly-out) workers. So what we did was put on a global investor webinar—we invited people from Europe, the US, Asia and Australia, of course—to listen to two Indigenous women who are experts on mining and Indigenous communities in Australia, and a doctor to speak about the potential health consequences for Aboriginal communities if exposed to the COVID-19 crisis. We had, I think, in total about $25 trillion of assets under management tune in. It's a crazy way that our financial systems, our investment systems globally, our systems of capital are linked. It's just an example of how globalised the investment system really is. When I say $25 trillion, I mean one asset manager was responsible for $10 trillion of that. I think we only had 15 people join, but that was the total amount.

[Paul:] Thank you so much, Bryn. Thank you, Kurt. Amy Gallagher has a question.

[Amy:] Hello. So, Bryn, you've highlighted just earlier that it's not only the typical fossil fuel companies that are facilitating the expansion of emissions that's obviously incompatible with all of our survival, but obviously all of those other businesses—so banks, law firms—they haven't necessarily aligned their operations with the Paris climate goals. So, kind of looking at what's up with that, what sort of action do you think a director could actually take to respond to climate change when, although the benefit would be very clear to global society in terms of reducing emissions, it might not be so obvious to their company?

[Bryn:] Great—two questions, and I'll take them in turn. In terms of what's up with that—professional services firms providing services to the expansionists of the fossil fuels industry—I think part of the issue is that people really exist within a kind of... when you go to work and you're doing your thing, you're able to compartmentalise and feel comfortable, even if there's some other person in your law firm that has some massive fossil fuels practice, while you're doing product liability litigation and you feel quite disconnected. You also don't want to confront the person, or you'd never dream of confronting the person doing the fossil fuels expansion practice—representing oil and gas producers in Western Australia—because that's just not how things are done. Those kinds of dualling perspectives are on a collision course at this point in time, because we are getting to the stage where we will all recognise that certain kinds of existences and business models are incompatible with our existence. I imagine that will really escalate. I think one of the most effective things that can be done from within professional services firms is employee engagement with management. I know a little bit about a global engineering services firm called GHD, which at the end of last year made a decision—when a contract with Adani for th