Environment Defenders Office

Mock Trial

GREEN SEA TURTLES

THE COMMONWEALTH
and
THE STATE OF QUEENSLAND

MOCK TRIAL
18 February 2012

OVERVIEW
The mock trial determined an application by a group of Green Sea Turtles who had brought
proceedings against the Federal and Queensland governments for damage caused to the Great
Barrier Reef through the governments acts and omissions in relation to climate change.

The trial was set in 2032. The evidence was that at this time, damage to the Reef was seriously
threatening the Turtles ability to live, breed and feed in the Reef.

Between 2012 and 2032, the Federal and Queensland Government had failed to take further action
to address climate change or its impacts on the Reef. In addition, at around 2012, the governments
had approved 8 major new coal mines in Queenslands Galilee Basin, which significantly increased
Australias greenhouse gas emissions.

PURPOSE
The mock trial explored something not possible under our current legal system: animals having legal
standing to bring legal cases in their own right, for damage done to the environment, their habitat.
The idea was to test out whether giving nature the right to bring proceedings and have legal rights
would improve environmental protection.

In addition, t trial was also used to raise awareness about short and long-term impacts of climate
change on the Australian environment, in particular the Great Barrier Reef and its inhabitants, the
Green Sea Turtle. The trial particularly highlighted the contribution of large new fossil-fuel projects to
such impacts, such as the projects currently proposed for Queenslands Galilee Basin in the near
future. From a legal perspective, the mock trial highlighted the role that law can play in allocating
accountability for approval of such projects, given the subsequent damage caused to public and
environmental commons like the Great Barrier Reef.

THE EVENT

The mock trial was held on 18 February 2012, as part of the Melbourne Sustainable Living
Festival. The Court room was the BMW Edge Theatre at Federation Square.
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Mock Trial

Representing the Applicants, the Green Sea Turtles, were barristers Susan Brennan and
Emma Peppler.

Representing the Respondent, the Commonwealth and the State of Queensland, were
barristers Louise Hicks and Jane Sharpe.

Presiding was Justice Brian J. Preston, Chief Judge of the NSW Land and Environment
Court.

The Court also heard from two Court-appointed experts:

Marine biologist, Dr Mariana Fuentes, post-doctoral fellow, ARC Centre for

Excellence in Coral Reef Studies, James Cook University, Queensland.

Climate change scientist, Dr Roger Jones, Professor Emeritus, Victoria University,

Melbourne.

LEGAL DOCUMENTS

In making their submissions to the Court, the parties relied upon the following documents,
which were prepared and circulated prior to the hearing:

A Statement of Legal Assumptions which set out the legal bases of the trial.

A Statement of Agreed Facts which set out the factual bases for the trial.

Statement of Dr Marana Fuentes which outlined the evidence that court-appointed

expert would provide at the hearing.

Statement of Dr Roger Jones which outlined the evidence that court-appointed

expert would provide at the hearing.

THE DECISION

After hearing submissions from both sides, as well as the evidence from Dr Jones and Dr
Fuentes, Justice Preston decided in favour of the applicants, the Green Sea Turtles.
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Mock Trial

PARTICIPANTS
THE ENVIRONMENT DEFENDERS OFFICE (VIC)
Organisers

The Environment Defenders Office

is an independent, not-for-profit,
community legal service,
specialising in public interest
environmental law.

We aim to redress the imbalance

in access to legal resources that
exists for individuals, community
and conservation groups
compared to government and
business.

Our work includes:

providing legal advice and legal representation to individuals, community

groups and conservation organisations working to protect and enhance the
environment.
contributing to environmental law reform and policy development by
monitoring developments in Victorian and Commonwealth law and, where
appropriate, making submissions to Government relating to existing and
proposed legislation.
developing and promoting community legal education programs to assist
communities and individuals to be involved at all levels in environmental
decision-making processes.
conducting seminars, workshops and conferences

Our funding comes from a range of sources, including donations and membership
fees, grants from trusts and foundations and funding through the Community Legal
Services Program administered by Victoria Legal Aid. Sometimes we require some
payment for workshops and legal services to help cover our costs and to ensure that
we can make sure that we can provide our services to as many individuals and
organisations as possible.

We could not do the range of work that we do without community support in the form
of memberships and donations.
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Mock Trial

CHIEF JUDGE BRIAN J PRESTON

Justice Preston is the Chief Judge of the Land and

Environment Court in New South Wales. Prior to
being appointed in November 2005, he was a senior
counsel practising primarily in New South Wales in
environmental, planning, administrative and property
law.

He holds a BA and LLB (1st class honours) from

Macquarie University, practised as a solicitor from
1982-1987, and then at the bar from 1987-2005. He
was appointed senior counsel in 1999.

He has lectured in post-graduate, environmental law

for almost 20 years, principally at the University of
Sydney, but also at other universities in Australia and
overseas. He established two law courses:
environmental dispute resolution and biodiversity law.
He is currently an Adjunct Professor at the University
of Sydney.

Justice Preston is the author of Australias first book on environmental litigation (in 1989)
and 69 articles, book chapters and reviews on environmental law, administrative and
criminal law. He holds editorial positions in environmental law publications, including
General Editor of the Local Government Planning and Environment NSW Service and
Title Editor for the Laws of Australia, Title 14 Environment and Natural Resources.

He has been involved in a number of international environmental consultancies and

capacity-building programs, including for the judiciaries in Indonesia, Kenya, China,
Trinidad and Tobago, Thailand and Sri Lanka.

Justice Preston is a member of the Adhoc Advisory Committee of Judges, United Nations
Environment Programme (UNEP) Judges Program; Chair of the Environmental Law
Standing Committee of the Law Association for Asia and the Pacific (LAWASIA); member
of the Environmental Law Commission of the International Union for Conservation of
Nature (IUCN) and member of the Australian Centre for Climate and Environmental Law
(ACCEL).

He is the recipient of a Commendation in the 2010 Australasian Institute of Judicial

Administration, Award for Excellence in Court Administration, for his work in
implementing the International Framework for Court Excellence in the Land and
Environment Court of New South Wales.

He is also the recipient in 2010 of an award by the Asian Environmental Compliance and
Enforcement Network (AECEN) in recognition of his outstanding leadership and
commitment in promoting effective environmental adjudication in Asia.
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Mock Trial

SUSAN BRENNAN
Barrister for the Applicants (Green Sea Turtles)

Susan Brennan (BA., LL.B (Hons)) was admitted to practice

in 1994 and signed the Bar Roll in 1998. Since admission
Susan has specialised in town planning, local government
and environmental law and prior to joining the Bar was a
solicitor at Minter Ellison.

Susan regularly appears in the Victorian Civil and

Administrative Tribunal, in the Victorian Commission for
Gambling Regulation, before Advisory Committees and
planning panels and in the Supreme Court of Victoria,
representing developers, local councils and resident
community groups.

In 2003, Susan was appointed to the Heritage Council of Victoria.

LOUISE HICKS
Barrister for the Respondent (The Commonwealth and the State of
Queensland)

Louise has over twenty five years experience in the

law, including six as a partner at DLA Phillips Fox. For
the past fifteen years she has been a solicitor advocate
in planning and local government matters. Louise has
appeared at Ministerial Panels and Advisory
Committees and is highly skilled in settling witness
statements and submissions.

Louise is experienced in preparing for and presenting

merits review and enforcement cases for local
government, developers and statutory authorities at
VCAT. She has advised on and drawn papers for
Supreme Court appeals from VCAT. Louise is
experienced in prosecutions in the Magistrates Court
under various planning and building legislative regimes.
She also has worked extensively with statutory
authorities on major infrastructure projects and has experience in appeals relating to
planning for major hazard facilities.

Louise is accomplished in environmental law, particularly in relation to contaminated

land. She has involvement in two of the major Supreme Court cases in this area in
the past decade. She has also been involved in large valuation cases in the Supreme
Court.

Louise is an active member of VPELA and on the advisory board of UDIA.

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Mock Trial

MARIANA FUENTES
Court-appointed expert: marine biologist

Dr. Mariana Fuentes is an ARC Super Science

postdoctoral fellow at the ARC Centre of Excellence for
Coral Reef Studies, James Cook University. Her broad
scientific interest lies in informing the conservation and
management of threatened marine mega-fauna in a
changing climate using a range of approaches including
spatial risk assessments and systematic conservation
and management planning.

During the past ten years she have been committed to

the conservation of sea turtles by 1) working across the
globe at various international institutions that seek
conservation of sea turtles, 2) conducting applied
research to provide key information for the prioritization of
sea turtle management, and 3) carrying out
environmental education to bring awareness of issues related to sea turtle
conservation.

During her PhD, she worked closely with various stakeholders to provide key
information for managers to direct and focus management actions to protect sea
turtle populations in the face of climate change. Her work has delivered knowledge
and capacity at a variety of levels; it has promoted environmental concerns in relation
to sea turtles, built capacity of local communities for participation in conservation
initiatives and provided valuable information to aid the conservation of sea turtles.

ROGER JONES
Court-appointed expert: climate change

Roger Jones is a Professorial Research Fellow at the Centre for

Strategic Economic Studies (CSES) at Victoria University, joining
VU in early 2009. Previously he worked for CSIRO for thirteen
years to early 2009. Trained as a physical scientist, he now
applies an interdisciplinary focus to understanding climate
change risk, bridging science, economics and policy, particularly
in developing methodologies for assessing adaptation and
mitigation strategies for managing climate change risks. These
have been used widely in Australia and internationally,
contributing to the Australian Climate Change Adaptation
Strategy, the United Nations Development Program Adaptation
Policy Frameworks and a range of individual projects. He was a convening Lead
Author on the Intergovernmental Panel on Climate Changes Working Group II Fourth
Assessment Report Chapter on New Methods and Characterisations of the Future
released in 2007. He is currently working on a range of adaptation projects and
developing new methods for assessing mitigation policy with Professor Peter
Sheehan of the CSES.