There’s a fundamental truth, which I think the world is grappling with and owning up to, is that you need a healthy environment. You need a healthy community. You need people to be healthy for an economy to run.

Welcome everyone to 100 Climate Conversations. Thank you for joining us. Before we begin, I’d like to acknowledge the traditional custodians of the ancestral homelands upon which the museum is situated. The Gadigal people of the Eora nation and pay my respects to their Elders, past and present. I would also like to welcome any First Nations people listening in or joining us today and pay my respects to their Elders. Today is number 79 of 100 conversations happening every Friday. The series presents 100 visionary Australians that are taking positive action to respond to the most critical issue of our time, climate change. We’re recording live today in the Boiler Hall of the Powerhouse Museum. Before it was home to the museum, it was the Ultimo Power Station. Built in 1899, it supplied coal-powered electricity to Sydney’s tram system into the 1960s. In the context of this architectural artefact, we shift our focus forward to the innovations of the net zero revolution. My name is Yaara Bou Melhem. I’m a journalist and documentary film director and I often make public interest films that are at the intersection of art and science. David Barnden is the principal lawyer and founder of Equity Generation Lawyers. He oversees the firm’s work on climate change, biodiversity and First Nations-related matters. Prior to establishing the firm in 2019, Barnden was a principal lawyer at Environmental Justice Australia. He gained significant experience litigating complex class actions at Maurice Blackburn and was involved in human rights and finance advocacy on behalf of impacted communities while working in Latin America and Europe. Barnden also holds degrees in law, of course, and applied science. We’re so excited to have him join us today. Please join me in welcoming David. David, can you start by walking us through — what was it that shaped your love for the environment and your keen drive to protect it?

Where it all started was with my sister and she took me on a trip to Tasmania right after I finished year 12, and I got to see firsthand the destruction of the logging industry and the beautiful forests down there. And it started to– I mean it planted the seed of how can we have so many beautiful places yet there is this tension between development? And I really just wanted to figure out how it all worked. So, eventually I studied law and environmental science, in this case coastal management, and somehow managed to find a way through to actually utilising some of these concepts in legal practice.

It’s a fantastic combination, law and environmental science, especially considering where you’ve landed. After graduating, you also spent five years overseas working at various NGOs. How did that experience shape your work with the law?

That experience was critical and particularly important for the types of work I’m doing today. I first started working in Argentina at an organisation called the Center for Human Rights and Environment, and that again fused these two different concepts, obviously the environment and what it meant for people’s human rights. And so, today we’re doing some human rights actions based on the principles for human rights for business. But that experience in Argentina also introduced me to the world of financial advocacy. So, I worked on a project which was to do with two proposed paper mills on the river border between Argentina and Uruguay. And it was– these paper mills were funded by the World Bank. They’re also funded by these government-owned banks and insurers of last resort, called export credit agencies. And we’ve just filed a case this week against Australia’s export credit agency. And it was really important just to see how banks and proponents of these projects, you know, the companies that want them to go ahead, treated communities. And it was really eye-opening. And so this was my first experience looking at a big development project. And so to take that experience and, after Argentina, I ended up in the Netherlands working for an organisation called BankTrack, which exclusively dealt with private finance and how that finance impacted communities. So, I ran the human rights program there. And again, you saw scant attention being paid by the banks who would effectively make these projects go ahead and the all sorts of impacts on communities from Bangladesh to Latin America to Africa, and some quite egregious impacts by mines and the pollution caused by them. So, again, quite eye-opening.

Now, before we talk about how you founded Equity Generation Lawyers and what you’ve worked on there, let’s touch on your time as a principal lawyer for Environmental Justice Australia, which is a non-profit legal organisation dedicated to protect nature and safeguard the environment. What were some of the significant cases that you worked on there?

I was an experiment in a way. They’d created a position on climate change and finance and it was the first of its type in Australia for a community legal centre, which had a focus on the environment. And so, we worked really hard to investigate the links between financial institutions and climate change. The first– the very first case I brought there was on behalf of two long-term shareholders in the Commonwealth Bank [of Australia] (CBA) who, if you looked at the bank and looked at their investment and said, ‘Oh, I think climate change might be a bit of a risk here’ — and the law requires listed companies like the Commonwealth Bank to describe material risks in their annual report. And, at this stage, there was a concern that CBA would also fund the Adani project in Queensland, which would have, and eventually did, open up a big coal basin inland in Queensland. And so, there was a real concern that the bank wasn’t being honest with its investors. And so, they brought litigation to say, look, you need to own up to the fact that climate change is a big risk to the bank. And shortly after we filed, the bank did that in a subsequent annual report. Our clients were very pleased and the case essentially went away because we got what we wanted. So, it was really impactful and the first of its kind, the first of its kind around the world. It was reported widely on CNN all throughout Europe. Yeah, it showed the power of what litigation could do.

So, the experiment works.

Yeah, and it appears to still be working. And then the next case we filed was on behalf of a young man, Mark McVeigh, who was 23 years old at the time, and he was thinking similar thoughts about his superannuation fund, Rest. So, that was a $60 billion fund at the time, and he was concerned that the trustees weren’t doing enough to protect his investments when it came to climate change. And that became a Federal Court action — and the first, and I think only still, action in the world on trustee duties and climate change. And that’s really important considering that the extraordinary amounts of capital that superannuation funds in Australia control, as well as pension funds overseas. So it’s quite, again, an important and impactful case.

What were the climate change risks of concern that McVeigh was worried about?

Well, superannuation funds exist primarily and essentially solely to provide investments to people’s retirement. And so Mark, who was 23 at the time, would access this money in around 2060, and so the world is and will look like a very different place to what it does today. There’s a fundamental truth, which I think the world is grappling with and owning up to, is that you need a healthy environment, you need a healthy community, you need people to be healthy for an economy to run. And the basic premise was that Mark wanted his fund to be aware of the risks that climate change posed to his investments and to invest appropriately for him. And so, he managed to achieve a lot in the course of two years of litigation, which was quite hard fought. And it ultimately settled on the court steps on the first day of the hearing–

At the 11th hour.

Very much the 11th hour. So, it was quite something to behold, but the result was amazing.

Walk us through that. What happened?

So, Mark essentially transformed this $50 billion fund with 2 million members. So, you know, throughout Australia it represents and invests for people who work for supermarkets, for restaurants and often not high-income earners at all. And so, coming from a fund which, at the outset really didn’t tell him anything about climate change, basically said, ‘Look, everything’s okay, we’ve got this’–

I think he emailed them and they referred him to the website.

Yeah, that’s right. And then he came to us and we’re like, ‘Probably deserves a bit more information’. And part of the claim was that beneficiaries or, you know, super fund members have rights to information. And so, that was what kicked it off. So, going from that, essentially a brick wall, to having a settlement which detailed a really quite strong set of requirements that the super fund took upon itself to implement. So, we’re talking a climate policy, we’re talking net zero commitments, we’re talking instructions to it’s, they’re called investment managers. You know, these businesses which manage pockets of money on behalf of the super fund. So getting them to all take notice of climate risks. So, it was quite an extraordinary outcome and one which set, wasn’t a legal precedent, but certainly set an industry precedent and an example for, you know, not just super funds in Australia but all around the world.

What impact has the settlement actually had on the industry? Have other superannuation companies followed suit?

Yeah, certainly. So, almost all super funds now have a climate policy of varying strengths, I suppose. But what it did is sort of embed in the DNA of funds all throughout Australia the requirement to consider climate change for superannuation as a material risk. So, it’s something that elevates it to board level — it elevates the issue to something where board members need external advice on, they need to get experts in to tell them how to manage these risks. They start to think about the impacts of future regulation on the companies that they invest in. They may even go so far as divesting from some really bad examples of fossil fuel companies. And there’s live debate about that. There’s also engagement, and so funds all across Australia now talking to companies, they’re saying, ‘Look how are you approaching climate change? What does your future look like? What plans do you have to transition?’ And so as huge players in the economy, it’s been revolutionary.

And there are some similarities to another case that you’re currently working on called O’Donnell [v] Commonwealth. Walk us through that case and its current status.

Well, again, a very young person, in this instance, Katta O’Donnell. She was also 23. She came and spoke to us and she was concerned at the time the Liberal government, the federal government, weren’t doing so much on climate change. And she invested in sovereign bonds. So, these are essentially tiny, tiny loans to the Australian Government for it to provide the normal suite of services, you know, to build roads to keep the health system running. And so, she had bonds which would mature — and that’s just a word for the time that the government needed to pay her back, and that was 2050. So, again, you had a really, really long time frame for these financial instruments. And, we said in that case that, again, the government needed to tell investors about the risks of climate change to these financial instruments. And so, there was some really quite complicated considerations in that court action, including, you know, what’s the role of adaptation to keeping the economy on track? What’s the role of mitigation? You know, how expensive is this going to be? But at the end of the day, it sought to keep investors informed, and it did so in a way which forced the government to think about these issues. And now you see in the last federal budget, you see a lot of information on climate change risk. And, this case is ongoing, that we would hope that some of that information would start to flow through in this instance to bond investors. So, we’ll see how that one goes. It’s still in the court.

Well, let’s backtrack to when you founded Equity Generation Lawyers in 2019, because, of course, the O’Donnell case is an Equity Generation Lawyers case. Now, the firm specialises in climate change law. What started as you working out of the State Library has now grown to a team of 10 people. What are your aims with the firm?

It’s a good question and the space evolves quickly. In terms of climate change, we have in our DNA a goal of representing people who wouldn’t otherwise get sophisticated corporate legal advice and access to lawyers, to litigate, to create change. We do 100% public interest cases at the moment. And so, we get clients who are non-government organisations as well as individuals, investors. We work with Traditional Owners and we try and bring quite, sort of hard-nosed corporate law expertise. And so, I’ve got a lot of really brilliant lawyers. We’ve poached them from the top tier law firms, who are sort of corporate law experts. And so we aim to bring that expertise into the climate space and represent those who need it most.

And are those lawyers helping on a pro-bono basis? I mean, how’s this all getting funded? How does it work?

Yeah. Good question. So, as I say, we’ve got clients who are non-government organisations, so they pay us to do work for them. We typically work on what’s called a conditional fee basis, which is essentially no win, no fee. And so, we obviously try and win our court cases because then people will get their costs back and then in some instances the public chips into support. So, we ran a case — probably talk about– on behalf of eight children against the Minister for the Environment — and the Australian public backed them in. Not just in sort of moral support and commentary through whatever means, but also financially. And so, they raised a lot to actually help us keep the lights on. It’s not just a firm, it’s a huge collective effort that stretches right out to individuals in the community, so it’s great.

Let’s talk about that case. Sharma [v] Minister for the Environment. It was quite prevalent in the news cycle when you took it on and it even made headlines around the world. In September 2020, you represented eight young people, as you said, as they filed a class action against the Federal Minister for the Environment. Can you give us an overview of that case? Who were the young people and what were their motivations?

The young people were involved in the school strike, the climate movement. So on a semi-regular basis, they’d take Friday afternoons off to protest the inaction — largely at federal level when it came to climate change — and they brought the whole of society along with them. And so, I remember there was a particular Friday where 300,000 people came out to protest. You know, it’s not just kids that took the day off school. It was mums and dads and everyone was behind them because they’re on the right side of history and they could see that nothing was happening. And so, one of their asks — they had three main asks — one of those asks was for no new coal mines. And so, we picked up on that and eight children instructed us and they were from all around Australia, all under the age of 18. The youngest, Izzy, was 13. Really brave, clever kids who weren’t in any way, shape or form, sort of driven by their parents. We interviewed them and their parents and often their parents were like, ‘Well, you know, this climate change thing? Yeah, I know a little bit about it, but, you know, my child just does what they want’. So, it was really from the ground up. And these quite remarkable children were helped by an 87-year-old nun, Sister Brigid, who came in and acted as their legal guardian or legal representatives because children cannot actually go to court by themselves. So, we had this beautiful combination of young people being assisted by someone in their eighties who has a heart of gold and had performed that role before in court. And the case asked the Environment Minister, which was Sussan Ley at the time, to not approve a new coal mine. It was the Vickery proposed coal mine in New South Wales by a company called Whitehaven. And the way in which they asked her not to do that was to use the common law to say, look, under the common law, the general law, you should act in a way that avoids harming children and harming them, harming their future. And so it’s quite an easy concept to grasp, difficult to prove legally.

Because, of course, there’s no climate change law or law that says you can’t open up a new coal mine. You kind of had to creatively apply the existing laws and existing common law principles. Can you drill down a little bit deeper into what that was?

So, that common law principle was negligence. And to prove negligence, to start with you need what’s called a duty of care. So you need someone to owe that duty to. In this case, it was children. And the position of the person owing that duty is really important. So, where there’s a federal minister who has a lot of power — and, in this case, the power to make something go ahead or to stop something — in that circumstance, we set out to establish this new duty of care, to avoid harming children and avoid harming them because of the effects of climate change, which– and those effects would intensify and get worse because of emissions from this coal mine. And so there was a vulnerability with the children as well, which fed into our submissions that this new duty of care should be essentially articulated by the court. And so, we went on this journey to bring lots of different examples that exist in the common law and lots of reasons why the court should identify this new duty.

And what was the initial judgement of the case?

It was extraordinary, to say the least. The judgement said that yes, a duty of care did exist for the minister to avoid harming children when she would approve large coal mines. And so, this duty did not exist anywhere, did not exist anywhere in the world. And Australia is quite different to a lot of our European counterparts, which have human rights legislations and frameworks to to hang onto. And there have been some really important decisions in Europe. But to do what the children were trying to do in Australia and to be successful before a judge of the Federal Court was quite extraordinary. And what that judgement did, it did a number of things. One is, it said us, the court, with all this expert evidence, it’s our view that climate change is a real thing. It’s going to have extraordinary and quite horrible impacts on children into the future if it’s not dealt with and if, for example, these mines kept going ahead. And so, to have that articulated, to have the public know that, you know, a really important independent institution in Australia says climate change is a serious issue. But not just that, but the Federal Government needed to look after kids and that it was really important. I think it changed a lot of people’s minds, and I think it galvanised the voice of children as well. We saw that many of the remarkable children we represented on the TV news and in the newspapers talk about their concerns for climate and they were legitimate and the court said they were legitimate and that was really important.

But of course the minister appealed the decision and the appeal was heard by the full court of the Federal Court of Australia. The result of which was the reversal of the trial judge’s decision. This was in March 2022. Talk us through that process and what that was like for you and your clients.

Yeah, well. First of all, the fact that the minister appealed the decision was on quite a visceral level, sort of almost really difficult to comprehend.

Because the minister was basically saying, well, I don’t have a duty of care.

Yes.

To these children, or any children.

That’s exactly right. She’s saying this simple duty, which is put in the terms of like, I need to avoid harming children when I do my job. The fact that a grown adult and someone in a position of power, in a representative democracy would appeal that, was quite shocking. Just even on a base level. You can forget about all the legal arguments but you sort of– you could almost hear a collective gasp when that news came out, it’s like, what? Really? And so, that also, I think, flowed into people’s perception of the then Liberal government and what they were prepared to do to approve coal mines. I mean, it became almost a binary proposition. Through that lens, do you look after children or do you have an unfettered ability to approve new coal mines? And again, quite difficult to think about in those terms. But ultimately, you’re right, the full court of the Federal Court said no, there was no such duty. And that, again, was quite shocking for our clients, who were pretty emotional about that. And it does raise the question of, you know, who does have responsibility to look after children and who does have responsibility for the future? And so from then, you know, we were in a position where we had achieved so much that the first judgement stood. There was some extraordinary commentary in that judgement, including to the effect that the inaction of adults today could be considered as the greatest intergenerational injustice of our times. So, to have the Federal Court say that was extraordinary. And so, the evidence, these comments, they’re not taken away. And we have a situation which led into the federal election and we all know what happened there. And there was a change in government. And I think for the children’s sake, hopefully a change in attitude.

Let’s talk about one of your current cases, Vanderstock [v] the state of Victoria. You’re representing Christopher Vanderstock and Kathleen Davies in a claim against the state of Victoria. The claim is challenging the Zero and Low Emission Vehicle Distance-based Charge Act — a mouthful. Firstly, can you tell us about this legislation and its impacts on electric vehicle users?

Yeah, so this is Victorian legislation. It’s the first legislation of its type in Australia that charges electric vehicle owners to use the road. It’s got the road-user charge for every kilometre in a sort of a full electric or hybrid vehicle. The driver needs to pay two, two-and-a-half cents to the state to use the roads. We came in at a time when I think electric vehicles represented about 1% of vehicles on the road and it was touted as the worst electric vehicle policy in the world and–

A disincentive to take up electric vehicles.

100%. It operated straight away. There was no time which would elapse before say, you know, the number of electric vehicles on the road reached a certain point or before there was a certain level of infrastructure in place. It was just like, bang, you need to pay more. I mean, everyone knows with new technology you pay a premium — things are expensive. And so, it would effectively punish those people who wanted to buy electric vehicles and who already had them. There was a sort of limited policy incentives to start for new cars that ran out really quickly. Over the life of a car, the tax is estimated to charge around $5000 or $6000. And so, people think about this and there was a survey in South Australia which asked people, are you less likely to buy an electric vehicle if it’s taxed?, and obviously the answer was yes, I consider that. I consider money in my purchasing decision. So, I think 80-odd% of people said, look, less likely to buy an electric vehicle. So, it had a really sort of dampening effect on the transition. And we all know we need to go towards electric vehicles to address the emissions from that sector which are, I think across Australia, responsible for about 20% or 25% of our domestic emissions. Yeah, so that was a constitutional challenge. It was in some respects quite a boring tax case about who had the power to levy such a tax. I say in some sense boring. I found it quite interesting. So, it goes to the heart of the way that the powers are divided between the federal government and state and the Constitution. We went to the High Court and we’re awaiting a judgement.

And what is the current status of the case?

So, the hearing was in Canberra in mid-February of this year and we are awaiting the judgement. It was before the High Court so once the High Court delivers his judgement, that’s the final judgement and if we are successful this will have an impact across Australia for a lot of states who are considering this legislation, and it will squarely put electric vehicle policy in the hands of the Federal Government to create something which is cohesive for Australia as a whole and fair hopefully.

Can you tell us about some of the human rights work that you’re currently involved in in the Tiwi Islands, which are up in the Northern Territory?

The Tiwi Island is facing a development of quite a large gas field in waters near the islands. It’s going to create a big amount of risk in terms of pollution. If there’s any spills, there’s going to be noise, there’s going to be helicopters, there’s going to be a pipeline that runs right down the western side of the islands. And it cuts across a whole range of cultural and spiritual songlines, places of importance, dreaming stories. And so, last year there was a court case where one Tiwi Islander that, backed by the whole community, brought a case against the regulator, saying, ‘Look, you can’t really believe that Santos has told us that we’re going to do this project’, which they need to do under law. That case was successful, and now the company is going about consulting or sort of telling the Tiwi Islanders that they will do this, which is what they are required to do under law. We’ve come in after that case by the Environment Defender’s Office, which was fantastic, and said, Look, if you’re a bank — supporting Santos and there was a US$1 billion loan that went out to Santos in the middle of last year, in the middle of all this court case —if you’re a bank and you say you comply with international human rights principles, which almost all banks say that, they’ve got a lot of PR, then those principles actually require you to get consent, not just consultation, but to actually go to the Tiwi Islands, ask the people, ‘Do you want it?’ and then actually act upon that. So, we’ve written to banks, we’ve filed these complaints called grievances — which again, you need under international human rights law — and the banks didn’t like it and essentially they told us to go away. It sort of makes a mockery of their policies. It may lead to legal action but we’re not sure yet. In circumstances where banks just piled in to give Santos all this money, whilst having these human rights commitments, it’s quite extraordinary.

And what would it take to either pursue legal action or not?

We’ll see. At the moment, the banks have responded to the Tiwi Islanders, who requested, even at minimum, come and talk to us, right? And most of the banks said no. The Commonwealth Bank did accept that invitation so, we’ll see how that plays out. But it’s quite difficult because there are a large number of financial actors involved. There’s four banks from Australia. We sent these grievances to eight other international banks. There’s these government banks called export credit agencies — there’s two of those in South Korea, there’s one in Japan. And so, we’re really thinking about the financial system as a whole and how to get sort of bigger groups of banks — they’re called syndicates — to comply with international human rights norms. So, it’s not an easy task, but it does and it will cause some ripples within banks. So, we’ll just have to see how that plays out.

We’ve talked a lot about some of the significant cases that you’ve been involved with and your human rights work in this area as well. But what is it about the courts that are making people turn to it to address climate change concerns?

I mean, the courts are independent, the courts are powerful. The courts in society provide a way to resolve disputes. And, above all, the courts should reflect community standards and the society’s expectations. And so, we see a lot of people who are anxious about climate change, who are scared, who don’t know what to do, who are concerned about their future. And they they want to change things and they want to change things for the better. So, to access the courts is an outlet for that. The law can only do so much, and we’ve seen that. But we are getting good results. But it should also be remembered that there’s no silver bullet here. Society as a whole needs to change and it can’t just be sort of lawyers attacking. It needs to be policy settings, it needs to be people getting educated, demanding local action as well as broader action. So, we realise that in accessing the courts and, and playing this role, it’s just a very small part of what needs to be done.

So ongoing, what role do you see climate litigation having as we continue to take action on climate change?

Well, on current trends, I think it will only increase in terms of its role. I thought I might be doing this job, that I started seven years ago at Environmental Justice Australia, for a couple of years and it’ll all be sorted. But, you know, here we are and the problems only seem to be getting worse, and the solutions are more tricky. And so, in the next 10, 20 years, we’re approaching a critical juncture on how the planet will look the next thousands of years into the future. So, I think we’ll be busy in the short term.

Which, you know, usually is a good thing. But for you, you don’t think it is?

No, I’d rather much rather not be doing this, to be honest. But, you know, we do have a firm full of very, very clever lawyers who, as I say, have come from quite high-paying legal positions just to sort of work on really interesting stuff for people. And I’m very proud of what we all do. But above all, proud of the people we represent because they’re the ones who, you know, it’s their heart, it’s their soul, they’re putting themselves on the line. So, I think there’s some hope.

That’s a really lovely note to end on, David. Could you all please join me in a round of applause to thank David for his time today. To follow the program online you can subscribe wherever you get your podcasts. And visit the 100 Climate Conversations exhibition or join us for a live recording, go to 100climateconversations.com.

This is a significant new project for the museum and the records of these conversations will form a new climate change archive preserved for future generations in the Powerhouse collection of over 500,000 objects that tell the stories of our time. It is particularly important to First Nations peoples to preserve conversations like this, building on the oral histories and traditions of passing down our knowledges, sciences and innovations which we know allowed our Countries to thrive for tens of thousands of years.