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Jan McDonald

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Jan McDonald

As atmospheric greenhouse gas concentrations continue to rise, so too does the need for parallel policy paths – mitigation through emissions reduction and adaptation to the impacts of unavoidable change. Developing countries have been focusing on the adaptation imperative for many years, with this as their principal commitment under international agreements. For many developed countries, adaptation has emerged as a policy priority from the economic and human toll of extreme events. Spatial planning (particularly for coastal and flood hazards), water resources management, disaster preparedness and emergency management have hitherto dominated adaptation policy efforts. A range of new legal and policy instruments and approaches has been trialled, most of which contemplate iterative adjustment in response to future changes. The slow onset of climate change impacts has generated little appetite for system-wide transformation, yet this leaves our legal frameworks ill-prepared for tipping points or system shocks. It also overlooks the inadequacies of many existing regimes – especially relating to biodiversity conservation – to cope even with the current suite of threats and stressors. This chapter argues that promoting resilience through law and legal institutions can help us move beyond incrementally and repeatedly adapting to the risks from climate change to supporting dynamic and naturally responsive arrangements. It identifies features of existing approaches that undermine the law’s capacity to respond and transform, and offers suggestions about the ways in which the challenge of climate change may offer a unique opportunity to re-think legal rights and responsibilities towards the natural world.

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Joseph Wenta and Jan McDonald

Legal systems are often characterized as slow-moving and reactive. Key features of common law legal systems, such as the doctrine of precedent, assume incremental rather than transformational change. Yet legal systems are also expected to demonstrate agility and responsiveness in addressing emerging and unanticipated risks, such as the consequences of future climate change. This chapter explores the challenge of developing new laws to facilitate adaptation within common law legal systems. The legal frameworks for addressing sea level rise in Australia and New Zealand are used as case studies to identify barriers to effective implementation of adaptation policy through law and to highlight features of legal systems that facilitate adaptation. The chapter concludes with a brief reflection on adjustments that might enhance legal responses to climate change at the systemic level.