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Lee Godden

The year 2018 marked the 100-year anniversary of battles in the Somme Valley in France in the ‘Great War’. Ten per cent of Australia’s population volunteered to fight. Many died in these battles and were buried in the spaces of wartime cemeteries that registered the deaths of soldiers of the Great War. The French countryside remains punctuated by Commonwealth cemeteries where the land has been leased by the French government. The ‘gifted’ land acquired by registering that sacrifice creates an extra-territorial nation space, excised from the neighbouring private property. Places where Australians are buried are surrounded by place markers of the Australian nation, such as Rue de Melbourne, that have been perpetuated by French villagers. This chapter references Lefebvre’s views on the production of space to explore the interplay between sacrifice and registration in constituting sacred property as part of a wider examination of the marking of place and the memorialization of an extra-territorial nation space.

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Lee Godden

Abstract Water and energy are interlinked, forming a water-energy nexus. Relevant laws rarely reflect the interlinkages in a comprehensive way. Nationally, the evolution of the water-energy nexus is driven by measures to reduce emissions, and the impact of energy extraction, production, and infrastructure on water security. Concurrently, there are increasing energy demands for water distribution, treatment, and disposal. Conflicts over water conservation and energy infrastructure in international and transboundary water law are mediated through governing principles amplified by sustainability objectives, such as equitable and reasonable utilisation and the duty to cooperate to prevent transboundary harm. Complex transboundary institutions adopt similar objectives when regulating shared waters. With no substantial body of international energy laws, the opportunities to mediate energy impacts on water, apart from using environmental impact assessments and financing obligations, are limited. While the Sustainable Development Goals provide guidance for the future, the critical challenges are: to strengthen legal protections for water in an era of climate disruption and to curb water and energy demands, while ensuring equity of access for an expanding global population.
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Kathleen Birrell and Lee Godden

The impending impact of climate change upon human communities has elicited a call for ‘climate justice’, particularly to achieve justice for those most vulnerable to climate change and its consequences. The negotiation of global climate change agreements, including the Paris Agreement and the recent Global Environmental Pact, is increasingly engaged with critical intersections between climate change and human rights. The broader concept of ‘benefit-sharing’, as a means of providing defined content to human rights claims, is now central to rights discourses in this context. In international agreements, however, notions of ‘benefits’ and ‘sharing’ presently lack the critical definition, detail and specificity necessary to facilitate the realization of human rights for Indigenous and local communities. The re-articulation of rights as ‘benefits’ to be ‘shared’, moreover, risks the commodification of a previously moral imperative, subordinating human rights aspirations to global political and corporate agendas, as well as to national interests. This article provides a critical examination of the concept of ‘benefit-sharing’, its manifestation in REDD+ and other international regimes as a putative tool for the pursuit of climate justice, and its utility for Indigenous and local communities in the pursuit of robust rights protections.

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Lee Godden and Anne Kallies

Abstract Australia is an energy resource rich country. The laws and regulations for energy are strongly influenced by its federal constitutional and government arrangements. Subnational governments control most upstream production due to the vesting of energy resources in these jurisdictions. A process of energy law and policy centralisation over the 20th century has combined energy liberalisation and privatisation with the interconnection of energy transmission and distribution systems, creating national energy markets in electricity and gas. These national markets are governed under cooperative frameworks facilitated by reciprocal energy regulation laws, which have been enacted in participating jurisdictions. While carbon-based generation is still predominant, transition to renewable energy is underway, precipitating challenges for national energy market regulation. The failure of the national government to lead on climate change action has seen subnational governments take a proactive role on climate measures, while federal attention is directed to energy security and affordability.
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Kathleen Birrell, Lee Godden and Maureen Tehan

The rapid emergence of carbon markets internationally, and rising concerns about the impact of such schemes on Indigenous and local community interests, rights and traditional knowledge, present a strong need to examine legal regulation, protection and promotion of equitable outcomes for the effective engagement of Indigenous peoples and local forest subsistence communities in climate change mitigation. This is particularly so in the context of Reducing Emissions from Deforestation and Degradation (REDD and REDD+ as it later became known) – a scheme that will significantly affect the ‘property’ rights and interests of such communities. The pace and enthusiasm for investment in, and implementation of, this scheme necessitate scrutiny of the foreseeable consequences at a local level, including the potential of this global project to act as a form of neo-colonialism, co-opting Indigenous and local community interests where the value of the carbon ‘offset’ may not accrue to local inhabitants of the forested areas. Accordingly, this paper seeks to present a series of fundamental questions raised by the programme, particularly in respect of differing conceptions of property, as it uniquely relates to and impacts upon Indigenous peoples.