I Setting the Scene:Pierson vPost, the Wily Quadruped, a Saucy Intruder, and Capture

Speaking at his retirement dinner on 26 October 2011, I suggested that I was perhaps not the right person to comment upon Adrian Bradbrook's long and distinguished career. My overriding concern then, as now, was simple: how to capture the essence of such a remarkable career; the work of someone who has contributed so much to scholarship, so much to the law, so much to an institution. Fittingly, I thought, it was a property case — Pierson v Post (‘Pierson’) — that best summarised my feelings about the task.

A case about the legal concept of capture, decided by the New York State Supreme Court of Judicature in 1805, Pierson involved a fox hunt, and, more specifically, property in a fox. My analogy is certainly not to the activity of the hunt itself, which most today would agree is a barbaric one. It is to the facts, or more specifically, the way in which they were related in the dissenting judgment of Livingston J. Justice Livingston, having made this decision in 1805, wrote with a slightly greater flare for the dramatic than we find in judicial writing today. He wrote that the case

Renewable energy is regarded as one of the primary technology solutions to combat climate change, caused undoubtedly by continued heavy reliance on fossil fuels since the Industrial Revolution. Yet the development and commercialisation of renewable energy technologies have faced a number of significant barriers in recent times. These may be regarded as: regulatory and policy risk; uncertainty about whether governments should support renewable energy technologies as a complementary measure where they have imposed a carbon price mechanism; concerns about energy security and the ability of renewable energy to provide baseload power and barriers to entry on conventional electricity grids; and ongoing subsidies, both direct and indirect, to the fossil fuel industry.

I The Current Status of International Climate Change Negotiations

The most recent international negotiations under the United Nations Framework Convention on Climate Change (‘UNFCCC’), the second commitment period of the Kyoto Protocol and a new agreement post 2020, concluded in Warsaw in December 2013. The negotiations reinforced a number of key decisions reached at Doha in 2012, which were in themselves a last-ditch attempt to finalise arrangements for the post-2012 world, with the first commitment period (2008-12) under the Kyoto Protocol ending in December 2012. All recent negotiations have taken place amidst warnings about the urgent need to close the gap between current commitments, of both developed and developing countries, to reduce greenhouse gases (‘GHG's) and the parties’ stated goal of keeping the rise in average global temperatures, compared with pre-industrial times, at below 2°C or even 1.5°C.

Adrian J Bradbrook is internationally renowned for his scholarship on the environment as a human right. Many of the energy and climate solutions he has proposed have been the foundation of innovations that nations and municipalities around the world have adopted and in the formulation of international law. Bradbook has made very significant contributions to teaching and scholarship in the field of property law, but I write here in the area of our collaboration, in which he has been a prominent international and national leader in formulating energy and climate change laws and their role in overcoming poverty (though I do include a summary of his co-authored book on the nexus between energy and poverty law). He is internationally renowned for his scholarship on the environment as a human right. Many of the energy and climate solutions he has proposed have been the foundation of innovations that have been adopted in nations and municipalities around the world and in the formulation of international law.

An important distinguishing feature of Bradbrook's energy and climate change scholarship is that in every case he not only details the environmental, developmental and social challenges about which he writes, but he invariably recommends and details possible solutions to those challenges, often even drafting model codes that could be adopted to address these challenges. This feature makes his writings particularly useful for influencing outcomes.

I Introduction

My academic career has spanned over 41 years, spread over eight countries. The areas that have most dominated my teaching and writing have been property law and energy law. In my opinion, these areas complement each other very effectively.

Property law is of ancient origin and is, of course, one of the mainstream common law subjects. It covers a broad range of topics, from ancient ones, such as the law of perpetuities and future interests, to modern ones, such as the law of restrictive covenants and residential leases. In nearly all common law jurisdictions its evolution over the centuries has been slow and ponderous, and has been beset by the continued application of ancient principles. These made sense at the time of their initial development and operation, but in the modern era they have operated unjustly and inappropriately because of changing societal values. I will develop and illustrate this theme later.

Energy law is a much more recent development. Unlike property law, its content is not consistent between common law jurisdictions, but tends to vary according to the energy mix of each jurisdiction. Energy law courses originated in specific courses on oil and gas law, which developed in the late 1960s and 1970s. The courses later expanded to include additional topics due to the increased use of other energy technologies (such as nuclear energy, renewable energies and energy efficiency), and the recognition of the impact of energy production and consumption on the environment.

I Introduction

Adrian Bradbrook has been a leading international academic in the field of energy law for many years, in particular in the fields of renewable energy and energy conservation. Not only did he write pioneering legal works in this area, but he instituted the key law course on Mining and Energy Law at the University of Adelaide at a time when most other Australian universities did not teach energy or resources law as a mainstream legal subject.

In 1996, Bradbrook wrote a seminal paper on teaching Energy Law as an academic discipline. While ‘Energy Law’ as conceived of in his paper largely focused on Australian national and state issues, he identified the fact that energy law is increasingly acquiring an international law dimension as one of the most significant developments of the time. This ‘international law dimension’ of energy law includes both the increasing internationalisation and standardisation of national laws, where, for example, ‘traditionally national subjects such as taxation laws now have an international dimension’, and the growth and influence of public international law in the context of energy, an area which, he argued, had ‘evolved and continues to evolve very rapidly and … represents the real cutting edge of energy law at the present time’.

The increasing recognition of the ‘international law dimension’ of energy law among legal scholars, legal practitioners and those working in any role with energy markets has led to the growing recognition and development of ‘international energy law’ as a separate academic discipline.

I Introduction: Land as Law

Land, as it is captured by the technicalities of law, is defined as a planar surface save for the imprint of title, registered legal interests and the overlay of planning regulations. These legal forms codify the human use and occupation of a given place. By contrast, this chapter seeks to unpack the layering of land which makes a place and which gives it both spatial and temporal dimension and a sense of history, including conflicts over land use and appropriation. In short, it seeks to create a biography of land which is realised through the genealogical tracings of law. This biography is necessarily truncated; like photographs in a family album it provides snapshots through time mediated through the constructs and practices of law. The land in question is located in the South Gippsland coastal region of Victoria. Most recently it came to legal attention as the subject of a dispute around the location of a wind farm. Looking back from this conflict in 2006, this chapter describes three more slices of time. The first retrospective snapshot relates to the middle of the twentieth century, a time when Torrens Title registration systems predominated as a legal configuration for making ownership transparent, working in concert with emerging town and country planning laws. The second step backward is to the early part of the nineteenth century, a time when colonial land law was asserted in what was to become the newly settled colony of Victoria.

Energy law and energy policy, to which Adrian Bradbrook has contributed so much, are significant for several reasons. The first reason, very relevant to the concern of this chapter, is to meet human needs. In New Zealand dwelling-houses are often colder than international standards stipulate, and that causes health problems, especially for the young, the old and other vulnerable members of the population. The second main reason is the significant adverse effect on the environment of the production of energy and its use. The third reason is climate change; energy production is the main source of greenhouse gas emissions.

While energy law and policy can focus on change in the way that energy is supplied, such as by increasing renewable energy supplies, the demand side requires much more attention; in fact, the demand side, including energy efficiency, is where the big gains are to be made. In climate change terms, this important truth has been demonstrated by comprehensive studies by the International Energy Agency in its annual World Energy Outlook. It estimates that if governments worldwide put in place policies to stabilise atmospheric concentrations of carbon dioxide at 450 parts per million, then 57 per cent of the change would come from energy efficiency measures. Another study shows that the most cost-effective technologies to reduce greenhouse gas emissions are efficiency measures; in fact, many efficiency measures have a negative cost.

I Introduction

It is one of the most significant insights of Adrian Bradbrook's work that he was the first legal expert to recognise the connection between access to modern energy services for domestic and personal use and poverty and to incorporate it in his research and writing. In doing so he has been instrumental in highlighting the fact that law, both national and international, has something to offer to the process of achieving progress on this issue. In this chapter I focus on one aspect of Bradbrook's wide-ranging work on access to modern energy services — namely, establishing a role for international law, in particular international human rights law, in the energy poverty debate. I choose this focus, representing as it does only a small part of his considerable published work in the field of energy, because we worked together on this topic and it is one I am familiar with. Moreover, it was whilst working in this area that it became apparent to me that the topic of women, gender and energy is neglected in mainstream accounts. I therefore build on Bradbrook's advocacy role for law and energy and the legal strategies that he has so creatively identified over the years and consider what international law can offer as a strategy for creating and implementing a gender aware energy policy.

II Energy and Poverty

Although the connection between development and energy has long been accepted, the link between access to modern energy services and poverty was slow to be recognised. There is nowadays worldwide recognition, albeit belated, that energy belongs at the forefront of the debate on the eradication of poverty.

I The Residential Tenancy Law Legacy

In 1983 a text on residential tenancies law in Victoria and South Australia was published; Adrian Bradbrook was a co-author of that text. Publication followed the enactment in the two states of the first comprehensive legislation in Australia for residential tenancy rights and obligations. The text is an exhaustive examination of the legislation and considers the detail of the statute despite the lack of any existing judicial interpretation of its words. It thus analyses the extent to which previous common law principles can be applied. It is also concerned with the provisions for the administration of the legislation, the process of law reform and relevant economic theories. The text further examines the role of the Victorian and South Australian governments in the provision of welfare housing, the enforcement of housing standards and access to housing assistance. At that time the governments of both states had housing authorities which constructed and leased buildings to a broad social group and enforced housing standards for owner-occupied and privately rented premises.

From the particular area of residential tenancy law, Bradbrook and his coauthors progressed in 1991 to a detailed examination of real property law throughout Australia through a textbook and casebook, which have now been in publication for thirty years. The original aim was to establish an authoritative text on the topic at a time when even the existence of a distinct Australian law was disputed.

I Introduction

Transport and mobility are essential preconditions for economic growth, social development and global trade. However, they are also often associated with significant environmental impacts, including local air pollution and pollution of the atmosphere, and they thus pose major challenges for the achievement of sustainable development. Transport policies as they relate to sustainable development have periodically been discussed at the United Nations. Transport is dealt with in Chapter 7, ‘Promoting sustainable human settlements development’, and Chapter 9, ‘Protection of the atmosphere’, of Agenda 21 adopted at the Earth Summit in 2012, and in Chapter 3, ‘Changing unsustainable patterns of consumption and production’ of the Johannesburg Plan of Implementation (‘JPoI’). Sustainable development requires a comprehensive and integrated approach to policy- and decision-making with a view to developing adequate and efficient, economically viable, socially acceptable and environmentally sound transport systems, as envisaged in decision 9/3 adopted by the Commission on Sustainable Development at its ninth session in 2001 and reiterated by the World Summit on Sustainable Development (‘WSSD’) in 2002.

The Commission on Sustainable Development more intensively discussed transport policies and sustainable development at its more recent eighteenth and nineteenth sessions held at UN Headquarters in New York in May 2010 and May 2011. The high-level United Nations Conference on Sustainable Development (‘UNCSD 2012’), also known as Rio+20, held in Rio de Janeiro, Brazil, in 20-22 June 2012, also re-emphasised the need for action at local, national, regional and global levels to make transport systems more sustainable.