Bringing law into the right environment

It is somehow fitting that one of the world's leading climate change lawyers wrote his first thesis on the economic history of Antarctica.

The melting poles are part of the planet's early warning system on global warming and it is probably no coincidence that Martijn Wilder, appointed this year as a member of the Order of Australia for his work on climate change and environment protection, was onto it from the start of his career.

Wilder, 44, co-founded the global law firm Baker & McKenzie's climate change practice, which now spans 50 offices worldwide.

Wilder is also adjunct professor of climate change law and policy at the ANU and an affiliate of the Cambridge Centre for Climate Change Mitigation Research. He serves on several boards including as chair of the federal government's Low Carbon Australia initiative, the NSW Government's Climate Change Council and the Neutral Bay Public School Council.

Wilder's upbringing was bookish - his father and uncle both ran substantial publishing companies, and his grandfather ran the only English-speaking bookstore in Holland, and had to watch as the Nazis tipped all his books into a canal. As a boy Wilder read early on about the Antarctic explorers, ''probably because my father had a great fascination with history''. Young Wilder wanted also to go into publishing, but his father told him to get a profession so he had something to fall back on.

At first blush the Antarctic might not seem to have much to offer by way of economic history but Wilder's thesis documents the exploration and exploitation of the world's coldest and driest continent, in what he showed was ''the last stage of European imperialism''.

Over lunch at a Sydney cafe, Wilder explains: ''Every single expedition that went there, from the first, was always focused on one thing: finding a new land for mining, resources, gold, riches, fishing … if you look at every historical letters of expedition, they were all about going to find economic value.''

It makes fascinating reading. Between 1772 and 1775, Captain Cook became the first explorer to cross the Antarctic circle, latitude 60 degrees south. Cook didn't find the great south land but decided if one existed, it must be ''a country doomed by nature, never once to feel the warmth of the sun's rays, but to lie forever doomed buried under everlasting snow and ice''. But on one of his vessels, the Resolution, Charles Clerke noted ''there are a greater abundance of whales and seals rowling [sic] about these straits than I supposed were to be met with in any part of the world; a fair account of them would appear incredible - the whales are blowing at every point of the compass''.

Fishing exploded, with seals the initial target. In many places they were eliminated by the early 19th century. Whales were the next targets, killed primarily for oil. The discovery of petroleum in 1859 was an apparent deathblow, but the advent of pelagic whaling - the harpoon gun and the steam-powered factory ship - saw a resurgence with production peaking in 1930-31 at 3.6 million barrels of oil, then worth £14 million, and taken from some 40,000 whales.

The Antarctic tourist industry has grown steadily and there have been fanciful ideas along the way - such as towing icebergs to South Australia and California, for irrigation - but mining has been the big lure. Douglas Mawson's 1929-30 expedition returned with an extensive rock collection and news of the discovery of the ''biggest unworked coalfield in the world''. Exploration for metals bore little fruit and the coal was found to be low-quality anthracite, but since 1972 offshore oil and gas has appeared highly prospective with the oil potential of the Ross and Weddell basins said to exceed 50 billion barrels, ''akin to that of Saudi Arabia''.

The former prime minister Paul Keating, says Wilder, played the key role thwarting efforts to develop an international code governing mining in Antarctica, working with France to instead win support for a 50-year ban, enshrined in the 1991 Madrid Protocol.

Of course, it all comes down to cost. At that time Wilder says

temporarily banning mining in Antarctica was possible because with prevailing technology it was prohibitively expensive, ''it was too far away, and it was an easy compromise''. That may not be true again in 2041.

International progress on climate change has proved much more difficult and emissions are still rising but, looking back over the past 20 years, Wilder sees a glass half-full: ''We have a global agreement which is the UNFCCC, we've achieved the Kyoto Protocol, we're now at a point where close to 50 jurisdictions have an emissions trading scheme around the world. So we've achieved an enormous amount.''

It was the 1997 Kyoto Protocol that inspired Wilder and his friend from Cambridge, James Cameron, to set up Baker & McKenzie's climate practice. ''James and I were given a clean slate to develop a global international law practice focused on whatever we thought. It was going to be trade, but climate became such a dominant issue we decided to focus on that''.

What was especially significant about Kyoto, he recalls, was that it explicitly carved out a role for the private sector. ''It was the first time an international agreement had actually embodied in it private market mechanisms to address an environmental issue, in terms of creating a market. It was a real shift. The clean development mechanism, putting caps on countries, making countries trade carbon - that was a turning point''.

When Wilder and Cameron started out in 1999, ''it was very early days in all this and we thought it'd move much faster, we thought you'd get a market much quicker, but of course that didn't happen''.

But Wilder found profitable work in 2000 advising the World Bank on its pioneering $US150 million Prototype Carbon Fund, which facilitated investment in emissions reductions projects in the developing world. He was an early adviser to the NSW Greenhouse Gas Abatement Scheme, launched in 2003, the world's first mandatory emissions trading scheme.

''For many of those years we basically made the law up,'' Wilder says. ''We had to create a definition of carbon and carbon rights. We had to come up with the very first carbon contracts. We had to work out ways in which indigenous groups could be protected, if they had ownership rights to the carbon. We had to do a lot of the early forestry projects.''

No doubt there were slow days. ''I remember, for years, when you're sitting in Sydney, when most of the action is in Europe, and you have a global climate change practice, and half the population thinks there's no such thing as climate change, it's quite a challenging endeavour''.

And there may be more slow days ahead, with continuing uncertainty about climate change policy in Australia.

It requires political leadership, says Wilder, but that's hard when climate has become ''a political football, as it has now, and it's distorted, and it's a threat to interests, it becomes part of somebody's ideology. That's the problem with people like Nick Minchin and others who are just ideologically opposed to it, rather than seeing it could … deliver a range of economic benefits.''

Wilder, whose wife Jane is a volunteer lawyer for GetUp!, has tried not to worry his 10 year-old twins about climate change. ''I've been very careful not to shove what I do down the throat of my kids but at the last federal election, there was a poster of John Howard and my son walked up to the lady and said 'we don't vote for him because he doesn't believe in climate change'.

''It probably comes from me. They've asked what climate change is. They are attuned to it. A lot of it they get from school. The truth is they don't need me to educate them on a lot of these issues.''

Living in the part of Neutral Bay which falls into the federal Opposition Leader's Warringah electorate, Wilder's kids have asked: ''why does Tony Abbott keep writing to us to say give me money to beat the carbon tax?''

Another interesting moment came when his son saw a TV news item of two guys kissing on TV when a politician came on and said 'we don't agree with gay marriage'.

''My son sort of said, … 'dad, if those two men love each other why can't they get married?' It's really that simple. If all the scientists are telling us that climate change is a major problem, why don't we at least at a minimum take the [Malcolm] Turnbull approach, minimise our risk exposure, but at a maximum do something about it? It just isn't that difficult. Young kids do get it.''

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