Results and submissions : REF 2021

Embedding intellectual property rights in the UN Marine Biodiversity Beyond National ...

Submitting institution: University of Aberdeen
Unit of assessment: 18 - Law
Summary impact type: Societal
Is this case study continued from a case study submitted in 2014?: No

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1. Summary of the impact

Innovative multi-disciplinary research by Professor Abbe Brown (Law) in collaboration with Professor Marcel Jaspars (Chemistry) has embedded consideration of intellectual property (IP) rights in the negotiation process of an emerging new United Nations (UN) legal agreement, regarding the two thirds of the ocean, which is beyond the control of states.

Problems can arise in relation to marine genetic resources (MGR) and technology transfer. Prior to the involvement of Brown and Jaspars, negotiators had limited understanding of the challenges and opportunities that different approaches to IP could generate to delivering provisions in the agreement relating to MGR and to technology transfer. Brown and Jaspars have raised awareness through active engagement including a policy brief and contributing to commentary on the draft agreement. They have increased understanding amongst negotiators and wider publics of what is a fundamental issue in the management of the world’s oceans.

2. Underpinning research

Two-thirds of the world’s ocean lies in areas beyond national jurisdiction (ABNJ). These areas are home to unique species and delicate ecosystems and the degradation of these threatens marine genetic resources (MGR). Current, fragmented international legal frameworks leave biodiversity in ABNJ highly vulnerable and uncertain. There is considerable tension relating to how states should balance the drive for MGR based research, which can bring about economic and medical advancement, with impact on the environment and the sharing of benefits (including financial) which arise.

To address this governance gap, negotiations are currently underway to create a new international instrument under the UN Convention on the Law of the Sea (ratified in 1982), which will provide a global framework for the ABNJ. This Biodiversity Beyond National Jurisdiction process (BBNJ), seeks to facilitate inclusive scientific research, to enable equitable sharing of benefits from MGR and to enhance technology transfer. However, a potential barrier to the delivery of equitable sharing and to technology transfer is intellectual property (IP). IP confers power on private actors (not states) and could lead to a monopoly being held by a commercial interest over the results of innovation, and in some cases over the MGR and information about them. If the BBNJ negotiations do not engage appropriately with IP, then the practical delivery of the final agreement and its wider benefit for health and science, could be blocked by IP owners.

Early stages of the BBNJ process demonstrated a limited understanding of the impact of IP rights amongst the negotiators and others involved. Professors Brown and Jaspars have sought to address this by bringing together their globally recognised expertise in IP rights and its intersection with other fields (Brown) and in marine biodiscovery (Jaspars). Through building a detailed understanding of the scientific aims of the BBNJ process, they have identified the need for strategies to prevent IP frustrating the sharing of benefits accruing from information and technology transfer. Brown and Jaspars raised awareness of this problem and developed solutions that could be included in the BBNJ agreement. These seek not to change IP law, but rather engage with opportunities which exist within IP law for states to introduce some permitted exceptions and require sharing (of resource) [5]. Brown and Jaspars shaped a new ecosystem-focused approach to IP that would restrict the ability of IP owners to control the activity of others in some cases, and would encourage inclusive innovation through open sharing of the results of research cruises used to collect and analyse MGR. Their proposals also encouraged a pragmatic approach to tracing the use of MGR and developed new strategies to facilitate the development and to share the benefits of ecologically sustainable technologies [5].

Brown has an international reputation exploring the intersections and conflicts between IP rights, which reward and share the benefits of innovation, and other regimes which seek to address societal challenges more directly. She illuminates the tensions between the legal structures in these different regimes, and the potential for private IP rights to restrict the steps, which states can take to respond to health and climate change challenges through technology. In turn, she has created frameworks for this to be managed by crossing barriers between fields, including in developing economies [2,3] and by learning from different forms of regulation [1]. This expertise maps directly on to the opportunities identified in the BBNJ process. As a former chair and member of multiple legal and policy committees exploring the role and impact of IP and other regimes (including Privacy Advisory Committee of the National Services Scotland (2013-15), Public Benefit and Privacy Panel for Health and Social Care of NHS Scotland (since 2015), TSB Director's Ad Hoc Group on Intellectual Property Rights of the International Telecommunication Union (2010-2013), Committee of the Licensing Executive Society (Scotland) (2008-2015)) and being a former IP litigator with 10 years’ experience, Brown’s research expertise is underpinned by extensive policy and commercial know-how.

Jaspars has an international reputation as a scientist, an entrepreneur and as a policy influencer. He has been closely involved in the BBNJ process since its start in 2015 working alongside Intergovernmental Organisations (IGOs), Nongovernmental Organisations (NGOs), and the European Commission. In particular, he was Scientific Project Leader of the EU FP7 Project ‘PharmaSea’, which explored how to make the use of marine microbial derived compounds a more attractive proposition to the pharmaceutical industry [P3]. Jaspars was also part of the team that developed the concept of ‘ Mare Geneticum’, a means of bringing about a fair and effective regime for benefit-sharing of MGR in the BBNJ based on better cooperation, coordination and sharing of research, results and results and financial benefits [4]. From these bases, Brown and Jaspars have worked together to develop their innovative multi-disciplinary approach and to present the suggested solutions noted above (e.g. inclusive innovation; [5]).

In order to disseminate these solutions and to enhance awareness of the need to engage with IP, in 2018 Brown and Jaspars held an event in Aberdeen with negotiators and others involved in the BBNJ process in advance of its first intergovernmental conference (IGC). In 2019, Brown and Jaspars attended the second and third IGCs events at the United Nations in New York and held accredited side events in collaboration with an IGO and NGO. In 2020 funding was obtained from the Royal Society of Edinburgh [P1] to undertake engagement activities with negotiators and others involved in the BBNJ process and with wider publics (in Edinburgh). Funding was obtained from the Wellcome Trust [P2] to support the creation of online content (podcasts, online explainer videos) and engagement activities (a musical composition and performance) to promote the reasoning behind their ideas and the means by which they can be used by government and business as well as by wider publics to understand the role of IP in benefit sharing of MGR and in technology transfer.

4. Details of the impact

Overview

The combined expertise, activity and influence of Brown and Jaspars regarding IP and science has changed the negotiating landscape of the emerging BBNJ agreement and has led to IP being embedded in the BBNJ process and new approaches to it being put forward. This is a landmark change in that IP has now become a stable, if still contested, part of the dialogue. Brown and Jaspars achieved this through sharing their ideas at events hosted at the UN and elsewhere, and contributing directly to commentary as authors (link to commentary: https://bit.ly/3st1gxp) on the evolving agreement as part of the delegations of the International Union for Conservation of Nature (IUCN). Their contributions have informed delegates, negotiators, IGOs, NGOs, and industry experts about the problems as well as opportunities, which can arise from IP rights. They have further entrenched the place of IP in the BBNJ process by developing possible solutions, which are effective and viable within the confines of international IP law, scientific practice and needs, and the realities of the negotiation of international agreements. Brown and Jaspars’ public engagement activities have provided a complementary form of pressure on BBNJ negotiators and others involved in the BBNJ process regarding the importance of engaging with IP.

Identifying issues and providing solutions

Prior to Brown’s involvement from late 2018, BBNJ documents did not focus on the high-level question of how to engage with IP. The formal document considered at IGC 2 and the draft agreement considered at IGC3 (A/CONF.232.2019/6, link: https://bit.ly/3bySTJG\) do now include suggested text relating to the grant of patents, disclosure of origin in relation to patent applications and benefit sharing, the relationship with IP agreements and some limited references regarding technology transfer. Brown and Jaspars identified additional issues, which warranted consideration, notably the prospect of databases, innovation building on MGR and marine technology being developed by and under the control of private sector IP owners. This ultimately can limit access to and sharing of MGR, and of information and benefits arising - even if the BBNJ agreement attempts to address this through referring to open access and open source approaches.

Most of the BBNJ delegates, policy makers, advisers and activist groups involved in and assisting the BBNJ process are experts in marine biodiversity, international law, environmental protection and science, rather than IP. There are a small number of private sector actors involved, and negotiators from some states, who have a deep respect for IP and a strong resistance to fettering its power. There is also a perception by some that any relevant IP issues are being dealt with elsewhere [S1]. This combination of limited awareness and unwillingness led to a lack of engagement on the part of most states with the full range of IP issues identified by Brown and Jaspars above as relevant to the BBNJ process.

Brown’s input has demonstrated the lack of focus in other fora – including the World Intellectual Property Organisation and the World Trade Organization – on IP and MGR within ABNJ and has emphasised the need for the BBNJ process to find its own solutions to its IP problems. Brown and Jaspars developed solutions for inclusion in the BBNJ agreement limiting the power to prevent activity of others held by IP owners, notably in relation to research and sharing of databases. This would result in BBNJ goals being delivered in a manner, which is consistent with international IP treaties.

Mainstreaming IP

Brown and Jaspars, working in collaboration with organisations including the Deep Sea Ocean Initiative (DOSI) and the IUCN, delivered a structured and interactive programme of briefings and events to embed a new awareness of IP and possible approaches to it. Brown’s contribution began when Jaspars hosted a workshop with DOSI in June 2018 in Aberdeen [S2] with the aim of building bridges between experts, academics and country representatives in seeking a pragmatic solution to access and benefit sharing in respect of MGR in the BBNJ drawing on the ideas set out in Mare Geneticum. The event was attended by 17 delegates, including representatives of the permanent UN missions of Algeria, Belize, Egypt (representing the African Group, acted as Facilitator for MGR and as part of G77/China) and New Zealand; members of the IUCN; the Facilitator of the MGR negotiations; UK Maritime Policy Unit, Foreign and Commonwealth Office; the Office of Ocean and Polar Affairs, United States Department of State and EU representatives. During the workshop, discussions relating to the challenges which arose from IP and lack of engagement with it in the BBNJ process became evident and Brown argued for this to be addressed [S2].

As noted, Brown and Jaspars then attended IGC2 and 3 and in collaboration with both IUCN and DOSI, they coordinated formal accredited side events. Such events take place in parallel streams when the main negotiations are not taking place, and are an opportunity for informal and interactive discussion. The event at IGC2 ‘Mare Geneticum and an Ecosystem Approach: Power, Openness and Sharing’ was attended around 15 people (country delegates and advisers), and a complementary podcast was provided in advance on the University of Aberdeen, BBNJ project website. Around 20 people participated in the event at IGC3 ‘Developing Mare Geneticum: notifying, sharing, rewarding and sustaining’. The IGC2 side event was referred to in the Earth Negotiations Bulletin published each day during the conference, and blog posts were shared after both events for wider engagement.

At IGC3 IP was much more visible than in the past and IUCN made a point of highlighting to IGOs and NGOs (such as UNESCO, Greenpeace - members of the High Seas Alliance) and negotiators (from countries of different levels of development and perspectives) that they had an IP lawyer in their delegation. The (then) Deputy Permanent Representative, Permanent Mission of Jamaica to the UN, in attendance at IGC3, has since said:

I have found Abbe’s work in the BBNJ process (individually and in conjunction with Marcel) in relation to IP to be invaluable in providing clarity on what is otherwise a very complex, divisive and sometimes controversial issue with which many negotiators are unfamiliar [S5].

Brown also provided guidance to the rest of the IUCN delegation, country and other delegates about the importance of IP, including commenting on points made in the chamber, advising on the need for points to be raised by countries and the IUCN. She contributed to IUCN’s formal written contributions on MGR submitted in August 2019 for IGC3 [S4i]. Brown also took a leading role in the IUCN contribution on MGR made in October 2020 to the online intersessional forum led by the President of the negotiations [S4ii] The (then) Senior Legal Officer of the IUCN has stated that:

It is important to emphasize that IP was not initially part of the BBNJ discussions, and received very little attention in the preparatory committee process. The incorporation of IP in the current discussions in its current form can be attributed in significant part to Abbe's work [S4iii].

The Facilitator of the MGR negotiations held an “informal informal” meeting (this is a key part of the formal negotiation process) specifically on the topic of IP rights during the IGC3. This was done after the IGC3 had begun and it is an indicator of the growing presence of the issue. Estimated attendance was around 60. The Head of the Maritime Policy Unit in the UK Foreign and Commonwealth Office stated:

Abbe’s contribution has in my view led to IP being recognised as an important point in the BBNJ process. This can be seen from the inclusion in the two draft texts of increased references to IP, there being a special suggested clause regarding IP and some aspects of access and benefit sharing, the holding of an informal informal meeting on IP at IGC3 and increased interest from delegates about IP issues in corridor discussions and in one to one meetings. [S6].

In January 2020, Brown and Jaspars coordinated a two-day informal workshop held at the Royal Society of Edinburgh, working again with DOSI [P1]. This was attended by 20 participants from country negotiators, IGOs, NGOs, industry and academics. In February 2020, Brown presented by invitation on IP and benefit sharing to the ‘STRONG’ High Seas Dialogue Workshop in Lima 2020 as part of the inter-ministerial National Dialogue organised by the Government of Peru to discuss the BBNJ process. This was attended by 58 people including academics, industry, NGOs in particular from Latin and Southern America and ministry representatives from Foreign and Environmental departments and including from Peru, Ecuador, Chile, Panama, Columbia [see S7]. In July 2020, Brown and Jaspars led the preparation of a DOSI policy brief to inform and stimulate discussion among delegates and the wider BBNJ community notably regarding the extent to which the restrictions on IP suggested above could bring about a stewardship approach to IP [S8i].

Brown and Jaspars complemented this by engaging with publics as voters, shareholders and activists. The January 2020 workshop in Edinburgh was accompanied by a sold-out public event with over 100 members of the public alongside workshop participants, jointly exploring the BBNJ process with a panel of experts from the Deep Ocean Stewardship Initiative, EU-Atlas and iAtlantic, France, and Greenpeace. The event involved an active question and answer session as well as discussion about how members of the public could get involved in campaigning and engaging with negotiators and their influencers, to protect the ocean and deliver an approach based on community and sharing, not private control [S8ii]. Co-lead of DOSI stated:

Abbe’s leadership, expert explanations and innovative ideas have been instrumental in enabling DOSI to engage scientists with the legal issues of IP and advocate for consideration of innovative approaches to address IP issues, based on Abbe’s novel ideas for stewardship approaches to IP that promote science advancement and equity [S8iii].

The event provided an opportunity to reach out to the wider public in new and novel ways and involved co-creation of the ‘Song of the Oceans’, with the internationally acclaimed poet, Dr Grahame Davies, and renowned composer Professor Paul Mealor. The video of the performance on the ‘Sharing the Benefits of the Ocean’ website, promotes Brown and Jaspars’ work in relation to the BBNJ. The site provides introductions to marine biodiscovery and intellectual property, and on the relationship between them and the BBNJ. It is designed to be of use to all beneficiaries, including negotiators. Since its launch in January 2020, the video has been viewed over 500 times. The focus on working with the public has continued throughout 2020, notably with the launch of a new podcast for the University of Aberdeen’s PodFest in May 2020 (112 listeners) [S9].

Ending Libel Tourism: Reform of EU Defamation law

Submitting institution: University of Aberdeen
Unit of assessment: 18 - Law
Summary impact type: Societal
Is this case study continued from a case study submitted in 2014?: No

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1. Summary of the impact

The EU Charter of Fundamental Rights includes a clear commitment to freedom of expression. However, the assassination of Daphne Caruana Galizia, a Maltese investigative journalist, in October 2017 exposed the fragility of this commitment, highlighting the need for EU anti-SLAPP (Strategic Lawsuits Against Public Participation) legislation. Research carried out by Dr Borg-Barthet, examining in detail different approaches to anti-SLAPP legislation, provided the essential evidence that was needed to underpin calls for change. His research formed the basis for the development of a common policy platform adopted by a cross-party grouping of Members of the European Parliament and a coalition of NGOs, who used the research to advocate for change and to articulate the content of future legislation. As a result, the research has influenced debate within the EU about anti-SLAPP regulation and underpinned an acceptance by the EU of the need for legislative reform.

2. Underpinning research

Freedom of expression and the rule of law are foundational values of the European Union, and shared values of all democratic societies. Recent developments in several EU member states have demonstrated the fragility of these values, with threats to freedom of expression becoming commonplace throughout the Union. None was more dramatic than the assassination of Daphne Caruana Galizia in October 2017. Caruana Galizia was a Maltese investigative journalist who had been investigating and exposing cross-border financial crime involving several state actors. It transpired that the assassination was part of a broader attack on press freedoms through SLAPP (Strategic Lawsuits Against Public Participation), a form of legal harassment, which some powerful actors use to intimidate journalists and activists with a view to avoiding public scrutiny. The situation in Malta served to emphasise the challenges that the EU approach to SLAPP created. However, an appropriate evidence base to enable advocacy for new anti-SLAPP regulations within the EU was lacking. Research carried out by Dr Borg-Barthet at the University of Aberdeen positioned him as the obvious choice to support this advocacy process and provided the essential evidence to make a case for change.

In 2016, Borg-Barthet explored the structure of private international law in Malta focusing on specific regulation of the treatment of companies, including systemic deficiencies in respect of those companies. Through an analysis of the somewhat limited literature and case law on Maltese private international law, supplemented by an analysis of legal practice as evidenced in assumptions in courts and practitioners' reasoning, the research found weaknesses in Maltese private international law of companies, due to a lack of sustained legislative and judicial attention [1]. Further research by Borg-Barthet examined the extent to which claims can be brought against shareholders in transnational disputes, particularly as regards cross-border torts and fundamental rights infringements, asking whether economically powerful actors were able to insulate themselves from liability in cross-border disputes concerning civil wrongs. By analysing literature and case law Borg-Barthet demonstrated that the law is structured in a manner which

practical implications of financial and psychological asymmetries in transnational litigation and proposes international legislative reform to facilitate the enforcement of obligations [2].

This research established Borg-Barthet as an expert in private international law, with specific knowledge about Malta, where he was also qualified to act as an advocate. Because of this, in the days following the assassination of Daphne Caruana Galizia, several Maltese legal practitioners approached Borg-Barthet to seek assistance with issues concerning the private international law of defamation. Borg-Barthet noted that journalists were being threatened with frivolous but expensive transnational litigation. He was then able to identify, through spot-checking of high-profile newspaper reports, that a Maltese bank had been using the mere threat of transnational litigation to force the deletion of online reporting of Caruana Galizia’s investigative reporting. This research fed into the development of a Working Paper, ‘The Brussels Ia Regulation as an instrument for the Undermining of Press Freedoms and the Rule of Law: an Urgent Call for Reform’, which showed that the threat of transnational litigation was possible because EU law enables libel tourism by allowing claimants to choose the court in which to bring a claim. In the Working Paper, Borg-Barthet also developed an alternative model for the allocation of jurisdiction which would prevent libel tourism [3].

When a court hears a case with connections to more than one legal system, it must decide which laws should apply to the case. In the EU, this is usually determined through shared rules, which allow predictable outcomes. However, there is no such shared rule for defamation claims. The absence of a common rule on choice of law in defamation cases results in a lack of legal certainty and requires journalism on cross-border matters to apply ‘the lowest common denominator of press freedoms’. Borg-Barthet’s Working Paper demonstrated the need for amendment of the Rome II Regulation with a view to harmonising rules on choice of law in defamation to make the applicable law predictable to the parties and therefore relieving journalists and civil society activists of exposure to multiple legal systems.

Critically, Borg-Barthet’s Working Paper also argued that, contrary to the view previously expressed by the European Commission, the EU did have the legal power to adopt legislation which would introduce safeguards against SLAPPs. The research identified the basis for the adoption of legislation in the law of the internal market. Borrowing particularly from anti-SLAPP statutes in the United States, it proposes that EU law should require Member States’ courts to allow expeditious hearings of SLAPP cases, and to introduce cost-shifting sanctions. It also proposes further protections against litigation brought or threatened in countries outside the EU [3].

The form and content of a possible future directive was articulated more fully in a Model Directive drafted by Borg-Barthet, in collaboration with Ravo and Kramer. The Model Directive proposes that courts should be empowered to dismiss frivolous cases and to require respondents in such cases to be compensated. It is also proposed that Member States should provide adequate legal and other assistance to mitigate the financial and psychological costs of litigation [4].

4. Details of the impact

Borg-Barthet’s research has prompted the initiation of a process of legal reform related to SLAPP in the European Union to eliminate practices, which result in the suppression of investigative journalism and public interest activism. The research has influenced debate within the EU about anti-SLAPP regulation, underpinning an acceptance by the EU of the need for legislative reform. It has provided an evidence base for NGOs, enabling them to articulate the content of future legislation. Through events and online publications, it has also raised public awareness of the impact of SLAPP legislation.

Creating an evidence base to enable NGOs to advocate for anti-SLAPP legislation

Following Daphne Caruana Galizia’s murder in Malta in 2017, a coalition of NGOs – PEN International, Reporters Without Borders, European Centre for Press and Media Freedom, Article 19, and Committee to Protect Journalists – came together to explore the introduction of an anti-SLAPP EU Directive. This coalition quickly sought advice from Borg-Barthet, for which he drew directly on the research unpinning the original Working Paper. Borg-Barthet captured this advice in a report, ‘ Advice concerning the introduction of anti-SLAPP legislation to protect freedom of expression in the European Union’ [S1], creating a resource that was shared with the NGOs, as well as journalists and legislators at various events. Borg-Barthet was invited to present the report at the European Centre for Press and Media Freedom’s UNCOVERED conference (200 attendees, including journalists, civil society representatives, MEPs and representatives of the EU Commission in Berlin in January 2019 (https://www.ecpmf.eu/archive/events/uncovered\-conference.html\), [S2a] and then followed this up by organising a workshop in Aberdeen in February 2019 (where participants also included representatives of EU institutions) [S2b], and at an expert talk on Anti-SLAPP solutions, held at the European Parliament in Brussels [S2c]. A further talk was attended by circa 100 representatives of EU institutions, and representatives of NGOs. Following the event, David Casa MEP remarked that the research “ provided us with concrete legal proposals that will now form the basis our work” [S2d]. This has been confirmed by the President of the European parliament, Robert Metsola MEP “[Borg Barthet’s research] has provided a much-needed basis […] for Members of the European parliament to articulate our wish to see a proposal for an EU-wide Anti-SLAPP Directive that could fall within the limits of EU competence” [S2e].

Borg-Barthet’s work was also used to inform a common position adopted by a broader grouping of 26 NGOs in their advocacy work in the European Union, and was presented as the rationale behind a proposal presented to Pia Lindholm, Deputy Head for the Unit for Civil Justice within the Directorate-General Justice and Consumers of the European Commission. In early 2020, Borg-Barthet also presented his research to circa 100 representatives of EU institutions, scholars and civil society activists at the European SLAPP Symposium, organised by Greenpeace International [S2f].

Borg-Barthet’s advice has enabled not only the development of a better understanding of the technical aspects of reform which would assist in the attainment of the aims advocated by the NGOs but has also provided public servants and NGOs with an opportunity to engage with one another to better understand potential routes for acceptable reform. Testimony from Article 19’s Head of Europe and Central Asia demonstrates the vital role that Borg-Barthet’s research has played. Not only has it ‘ contributed to the rapid development of understanding of legal shortcomings which enable the suppression of freedom of expression in the EU’, it has also

enabled a coalition of NGOs to identify the legal issues which enabled Strategic Lawsuits Against Public Participation (SLAPP)… On the basis of his work, NGOs developed their policy positions on anti- SLAPP legislation, and were better placed to understand the broader policy and legal context in which our advocacy work was to be conducted. The articulation of clear solutions and well-researched justifications for legislative intervention has been a crucial element of NGO advocacy in this regard. The research which Dr Borg-Barthet conducted empowered a coalition of NGOs better to articulate the legal basis for the adoption of EU legislation, as well as the content of future legislation [S2g].

Influencing EU political debate and legislative reform

In April 2018, a cross-party group of Members of the European Parliament wrote to the European Commission to request reform of EU defamation law. The Commission’s response at this stage suggested that the Union lacked a specific competence to adopt new legislation, and that existing legislation struck a sound balance between relevant rights. By drawing directly on Borg-Barthet’s research, this cross-party group, supported by the coalition of NGOs, have since been able to convince the EU to alter its stance [S3c], so much so that, by October 2019, Vice-President Designate Jourová had been persuaded of the necessity to introduce reforms, as evidenced in her confirmation hearings before the European Parliament [S3a-b]. As the Article 19 testimony confirms, ‘ Indeed, as a consequence of the work which we have conducted with Dr Borg-Barthet’s assistance, the European Commission has now included the adoption of anti- SLAPP measures in its European Democracy Action Plan’ [S2g].

This European Democracy Action Plan (https://ec.europa.eu/info/strategy/priorities\-2019\-2024/new\-push\-european\-democracy/european\-democracy\-action\-plan\_en), published in December 2020, draws directly on Borg-Barthet’s research [S4]. To continue the work, Borg-Barthet has been engaged as a legal expert on behalf of the NGO coalition [P1; 4] charged with drafting model legislation and providing legal advice at meetings with Vice-President Jourová and Commissioner Reynders. Jourová has also indicated that the Commission will consider the most robust legislative and non-legislative measures available, once the expert advisory group has completed its work. Borg-Barthet’s role in this shift in EU priorities is captured by EU Representative for the Committee to Protect Journalists:

His academic research provided the Commission with the legal basis to revise existing EU law... Together, we have been able to secure commitments from the European Commission to act with regards to a recast of the cornerstones of EU law, the Brussels Ia Regulation and the Rome II Regulation. This is no small feat and quite simply we could not have achieved this without Justin’s leadership, knowledge and assessment of EU and private international law [S5].

Raising awareness in civil society about the impact of Strategic Lawsuits Against Public Participation Legislation

In the phase immediately following the assassination of Daphne Caruana Galizia, Borg-Barthet used a personal Facebook page to publicise the hitherto undisclosed fact that accurate reporting of transnational interest was being deleted or redacted by every major media entity in Malta following threats of vexatious litigation. The revelations were shared widely through social media and resulted in four leading independent media entities informing their readers that they had been forced to alter online content due to the potential cost of defending a lawsuit outside of their own jurisdiction. As testimony from the Daphne Caruana Galizia Foundation affirms,

Dr Borg Barthet’s research and publication on the subject of SLAPPs exposed the use of such covert action and its chilling effect on news media in Malta, enabling the affected media to publicly admit to having received threats of litigation, particularly from Ali Sadr and Pilatus Bank [S6].

The EU Representative for the Committee to Protect Journalists has stated that Borg-Barthet’s work, initially used by the NGOs, has also raised awareness amongst civil society about SLAPP and its implications:

[Borg-Barthet’s] work in turn expanded to create a larger pan-European civil society movement on SLAPPs, that has now mobilized not only press freedom groups, but environmental INGOs, trade unions, and lawyer networks to work together to expose and campaign against the problem. Through regular exchanges, it has been Justin who has been pivotal in providing INGOs with the arguments that expose the legal shortcomings that enable SLAPPs. His academic research … gave civil society the fuel to approach the Commission, and in turn again expose these flaws using substantive academic research as the basis for our arguments [S5].

The research has also been shared through the mainstream press, including explicit citations of Dr Borg-Barthet’s work in the Guardian newspaper (e.g. https://bit.ly/3tng1lR\) in the United Kingdom and multiple newspapers in Malta (e.g. https://bit.ly/3qHCAQd\), as well as several reference to the resultant proposals on news sites such as EU Observer, Deutsche Welle, and EurActiv [S7].

Promoting equitable, peaceful and sustainable use of the Blue Nile waters through ...

Submitting institution: University of Aberdeen
Unit of assessment: 18 - Law
Summary impact type: Societal
Is this case study continued from a case study submitted in 2014?: No

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1. Summary of the impact

The issue of water management in the Nile basin is a source of regional contestation between the neighbouring states. Research led by Professor Yihdego at the University of Aberdeen has been instrumental in articulating how the legal principle of fairness can play a role in ensuring practical implementation of equitable and cooperative utilisation of the Nile Waters and the operation and management of the Grand Ethiopian Renaissance Dam (GERD). As a consequence of his work, increasing attention is being paid to the principles of procedural fairness and distributive justice and their role in creating a new trilateral communication framework. Yihdego’s collaborative and individual research has been drawn on by government officials and policy makers in Ethiopia, Sudan and Egypt, providing strategies to arrive at a peaceful and equitable resolution of the tension. It thereby fosters cooperation and supports regional peace and security.

2. Underpinning research

Public International Law encompasses sub-fields such as treaty law and international human rights law. As a framework however, it lacks effective enforcement and therefore by itself cannot create sharing regimes that abide by its instruments. Efforts to strengthen and reform international law seek to increase incentives to develop more effective and open management regimes by applying frameworks to analyse commitment and compliance.

Yihdego has sought to address this issue, in collaboration with experts in a range of fields including Economics and Hydrology. Through his research [1], Yihdego has previously shown that a careful balance must be struck between the use of natural resources for economic growth, the implementation of international and legal obligations, and the pursuit of sustainable development. This balance requires an effective and workable legal framework. His research has explored [1, 4-6] the application of Public International Law to areas such as integration, governance, peace and security, as well as shared natural resource management. It has produced normative and theoretical analysis designed to support regional institutions and promote the integration agenda required to ensure a good fit between norms or policies and reality, helping to maximise trust and support from all actors, including governments, citizens, businesses, civil society actors and donors.

In doing so, he has centralised the legal concept of fairness to develop a framework for analysing both commitment and compliance in International Law. The principle of fairness for the purposes of this field comprises two elements: a substantive right to share and preserve water resources accounting for, inter alia, population, socio-economic and human needs, hydrological and environmental considerations; and a right process through which all concerned states equally participate in determining and applying their substantive rights and duties.

The Decision Analytic Framework Nexus to explore the water-energy-food Nexus in complex transboundary water resources of fast developing countries (DAFNE)

Since 2016, Yihdego has been a member of the EU-funded DAFNE project [P1], working with a consortium of 14 partners from Europe and Africa to facilitate collaboration for sustainable and effective solutions to WEF management. Consideration of water, energy and food (WEF) in the context of their interdependencies is necessary to ensure sustainable and equitable management of shared water resources. International watercourses and river basins in Africa cut through multiple countries (riparian states) that often have conflicting interests. Effective cooperation and economic integration are preconditions for regional stability and the fulfilment of development and are essential for the peaceful co-existence of states.

DAFNE has provided a Decision Analytic Framework to explore the WEF nexus in complex transboundary water resource systems of fast developing countries, providing a better understanding of the challenges posed by these independencies. The project generates and explores alternative planning and management solutions based on the cooperation of public and private stakeholders. It fosters the profitable but equitable use of resources without transgressing environmental limits or creating societal and/or stakeholder conflicts [2].

Analysing commitment and compliance in the context of fairness: The Blue Nile

Yihdego has increasingly explored the concept of fairness, using it as a framework for analysing both commitment and compliance in international law, using it to explore specific contexts, such as legal developments related to the Blue Nile [4]. Yihdego argues that whilst the principle of fairness often faces criticism for being too vague to shed meaningful light on the practical interpretation and implementation of international law within specific fields, its application helps give it further meaning. Fairness, whilst a well-established concept in law, is closely associated with the principles of equity and justice.

One of the most significant facets of fairness is its correlation to compliance. By using the linkages between principle of fairness and international watercourses law to provide a ‘fairness lens’ [5], Yihdego has explored the extent to which considerations of fairness can be evidenced in the evolution of the legal regime relating to the Nile. As a result, he has been able to tease out examples where considerations of fairness may have relevance to the creation, interpretation and application of international law relating to the Nile River Basin. Yihdego thereby argues that the law relating to international watercourses is a means to understand what fairness means in practice either in relation to the design of cooperative arrangements, and process or interests that might be reconciled in the determination of equity. Similarly, his research has shown that procedural fairness and distributive justice, as normative standards, constitute two sides of the same coin, which in turn demands that both are considered together when analysing the merits of trans-boundary treaty frameworks [5].

Applying the fairness lens to the Grand Ethiopian Renaissance Dam (GERD)

The GERD, currently under construction by Ethiopia, will be the biggest hydropower dam in Africa. Energy security and economic benefits are at the heart of this estimated USD4,800,000,000 mega dam. Entirely funded by Ethiopia, it is the country’s first major hydropower project on the Nile and is expected to generate enough electricity to meet the country’s energy needs and for exports to neighbouring Sudan and Egypt, providing much needed affordable and clean energy for the region’s socio-economic development. However, the commencement of the GERD in 2011 has heightened tensions between Egypt and Ethiopia, with Egypt insisting on its historical rights to the Nile waters as contained in colonial era treaties leading to considerable unrest in the region.

In 2019, the United States intervened in GERD negotiations through sponsored negotiations, attempting to enforce a framework of GERD reservoir filling, operation and management, which led to major disruption of the talks. Yihdego prepared a policy brief, drawing on the principles of fairness [6], recommending that for the parties to achieve a fair and equitable settlement of the issues on the GERD in accordance with international water law, they would need to:

explore the option of an African forum for resolution of the disagreements should the tripartite negotiations fail;
recognise the equitable right of all riparian states to utilise and share water resources as a vital asset to lift millions of people out of extreme poverty;
identify and respect the downstream effects of upstream water use to millions of people who heavily depend on the Nile;
ensure free will and equal participation of the three riparian states in the process.

3. References to the research

References:

[1] Yihdego, Z., 2013, July. The Blue Nile dam controversy in the eyes of international law. In Global Water Forum: Discussion Paper (pp. 1-14). Global Water Forum. doi: https://globalwaterforum.org/2013/06/18/the-blue-nile-dam-controversy-in-the-eyes-of-international-law/

[2] Yihdego, Z., & Gibson, J. (2020). Implementing International Watercourses Law through the WEF Nexus and SDGs: an Integrated Approach Illustrated in the Zambezi River Basin, Brill Research Perspectives in International Water Law, 5(3), 3-90. doi: https://doi.org/10.1163/23529369-12340019

[3] Yihdego, Z. (2011), The African Union: Founding Principles, Frameworks and Prospects. European Law Journal, 17: 568-594, doi: https://doi.org/10.1111/j.1468-0386.2011.00567.x

[4] Yihdego, Z. and Rieu-Clarke, A., 2016. An exploration of fairness in international law through the Blue Nile and GERD. Water International, 41(4), pp.528-549. doi: 10.1080/02508060.2016.1196321

[5] Yihdego, Z. and Rieu-Clarke, A., (2017). International law developments on the sharing of Blue Nile waters: A fairness perspective. The Grand Ethiopian Renaissance dam and the Nile Basin. Global Water Forum. doi: https://globalwaterforum.org/2020/04/16/international-law-connotations-of-us-mediated-blue-nile-dam-negotiations-and-outcomes-background/

[6] Yihdego, Z., Rieu-Clarke, A., & Cascão, A.E. (Eds.). (2017). The Grand Ethiopian Renaissance Dam and the Nile Basin: Implications for Transboundary Water Cooperation (1st ed.). Routledge, doi: https://doi.org/10.4324/9781315160122 Peer reviewed. Note: this was initially submitted to the three parties, the USA and the World Bank as a policy/amicus Brief and was well received.

Grants:

[P1] Yihdego, Z. Use of a decision-analytic framework to explore the water energy food nexus in complex and trans-boundary water resources systems of fast-growing developing countries (DAFNE). European Commission; 09/16-08/20; (GBP186,715)

4. Details of the impact

Yihdego’s research has successfully established an evidence base and information framework for policy makers and negotiators looking to fashion the sustainable and equitable management of water resources. Through his research and as lead of an international multi-disciplinary consortium comprised of experts in hydrology, economics, law, hydro-politics and environmental science from the region, Europe and North America, Yihdego has developed recommendations for policy makers on the GERD. In doing so, Yihdego has informed and facilitated international discussions concerning water management in the region. This has occurred at the level of NGO, intergovernmental negotiations, and at the United Nations; throughout he has also sought to raise public awareness and deepen public knowledge of the issues involved.

In 2015, on the basis of his recommendations for GERD management, Yihdego was approached by the International Water Resources Association (IWRA), a non-profit organisation connecting professionals and corporations to provide joined up solutions to sustainable use of the world’s water resources. The IWRA asked Yihdego to co-host a special session during the XVth World Water Congress in Edinburgh. This session was attended by more than 50 government, practitioner and academic experts; Yihdego presented a paper on the fairness principle and its application to the Blue Nile. The papers from the Congress were later published as the first special issue of Water International in 2016 on the topic [S1i]. The issue, guest edited by Yihdego and his team, titled ‘ The Grand Ethiopian Renaissance Dam: Legal, Political and Scientific Challenges’ was formally launched at the 2016 World Water Week in Stockholm which was attended by 40 delegates made up of civil society organisations, experts and government officials from Egypt, Sudan and Ethiopia [S1ii]. He later co-hosted a special session with Dr Ana Cascio, currently a Nile advisor for the Deutsche Gesellschaft für Internationale Zusammenarbeit (GIZ) GmbH and Professor Alistair Rieu-Clarke of Dundee University (now at Northumbria), focusing on law, science and policy at the XVI World Water Congress, held in Cancun in the summer of 2017.

Attendees to the 2017 session included officials from the Nile Basin. [ text removed for publication] [S8].

Given the significant interest in his and his consortium’s research, Yihdego published a policy brief and webinar in collaboration with IWRA in 2017, focusing on the GERD as a catalyst for cooperation on the Nile. The webinar was described as ‘IWRA’s strongest yet’, attended by more than 90 participants from the Nile region and elsewhere and represented a key opportunity to bring together experts, policymakers, government officials and journalists to discuss the technical, legal, economic, and political problems and solutions for the GERD [S2]. Given the success of the webinar and policy brief, the President of IWRA has confirmed: ‘ [Yihdego’s] efforts have articulated a new trilateral communication framework within the Nile region that focuses on the need for reconciling poverty and the lack of access to energy in Ethiopia and Sudan with that of preventing negative socio-economic impacts on Egypt’ [S3].

As his ideas have gained traction, Yihdego has been invited to and participated in several roundtable discussions with policymakers, security experts and academics to discuss matters relating to the GERD. These include an event organised by WeAspire, a non-profit public policy organization focusing on Africa issues with a special focus on Ethiopia, titled ‘Learning from the past, looking into the future’ (05/09/20) and an event organised by Glasgow Centre for International Law and Security (25/11/20), titled ‘The “Renaissance Dam” dispute: the state of transboundary water law in the face of climate insecurity’ [S4i]. The WeAspire event was attended by the Former Minister for the Ministry of Water Resources of Sudan, Executive Director of the Eastern Nile Technical Regional Office (ENTRO) and by Senior Water Policy Analysts. [ text removed for publication] [S7].

By encouraging and supporting evidence-based dialogue throughout the development of the GERD, Yihdego’s research has provided a valuable resource to inform debate in a much-contested area. [ text removed for publication] [S7].

As demonstrated, Yihdego’s research has reached a wide range of beneficiaries through effective engagement with policymakers, civil society, the media and the public, which has been crucial in articulating the role of public international law in the negotiations and demonstrating the practicalities of such a framework. In 2019, he was invited to give a keynote lecture in Khartoum at a Water Diplomacy Training event organised by Khartoum University, Sudan and European funders including IHE-Delft (the largest international graduate water education facility globally), which was attended by 38 diplomats, civil society organisations and scholars. As a result, IHE-Delft released a statement confirming that discussions throughout the event had clarified a need for a long-term capacity building program to fill the (knowledge) gap in the region [S4ii].

The need to clarify law and policy options open to the three states was brought into sharp focus when the USA and World Bank intervened in 2019 to help the parties – particularly Ethiopia and Egypt – resolve their differences. With this intensification of negotiation and, critically, the stalling of the US-sponsored mediation process, Yihdego took the opportunity to prepare a policy brief examining the outstanding issues relating to negotiations. The brief analysed the failure of the mediation process and encouraged the parties to recognise both the equitable right of all riparian states to utilise and share water resources as a vital asset, and the downstream effects of upstream water use to millions of people who heavily depend on the Nile. This policy brief, International Law Connotations of US-‘Mediated’ Nile Dam Negotiations and Outcomes: Why and how the parties should regain control, was founded on his framework of the fairness principle and critically assessed the merits and failings of the US-proposed text and its process; this then led to Yihdego making important proposals that are necessary to resolve the tension [S6].

The policy brief was circulated to negotiators from the three states, civil societies, the World Bank and the USA, and has received a favourable response from policymakers, [ text removed for publication] [S5].

The matter was brought before the UN Security Council in May and June 2020. Yihdego strongly advised and advocated through his policy brief and bilateral conversations with the parties, for parties to consider the African Union’s good offices should they fail to resolve their differences. Sudan and Ethiopia accepted the need for resorting to the African Union. The UN Security Council has subsequently referred the matter to the African Union, under the Chairmanship of the South African President, H.E Matamela Cyril Ramaphosa, to help the parties to come to an agreement.

Yihdego’s Policy Brief has been published by Global Water Forum in a 4-series publication ( https://globalwaterforum.org/2020/04/16/international-law-connotations-of-us-mediated-blue-nile-dam-negotiations-and-outcomes-background/), with key recommendations published separately in Ethiopia Insight, a popular newspaper edited in the UK [S9i]. The Brief has also been translated into Amharic (Ethiopian language) and published in a well-known newspaper called The Ethiopian Reporter, to create public awareness and has been translated into Arabic and published by a Middle East Arabic newspaper, creating awareness in the Arab world and in Egypt and Sudan in particular [S9ii].

Regulation of Environmental Protections in Unconventional Gas Extraction

Submitting institution: University of Aberdeen
Unit of assessment: 18 - Law
Summary impact type: Environmental
Is this case study continued from a case study submitted in 2014?: No

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1. Summary of the impact

Oil and gas extraction has a broad range of environmental implications. Research led by Professor Tina Hunter of the Centre for Energy Law prompted: 1) a major review of regulatory practice and informed new regulatory guidelines in Western Australia and 2) helped to inform a major campaign led by a prominent NGO to address environmental protection in the context of offshore drilling in the Great Australian Bight. Hunter’s research has underpinned the introduction of enforceable measures to ensure best practice, increase transparency and strengthen environmental protection as well as enhancing land access rights for indigenous communities and landholders.

2. Underpinning research

The extraction of oil and gas (whether offshore or onshore, from conventional or unconventional reservoirs) has implications for the environment, including, as appropriate, the risk of well failure, impact on land and marine habitats, impacts on water availability, and surface water quality degradation from waste fluid disposal. Regulation of environmental factors associated with extraction processes is therefore paramount to minimise the potential damage to ecosystems and the access rights of other users. In Australia, Professor Tina Hunter has provided expertise to regulators in order to strengthen environmental protection in the context of both onshore and offshore hydrocarbon activities.

Hunter, a specialist in Energy and Petroleum Law, was between 2015 and 2020 Director of the Centre for Energy Law (AUCEL) at the University of Aberdeen, one of the largest teams of energy faculty in Europe. Hunter specialises in the areas of upstream offshore petroleum law, extractive industries law and shale gas law. Her expertise has been sought worldwide by regulatory authorities, industry groups and non-governmental organisations to provide analysis of petroleum laws and draft legislation, and to advise on technical, policy and governance issues. Hunter is co-lead of the Scientific Regulation of Energy Installations in the Arctic (SciBAR) network, a programme led by Nottingham Trent University.

Onshore gas extraction: Western Australia (WA)

Onshore unconventional gas exploration and extraction operations create economic opportunities and regulatory challenges. While they contribute to domestic energy security, economic growth and the balance of payments, they threaten agricultural livelihoods and future food security through the risk of contamination of soils and water sources [3]. In Australia, while legislation exists for the exploration for and production of petroleum at Commonwealth and State/territory level, this is premised on conventional reservoirs and includes no specific provision for shale gas, despite the fact that the latter involves different techniques and a much greater intensity of infrastructure [5]. This omission, therefore, has implications both for activities conducted under state-awarded shale gas licenses and for titleholders and landholders when negotiating for compensation and land access rights [4].

The WA regulatory framework is an integrated system, under the auspices of the WA Department of Mines and Petroleum (WADMP), which is designed to provide operators with certainty and predictability, and assurance to the community. In addition to legally enforceable acts and regulations, it is constituted by a number of guidelines, including assessment criteria for the award of petroleum exploration and drilling permits. The aim is to ensure that the conduct of petroleum activity is consistent with the principles of ecologically sustainable development and with an environmental plan that demonstrates that environmental impacts and risks associated with the activity will be reduced to a level that is as low as reasonably practicable. Such impact and risk reduction requires plans to contain appropriate environmental performance objectives, standards and measurement criteria.

Unlike other Australian jurisdictions, there is no separate environmental protection legislation in the Northern Territory (NT), which is a source of concern for many in the community. Provisions within the Petroleum Act 1984 regulate protection of the environment during onshore petroleum activities. Environmental assessments and the preparation of an environmental management plan are undertaken pursuant to the Environmental Assessment Act (EAA). Where a petroleum activity could have significant effects on the environment (as stipulated in a memorandum of agreement between the Northern Territory Department of Mines and Energy and the Northern Territory Department of Environment Protection), the EAA sets out the procedures to be followed. The Department of Mines and Energy refers the proposed activity via a notice of intent to the Department of Environment Protection, which subsequently assesses the proposal and issues a public environment report and environmental impact assessment if requested by Department of Mines and Energy.

In her 2016 analysis, Hunter demonstrated that the environmental plans for NT were legally unenforceable insofar as the current legislation, the Environmental Protection and Biodiversity Conservation Act 1994, contained no criminal sanction for breach [1]. This meant that the Environmental Protections Authority (EPA) was unable to prosecute breaches of the statute in the NT; rather it was only enforceable as a recommendation that could then be over-ridden by the responsible Environment Minister. The NT government, conscious of the continued weak environmental protection accorded under existing legislation, was prompted by Hunter’s findings to draft environmental regulations in accordance with the guidelines used by WADMP. In early 2016, the Government of Australia commissioned Hunter to conduct an independent assessment of shale gas regulatory practice in Australian states and territories to ensure they complied with the principles of best practice regulation. Hunter’s assessment was published in the Houston Journal of International Law in May 2016, ‘The Development of Shale Gas and Coal Bed Methane in Australia: Best Practice for International Jurisdictions?’[1]

Hunter’s research [2] identified a number of additional regulatory gaps and lapses including:

property rights of landholders in Western Australia were not upheld or were compromised, and the use of negotiation to protect such rights was not always adequate
there remained inadequate regulation of hydraulic fracturing for shale gas extraction

Following these findings, the WADMP established the Western Australian Land Access Working Group to make recommendations on land access matters. Hunter was a member of this group. Her role was to review existing provisions in Western Australian mining and petroleum legislation in relation to land access arrangements for private land, and to compare these arrangements with other jurisdictions including all Australian states and territories, New Zealand, the UK and Canada. Hunter’s report was published in 2017 [2] and included template compensation agreements for land access.

Offshore gas extraction: The Great Australian Bight

In Australia, the National Offshore Petroleum Safety and Environmental Management Authority (NOPSEMA) has, since 2012, regulated all offshore petroleum facilities. In 2016, Norway’s Statoil ASA (now known as Equinor) committed to continuing with a deep-water offshore exploration program for the Stromolo-1 prospect in the Great Australian Bight (GAB) after it was vacated by BP. The plans had been protested by thirteen local councils, the commercial fishing industry, environmental activists and the tourism industry.

In late 2018, Greenpeace obtained a leaked internal draft report from Equinor suggesting the worst-case scenario for an oil spill in the Bight could be catastrophic and dwarf the 2010 Macondo oil spill in the Gulf of Mexico. The draft report showed that (depending on weather and tides) a spill could stretch as far around the coastline as Esperance in Western Australia, and reach South Australia, Tasmania and New South Wales. Given her expertise, Greenpeace approached Hunter and requested that she prepare an assessment of the plans [6].

Equinor’s original environmental plan (EP), which was rejected by NOPSEMA due to ‘gaps’, was released for public consultation in early 2019. Hunter’s report on the EP, published in 2019, described the company’s lack of response measures as ‘exceptional in terms of the risk of drilling accident occurring’ and outlined major shortcomings within the company’s environmental plan. This included the identification of environmental risks, which necessitated analysis of the identification and evaluation of platform safety (both worker safety and process safety) as well as an analysis of the Well Operations Management Plan. Hunter clarified that a critical question facing NOPSEMA in its assessment of Equinor’s EP would be the important elements of the environment, including remoteness, inaccessibility, underdeveloped infrastructure, oceanic conditions and the limited supply within the area of alternative drilling facilities in the event of critical failure, which presented a heightened risk profile in the context of offshore petroleum drilling in the GAB.

4. Details of the impact

Promoting transparency in stakeholder consultation by informing the regulatory process

Hunter’s work with the Australian Government has been instrumental in highlighting important regulatory failures and providing independent monitoring of the Petroleum Environmental Regulations, particularly in relation to the negotiation of compensation and land access in shale gas operations. Her work has also helped hold regulators to account, in the case of the Great Australian Bight.

In 2016, Hunter identified considerable gaps in the current Environmental Assessment and Water Acts with regard to unconventional gas activities, including an inability to minimize their impact on landholders and the environment. Prompted by Hunter’s recommendations [1], the Chief Minister of the Northern Territory, the Hon Michael Gunner MLA, announced both a moratorium on hydraulic fracturing of onshore unconventional shale reservoirs in the NT and the appointment of an independent scientific panel to assess the potential impacts and risks associated with the activity. This Scientific Inquiry, chaired by the Hon. Justice Rachel Pepper, Judge of the Land Environment Court of New South Wales, undertook extensive consultation with community and environmental groups, land councils, government agencies and industry [S3]. Hunter’s recommendations were adopted, and were implemented within the final regulations prepared by the Department of Primary Industry, Science, Energy and Resources [S3].

Hunter’s research was key to identifying the Western Australia Department of Mines and Petroleum (WADMP) as an essential component in the development of an effective Environmental Management Plan (EMP) system. This would in turn function as a measure to manage environmental impact, thereby establishing a series of new regulatory standards for shale gas exploration and extraction in Western Australia. In March 2016, David Tollner, Minister for Mines and Energy, released a public statement regarding plans to establish an operating environment for the onshore gas industry characterised by global best practice: “ The draft regulations will not only take into account the recommendations by […] industry expert Dr Tina Hunter they also incorporate lessons learned from onshore oil and gas development in North America and best practice regulation in South Australia and Western Australia.” [S4]

The new Petroleum (Environment) Regulations were approved by Executive Council and signed by the Administrator in June 2016. The Mines and Energy Minister stated: “ The Regulations embrace the principles of Ecologically Sustainable Development and focus on minimising environmental impacts to as low as reasonably practicable”. [S4] In her report, Dr Hunter stated that "good oilfield practice" was incompatible with the standard of "as low as reasonably practicable" included in the draft Regulations as: ‘“good oilfield practice” means all those practices and procedures that are generally accepted as good and safe in the carrying on of that exploration or those operations, as the case be; whereas “as low as reasonably practicable” is a mechanism which actively seeks to reduce risk.’ The concept of "good oilfield practice" was removed as an approval criterion as the Government deemed the other requirements (that environmental impacts and environmental risks be reduced to a level "as low as reasonably practicable" and "acceptable", and that consideration be given to the principles of ESD) superior as approval criteria. [S5]

Hunter’s report [1] led to reform of the land access template in Western Australia and the undertaking of a regulatory assessment of the Northern Territory regulatory framework for shale gas extraction. The ensuing recommendations were incorporated into the Explanatory Guide to the Petroleum Environment Regulations (updated in 2017), which “ gratefully acknowledg[ed] the support and guidance received from Dr Tina Hunter”. [S6] Key differences between the draft and final versions of the regulations include [S5]:

In the draft Regulations, the Environmental Management Plan ( EMP) was (amongst other things) to contain information necessary to demonstrate that the regulated activity will be carried out in a manner consistent with the principles of ecologically sustainable development (ESD) and the Minister was to apply those principles when considering whether an EMP meets the approval criterion.
An amendment was made to require instead that the Minister take into account the principles of ESD when making a decision about an EMP. In its response to Dr Hunter's independent assessment, the Government states that this amendment, along with the stakeholder engagement amendments outlined above, is to ensure a strong connection between the principles of ESD and the stakeholder engagement process.

Hunter’s recommendations have ensured that regulations now aim towards transparency and stakeholder engagement [S3; Pepper report, p374] and apply to any petroleum activity that has an environmental impact: “ the model is consistent with Dr Hunter’s view that environmental management should be the responsibility of an entity other than the person responsible for resource management” [S3; Pepper report, p.432].

Encouraging transparency in environmental impact assessments

In 2019, despite the shortcomings identified by Hunter in her report (published by the Analysis and Policy Observatory, APO in April, 2019, https://apo.org.au/organisation/57380?page=1\), Equinor refused to consider 97% of the responses to the plan (more than 31,000 were received) and formally submitted its EP to the regulator. Greenpeace’s senior campaigner, referring to Hunter’s findings, stated that: " When a leading international industry expert sounds the alarm on the project based purely on risk and response factors and our sub-standard regulatory system then politicians should pay close attention." [S7]

Given the grave concerns regarding the company’s plans and risk factors outlined by Hunter, Greenpeace Australia convened an expert group in collaboration with the Sydney Environment Institute (University of Sydney) to hold the regulator, NOPSEMA, to account and to highlight the remaining flaws in Equinor’s proposal. The expert group submitted a report to NOPSEMA [S8], highlighting the risks of the proposal, and an open letter to the Minister for the Environment [S9], calling for the Chief Scientists’ Audit Report on Equinor’s Environmental Plan to be made publicly available. The group’s report outlined its concerns with Equinor’s approach, which failed to demonstrate comprehensively how it would mitigate impacts on endangered species found within its well area or how drilling would indirectly and directly affect the capacity of listed threatened species to restore their populations, as required under the Commonwealth Environment Act.

In February 2020, Equinor withdrew from approved plans to drill for oil in the Great Australian Bight. The CEO of Greenpeace APAC stated, “ This is an incredible win for people power and nature – after years of relentless campaigning by coastal communities, Indigenous traditional owners, surfers, the seafood industry, tourism operators and other local businesses” [S10]. Later, in October, 2020, a film was made about the efforts to protect the Bight, titled ‘Crude Expectations’, in which Hunter was interviewed about her role in the process [S10].

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The Decision Analytic Framework Nexus to explore the water-energy-food Nexus in complex transboundary water resources of fast developing countries (DAFNE)

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Regulation of Environmental Protections in Unconventional Gas Extraction

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1. News Article Australia: New Petroleum (Environment) Regulations commence in the NT (August, 2016), https://www.mondaq.com/australia/Environment/514402/New-Petroleum-Environment-Regulations-commence-in-the-NT

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