A warning from Dutch justices- Acknowledgement of traditional custodians and paying respects to elders past and present and emerging can cost you

 by Ganesh Sahathevan 

   

                   Gough Whitlam symbolically returning land to Aboriginals. Many consider this gesture to be symbolic, but the High Court current and future might see it differently

These words mark the beginning of most if not all meetings, gatherings and other events in Australia :

'I begin today by acknowledging the Traditional Custodians of the land on which we <gather/meet> today, and pay my respects to their Elders past and present. I extend that respect to Aboriginal and Torres Strait Islander peoples here today.'

Often the acknowledgement is extended to include leaders or elders emerging. Most say it without any realisation or fear that they might, possibly be eroding their own property rights "of the land of which 9they) gather", but as a recent decision of a Dutch court has shown, CSR and similar decorations can be used to undermine previously  recognised legal rights.

In the case of G-Star RAW and a supplier form Vietnam, G-Str's reliance on a standard  force majeure clause was rejected by a Dutch court which relied on, amongst other things, G-Star RAW's CSR decelerations. 

Australian courts are not bound by Dutch decisions but it is not unlikely that Australian judges determining any matter  will look to foreign judgements to justify their own desires to give legal force to concepts such as climate change, native land rights and other issues that have traditionally been outside the purview of the Australian common law. 

It is therefore not unlikely that at some point in the future, the acknowledgements of country and the paying of respects to elders past  present and emerging will be accepted or referred to as evidence that the legal owners intended  their  property rights to be subordinate or in any case never superior to claims by the so-called traditional owners. 

The 2019 High Court decision in the Timber Creek case could well provide the basis for the calculation of compensation. 

END 

Reference 

A Dutch court may have created a contractual duty to be nice, caring and nurturing , by reliance on a CSR ,sustainability declaration. The decision in G-Star RAW  illustrates the legal minefield corporations are creating for themselves by wanting to be woke, or at least seen as woke



According to Apparel Insider:
The court ordered fashion brand G-Star to compensate a Vietnamese supplier for a breach of contract which caused the factory to close during the pandemic.
In a potentially precedent-setting case, the court referred to G-Star’s own sustainability policies in handing down the decision as well as its membership of Better Buying – a platform which (allegedly) encourages improved purchasing practices by fashion brands.

The Vietnamese factory was forced to close during the pandemic after G-Star cancelled orders despite previously making purchasing commitments.

Upcoming European Union regulations such as the Corporate Sustainability Reporting Directive will mean brands become more accountable for the negative effects of poor purchasing practices.

Many brands were citing force majeure clauses during the pandemic to excuse cancelled orders.

G-Star made a (relatively large) offer to the supplier during the dispute, but to no avail.

Court rules against G-Star in supplier dispute - Apparel Insider

apparelinsider.com • 1 min read