This is the second of a three part series of articles by Dr Ted Christie focussing on the environmental issues involved in recent development proposals affecting the Great Barrier Reef. Dr Christie is a barrister and environmental scientist with a keen interest in the use of dispute resolution processes to facilitate the cooperative selection of best outcomes for Australia.
The evaluation by the International Union for the Conservation of Nature and Natural Resources for the inclusion of the Great Barrier Reef in the World Heritage List in 1981, stated “… if only one coral reef site in the world were to be chosen for the World Heritage List, the Great Barrier Reef is the site to be chosen”. UNESCO World Heritage Committee
The Brisbane rally was the first stage – the ignition stage – in the development of a public interest environmental conflict. The rally relied on the long-standing tactic of people power: A non-violent, direct action environmental protest to ignite public awareness on the Development v Environment issues in the GBRWH Area. This tactic, together with the ongoing use of social media, can act as a trigger for government to respond by taking some form of action for environmental management to maintain public confidence in government.
Public conscience was excited at the rally. But, this alone, may not be sufficient to make government respond? There may be an inbuilt inertia by government to stall in the hope that public opinion was a passing scare that would go away if ignored. Public opinion needs to be raised to a “temperature” before government reacts to people power.
The second stage in the development of an environmental conflict — conflict assessment and management — would be reached when it became clear to government that people power had become galvanised, as citizens and lobby groups directly affected by the issues united to increase pressure on government to deliver greater protection for the GBRWH Area. To neutralise public opinion, the action generally taken by government is to have information conflicts over proposed developments in the GBRWH Area assessed to determine how real and serious the environmental impacts might be.
Where the environmental issues are very controversial, complex or awkward, the usual action taken by government is to set up a public participation process: The most common pathways adopted are a Commission of Inquiry or a community consultation/ engagement process. These processes become the foundation for decision-making by government.
The participants involved in any public participation process must be able to emerge with a sense of gain in the outcome and secure in the knowledge that their submissions had been properly taken into account by government. A situation that must be avoided is for the outcomes from these public participation processes to be seen to erode public trust and confidence in government. But, therein lays an inherent problem with both of these processes.
The final decision following a Commission of Inquiry is a political one. Government has the discretion for the weight it will give in its decision-making processes to the recommendations handed down by a Commission of Inquiry; government may selectively adopt the recommendations it will implement.
Unless there is a statutory requirement for government to be bound by the outcome of a community consultation/engagement process, there is no legal basis for the public submissions received, or the conclusions made following consultation/engagement, to be accepted, or taken into account to any particular degree by government. A legislative obligation to consult is not necessarily an obligation to agree.
But there is an alternative to both of these processes, based on contemporary approaches for resolving environmental conflicts. It would avoid problems of possible erosion of public trust and confidence in government following public participation.
Public participation implies an element of joint analysis and control over decisions and their implementation; joint problem-solving together with shared responsibility for decision-making are central features. Where public participation incorporates ADR processes, interest-based negotiation and consensus-building as part of the decision-making process, trust-building with government would be facilitated. A public participation process needs to be seen as transparent and responsive to the needs and concerns of the participants. If the participants have a sense of ownership in the solution, implementation will be enhanced.
To achieve these goals in public participation, a range of ADR processes can be used to resolve any public interest environmental conflict – commencing with conflict assessment. Conflict assessment is a well-established procedure used to evaluate, amongst other things, whether there would be a reasonable likelihood of resolving the GBRWH Area conflict by negotiation and to identify any structural conflicts over public participation.
The benefits of conflict assessment include: the identification of all affected development and environment interests to be involved in the public participation process, as well as their willingness to negotiate in good faith; consolidation of relevant development and environment interests into coalitions (or groups) having similar needs or concerns (“interests”) for the use of the GBRWH Area; and the scoping of common ground and issues in dispute.
North American experience suggests public interest decision-making requires participants having competing interests, ideally, to have characteristics such as: integrity, so that politicians are happy to interact with them; reasonableness by being aware of the reality of limits to political action; and for the public interest to be adequately represented by the specific participants involved in resolving the conflict.
The ADR process used for conflict assessment is “facilitative mediation”. The dispute resolver has no advisory or determinative role. Instead, the role is to conduct the mediation, maintain a constructive dialogue between the participants and to enhance negotiation efforts in the scoping of issues.
Conflict assessment is followed by conflict management, the goal of which is to resolve information conflicts over scientific information and data for the future use of the GBRWH Area. This requires scientific conclusions that are both relevant and reliable. The pathway for achieving this goal is the scientific round-table, a joint fact-finding strategy based on the ADR process of “independent expert appraisal”. The dispute resolver must have ADR process skills as well as expertise in the scientific subject matter of the conflict.
The representatives at the scientific round-table are scientific professionals representing affected development and environment interests identified in the conflict assessment. A key objective of the scientific round-table is for the scientific experts to reach consensus on scientific issues in dispute. Where consensus cannot be reached on any issue, the dispute resolver provides a non-binding opinion in order to facilitate the scientific round-table experts to reach consensus on the disputed issue. The final task of the dispute resolver is to prepare a summary of outcomes from the scientific round-table, which become the foundation for conflict resolution.
Mathematical (or predictive) computer models will almost certainly be part of the scientific evidence relied on to resolve information conflicts over the future use of the GBRWH Area. Science has long recognized that models may be of varying accuracy and reliability. This has led to the cryptic comment that the main advantage of the computer for modelling is to get the wrong answer a lot more quickly.
Part of the reason for this problem that I have continued to observe from long and direct involvement in public interest environmental conflicts – Commissions of Inquiry, litigation and ADR – is that where competing development and environment interests undertake their own computer modelling separately, using their own assumptions, they invariably come up with different answers.
But this outcome can be avoided! If computer modelling is used as a decision-making aid to resolve environmental conflicts, the prudent course for development and environment interests to take is one of shared responsibility: By reaching mutual agreement on the underlying assumptions of the model on which projections over time are based – as well as the scientific database used to construct the model. The scientific round-table could fulfil this role for the GBRWH Area conflict. A collaborative approach to joint fact-finding and problem-solving is an element of ADR and negotiation – but not litigation conducted in our courts.
Conflict resolution is the third and final stage in the development of an environmental conflict. It involves multi-party round-table negotiations and joint problem-solving. The round-table participants are a representative from affected development and environment interests identified in the conflict assessment – and a representative of the government agency that must make the administrative decision.
The ADR process used is “evaluative mediation”. The dispute resolver has an active advisory role in providing suggestions or recommendations on how the conflict could be resolved to enable the round-table participants find their own solution by consensus. Where the negotiated agreement needs to take into account legislative obligations, the dispute resolver must have subject matter expertise in the law, as well as ADR process skills and scientific subject matter.
The joint problem-solving approach to resolve environmental conflicts is structured on two fundamental elements of “principled negotiation”: Interest-based negotiation and creating a number of options for mutual gain. The interest-based approach to negotiation in multi-party environmental conflicts requires agreement to be reached by consensus.
The opportunity, today, for the community to participate in public interest environmental conflicts are now very much a global norm. Public participation processes exist in a number of forms. The dilemma for affected development and environment interests is to be meaningfully involved in conflict resolution. This is dependent on the level of power the competing interests have in shaping or determining the outcome – as well as the extent power is balanced between those holding development and environment interests.
Dr Ted Christie is an environmental lawyer, nationally accredited mediator and an environmental scientist. He specializes in alternative dispute resolution processes for finding sustainable solutions for environmental conflicts where divergent expert scientific opinion prevails. He is based in Brisbane, Queensland.