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This is the final part 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.


 

GBR_march

Over 1,000 people marched in Brisbane to raise awareness of new and emerging threats to the GBR (25 August 2013)

 

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


 

A pre-condition for resolving public interest environmental conflicts is to ensure that structural conflicts do not limit effective public participation.  Structural conflicts arise when an imbalance of power exists. Affected community interests – such as conservation, Indigenous, local and scientific interests – may not have an adequate basis of power to participate effectively in conflict resolution compared to development interests.

A good example of a structural conflict and power imbalance for a public interest environmental conflict – coal seam gas developments in Queensland – was clearly identified in the observations made by ABC-TV journalist, Pip Courtney, at the Commonwealth Senate Inquiry at Roma in July 2011:

“Farmers feel that when it comes to them versus the coal seam gas companies the power resides with the gas companies. The Councils feel that the gas companies have the power. And farmers feel that when you take the environment into account that the gas companies have the power there.”

How can people power be mobilized to enable the community to be meaningfully involved in resolving conflict over the future use of the GBRWH Area? Clearly, the development sector has advantages in “financial and resources power”; this can be applied in many directions – scientific experts, environmental consultants, lawyers, media advertising, lobbyists and so on. But, what other sources of power are available to the community to offset any imbalance of power that would makes them vulnerable to the power of the development sector?

The focus of people power at the Brisbane rally was almost exclusively “knowledge power of scientific issues”: The potential adverse environmental impacts in the GBRWH Area from proposed developments. Far less attention was given to the role of the law, environmental approvals under GBRWH Area legislation and justice. There are good reasons for this.

A distinguishing feature of government today is the very wide powers it has to make environmental decisions under complex and expansive legislation created by parliament: But, issues in statutory interpretation of scientific terms and concepts in legislation arise for the decision-maker- together with difficulties the community has in understanding their rights and duties under the law.

Regulatory control and administrative decision-making for the conservation and management of the 348,000 square kilometres GBRWH Area is achieved through a maze of complex and overlapping Federal and Queensland GBRWH Area legislation – as well as diverse marine legislation.

“Knowledge power of legal rights and duties” in Federal and Queensland GBRWH Area legislation needs to be recognized as an additional source of power to complement and strengthen the community’s “knowledge power of scientific issues”. The boundaries for the relevant scientific evidence and information for decision-making are set by questions of law that are prescribed in the relevant Federal and Queensland GBRWH Area legislation.

The Commonwealth’s Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) is the cornerstone for decision-making to avoid inappropriate development of Australia’s World Heritage properties. Under the EPBC Act, “an action” that has, or will have, or is likely to have a significant impact on a matter of national environmental significance” requires approval from the Federal Government; the standard of proof varies across three broad alternatives, varying from the “balance of probabilities” to a “real chance”. A Ministerial decision determines whether assessment and approval is required under the EPBC Act.

Two of the nine “matters of national environmental significance” now protected under the EPBC Act are World Heritage properties and the Great Barrier Reef Marine Park.  An action that has, will have, or is likely to have a significant impact on World Heritage values may take place inside – or outside – the defined boundaries of the GBR Marine Park. A potential source for a significant impact on World Heritage values may be the approval of LNG developments or proposed port developments and associated port infrastructure as raised by the UNESCO World Heritage Committee; plans of management and zoning plans made under GBR Marine Park legislation are another.

The regulatory framework under the EPBC Act prescribes the “General Principles for Management of Australian World Heritage”. Numerous and diverse elements must be evaluated as part of the decision-making process: The primary purpose… must be, in accordance with Australia’s obligations under the World Heritage Convention, to identify, protect, conserve, present, transmit to future generations and, if appropriate, rehabilitate the World Heritage values of the property” [Schedule 5, Environment Protection and Biodiversity Conservation Regulation 2000 (Cth)].

The Commonwealth’s Great Barrier Reef Marine Park Act 1975 (GBRMP Act) has three objects. The main object is to provide for the long-term protection and conservation of the environment, biodiversity and heritage values of the Great Barrier Reef Region. The statutory object extends to assist in meeting Australia’s international responsibilities in relation to the protection of world heritage, “especially Australia’s responsibilities under the World Heritage Convention” [at section 2A].

In order to achieve the objects of the GBRMP Act, the Act prescribes a number of decision-making functions for the GBRMP Authority; these include the preparation of plans of management and zoning plans [at section 2A(3)].

In doing so, the GBRMP Act requires the Authority to manage the Marine Park and to perform its other functions in accordance with the following matters:  The decision-maker must act in a way that is consistent with the objects of the GBRMP Act; and the principles of ecologically sustainable use; and the protection of the world heritage values of the GBRWH Area. However, the GBRMP Act provides the decision-maker with the discretion to determine what weight they will place on each of these three prescribed matters after they have been considered [Section 7(3)].

In effect, the GBRMP Act imposes a “public duty” on the decision-maker in relation to these three prescribed matters. A public duty is simply a duty of a public body, which is prescriptive in nature that arises in public law. The primary source of public duties is legislation. Enforcement of the performance of a public duty is by way of a judicial review of the original decision.

The GBRMP Act prescribes a collaborative approach of shared responsibility for the management of the GBRWH Area between the GBRMP Authority and the Queensland Government [Section 2A(3)]. Queensland is responsible for managing the Reef and the GBR Coast Marine Park – a State marine park established under Queensland’s Marine Parks Act 2004 (MP Act) that runs the full length of the GBR Marine Park.

The GBR Coast Marine Park and Zoning Plan commenced on 5 November 2004. The GBR Coast Marine Park complements the GBR Marine Park through adopting similar zone objectives, and entry and use provisions as the Commonwealth’s legislation. While the activities that can be carried out within the GBR Coast Marine Park and GBR Marine Park are generally the same, there are some Queensland-specific provisions that may apply. One significant difference is the “Offences” provision in Queensland’s MP Act.

The MP Act has adopted the environmental harm regulatory approach of Queensland’s environmental protection legislation. Serious environmental harm is defined [at section 51(4)(b)] “for a marine park  that is a highly protected area, an area of high conservation value or special significance—actual or potential harm to the area’s environment or use and non-use values”.

The inclusion of use and non-use values as an environmental offence is a first for Australian legislation. The MP Act defines “use and non-use values” (Schedule, Dictionary) to include: using, visiting or viewing the park’s natural/cultural resources, the park’s potential future use or benefit, the mere existence of the park’s natural/cultural resources and the use or non-use of the park’s natural/cultural resources for future generations.

What are the implications of use and non-use values for determining total liability for natural resource damage to the GBRWH area – should a human-made natural disaster causing serious environmental harm ever occur? Liability for damage to the GBRWH Area that resulted from serious environmental harm would not be restricted to clean-up costs and losses to the Queensland economy e.g. losses in tourist and fishing revenue. Extending legal liability for natural resource damage, to include use and non-use values, first arose in 1989 following a major oil spill when the supertanker, the Exxon Valdez, ran aground in Prince William Sound, Alaska.

Many Australians may not have visited the GBRWH Area, but still may derive value from knowing that a World Heritage property of such global significance was protected. Should serious environmental harm ever occur to the World Heritage values of the GBRWH Area, the loss for all Australians of “a highly protected area or an area of high conservation value” would also require an estimate of the loss in use and non-use values. The economic methodology for calculating use and non-use values exists and been applied by US Courts for assessing total liability for natural resource damages.

It should be recognized that there is also common ground between the three statutes in some additional legal obligations imposed on decision-makers – legal obligations  that form the basis for achieving co-existence between competing development and environment interests in the GBRWH Area; in particular, the prescribed legal obligations for  “ecological sustainability” and public participation.

The dilemma for affected community interests and development interests and the future use of the GBRWH Area is deciding on a pathway for the most effective use of knowledge power of legal rights and duties?

Litigation is one pathway. But, litigation is not a dispute resolution process; litigation through courts settles disputes. Judges settle questions of law in order to decide the ultimate issue and then impose a binding decision on the parties. Should litigation not reconcile the underlying causes of conflict for the future use of the GBRWH Area, issues in dispute may persist as a source of resentment – only to later re-emerge and lead to further conflict.

An alternative pathway is to have an effective public participation process that incorporates ADR, interest-based negotiation and consensus-building. Contemporary approaches for resolving environmental conflicts over ecological sustainability focus on joint fact-finding and problem-solving together with shared responsibility for decision-making, by affected development and environment interests. Decision-making in these circumstances facilitates trust-building with government, as power is shared to find a solution for the conflict — a solution which the parties would share in a sense of ownership.

Knowledge power of key legal rights and duties in GBRWH Area legislation, together with knowledge power of scientific evidence, is the foundation for affected environment interests to offset a potential power imbalance with development interests.

Strategic use of knowledge power to balance power between competing development and environment interests does not necessarily mean more litigation over the future use of the GBRWH Area. Rather, it acts as a pathway to facilitate effective public participation and to resolve conflict. Achieving co-existence between multiple uses in the GBRWH Area and finding ecologically sustainable solutions are its goals.

Where power is balanced, an ecologically sustainable solution ensures that environmental costs and economic benefits are not shared disproportionately between the community, industry and government.

 


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.

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.


 

GBR_march

Over 1,000 people marched in Brisbane to raise awareness of new and emerging threats to the GBR (25 August 2013)

 

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.

This is the first 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.


 

GBR_march

Over 1,000 people marched in Brisbane to raise awareness of new and emerging threats to the GBR (25 August 2013)

 

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 Great Barrier Reef World Heritage Area (GBRWH Area) was the first Australian property nominated for inclusion in the World Heritage List. It was inscribed as a World Heritage natural property in 1981. It has an area of around 348,000 square kilometres. The reef is 3,000 km long, stretching along the coast of Queensland from near Bundaberg, to beyond the tip of Cape York. The Great Barrier Reef is the world’s most extensive coral reef ecosystem, having the world’s largest collection of coral reefs. There are around 2,500 individual reefs of varying sizes and shapes, 400 types of coral – as well as 4,000 types of molluscs, a great diversity of sponges, anemones, marine worms, crustaceans and 1,500 species of fish.

The GBRWH Area stretches from the low water mark along the mainland coast up to 250 kilometres offshore. This wide depth range includes vast shallow inshore areas, mid-shelf and outer reefs, and beyond the continental shelf to oceanic waters over 2,000 metres deep. The GBR Marine Park occupies about 99% of the GBRWH Area; the 1% balance remaining includes over 900 islands, narrow inlets or channels between islands, Queensland waters around major ports and intertidal areas protected by Queensland legislation

The global significance of the GBRWH Area is not simply because it provides some of the most spectacular scenery on earth – or that it has exceptional natural beauty. It is also a natural heritage property that the UNESCO World Heritage Committee concluded had “outstanding universal value” and that “no other World Heritage property contains such biodiversity.

The GBR nomination met all four criteria for listing, as then defined in the World Heritage Convention, for a “natural property” to have “outstanding universal value”. The GBR nomination also met the Convention’s “condition of integrity” criteria as it included the areas of the sea adjacent to the reef. The World Heritage Convention only required a “natural property” to meet at least one of the four prescribed criteria to be considered for inclusion in the World Heritage List.

Federal and State legislation enables the GBRWH Area to be managed as a multiple-use area. Existing uses vary across a diverse range of activities. Commercial marine tourism provides significant economic and employment benefits for regional Queensland. The Great Barrier Reef Marine Park Authority reported visitation to the entire GBR Marine Park was approximately 1.99 million visitor days in 2012. Other commercial uses include fishing and shipping activity. Key non-commercial uses include recreation (e.g. boating, fishing and diving), scientific research and defence training. The GBRWH Area is central to the culture of Indigenous people. Also, the Commonwealth legislative framework for protecting World Heritage values imposes a legal obligation “recognising and promoting indigenous peoples’ role in, and knowledge of, the conservation and ecologically sustainable use of biodiversity”.

Concerns for the need to protect the reef from potential new environmental hazards along the coastline of Queensland, led to a major people power rally in Brisbane in August 2013. The rally acted as a trigger to stimulate wider public debate by heightening awareness of the nature of the controversy over proposed developments in the GBRWH Area and the Development v Environment issues in dispute.

Concern at the rally reflected potential risk to the natural heritage and environmental values of the GBRWH Area arising from widespread and significant industrial developments along Queensland’s coastline related to coal and LNG industries. The world’s largest coal port is proposed to be built at Abbot Point, 50 km from the Whitsunday Islands.

Dredging of ports and disposal of dredge spoil back into GBRWH waters was identified as one potential hazard to ecological health and the “outstanding universal value” of the GBRWH Area. Another potential environmental hazard was the projected increase in shipping activity; the GBRWH Area is a vital link in the production chain for many export-based industries. Claims projecting a doubling in current ship numbers – when “over 7,000 bulk carriers will crisscross the Reef every year” – have given rise to concerns over the potential for collisions or spills in the GBRWH Area.

How real are the concerns for the future use of the GBRWH Area raised by people power at the Brisbane rally? Are the natural heritage and environmental values of the GBRWH Area under potential threat from industrial developments along Queensland’s coastline and shipping? The position of the UNESCO World Heritage Committee provides some insight into these issues.

In 2011, the World Heritage Committee expressed concern over the GBRWH Area following the approval of LNG developments at Curtis Island near Gladstone. Later, in 2012, the World Heritage Committee identified a need for measures to manage impacts on the reef to ensure the conservation of the outstanding universal value of the GBRWH Area; in 2013, the concern raised was whether proposed port developments, or associated port infrastructure, may impact on the characteristics which determined the inscription of the Great Barrier Reef in the World Heritage List – or that may compromise a long-term plan for the sustainable development of the GBRWH Area.

A request was then made by the World Heritage Committee for the Federal Government to provide an updated report on the state of conservation of the GBRWH Area by 1 February 2014 with a view to considering, in the absence of substantial progress, the inscription of the property on the List of World Heritage in Danger”. None of Australia’s 19 World Heritage properties have ever been inscribed on the “List of World Heritage in Danger”. So, what is the significance of this request made by the World Heritage Committee?

The World Heritage Committee undertakes regular reviews of the state of conservation of properties that have been inscribed on the List of World Heritage in Danger; danger may take the form of either “ascertained danger” or “potential danger”. If the GBRWH Area were to be inscribed on the “List of World Heritage in Danger” then, on the basis of regular reviews, the World Heritage Committee may consider whether to delete it from both the List of World Heritage in Danger and the World Heritage List: The circumstances for this to arise would be if the GBRWH Area had deteriorated to the extent that it has lost those characteristics which determined its inscription in the World Heritage List (see paras. 190-91 Operational Guidelines: World Heritage Convention).

Finding solutions for environmental problems requires the potential sources of conflict that have caused the problem to be identified from the outset. Deciding on the appropriate public participation process to resolve the GBRWH Area conflict requires a process that effectively addresses the sources of conflict.

Information conflicts over scientific data arising from scientific uncertainty, different interpretations of the same information, different opinions as to what information is relevant, a lack of information, or even misinformation, are the primary sources of conflict in any environmental conflict – and in all likelihood for  the future use of the GBRWH Area.  

It is also clear that the future use of the GBRWH Area is a public interest environmental conflict, involving multi-stakeholder participants having competing interests over development and environment. In these circumstances, a structural conflict over public participation will probably arise. Identification of all relevant affected development and environment interests is essential for an effective public participation process; but this step may be problematic. Exclusion of relevant development and environment interests from participating in the GBRWH conflict may not only lead to a non-viable outcome, but also have the potential to undermine the legitimacy of decision-making by government

The challenge for government is to decide on an effective public participation process that resolves conflict and promotes co-existence between competing uses within the GBRWH Area. 

 


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.

Developers have sometimes been described as having a Marxian philosophy when it comes to inter-generational equity and Ecologically Sustainable Development (ESD). This is based on the statement loosely attributed to Marx: “Why should I care about the future generation, what have they ever done for me[i]


[i]NOTE: The statement was made by Groucho – not Karl Marx

The April 2013 decision of the New South Wales Land and Environment Court overturned the NSW and federal government approval for a $3 billion expansion of Rio Tinto’s Mount Thorley Warkworth open-cut coalmine in the Hunter Valley. The residents of the small Hunter Valley town of Bulga had been involved in a three year court battle against Rio Tinto. The reasons for decision given by Preston CJ clearly illustrate how our courts should approach the complex concept of ecologically sustainable development to avoid past criticism that sustainability is conceptually too vague to have much practical value.

In this case, the NSW Land and Environment Court concluded that the economic benefits from the coal mine expansion proposal were outweighed by potential adverse environmental impacts – such as impacts on biodiversity, noise, dust and social impacts on the town of Bulga. The Court concluded that these potential environmental impacts were not only significant, but also an unacceptable risk. The case also raises a process issue: whether litigation or ADR and negotiation would be the preferred pathway for resolving conflicts over sustainability – where ecological, economic, social and cultural impacts have to be weighted and balanced?

In July 2013, the NSW Resources and Energy Minister announced a draft planning policy that would make the economic significance of mining projects the “principal consideration” for the assessment process. But this reaction to the Court’s decision by the NSW Government may be problematic. The policy change raises the risk of future administrative law challenges: whether the policy was consistent with achieving the objects of the environmental protection and planning legislation under which environmental approvals are decided in New South Wales?

Further concern over this approach is that the policy change proposed by the NSW Government resonates with the past. The 1970s was a time for economics and jobs to prevail over environmental values in decision-making by Government over major development proposals.

But, in the late 1980s, a new and unifying concept for environmental management and decision-making emerged via the United Nations: The concept of sustainable development. Sustainable development resulted in decision-making that focussed on Jobs versus the Environment being outmoded and, instead, being replaced by decision-making for Jobs and the Environment.

Australia was a signatory to two International Declarations at the 1992 UN Conference on Environment and Development at Brazil. The ‘Rio Declaration on Environment and Development’ set out universal principles for taking global action for sustainable development. ‘Agenda 21’ provided an action plan for sustainable development.

A fact not widely recognized is that Australia once led the world following the Council of Australian Governments (COAG) endorsement of an innovative national environmental policy for sustainable development in December 1992. COAG is the peak intergovernmental forum in Australia, having the role of promoting policy reforms that are of national significance. The members of COAG are the Prime Minister, State and Territory Premiers and Chief Ministers and the President of the Australian Local Government Association.

From 1993, the COAG policy acted as the trigger for incorporating sustainable development into new or amended environmental protection and planning legislation by the States, Territories and the Commonwealth.

Sustainable development is a prescribed legal obligation in the NSW Environmental Planning and Assessment Act – the legislation which the appeal against the expansion of Rio Tinto’s Mount Thorley Warkworth open-cut coalmine was determined. One object of this Act is “To encourage ecologically sustainable development”. The legal meaning for ‘ecologically sustainable development’ under this Act imposes a legal obligation that “requires the effective integration of economic and environmental considerations in decision-making processes” – the pathway followed by Preston CJ.

sustainable solution for an environmental problem is found by balancing competing short-and long-term ecological, economic, social and cultural objectives. Equity is a key consideration, as a sustainable solution seeks to secure as much available value as possible for government, industry, business and the community. A sustainable solution does not place inordinate weight on one objective such as economics – as would be the case for the proposed change to NSW planning policy.

What are the options now available to the NSW Government? Further litigation to appeal the decision of the NSW Land and Environment Court on a question of law is one;   the introduction of a planning policy making the economic significance of mining projects the “principal consideration” for the assessment process is another. Another option is community consultation. The community consultation provision of the NSW Environmental Planning and Assessment Act has been considered by the NSW Land and Environment Court and, on appeal of this case, the NSW Appeal Court: Its legal meaning can be summarised as a legal obligation to consult not to agree. The Act did not impose a legal obligation on the Minister for Planning to necessarily agree with the results of the community consultation.

The problem for the NSW Government in adopting either of these pathways is that it may find itself in a situation where any of the following negative consequences could arise: A decline in public trust and confidence in Government; an erosion of the public perception of the capability of Government to perform its statutory duty to protect and manage the environment; or that the ultimate decision by Government did not properly taken into account community views arising from consultation/engagement processes.

Following the litigated outcome, the NSW Government and Rio Tinto might now wish to consider whether ADR and negotiation could be an appropriate process for finding a sustainable solution to resolve the conflict over the open-cut coalmine expansion?

ADR and interest-based negotiation would enable the construction and evaluation of a range of scenarios along a sustainable development continuum in which the balance between ecological, economic and social and cultural considerations varies. ADR also has the potential to develop new scenarios, as negotiations proceed, which may be more appropriate for finding consensus between the parties.  The preferred scenario may be one of the original set of scenarios evaluated – or it could be a new scenario that is constructed based on the best features of all the scenarios evaluated. Having this flexibility is a significant advantage for ADR over the courts and litigation for finding solutions for sustainable development conflicts – solutions that may not be available through litigation.

The benefits for the NSW Government for using ADR, negotiation and sustainable development for the decision-making process is that it would be able to claim a share of the credit for bringing the conflict to a successful conclusion in a way that saved the cost of litigation and ensuring that legal standards of environmental protection were exceeded, voluntarily. It would also restore some measure of trust and confidence in Government as all parties should be able to emerge secure in the knowledge that the decision-making process focussed on the public interest – weighted in favour of a sustainable outcome rather than economics being the prominent consideration!


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.

 
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