Archive for August, 2013

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.

Large-scale coal seam gas and wind energy developments have been introduced by many countries with the goal of moving to a low carbon economy to combat climate change.

But both these projects have raised community concern over potential risks to public health.

Divergent scientific opinion has led to information conflict over the possible long-term risks to public health from some of the chemicals, or chemical mixtures, used in the hydraulic fracturing (“fracking”) process to crack the coal seams to extract the natural gas in CSG operations.

Also, the scientific methodology for predicting risks to public health from chemicals, but especially chemical mixtures, used in CSG operations is problematic. This leads to scientific uncertainty.

There have been claims by people living near wind farms in North America and Australia that infrasound produced by wind turbines causes an adverse risk to public health suffered by some people who live in close proximity to wind farms.

Divergent scientific opinion has led to scientific uncertainty whether infrasound produced by the turbines causes adverse health impacts similar to those described for a medical condition called “Wind Turbine Syndrome”?

But, there is another significant need for safeguarding the community from the potential risks to public health from coal seam gas and wind energy developments.

That is, to ensure environmental management and monitoring programmes – as prescribed by Government as part of the environmental approval and licensing process – provide adequate public health safeguards for the community?

Developing environmental management and monitoring programmes requires Government and industry to have in place effective community engagement processes. The community should be able to rest secure in the knowledge that their viewpoints have been properly taken into account in the programmes approved by Government.

It is not surprising, because of the scientific uncertainty over the potential long-term public health risks from coal seam gas and wind energy developments, that public opinion is polarised.

Polarised public opinion decreases public trust and confidence in the traditional community engagement processes relied on by Government and industry to offset community concern over scientific uncertainty.

The alternatives to community engagement are litigation or ADR.

The advantage of ADR and interest-based negotiation, where scientific uncertainty exists and where public perceptions of risk need to be understood, is that it involves a process of shared responsibility, joint problem-solving and agreement by consensus — all features that are not part of litigation.

Also, courts have less flexibility, compared with ADR and interest-based negotiation, for balancing the broad public policy considerations that affect competing land use interests when decisions have to be made over the management of risks.

The ADR pathway for resolving scientific uncertainty and divergent expert scientific opinion over the potential risk to public health from coal seam gas and wind energy developments needs to be based on conflict management principles. It 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 representatives at the scientific round-table are scientific professionals, having expertise in the subject matter of the conflict.

An independent dispute resolver convenes the scientific round-table. The dispute resolver undertaking an independent expert appraisal would require expertise in science and ADR process skills.

One objective of the scientific round-table is for the scientific experts to reach consensus on scientific issues in dispute. The round-table gives effect to one of the key elements of principled negotiation: insisting that agreement on disputed issues is based on the use of a common set of objective criteria to evaluate the scientific database.

Where consensus cannot be reached on any issue, the dispute resolver provides a non-binding opinion based on an objective and impartial analysis of all relevant and reliable scientific data. The purpose of the non-binding opinion is to facilitate the experts to reach consensus on the disputed issue.

The dispute resolver is also required to prepare a summary of outcomes from the scientific round-table – which then become the foundation for the next stage: conflict resolution and negotiating agreement using evaluative mediation.

The ADR pathway for dealing with the issue of providing adequate public health safeguards for the community from coal seam gas and wind energy developments, through effective environmental management and monitoring programmes, needs to be based on conflict resolution principles.

For environmental management and monitoring programmes to be effective, there must be public trust and confidence in the Government agencies involved in the environmental regulatory control of risk from coal seam gas and wind energy developments.

United States experience indicates that “no other strategy offers a more telling acknowledgement of the legitimacy of local concerns” than those who have to live with an activity that may represent a potential risk to public health know they can trust the environmental management and monitoring programmes approved by government.

In this regard, the starting point for government agencies for building public trust and confidence with the community – and to effectively reflect community concerns – is to characterize and then assess the public health risk that might arise from coal seam gas and wind energy developments.

Given that the community has to live with coal seam gas and wind energy developments, the responsibility for determining an acceptable level of risk to public health – using risk management – must be shared between government, industry and the community.

ADR and interest-based negotiation – unlike the legal process – provides the dual approach for risk management for determining an acceptable level of risk , as advocated by the International Risk Governance Council: to provide equal room to consider both objective scientific evidence and value-based community perceptions of risk.


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.

Global concern currently exists over potential risk to public health from large-scale coal seam gas (CSG) developments. Community concern relates to the possible long-term effects of some of the chemicals used in, or generated by, CSG operations. For example,  from chemicals or chemical mixtures used in the hydraulic fracturing (“fracking”) process to crack the coal seams to extract the natural gas.

One such issue is whether it is possible for potential risk to public health to arise if some chemicals used in, or generated by, CSG operations “escape” to move along environmental pathways that may contaminate air, water or soil?  Environmental exposure to hazardous substances may result in potential or actual risk to public health.  These include industrial activities that result in the “escape” of hazardous emissions into the atmosphere, water environment and soil.

Acute exposure to high concentrations of hazardous substances can lead to death or serious illness in the short-term.  Over the long-term, chronic exposure to low concentrations of hazardous substances can increase the risk of developmental and reproductive disorders, immune-system disruption, endocrine disruption, impaired nervous-system function and the development of certain cancers.  The World Health Organisation has focussed particular concern on exposure of children to toxic chemicals as children are at a higher risk of serious illness compared with adults.

However, the scientific methodology for predicting risks to public health from chemical mixtures used in for CSG operations is problematic and so creates scientific uncertainty.  Information conflict arises because of scientific uncertainty and divergent scientific opinion over the existence of a possible link between CSG operations and risk to public health.

A second issue is whether environmental management and monitoring programmes – as prescribed by Government as part of the CSG environmental approval process – provide adequate safeguards for the community from the potential risk to public health?

A pathway for achieving this goal which avoids the usual adversarial posturing, is the scientific round-table – a joint fact-finding strategy based on the ADR process of independent expert appraisal. The representatives at the scientific round-table are scientific professionals, having expertise in the subject matter of the conflict.  An independent dispute resolver convenes the scientific round-table. The dispute resolver undertaking an independent expert appraisal would require expertise in science and ADR process skills.  One objective of the scientific round-table is for the scientific experts to reach consensus on disputed issues.

Another contemporary, controversial public interest environmental issue is the question of human exposure to lead and public health risk at Mount Isa, in north-west Queensland. Evidence from a 2008 survey found 11 per cent of children in Mt Isa had elevated blood lead levels.  This survey finding has triggered off concern over possible health issues for Mt Isa’s children. Depending on the level, elevated blood lead levels in children may cause developmental problems; and, in the extreme case, brain damage.

Divergent scientific opinion has led to an information conflict over the source of “lead pollution” in soils, dusts and aerosols found in the urban area of Mt Isa that may lead to human exposure.  Managing information conflicts over scientific uncertainty or divergent expert scientific opinion requires conclusions that are both relevant and reliable.

To what extent are emissions from mining operations a source of the lead levels found in the urban area of Mount Isa? Alternatively, whether lead levels in the urban area of Mt Isa arise from nearby natural deposits? But, this issue is only one dimension for safeguarding the Mt Isa community from the potential risks to public health. As is the case for CSG operations and public health risk, the question is whether approved environmental management and monitoring programmes provide effective public health safeguards for the community?

From a conflict management and resolution perspective, common ground can be found on the ADR pathways required to resolve the potential risk to public health for both CSG operations in Australia as well as mining activities at Mt Isa.

The round-table gives effect to one of the key elements of principled negotiation: insisting that agreement on disputed issues is based on the use of a common set of objective criteria to evaluate the scientific database.

Where consensus cannot be reached on any issue, the dispute resolver provides a non-binding opinion based on an objective and impartial analysis of all relevant and reliable scientific data. The purpose of the non-binding opinion is to facilitate the experts to reach consensus on the disputed issue.  The dispute resolver is also required to prepare a summary of outcomes from the scientific round-table – which then become the foundation for the next stage: conflict resolution and negotiating agreement using evaluative mediation.

The area of common ground for moving forward with ADR and conflict resolution is the issue of potential risk to public health from CSG operations and mining activities at Mt Isa and the effectiveness of environmental management and monitoring programmes.

For environmental management and monitoring programmes to be effective, there must be public trust and confidence in the Government agencies involved in the control of hazardous substances in the environment and the regulatory control of risk.  United States experience indicates that “no other strategy offers a more telling acknowledgement of the legitimacy of local concerns” than those who have to live with an activity that may represent a potential risk to public health know they can trust the environmental management and monitoring programmes approved by government.

In this regard, the starting point for government agencies for building public trust and confidence with the community – and to effectively reflect community concerns – is to characterize and then assess the risk to public health that might arise from CSG operations and mining activities at Mt Isa.

Given that the community has to live with CSG developments in Australia and mining activities at Mt Isa, the responsibility for determining an acceptable level of risk to public health – using risk management – must be shared between government, industry and the community.

ADR and interest-based negotiation – unlike the legal process – provides the dual approach for risk management for determining an acceptable level of risk , as advocated by the International Risk Governance Council: to provide equal room to consider both objective scientific evidence and value-based community perceptions of risk.

The advantage of ADR and interest-based negotiation, where scientific uncertainty exists and where public perceptions of risk need to be understood, is that it involves a process of shared responsibility, joint problem-solving and agreement by consensus — all features that are not part of litigation.  Compared with ADR and interest-based negotiation, courts have less flexibility, for balancing the broad public policy considerations that affect competing land use interests when decisions have to be made over the management of risks.


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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