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.
A 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.